1.
OFFER GOVERNING
PROVISIONS AND CANCELLATIONS. This writing constitutes an offer or
counter-offer by E.R. Wagner Manufacturing ("Seller") to sell the
products and/or services described herein in accordance with these terms and
conditions. This writing is not an acceptance of any offer made by Buyer, and
acceptance of this offer is expressly conditioned upon Buyer’s assent to these
terms and conditions. Buyer will be
deemed to have assented to these terms and conditions when:
(a)
Buyer signs and
delivers to Seller an acknowledgment copy of any of Seller's quotation, order
acknowledgment or invoice forms.
(b)
At Seller's
option, Buyer shall have given to Seller (orally or in writing) specifications
of quantity and/or type of goods, assortments thereof, delivery dates shipping
instructions, instructions to bill, or the like as to all or any part
merchandise herein described;
(c) Buyer has received delivery of the whole or any part
thereof, or
(d)
Buyer
has otherwise assented to the terms and conditions hereof.
No additional or different terms or conditions will be binding upon
Seller unless specifically agreed to in writing by an officer of Seller at E.R.
Wagner Mfg.,
2.
PRICES. As explained on the face of this form, the prices for
the goods and/or services there set forth are Seller's prices for such goods
and/or services with all of the terms in this form, including the exclusive
warranty and the various disclaimers and limitations of liability enforceable
against the Buyer. If Buyer desires for Seller to provide a greater, or
additional warranty and/or to be liable for some or all of the disclaimed or
limited liability, the prices set forth on this offer are not available, and
the Buyer must notify Seller before Buyer accepts this offer (or is deemed to
accept it) pursuant to paragraph 1 above, Seller will then make a new offer
containing prices reflecting that additional exposure. In the absence of such a
new offer, all of the terms in this form shall be enforceable. By accepting
this offer, Buyer understands that it is foregoing the possibility of, among
other things, recovery of consequential damages from Seller and of indemnity
for tort liability in exchange for Buyer obtaining a lower sales price for the
goods and/or services. All prices listed
are payable in United States Dollars. All prices are subject to change without
notice, and the price of products on order but unshipped will be adjusted to
the price in effect at the time of shipment. Payment is due upon Buyer's
receipt of Seller's invoice, unless Seller requires payment in advance, or
unless the face of this form states different terms. Notwithstanding the above,
at its option at any time, Seller may require Buyer to make payment by
irrevocable letter of credit, and may defer shipment or cancel any order if the
Buyer does not promptly provide such a letter of credit. In that event, the
letter of credit shall be issued for Seller's benefit by a prime U.S. bank,
shall be subject to and governed by the Uniform Customs and Practice for
Documentary Credits (ICC Publication No. 290, 1974 Revision) shall provide for
payment against Seller's invoice and bill of lading, and shall be in form and
substance satisfactory to Seller Interest will be charged at the rate of 18%
per year (or such lesser sum as is the highest rate permitted by applicable
law) on accounts past due.
3.
SECURITY
INTEREST. Title to the equipment sold
hereunder, and all additions or accessions to and substitutions for such
equipment, shall remain in the Seller as a security interest, and Buyer hereby
grants to Seller a security interest in the goods sold hereunder, until the
Buyer has completed payment of the purchase price, plus accrued interest, and
fully performed all of the other terms and conditions hereof, at which time the
Seller's security interest is satisfied.
The equipment covered hereby shall remain strictly personal property,
irrespective of the mode of its attachment to realty, the consequences of its
being disturbed or removed or the use made of it. The Buyer shall maintain the
equipment covered hereby in good condition and repair and not permit its value
to be impaired. The Buyer shall not sell mortgage, pledge or otherwise deal in
or encumber the equipment or any part of it or permit it to be removed from the
place where first installed (so long as any portion of the purchase price or
accrued interest or any other sum due Seller under these terms of sale remains
unpaid), without the Seller's prior written consent. The Seller is authorized
to inspect the equipment wherever located at any reasonable time or times. The
equipment shall be insured by the Buyer at its own expense in an amount not
less than the balance due to the Seller under this agreement, with loss, if
any, payable to the Seller. Seller has no duty to protect, insure or realize
upon the equipment.
4.
TAXES AND OTHER
CHARGES Any manufacturer's tax
occupation tax, use tax, sales tax, excise tax, value-added tax, duty, custom,
inspection or testing fee, or any other tax, fee or charge of any nature
whatsoever imposed by any government authority, on or measured by the
transaction between Seller and the Buyer shall be paid by the Buyer in addition
to the prices quoted or invoiced. In the event Seller is required to pay any
such tax, fee or charge, the Buyer shall reimburse Seller therefore, or in lieu
of such payment, the Buyer shall provide Seller at the time the order is
submitted with an exemption certificate or other document acceptable to the
authority imposing the same.
5.
DELIVERY.
CLAIMS. AND FORCE MAJEURE The shipping
terms for all products sold hereunder are F.O.B. Seller's warehouse or plant in
the U.S.A. - unless otherwise stated on the reverse side hereof. Delivery of
products to a carrier at Seller's plant or other loading point shall constitute
delivery to Buyer, and regardless of shipping terms or freight payment, all
risk of loss or damage in transit shall be borne by Buyer. Seller reserves the
right to make delivery in installments unless otherwise expressly stipulated
herein; all such installments to be separately invoiced and paid for when due
per invoice, without regard to subsequent deliveries and any deliveries not in
dispute shall be paid for regardless of other controversies relating to other
delivered or undelivered merchandise. Delay in delivery of any installment
shall not relieve Buyer of its obligations to accept remaining deliveries.
Method and route of shipment shall be at the discretion of Seller unless Buyer
shall specify otherwise; any additional expense of the method or route of shipment specified
by Buyer shall be borne entirely by Buyer. Buyer shall bear all costs of bags,
barrels, boxes, pallets, or other containers used to ship products sold
hereunder. No shipping containers may be returned to Seller unless such return
is accepted in advance by Seller in writing and unless all return freight is
prepaid by Buyer.
Claims for shortages or
other errors in delivery must be made in writing to Seller within ten (10) days
after receipt of shipment. Failure to give such notice shall constitute
unqualified acceptance of all shipments made prior to Seller's receipt of
Buyer's notice of claim, and shall constitute a waiver of all such claims by
Buyer. Claims for loss or damage to goods in transit should be made to carrier
and not to Seller.
All delivery dates are
approximate. Seller shall not be liable for any damage as a result of any delay
or failure to deliver due to any act of God, act of the Buyer, embargo or other
governmental act, regulation or request, fire, accident, strike, slowdown or
other labor difficulties, war, riot, delay in transportation, defaults of
common carriers, inability to obtain necessary labor, materials or
manufacturing facilities or, without limiting the foregoing, any other delays
beyond the Seller's control. In the event of any such delay the date of
delivery shall be extended for a period equal to the time lost because of the
delay. Buyer's exclusive remedy for other delays and for
Seller's inability to delivery for any reason, including Buyer's inability to
produce goods which meet the requirements of their contract, shall be
rescission of this agreement.
6.
STORAGE If the products are not shipped within fifteen (15)
days after notification to the Buyer that they are ready for shipping, for any
reason beyond Seller's reasonable control, including the Buyer's failure to
give shipping instructions, Seller may store such products at the Buyer's risk
in a warehouse or yard or upon Seller's premises, and the Buyer shall pay all
handling, transportation and storage charges at the prevailing commercial rates
upon submission of invoices therefore.
7.
CHANGES Seller may at any time make such changes in design and
construction of products as Seller deems appropriate, without notice to Buyer.
Seller may furnish suitable substitutes for materials unobtainable because of
priorities or regulations established by governmental authority or nonavailability of materials from suppliers.
8.
WARRANTIES Seller warrants products manufactured by it and
supplied hereunder to be free from defects in materials and workmanship for a
period of 30 days from date of shipment. If within such period, any such
product shall be proved to Seller's satisfaction to be defective,
such product shall be repaired or replaced at Seller's option. Such repair or
replacement shall be Seller's sole obligation and Buyer's exclusive remedy
hereunder and shall be conditioned upon Seller's receiving written notice of
any alleged defect within ten (10) days after its discovery and at Seller's
option, return of such products to Seller, F.O.B. its factory. This warranty is
only applicable to products properly maintained and used according to Seller's
instructions. This warranty does not apply to products damaged by misuse,
neglect, improper operation, accident or alteration, as determined by Seller.
Products supplied by Seller hereunder which are manufactured by someone else
are not warranted by Seller in any way, but Seller agrees to assign to Buyer
any warranty rights in such products that Seller may have from the original
manufacturer.
THE WARRANTY CONTAINED
IN SECTION 8 IS EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND
WARRANTIES (EXCEPT OF TITLE), EXPRESS OR IMPLIED; AND SELLER EXPRESSLY
DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR IMPLIED
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. If Buyer desires for Seller to
provide a warranty greater than which is stated above, then Seller will adjust
upward the prices for the goods and/or service listed on the face of this offer
to reflect the additional expense to Seller which a warranty obligation would
cause. This exclusive remedy shall not be deemed to have failed of its
essential purpose so long as the Seller is willing and able to replace
defective products, or refund the purchase price, within ninety (90) days of
the date which Seller determines a defect to exist.
Any description of the
products whether in writing or made orally by Seller or Seller's agents,
specifications, samples, models, bulletins, drawings, diagrams, engineering
sheets or similar materials used in connection with Buyer's order are for the
sole purpose of identifying the products and shall not be construed as an
express warranty. Any suggestions by Seller's agents regarding us, application
or suitability of the products shall not be construed as an express warranty unless
confirmed to be such in writing by Seller.
9.
COMPLIANCE WITH
LAWS Seller strives to comply with the
provisions of all federal, state, and local laws, standards and regulations for
which liability may accrue to Buyer for violation thereof. Seller certifies
that these goods were produced in compliance with all applicable requirements
of sections 6,7, and 12 of the Fair Labor Standards Act, as amended and all
regulations and orders of the United States Department of Labor issued under
section 14 hereof. However, Seller does not warrant that any equipment and
features meet the requirements of any local, state, or federal laws or
regulations, including those issued under OSHA. The equipment described herein
is provided only with the safety devices and features shown in the applicable
specifications. Should the customer require any additional devices or features,
they should be specifically identified, and Seller will amend this quotation
accordingly.
10.
RETURNS Products may be returned to Seller only when Seller's
written permission, signed by duly authorized personnel of Seller, shall be
obtained by Buyer in advance. Goods may not be returned unless they are in
marketable condition. Returned products must be securely packaged and reach
Seller without damage. Any cost incurred by Seller to put products in
marketable condition will be charged to Buyer.
11.
PATENTS.
TRADEMARKS AND COPYRIGHTS Seller
disclaims all warranties, express or implied, that the products or services
sold by Seller are delivered free of the rightful claim of any third person
with respect to infringement of any United States patent, trademark, trade
name, copyright or trade secret protected by the laws of any state or other
jurisdiction.
The Buyer shall hold
Seller harmless and indemnify Seller against all loss, liability, damage and
expense to Seller, including without limitation attorney's fees and all other
costs of defending any action resulting from manufacturing, processing or
performance of other work done in accordance with drawings, designs or other
specifications proposed or furnished by the Buyer, such as liability under the
laws of patent, trademark trade name, copyright, or trade secret, and from any
claim of contributory infringement of patent, trademark, trade name copyright,
or trade secret resulting from the use or resale by Buyer of products or
service sold hereunder.
Seller assumes no
responsibility for infringements of combination or process patents covering the
use of Seller's products, processing, or other work in combination with other
goods or materials not furnished by Seller, and the Buyer will hold Seller
harmless and indemnify Seller against any loss, liability, damage, and expense,
including without limitation attorney's fees and other costs of defending any
action, arising from any claim of such an infringement.
The purchase of any products hereunder does not entitle the Buyer to
employ the same in any patented process.
12.
EXCLUSION OF
CONSEQUENTIAL DAMAGES AND DISCLAIMER OF LIABILITY BUYER'S INDEMNITY Seller's liability with respect to breaches of warranty
shall be limited as provided in Section 8 hereof. With respect to other
breaches of this contract. Seller's liability shall in no event exceed the
contract price. SELLER SHALL NOT BE SUBJECT TO AND DISCLAIMS (1) ANY OTHER
OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR OF WARRANTY.
(2) ANY OBLIGATIONS WHATSOEVER ARISING FROM TORT CLAIMS (INCLUDING NEGLIGENCE
AND STRICT LIABILITY) OR ARISING UNDER OTHER THEORIES OF LAW WITH RESPECT TO
PRODUCTS SOLD OR SERVICES RENDERED BY SELLER, OR ANY UNDERTAKINGS, ACTS OR
OMISSIONS RELATING THERETO, AND (3) ALL CONSEQUENTIAL, INCIDENTAL, AND
CONTINGENT DAMAGES WHATSOEVER. Without limiting the generality of the
foregoing, Seller specifically disclaims any liability for penalties (including
administrative penalties) special or punitive damages, damages for lost profits
or revenues, loss of use of products or any associated equipment, cost of
capital, facilities or services, downtime, shut-down, or slowdown costs,
spoilage of material, or for any other types of economic loss. All the
limitations and disclaimers contained in this paragraph and in the rest of this
contract shall apply to claims of Buyer's customers or any third party asserted
by Buyer against Seller for indemnity or contribution, as well as direct claims
of Buyer against Seller.
Buyer shall indemnify
Seller against any and all losses, liabilities, damages, and expenses
(including, without limitation, attorneys fees and other costs of defending any
action) which Seller may incur as a result of any claim by Buyer or others
arising out of or in connection with the products and/or services sold
hereunder and based on product or service defects not proven to have been
caused solely by Seller's negligence.
13.
TECHNICAL
INFORMATION. Any sketches, models or
samples submitted by Seller shall remain the property of Seller, and shall be
treated as confidential information unless the Seller has in writing indicated
a contrary intent. No use or disclosure of such sketches, models and samples,
or any design or production process or techniques revealed thereby, shall be
made without the express written consent of the Seller.
14.
BUYER'S
PROPERTY. Any property of the Buyer
placed in Seller's custody for performance of this contract is not
covered by insurance, and no risk is assumed by Seller in the event of
loss or damage to such property by fire, water, burglary, theft, civil disorder
or any accident beyond the reasonable control of the Seller.
15.
ADDITIONAL
DOCUMENTS; POWER OF ATTORNEY. At the
request of Seller, Buyer will join with Seller in executing one or more
Financing Statements pursuant to the Uniform Commercial Code in form
satisfactory to Seller and will pay the cost of filing the same in public
offices whenever filing is deemed b Seller to be necessary or desirable. If
Buyer fails to promptly execute and file such Financing Statements, then Buyer
hereby appoints any officer, employee, or agent of Seller as Buyer's
attorney-in-fact for purposes of signing and filing such Financing Statements
and hereby authorizes such officer, employee, or agent to execute and file such
Financing Statements in the name of Buyer.
16.
MANUALS.
BROCHURES. INSTRUCTIONS Any and all
operating manuals, instructions, brochures, warnings or the like concerning the
goods supplied hereunder shall be written in the English language as commonly
used in the State of Wisconsin, U.S.A. and are supplied as an aid to
Buyer and are not represented to be accurate, complete, or sufficient. Buyer
warrants that it will accurately transcribe such manuals, instructions,
brochures, or warnings to appropriate languages and dialects so that its
employees and all third party users of the goods will be properly informed of
all the contents thereof. Buyer will indemnify and hold harmless Seller against
all liabilities and expenses (including attorney fees) arising out of the use
of the goods by the Buyer or a third party in any case where the buyer fails to
make available adequate warnings, labels, manuals, and instructions concerning
the proper and normal use of the goods.
17.
SEVERABILITY. If any provisions of these terms and conditions of sale
shall be deemed illegal or unenforceable, such illegality or unenforceability
shall not affect the validity and enforceability of any legal and enforceable
provision hereof, which shall be construed as if such illegal and unenforceable
provisions(s) had not been inserted herein