TERMS & CONDITIONS

XeteX Terms & Conditions of Sale

ALL SALES ARE SUBJECT TO THESE TERMS AND CONDITIONS (“TERMS”) AND THOSE ADDITIONAL PROVISIONS CONTAINED IN XETEX’S DOCUMENTS OF SALE. ALL SALES ARE SUBJECT TO XETEX’S CREDIT AND OTHER POLICIES AND PROCEDURES, WHICH ARE HEREBY INCORPORATED BY REFERENCE AND SUBJECT TO CHANGE.

1. ACCEPTANCE & PRICES: Any proposal offered by Seller to Buyer is valid for thirty (30) days. Upon the expiration of the thirty (30) day period, or sooner if revoked by Seller, the proposal shall expire unless renewed by Seller in writing. If Prices include transportation charges, the charges are predicated on a single shipment and any partial shipments may result in additional cost to Buyer. Seller reserves the right, at any time, to withdraw a quote or a price that contains an error or in the event that tariffs or other price increases outside of Seller’s control materially affect the cost of Seller’s materials or other inputs. Notwithstanding Seller’s acceptance of an order, Company may reprice the ordered Products in the event that tariffs, hyperinflation, or other economic conditions outside of Company’s control materially affect Company’s costs related to the inputs used for this ordered Products. In the event of a repricing by Company, Customer shall have the right to cancel the ordered Products without cancellation or restocking fee.
   
2. PAYMENT & TAXES: Payment terms for Products with an order total of two million dollars ($2,000,000) or less, shipped hereunder or labor performed, will be thirty (30) days net with no retainages unless contrary terms appear on the face hereof or otherwise expressly agreed to in writing by Seller. Payment terms for Products with an order total greater than two million dollars ($2,000,000), shipped hereunder or labor performed (“Large Orders”) are as follows: 10% of the order total due at delivery of engineering submittals; 40% due when order is released to production; and the remaining 50% due after delivery, thirty (30) days net. Credit approval is required for Large Orders. Any contingent payment terms which are included or referenced in any purchase agreements, quotations, or other documents, whether by Buyer, owner, mechanical or general contractors or any other parties are specifically excluded and rejected (e.g., language stating Seller will be paid if or when Buyer is paid). Seller is making this sale on the strict condition that all of Seller’s lien and bond rights and payment remedies remain fully intact and valid. Should Buyer default in the timely payment to Seller of sums due on an order, Seller is entitled to any remedies provided in these Terms or by law. If Buyer fails to pay any amounts when due, Buyer shall pay Seller interest thereon at the rate of the lesser of one and one-half percent (1.5%) per month or the maximum allowable legal interest rate, along with all costs and expenses incurred by Seller, including without limitation mechanics lien or bond, collection expenses, reasonable attorneys' fees, filing and service fees and disbursements and court costs. Buyer is responsible for all sales, customs, or use tax imposed by any governmental agency, including, but not limited to, federal, state, local or international authorities, payable on the transaction under any applicable statute, except those taxes due as a result of Seller’s gross profits. If Seller is not timely paid or Buyer is otherwise in default, Seller reserves the right to pause or terminate any work or services in process and/or reschedule any delivery.
   
3. PERFORMANCE: Seller shall be obligated to furnish only the Products or labor described in the applicable purchase order or acknowledgement and agreed to in writing. The duty to perform under any order on the part of Seller and the price thereof is subject to the approval of its Credit Department, and is contingent upon the absence of a Force Majeure event including but not limited to a strike, accident, flood, act(s) of terrorism, war, fire, fuel shortage, the inability to procure materials from the usual sources of supply, the requirements of the US Government (through the use of priorities or preference or any other manner) that Seller divert either the material or the furnished Product to the direct or indirect benefit of the US Government, or upon any like or unlike cause beyond the reasonable control of Seller. Upon disapproval of the Credit Department or upon the occurrence of any such event, Seller may delay performance or, at its option, renegotiate prices and terms and conditions of sale with Buyer. If Seller elects to renegotiate and Seller and Buyer are unable to agree on revised prices or terms, Seller may cancel without any liability.
4. SHIPMENT & RISK OF LOSS: Shipment dates are estimates only, FOB origin. Title and risk of loss shall pass to Buyer upon Seller’s delivery to a transportation carrier. Customers may only make their own shipping arrangements with Seller’s agreement. Seller shall advise when the Products have been completed and shall invoice Buyer at that time. All Product must be picked up by Buyer within 30 days of Seller’s completion of manufacture. Seller specifically rejects any order containing a time is of the essence clause or liquidated damage penalties for late shipments. Seller is not responsible for loss of goods from shortages, damages or transit delays. Any claims for damage in shipment, misdelivery, loss of the Products or other damage shall be the responsibility of and filed by Buyer. XeteX will reasonably assist Customer in documenting damages in such claims to the extent XeteX has such information available to it.
5. CHANGES, CANCELLATION & RETURNS: Changes requested by Buyer following Seller’s acceptance of order must be approved by Seller in writing and may result in additional labor and material costs, including Seller’s overhead and profit. If any portion of a Seller accepted order is cancelled by Buyer without default on the part of Seller or without Seller's written consent, Buyer shall be liable to Seller for cancellation charges including, but not limited to, Seller's incurred costs and the profit that Seller would have realized from the transaction had the agreement not been breached by Buyer. Products shall not be returned except by written permission of Seller and pursuant to Seller’s return policy.
6. BACKCHARGES: Seller does not accept any backcharges or claims for labor, materials, or other costs incurred by Buyer or any third party unless the party requesting a backcharge provides written notice in advance to Seller of the conditions giving rise to such backcharge and Seller has given its prior written authorization for such work or expense. Backcharges must satisfy each of the following conditions to obtain Seller’s authorization: (i) are directly related to the Seller’s verified failure to meet specifications, delivery obligations, or contract terms; (ii) supported by detailed documentation, including time records, material invoices, and photographs or other evidence of the alleged deficiency; and (iii) submitted to the Seller within fifteen (15) days of occurrence or discovery of the issue by Buyer. In addition, Seller shall have a reasonable opportunity to inspect and cure any alleged defect or deficiency prior to the execution of any corrective action by the Buyer or third party. Seller reserves the right to perform or subcontract corrective work itself. Seller shall not be liable for any backcharges related to any of the following: (i) work performed outside the original scope without Seller's written consent; (ii) delays or damages caused by others, including site conditions, installation practices, or failure to follow Seller’s installation instructions; and (iii) consequential, incidental, or indirect damages, including lost profits or downtime. Buyer shall not have the right to offset any claimed backcharges against outstanding or future payments owed to Seller unless and until the claim is resolved in writing by mutual agreement or through a final binding adjudication.
7. AUTHORITY OF AGENTS: No agent, employee or representative of Seller has the authority to bind Seller to any affirmation, representation or warranty concerning the Product or labor sold, except for Seller’s authorized agents, employees or representatives.
8. INDEMNITY: Seller shall defend, protect and indemnify Buyer from and against all claims, damages, judgments and loss solely arising from Seller’s infringement or alleged infringement of any United States patent by any of the articles or material delivered hereunder, provided that in the event of suit or threat of suit for patent infringement, Seller shall promptly be notified and given full opportunity to negotiate a settlement. Seller does not warrant against infringement by reason of Buyer's design of the articles or the use thereof in combination with other materials, or in the operation of any process. In the event of litigation, Seller’s obligation to indemnify is contingent upon Buyer providing reasonable cooperation to Seller. All parties concerned shall be entitled, in connection with any proceeding under the provisions of this Article, to be represented by counsel at their own expense. Buyer shall defend, indemnify and hold Seller harmless from any personal injury, wrongful death or property damage caused in whole or in part by Buyer’s breach of this Agreement, negligent or intentional act(s).
   
9. LIMITED WARRANTY: Seller warrants that at the time of delivery and for a period of twelve (12) months from the initial startup (“Start-Up”), or eighteen (18) months from date of shipment, whichever is less, Products will be free from defects in materials and manufacture provided that Products have been installed properly following Seller’s written instructions, with proper Start-Up, maintained and operated under normal conditions for service in accordance with the instructions of Seller, and that Products have the capacities and ratings set forth in Seller's design specifications. No warranty is made against corrosion, erosion or deterioration. At Seller’s option, Seller's obligations and liabilities under this warranty are limited to repair of Products or replacement of components for Products not conforming to this warranty. This limited warranty does not cover controls or any products, labor or parts supplied or performed by third parties on the jobsite or accessory to the job itself. This limited warranty does not cover labor for component repair or replacement. Once Seller’s service department has been notified and approved warranty related service work, Seller will repair or replace components as needed and ship FOB factory. Seller shall not be obligated to pay for the cost of lost refrigerant. Consumable parts and Products that are consumable in nature are explicitly excluded from this limited warranty. Consumables include, but are not limited to, belts, filters, and refrigerant. No warranty whatever shall attach to Seller until full payment has been received. No warranty herein extended shall apply to repair or correction of conditions arising from improper or incorrectly connected air duct, piping, wiring, power supply, blown fuses, freezing, improper Product control when programmed by non-Seller controls, or personnel, or by anyone other than Seller employee or its representative. Running or operation of Products before commissioning or for temporary conditioning of a building during construction without the written consent of an officer of the Seller immediately voids any warranty coverage. If the Product is replaced, the replacement will be in good working order, at least functionally equivalent to the item or Product replaced but may not be new. The replacement Product assumes the warranty status of the replaced Product. The warranty period does not restart. Seller is not responsible for fans, parts and supplies provided by Buyer or others.
   THIS LIMITED WARRANTY IS VOIDED BY MISUSE, NEGLECT, FAILURE TO FOLLOW INSTRUCTIONS, SPECIFICATIONS OR SELLER’S IOM MANUALS OR TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN SELLER WITHOUT SELLER’S PRIOR WRITTEN APPROVAL OR ANY USE OF REPLACEMENT PARTS NOT SUPPLIED BY SELLER. THIS WARRANTY DOES NOT COVER DAMAGE OR INADEQUATE PERFORMANCE IN SELLER’S SOLE DISCRETION CAUSED BY INADEQUATE OR FAULTY POWER, VOLTAGE SPIKE(S), IMPROPER ELECTRICAL OROTHER INSTALLATION OR INADEQUATE OR UNREALIABLE POWER OR POWER OUTAGES. BUYER HAS THE BURDEN OF DEMONSTRATING AND PROVING THE UNIT IS AND WAS BEING OPERATED BY APPROPRIATE POWER AND WAS PROPERLY INSTALLED AND MAINTAINED. THE LIMITED WARRANTY IS BUYER’S EXCLUSIVE REMEDY AND IS IN LIEU OF ALL OTHER WARRANTIES AND LIABILITIES WHETHER IN CONTRACT, TORT, WARRANTY OR IN NEGLIGENCE, EXPRESSED OR IMPLIED, IN LAW OR IN FACT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE.
   SELLER PROVIDES NO INDEPENDENT WARRANTY FOR THIRD PARTY PRODUCTS OR COMPONENTS SOLD TOGETHER OR INCORPORATED WITH SELLER’S PRODUCT(S).
10. LIABILITY DISCLAIMER: TO THE MAXIMUM EXTENT PERMITTED BY LAW, SELLER’S TOTAL LIABILITY FOR CLAIMS, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT OR WARRANTY), SHALL BE LIMITED TO THE FEES PAID TO SELLER BY BUYER FOR THE PRODUCTS OR LABOR THAT WAS THE PROXIMATE CAUSE OF THE DAMAGE. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR INDIRECT DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, OR CLAIMS OF THIRD PARTIES) THAT MIGHT OCCUR AS A RESULT OF THE PERFORMANCE OR BREACH OF THE AGREEMENT OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT WHETHER BY CONTRACT, TORT, WARRANTY OR OTHERWISE. SELLER SHALL NOT BE LIABLE OR RESPONSBLE FOR ANY CRANE, RIGGING, LABOR, BACKCHARGES OR OTHER CHARGES, FEES OR DAMAGES OF ANY KIND OR NATURE CAUSED IN WHOLE OR IN PART BY DELAYS IN SHIPMENT OR SELLER’S BREACH.
11. ASSIGNMENT: Buyer may not assign or transfer this agreement. Seller may assign its rights or obligations under this Agreement in the event of a merger or change of control of Seller.
12. GOVERNING LAW AND VENUE: This Agreement shall be governed and construed in accordance with the laws of the state of Minnesota. Buyer consents to the exclusive jurisdiction of the state and federal courts in Hennepin County, Minnesota, for any disputes arising out of or related to this Agreement. Each party consents to that choice of law and jurisdiction and irrevocably waives any objection to same.
13. EXPORT CONTROLS: Buyer shall comply with the export laws and regulations of the United States. Buyer agrees it shall not export or enter into an agreement for the export any goods from Seller to any prohibited or embargoed country or to any denied, blocked or restricted person or entity.
14. MISCELLANEOUS: In the event that any provision of this Agreement is held invalid by the final judgment of any court of competent jurisdiction, the remaining provisions shall remain in full force and effect as if such invalid provision had not been included herein. The waiver or failure of either party to enforce the terms of this Agreement in one or multiple instances shall not constitute a waiver of that party’s rights under this Agreement with respect to other violations. The titles and headings used herein are for convenience only and do not constitute any part of this Agreement. Those sections of this Agreement, which by their nature are intended to survive, shall survive termination of this Agreement.

Last Revised: 04.21.25