Pinta Acoustic Inc. — Terms and Conditions of Sale

  1. Controlling Terms. The terms and conditions set forth herein apply to all sales of Pinta products, to the exclusion of any terms that may be provided with buyer’s purchase order or other forms. Pinta reserves the right, in its sole discretion, to revise these terms and conditions from time to time.
  2. Prices. All prices are in US Dollars and are subject to change by Pinta at any time in its sole discretion. Price changes take effect for future orders only and do not apply to orders submitted to PInta prior to the date of the price change.
  3. Taxes. Pinta’s prices do not include federal, state or local taxes. All taxes are the sole responsibility of buyer. 
  4. Payment. Buyer may request credit approval from Pinta, and Pinta reserves the right to limit or refuse credit to buyer in its sole discretion. Unless otherwise provided by Pinta in writing, payment is due in full prior to shipment of the products and may be made by cash, credit card, or wire transfer. Pinta shall be under no obligation to ship products to buyer when buyer had not yet paid for the products in full. In the event that any products are shipped prior to receipt of payment in full, buyer agrees at Pinta’s request to execute financing statements to permit Pinta to perfect a security interest in the products.
  5. Default by Buyer. Buyer acknowledges that many of the products are produced on a custom or on-demand basis and that time is therefore of the essence in remitting payment for the products. Pinta shall be entitled to payment of interest by buyer on any amounts more than thirty days past due at the rate of 18 percent per annum, as well as reasonable collection costs and attorney’s fees. 
  6. Changes. Buyer’s order shall not be canceled, changed, or reduced in any amount, nor any deliveries suspended by buyer without Pinta’s prior written consent. 
  7. Returns. Buyer must obtain authorization from Pinta prior to returning any products. All authorized returns must be delivered to PInta via prepaid freight and are subject to a 30% restocking fee.
  8. Product Specifications. Any modifications or changes by buyer in the design, specifications or intended use of products may affect product performance. The physical placement of products and the surrounding conditions, among other factors, will affect product performance. Sizes, weights, dimensions and other details stated in publications, advertisements or otherwise (except to the extent they are expressly stated on the face of this form) are estimates and subject to change and shall not to be treated as contractual or as representations binding upon Pinta. Dimensions, appearance, design and similar specifications stated on the face side of this form may be modified by Pinta where necessary due to unavailability of materials or due to Pinta’s perception of technological advances. 
  9. Delivery. Pinta shall arrange for delivery of the products to buyer, at Pinta’s expense, and Pinta shall provide or arrange for a third party to provide insurance covering the products through the time of arrival at buyer’s specified delivery location. Buyer shall inspect the products immediately upon receipt and shall promptly notify Pinta by phone at +1-612-355-4200 of receipt to report any damage or loss. In that event, buyer will comply with all reasonable requests by Pinta to provide information and documentation of the damage or loss. Pinta shall have no responsibility for damage or loss to products if not reported to Pinta within four days of receipt by buyer.
  10. Shipment Dates. Shipping dates are contingent upon prompt receipt by Pinta of all applicable specifications and customer-furnished materials, and availability of raw materials. All delivery or shipment dates provided are estimates only. Pinta reserves the right to make delivery in installments, and the contract shall be severable as to each such installment. Delay in shipment shall not relieve buyer of its obligation to accept and pay for deliveries. 
  11. Fulfillment. Delivery of 10% more or less than the quantity specified shall constitute fulfillment of buyer’s order and buyer shall take and pay for any such excess including any raw materials purchased by Pinta for the manufacture of buyer’s order. 
  12. Limited Liability. In no event shall Pinta be liable for any special, indirect, incidental, or consequential damages, including but not limited to lost profits and loss of goodwill, nor for damages of any type in excess of Pinta’s original sale price of the product.
  13. Force Majeure. Pinta shall not be responsible for any failure to perform due to causes beyond its control, including but not be limited to fire, storm, flood, earthquake, explosion, accident, acts of a public enemy, war or rebellion, insurrection, sabotage, epidemic, quarantine restrictions, labor disputes, labor shortages, transportation embargoes, or failure or delays in transportation, and unavailability of raw materials. 
  14. Design Assistance. Upon buyer’s request, Pinta may assist buyer with product design. In that event, Pinta shall not be liable for or on account of any suggestions adopted by buyer in whole or in part. 
  15. LIMITED WARRANTY. Pinta warrants to the buyer and to the original end-user of the Products that the Products shall be free from defects in workmanship and materials under normal use and service for a period of one year from the date of shipment. Pinta is not liable for defects resulting from improper handling, storage, use, or application of the Products or for damage resulting from environmental conditions. This limited warranty is expressly in lieu of all other warranties, express or implied, and Pinta makes no warranty of merchantability or fitness for a particular purpose. 
  16. Indemnification by Buyer. Buyer shall defend and indemnify Pinta, its successors and assigns, from and against any and all claims, suits, losses, damages, and expenses, including attorney’s fees, which Pinta may sustain or incur related to or arising out of buyer’s negligent or intentionally tortious use of the products. In the event that Pinta manufacturers or modifies any product in accordance with buyer’s specifications or design, buyer shall defend and indemnify Pinta, its successors and assigns, from and against any and all claims, suits, losses, damages, and expenses related to or arising out of the alleged infringement of any patent or other intellectual property.
  17. Indemnification by Pinta. As to products wholly designed and manufactured by Pinta, Pinta shall defend and indemnify buyer from and against any and all claims, suits, losses, damages, and expenses related to or arising out of the alleged infringement of any patent or other intellectual property. Pinta assumes no liability, consequential or otherwise, for infringement of patent claims covering any other product, or any completed equipment, or any assembly, combination, method or process, in which, or in the manufacture or testing of which, any such product may be used (notwithstanding that such product may have been designed only for use in, or may be useful in, such other patented product or such patented equipment, assembly, combination, method or process or in the manufacturing or testing thereof, and that such product may have been purchased by buyer and sold by Pinta for such use). Buyer shall give Pinta prompt notice in writing in the event of any claim or suit alleging infringement, and Pinta shall have authority to conduct the defense thereof, including through its choice of counsel. Buyer shall provide all assistance and cooperation reasonably requested by Pinta in connection with such defense. Buyer may not incur any cost or expense in defense of any such claims without Pinta’s written consent. 
  18. Non-waiver of Default. Failure by Pinta to enforce any of the terms set forth herein at any time shall not be construed as a waiver of such provision.
  19. Law. All sales by Pinta shall be governed by the laws of the State of Minnesota. Buyer agrees that the venue of any litigation shall be exclusively in state and federal courts located in the State of Minnesota. 
  20. Time for Bringing Action. Any action by buyer against Pinta, including but not limited to any action alleging breach of these Terms and Conditions of Sale or the Limited Warranty contained herein, must be commenced within one year after the cause of action has accrued. 
  21. Tooling. Any tooling provided by buyer to Pinta for the purpose of producing products shall be promptly removed by buyer upon completion of the order(s). If any tooling remains inactive and/or is not removed by buyer within 24 months, Pinta may, in its sole discretion, dispose of the tooling at buyer’s sole expense.