As a seller

GENERAL - Any offer or order placed by a Buyer, whether oral, written, or by facsimile shall be deemed to constitute an offer by the Buyer to enter into a contract to purchase Seller's products ("Products") on these Terms and Conditions of Sale, which shall be deemed to be incorporated into any such offer or order. The offer or order, together with these Terms and Conditions of Sale shall constitute the entire agreement between Seller and Buyer ("Contract"). Any offer by a Buyer shall be deemed to be accepted by Seller and a contract on the terms and conditions contained herein shall be deemed to be entered into, upon the transmittal of Seller's Acknowledgment of Order to Buyer or upon the shipment of products to Buyer, whichever first occurs. SELLER OBJECTS TO, AND IS NOT BOUND BY, ANY TERMS OR CONDITIONS ON BUYER'S ORDER, CONFIRMATION FORMS OR OTHER DOCUMENTS, WHICH ATTEMPT TO IMPOSE UPON SELLER ANY TERMS AND CONDITIONS AT VARIANCE WITH SELLER'S TERMS AND CONDITIONS OF SALE SET FORTH HEREIN AND SHIPMENT OR OTHER PERFORMANCE BY SELLER SHALL NOT CONSTITUTE ASSENT TO ANY SUCH INCONSISTENT TERMS. BUYER'S FULL OR PARTIAL PAYMENT OR ACCEPTANCE OF DELIVERY SHALL CONSTITUTE ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS.

 

PAYMENT - Unless otherwise agreed by Seller in writing, Buyer agrees to make full payment within thirty (30) days of date of the invoice from Seller in U.S. Dollars in immediately available funds or check or other draft drawn against funds located in the United States or Canada. Outstanding balances not paid 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 part of month past due which shall be payable by Buyer upon Seller's demand. Failure to pay invoices at maturity date makes all subsequent invoices immediately due and payable irrespective of terms. The receipt by Seller of any part less than the full amount due shall not be a waiver of any rights of Seller. Seller reserves the right at any time to refuse or stop delivery of any order whenever, in Seller's sole judgment, there is doubt as to Buyer's financial responsibility. Seller may decline to make delivery on any order except for cash and make delivery on any order only against payment of cash on delivery or in advance of delivery, whichever Seller may specify. All costs and expenses, including but not limited to collection fees and reasonable attorney fees, for the collection of any overdue amount shall be paid by Buyer.

 

PRICES - Prices shown in Seller's publications are subject to change without notice and are not to be construed as a definite quotation or offer to sell by Seller. Such literature is maintained only as a source of general information, and any prices shown therein are subject to confirmation by Seller. Selling prices for the products covered by Buyer's order are exclusive of federal, state or municipal sales, use or similar taxes due and payable by reason of this sale. Such taxes shall be the responsibility of Buyer and added to the invoice of material as a separate item, or separately invoiced, and paid by Buyer.

 

MINIMUM BILLING CHARGE - Orders totaling $100.00 net, or less, will be billed at $100.00 plus the transportation charges.

 

SHIPPING TERMS - Unless otherwise agreed in writing by the parties, deliveries of the goods shall be made F.O.B. Seller's facility in Germantown, WI. Risk of loss relating to shipments of the goods shall pass from Seller to Buyer upon proper tender thereof by Seller to a carrier. Unless otherwise agreed in writing by the parties, packaging methods, shipping documents and manner, route and carrier of shipment shall be at Seller's sole discretion. Unless otherwise agreed in writing by the parties, all freight charges and costs shall be the responsibility of Buyer and will be added to the invoice of material as a separate line item, or separately invoiced, and paid by Buyer.

 

TITLE - The parties agree that title to the Products sold pursuant to this Contract shall pass on full payment of the purchase price by Buyer.

 

DELIVERY - Unless otherwise provided in writing, any delivery dates specified or quoted by Seller are estimates only based on the anticipated production schedule at the time. Seller will make a good faith effort to meet the estimated shipping dates, but Seller shall not be held responsible for failure to do so, and in no event shall it be liable for any loss, cost, damage or expense whatsoever incurred by Buyer or its customers that may result therefrom. Seller will notify Buyer as soon as practicable 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.

 

FORCE MAJEURE - Seller shall have no liability for any delay in or failure of performance caused by circumstances beyond its control, including but not limited to, acts of God, fire, flood, war, governmental action, accident, labor trouble or shortage or inability to obtain materials, equipment, power or transportation; and if any delay is caused by any such circumstances, Seller shall have the option to cancel this Contract without liability to either party.

 

BUYER CANCELLATION/DEFERRED DELIVERY - Orders acknowledged or shipped by Seller may not be canceled or deferred by Buyer, unless agreed in writing by Seller. Orders will be deferred or held up only upon specific written agreement and provided that the deferment period is not to exceed ninety (90) days, at the end of which time, if no release is given or scheduled, Seller reserves the right to render invoice and make shipment of all Products ordered to destination specified in the Buyer's order, or to warehouse such material at the Buyer's expense.

 

SELLER CANCELLATION/DEFERRED DELIVERY - In the event Seller does not have a sufficient inventory of Products, Seller may cancel or defer delivery of any order. 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 that the goods sold pursuant to this Contract will be free from any defects in parts and workmanship for twenty four (24) months from the date of shipment (the "Warranty Period") if used under normal operating conditions and in accordance with instructions shown in Seller's literature. If Seller, in its sole discretion, after written notice from Buyer during the Warranty Period and after inspection by Seller, should determine that any parts or workmanship were defective, Seller shall, at its sole option, repair or replace the part or parts at no cost (excluding installation) to Buyer. THE WARRANTIES AND REMEDIES SET FORTH IN THIS PARAGRAPH ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. SELLER SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES WHATSOEVER WITH RESPECT TO GOODS SOLD BY SELLER, INCLUDING ANY OBLIGATIONS OR LIABILITY ARISING OUT OF SELLER'S NEGLIGENCE OR FAULT AND INCLUDING ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES. 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.

 

INSPECTION AND ACCEPTANCE OF GOODS BY BUYER - Buyer will have ten (10) days after delivery of the goods to inspect the goods and to provide written notice to Seller of any defects or nonconformity. 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 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 that inspection during the period designated above would have revealed.

 

PATENT INDEMNITY - Seller shall defend and hold Buyer harmless from and against any suit or proceeding brought against Buyer based on a claim that any equipment made to Seller's design and furnished hereunder constitutes an infringement of any existing United States patent, provided Seller is notified promptly in writing and is given complete authority and information required for the defense. Seller shall not be responsible for any costs, expense or compromise incurred or made by Buyer without Seller's prior written consent. If any equipment is in Seller's opinion likely to or does become the subject of a claim for patent infringement, Seller may at its option and expense procure for Buyer the right to continue using the device, modify it to become noninfringing, but in the event Seller is not reasonably able to modify, substitute, or otherwise procure for Buyer the right to continue using it, Seller will remove such equipment and refund to Buyer the amount paid in excess of a reasonable rental for past use. Seller shall not be liable for any infringement or claim based upon use of the equipment in combination with other equipment not supplied by Seller, or with modifications made by Buyer or for any goods supplied pursuant to the design or specification of Buyer. The forgoing states the entire liability of Seller to Buyer arising from patent infringement.

 

EXPORT - If an export license is required under the export regulations of the U.S. Government, Department of Commerce, Bureau of Foreign Commerce, Washington, D.C., it shall be obtained by Buyer prior to Seller's shipment of Products to Buyer. Buyer shall supply import license, if required. Seller reserves all rights to any drawback of U.S. Customs Duties, if obtainable. Any claim or controversy arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration conducted in English in Milwaukee, Wisconsin, U.S.A. and decided by a single arbitrator in accordance with the Rules of the American Arbitration Association. Judgment upon the award of the Arbitrator(s) may be entered in any court having jurisdiction thereof.

 

GOVERNING LAW - This Contract shall be governed by and construed in accordance with the laws of the State of Wisconsin, without regard to the conflicts of law principles of such State, except that the United Nations Convention on Contracts for the International Sale of Goods, if otherwise applicable pursuant to such laws, shall be excluded in favor of the Uniform Commercial Code as in effect at the time in the State of Wisconsin.

 

LIMITATION OF LIABILITY - IN NO EVENT SHALL SELLER BE LIABLE FOR LOSS OF PROFITS, INDIRECT, SPECIAL, CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES ARISING OUT OF ANY BREACH OF THIS CONTRACT OR OBLIGATIONS UNDER THE CONTRACT. SELLER SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN SHIPMENT, INSTALLATION OR FURNISHING OF EQUIPMENT OR SERVICES UNDER THIS CONTRACT.