As a seller
GENERAL - This document (the “Contract”) constitutes an offer by WAGO Corporation (“Seller”) to provide the products described herein (the “Products”) to the buyer to which this offer is addressed (“Buyer”). It is the express wish of the parties that this Contract and any related documents be drafted in English. Il est la volonté exresse de parties que cette convention et tous les documents s’y rattachment soient rédigés en anglais. If this document is deemed an acceptance of a prior offer by Buyer, such acceptance is limited to the express terms contained herein. Buyer’s acceptance of this offer is limited to the terms, covenants and conditions contained in this offer. Seller hereby objects to and rejects any additional, different or varying terms proposed by Buyer, unless Seller expressly assents to such terms in writing. Such proposal of additional, different or varying terms by Buyer shall not operate as a rejection of Seller’s offer unless such variances are in the terms of the description, quantity, price or place or date of delivery of the Products, and Seller’s offer shall be deemed accepted without such additional, different or varying terms. THIS CONTRACT INCLUDING ALL ITEMS EXPRESSLY INCORPORATED BY REFERENCE CONSTITUTES THE FINAL EXPRESSION OF THE TERMS BETWEEN SELLER AND BUYER REGARDING THE PRODUCTS AND IS A COMPLETE AND EXCLUSIVE STATEMENT OF THOSE TERMS. ANY TERMS, CONDITIONS, NEGOTIATIONS OR UNDERSTANDINGS WHICH ARE NOT CONTAINED IN THIS CONTRACT SHALL HAVE NO FORCE OR EFFECT UNLESS MADE IN WRITING AND SIGNED BY SELLER AND BUYER. Seller’s sales representatives are without authority to change, modify or alter the terms of this Contract.
ACCEPTANCE - Buyer shall be deemed to have made an unqualified acceptance of this offer and the terms and conditions herein on the earliest of the following to occur: (a) Seller’s receipt of a copy of this Contract signed by Buyer; (b) Buyer’s payment of any amounts due under this Contract; (c) Buyer’s delivery to Seller of any material to be furnished by Buyer; (d) Seller’s delivery of the Products; (e) failure by Buyer to notify Seller to the contrary within ten days of receipt of this Contract or (f) any other event constituting acceptance under applicable law.
QUOTATIONS - Written quotations are void unless accepted within 30 days from date of issue. Other Seller publications are maintained as sources of general information and are not quotations or offers to sell.
ORDERS - Buyer’s orders or mutually agreed change orders shall be subject to all provisions of this Contract, whether or not the order or change order so states. In the event Seller does not have a sufficient inventory of Products, Seller may cancel or defer delivery of any order.
PAYMENT - Unless otherwise agreed by Seller in writing, Buyer agrees to make full payment within thirty (30) days of date of Seller’s invoice in U.S. Dollars in immediately available funds or check or other draft drawn against funds located in the United States. Outstanding balances not paid in full when due shall be subject to a late charge accruing from the date of invoice at the rate of 1-1/2% per month, or the maximum amount allowable by law, which shall be payable by Buyer upon Seller’s demand. Buyer shall not set off amounts due to Seller against claims against Seller. Notwithstanding the foregoing, terms of payment on all orders are subject to the prior written approval of Seller’s credit department. If Buyer does not pay Seller any amount due under this Contract or any other agreement when such amount is due or if Buyer defaults in the performance of this Contract, Seller may, without liability to Buyer and without prejudice to Seller’s other lawful remedies (i) terminate Seller’s obligations under this Contract; (ii) declare immediately due and payable all Buyer’s obligations to Seller; (iii) change credit terms with respect to any further work; (iv) suspend or discontinue any further work; and/or (v) repossess the Products. Buyer agrees to reimburse Seller for all costs and fees including, but not limited to attorneys’ fees and repossession fees, incurred by Seller in collecting any sums owed by Buyer to Seller.
PRICES - Unless prices are stated in this Contract, prices shall be the higher of Seller’s most recent quote to Buyer, prevailing market price, Seller’s list price, or the last price charged by Seller to Buyer for the Products. Unless otherwise stated in this Contract, prices are in U.S. Dollars, EXW Seller’s facility in Germantown, WI.
TAXES - Buyer shall pay or reimburse Seller on demand for all taxes, fees and costs including, but not limited to any manufacturer’s tax, retailer’s occupation tax, use tax, sales tax, excise tax, value added tax, duty, customs agent or broker fees, inspection or testing fee, freight costs, insurance, consular fees or any other tax, fee or charge of any nature whatsoever, including interest, imposed on, in connection with or measured by any transaction between Seller and Buyer, in addition to the prices quoted or invoiced. Such taxes shall be added to any invoice or separately invoiced and paid by Buyer.
MINIMUM BILLING CHARGE - Orders totaling $100.00 net, or less, will be billed at $100.00 plus transportation charges and any other tax, fee or charge of any nature whatsoever.
SHIPPING TERMS – Seller, unless specifically stated otherwise, will await completion of the entire order before shipment; however, Seller may make partial shipments in Seller’s sole discretion. Unless otherwise agreed in writing by the parties, deliveries of the Products shall be as follows:
Seller will deliver the Products EXW. Seller’s facility in the United States as designated by Seller and Buyer shall bear all costs and risks from and after Seller’s delivery to Seller’s facility (although Seller may from time to time agree to arrange transportation at Buyer’s cost and risk, and/or Seller may agree to serve as exporter of record, as a courtesy to the Buyer.)
TITLE - The parties agree that title to the Products sold pursuant to this Contract shall pass to Buyer when the Products leave Seller’s facility.
DELIVERY - Unless otherwise agreed by Seller in writing, any delivery dates specified or quoted by Seller are estimates only and are based on prompt receipt of all necessary information regarding orders. Seller will use reasonable efforts to meet the estimated shipping dates, but does not guarantee to meet such dates and shall not be responsible for failure to do so. Partial shipments, in Seller’s sole discretion, may be allowed. In no event shall Seller be liable for any loss, cost, damage or expense whatsoever incurred by Buyer or its customers that may result therefrom and the failure to meet such delivery dates does not constitute a cause for cancellation. Seller will notify Buyer as soon as practical of the commencement of conditions delaying or preventing delivery of ordered Products, and will provide Buyer with Seller’s best estimate of the rescheduled delivery. Time for delivery shall not be of the essence. Claims for shortages or other errors must be made in writing to Seller within 10 days of Seller’s delivery. Failure to give such notice shall constitute an unqualified acceptance and waiver of all claims by Buyer.
DELIVERY DELAYS: Any delay in delivery due to causes beyond Seller’s reasonable control, or due to any priorities or allocations necessitated by governmental orders or regulations, shall extend the term of delivery by a period equal to the length of such delay. Orders acknowledged or shipped by Seller may not be canceled or deferred by Buyer, unless agreed in writing by Seller. In the event of a delay in delivery requested or caused by Buyer, orders will be deferred or held only upon specific written agreement and provided that the deferment period is not to exceed ninety (90) days, at the end of which time, Seller reserves the right to render invoice and ship all Products ordered to destination specified in the Buyer’s order, or to warehouse such material at the Buyer’s risk and expense.
FORCE MAJEURE - Seller shall have no liability for any delay in delivery or failure to fill orders or other default or damage where such has been caused by circumstances beyond its control, including but not limited to, acts of God, fire, flood, earthquake, war, major disaster, terrorism, third-party criminal accts, insurrection, riot, governmental action, accident, strike, lockout or other labor trouble or shortage of or inability to obtain fuel, power, materials, supplies, equipment, power or transportation, demand for Products exceeding Seller’s available supply or any other cause beyond Seller’s control. In the event of any delay in delivery, failure to fill orders or other default or damage caused by any of the foregoing, Seller may, at its option and without liability, prorate its deliveries, cancel all or any portion of the Contract to the extent affected by the event of force majeure and/or extend any date upon which performance is due hereunder.
DEFAULT BY BUYER - In the event Buyer defaults in any payment when due or if Buyer becomes the subject of any bankruptcy or insolvency law proceeding, Seller may, at its sole option and without prejudice to other lawful remedies, cancel or defer delivery, and/or demand immediate payment of all outstanding invoices or account balances plus any additional costs, expenses, losses or damages, including without limitation, lost profits, incurred by it as a result of such cancellation, delay, default or bankruptcy.
LIMITED WARRANTY - Seller warrants to Buyer that the Products sold pursuant to this Contract except custom products manufactured to specifications, drawings, designs or descriptions provided by or for Buyer will be free from any material defects in workmanship and materials for a period of twenty four (24) months from the date of shipment by Seller (the “Warranty Period”) to Buyer if used under normal operating conditions and in accordance with instructions shown in Seller’s literature and when properly maintained. There is NO WARRANTY for custom products. There also is NO WARRANTY in cases of damage in transit, negligence, abuse, abnormal usage, misuse, accidents, normal wear and tear, damage due to environmental or natural elements, failure to follow Seller’s instructions or improper installation, storage or maintenance. This warranty does not cover parts furnished but not produced or manufactured by Seller, and Seller’s sole obligation with respect to such parts shall be limited to assigning or transferring to end user any written warranty extended to Seller by the manufacturer of such parts to the extent such warranty may reasonably be assigned or transferred. However, Seller does not adopt, guarantee or represent that the manufacturer will comply with any of the terms of the warranty of such manufacturer.
Seller’s sole and exclusive obligation under this warranty (and Buyer’s sole and exclusive remedy) shall be, upon prompt written notice by Buyer during the Warranty Period of any breach, to either, at Seller’s option, repair or replace without charge, EXW Seller’s facility, any defective Product or part thereof expressly warranted herein by Seller against defects and found by Seller in its sole discretion to be defective and covered by this warranty. SELLER SHALL NOT BE LIABLE TO BUYER, OR TO ANYONE CLAIMING UNDER BUYER, FOR ANY OTHER OBLIGATIONS OR LIABILITIES, INCLUDING, BUT NOT LIMITED TO, OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORT OR ANY THEORY OF STRICT LIABILITY, WITH RESPECT TO THE PRODUCTS OR SELLER’S ACTS OR OMISSIONS OR OTHERWISE. This warranty covers only replacement or repair of defective Products or parts thereof at Seller’s main facility and does not include the cost of field service travel and living expenses. The remedy provided herein as to repair or replacement of parts shall be Buyer’s sole and exclusive remedy under this Contract and is expressly made in substitution of any and all remedies otherwise provided by the Uniform Commercial Code as in effect at the time in the State of Wisconsin.
LIMITATION ON DAMAGES: IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, COMPENSATORY, CONSEQUENTIAL, INDIRECT, SPECIAL OR OTHER DAMAGES. SELLER’S AGGREGATE LIABILITY WITH RESPECT TO A DEFECTIVE PRODUCT AND THIS CONTRACT SHALL BE LIMITED TO THE MONIES PAID TO SELLER FOR THAT DEFECTIVE PRODUCT
Any assistance Seller provides to or procures for Buyer outside the terms, limitations or exclusions of this warranty will not constitute a waiver of the terms, limitations or exclusions of this limited warranty, nor will such assistance extend or revive the warranty.
Seller will not reimburse Buyer for any expenses incurred by Buyer in repairing, correcting or replacing any defective Products, except for those incurred with Seller’s prior written permission.
DISCLAIMER OF OTHER WARRANTIES – SELLER AND BUYER AGREE THAT THE EXPRESS WARRANTIES IN THE PRECEDING SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). SELLER HEREBY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES. Any oral or written description of the Products is for the sole purpose of identifying the Products and shall not be construed as an express warranty. Prior to using or permitting use of the Products, Buyer shall determine the suitability of the Products for the intended use and Buyer shall assume all risk andliability whatsoever in connection therewith. Buyer agrees that Seller has no post– sale duty to warn Buyer or any other party about any matter or, if such duty exists, Seller satisfies that duty by providing any required warnings only to Buyer. Buyer assumes all post–sale duty to warn its customers and indemnifies Seller against any Damages in connection with such duty or failure to warn.
INSPECTION AND ACCEPTANCE OF GOODS BY BUYER - Buyer will have thirty (30) days after delivery of the goods to inspect the goods and to provide written notice to Seller of any defects, nonconformity, or order quantity discrepancies. If Buyer does not so notify Seller during this period, the goods shall be deemed accepted and it is expressly agreed that Buyer shall have waived all claims based on any defects or quantity discrepancies that were or would have been discovered on reasonable inspection during this period. The parties agree that such an acceptance shall also be deemed to have been made with knowledge of any defects or quantity discrepancies that inspection during the period designated above would have revealed.
INDEMNIFICATION - Buyer hereby releases and agrees to indemnify, defend and hold harmless Seller, its shareholders, officers, agents, employees, affiliates, successors, assigns and third-party suppliers (“Seller’s Indemnified Parties”) from and against any and all direct and indirect claims, debts, actions, causes of action, liabilities, loss, suits, demands, fines, penalties, judgments, omissions, damages or expenses whatsoever, including, without limitation, actual attorneys’ fees and costs (“Damages”) incurred by or against Seller or any of Seller’s Indemnified Parties due to or arising out of, in connection with, resulting from or relating to (i) misrepresentations, breach of the warranties, representations, covenants or agreement contained in this Contract or any law by Buyer or any of Buyer’s shareholders, directors, officers, employees, affiliates, representatives, agents, successors or assigns (“Buyer’s Parties”), or (ii) any damage to or destruction of property, or injury to or death of persons caused, or alleged to have been caused, in whole or in part, by any intentional, reckless, negligent or other act (or failure to act) of Buyer or any of Buyer’s Parties, or (iii) losses, damages or injuries caused by Buyer’s products, Buyer’s specifications, designs, approvals or instructions provided to Seller, or due to improper application or use of the Productsor otherwise. Prior to settling any claim, Buyer will give Seller an opportunity to participate in the defense and/or settlement of such claim. Buyer shall not settle any claim without Seller’s written consent. In the event of any recall affecting the Products, Seller shall have the right to control the recall process and Buyer shall fully cooperate with Seller in connection with the recall.
PATENT INFRINGEMENT AND DEFECTS IN BUYER’S SPECIFICATIONS - Orders manufactured to specifications, drawings, designs or descriptions provided by or for Buyer are executed only with the understanding that Buyer will indemnify and hold harmless Seller from any and all damages sustained by Seller, including, but not limited to, reasonable attorney’s fees, resulting from any action or threatened action against Seller for (a) infringement of the patents or proprietary right of any other person, or (b) injury to person or property, including death, relating to defects in Buyer’s specifications, drawings, designs or descriptions
COMPLIANCE WITH LAWS -Buyer agrees to comply with all laws and regulations applicable to the purchase, transport, use, storage, sale, lease and/or disposal of the Products including, without limitation, to the extent applicable, the U.S. Export Administration Act and all regulations there under.
CONFIDENTIAL INFORMATION - Buyer acknowledges that all trade secrets, designs, specifications and other Confidential Information (as defined below) which may be disclosed to it by Seller shall at all times, both during and after expiration or termination of this Contract for any reason, remain the exclusive property of Seller and that Buyer shall not acquire any proprietary interest whatsoever therein. “Confidential Information” means all knowledge and information disclosed by Seller to Buyer orally or in writing, or acquired by Buyer through observation, regarding Seller’s products, technology, inventions, formulas, know-how, services, forecasts, sales methods, customer lists, customer usages and requirements, financial information, business plans, strategies and future business relationships, disclosed with the exception of such information which: (i) was already part of the public domain at the time of the disclosure by Seller; (ii) becomes part of the public domain through no fault of Buyer (but only after and only to the extent that it is published or otherwise becomes part of the public domain); (iii) was in Buyer’s possession prior to the disclosure by Seller and was not acquired, directly or indirectly, from Seller or from a third party who was under a continuing obligation of confidence to Seller; or (iv) is received (after the disclosure by Seller) by Buyer from a third party who did not require Buyer to hold it in confidence and did not acquire it directly or indirectly from Seller under a continuing obligation of confidence. Except as necessary to perform its duties under this Contract, Buyer shall not use or disclose any of such Confidential Information, but shall treat the Confidential Information with at least the same degree of care given its own trades secrets and confidential information. Upon expiration or termination of this Contract for any reason, Buyer shall, within 15 days, surrender to Seller all plans, drawings, specifications, sketches, pictures, films, tapes, computer disks, literature, samples, documents, other tangible objects and all copies thereof relating to trade secrets and other Confidential Information and all of Seller’s property. Buyer shall be permitted to destroy rather than return all analyses, extracts, and summaries prepared by Buyer which contain Confidential Information, and such destruction shall be certified in writing to Seller by an authorized officer of Buyer who has supervised such destruction. Nothing in this Contract shall be construed to limit or negate the common or statutory law of torts or trade secrets where it provides Seller with broader protection than that provided herein.
INDEPENDENT CONTRACTOR - Buyer is an independent contractor and neither Buyer nor any of its employees or agents shall be considered an employee or agent of Seller. Neither Buyer nor any of its employees or agents is authorized to incur any obligations or make any promises or representations on Seller’s behalf.
GOVERNING LAW - This Contract shall be governed by and construed in accordance with the laws of the State of Wisconsin, including without limitation the Uniform Commercial Code as adopted in Wisconsin. Neither this Contract nor sales hereunder shall be governed by the United Nations Convention on Contracts for the International Sale of Goods. The parties agree to arbitrate any disputes pursuant to the Arbitration section below.
ASSIGNMENT - Buyer may not assign this Contract without the prior written consent of Seller. Seller may assign this Contract, in who or in part and/or perform through its subcontractors. Subject to the foregoing, this Contract shall inure to the benefit of, and be binding upon, the parties or their respective successors and assigns.
ARBITRATION - Any disputes, claims or controversies arising under or relating to this Contract shall be determined by binding arbitration. The arbitration shall be administered by the American Arbitration Association in accordance with Commercial Rules of the American Arbitration Association. The arbitration shall be conducted in English by a single, neutral arbitrator selected by mutual agreement of the parties or, if the parties cannot reach an agreement, by the American Arbitration Association under its standard selection procedures. The arbitration shall take place in Milwaukee, Wisconsin. Judgment on any arbitration award rendered by the arbitrator may be entered in any court of competent jurisdiction.
SEVERABILITY; WAIVER - The invalidity of any provision or clause of this Contract shall not affect the validity of any other provision or clause hereof. Seller reserves the right to correct clerical or similar errors relating to price or any other term shown in this Contract. The failure of either party to insist, in any one or more instances, upon performance of any term, covenant or condition of this Contract shall not be construed as a waiver or relinquishment or any right granted hereunder or the future performance of such term, covenant or condition.
