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General Application – These General Terms and Conditions apply to all proposals and quotations submitted by Supplier, to all purchase orders received by Supplier, and to all goods and services provided by Supplier (“Products”), except as otherwise specifically provided in a document issued by Supplier.
Scope of Agreement – The Agreement between Supplier and Purchaser consists only of these General Terms and Conditions and documents referred herein or attached hereto or documents provided or signed by Supplier (all of which constitute the “Agreement”). Advertising and marketing materials are specifically excluded from this Agreement.
Formation – The Agreement supersedes all previous quotations and agreements pertaining to the provision of the Products. Delivery to Supplier of Purchaser’s acceptance of Supplier’s quotation or proposal, Supplier’s actions in reliance on Purchaser’s oral acceptance of a written or oral quotation or proposal, or Purchaser’s receipt of the Products, will constitute Purchaser’s acceptance creating a binding Agreement under the terms of the Agreement. Notice of acceptance by Supplier may be furnished to Purchaser in the form of an acknowledgment, shipment, or other form of express approval. An order submitted by Purchaser orally or in a purchase order or other writing (whether or not it contains terms or conditions modifying, adding to, in conflict with, or contrary to these Terms and Conditions), may be accepted, approved or filled by Supplier in writing, but any resulting Agreement, and the liabilities or obligations of Supplier, shall be determined solely by the Agreement as set forth herein. Unless the Supplier otherwise advises Purchaser in writing, notice is hereby given that Supplier objects to any such modifying, additional, conflicting or contrary terms or conditions in Purchaser’s purchase order or other writing. Supplier shall not be deemed to have in any way expanded or modified its liabilities or obligations under the Agreement by filling such order or by failing to further object to Purchaser’s terms or conditions.
Integration and Modification – The Agreement is a final, complete and exclusive statement of the agreement between the Supplier and Purchaser. THE SUPPLIER IS WILLING TO NEGOTIATE WRITTEN CHANGES TO THESE TERMS AND CONDITIONS SIGNED BY SUPPLIER, BUT SUPPLIER RESERVES THE RIGHT TO MAKE AN ADJUSTMENT IN THE PRICE OF THE PRODUCTS TO COVER SUPPLIER’S ESTIMATED COST OF SUCH CHANGES. No modifications, limitations, waivers or discharge of the Agreement or any of its terms shall bind Supplier unless in writing and signed by Supplier. No agent, employee, or representative of Supplier has any authority to bind Supplier to any affirmation, waiver, representation or warranty concerning the Products not contained in the Agreement. Unless an affirmation, waiver, representation or warranty is expressly included within the Agreement, it is not a basis of the bargain and it is unenforceable. Notwithstanding anything to the contrary in this Agreement, no modification, limitation, waiver or discharge of any provision of the Agreement shall affect Purchaser’s liabilities to Supplier accrued prior thereto. Supplier may unilaterally correct any mathematical and typographical errors in the Agreement. Typed provisions of the Agreement take precedence over printed provisions. A course of performance, course of dealing or custom in the trade shall not modify or waive any right of Supplier.
Third Parties – The Agreement is only for the benefit of the Supplier and Purchaser, except all disclaimers and limitations applicable to Supplier are assignable by Supplier for the benefit of Supplier’s agents, employees, contractors and suppliers, except as may be specifically provided in the Agreement. If any other provisions of the Agreement are determined to apply to third parties, all other provisions, including limitations, waivers and disclaimers shall also apply.
Cancellation – Purchaser may not cancel the Agreement unless agreed to by the Supplier in advance in writing. Purchaser shall reimburse and indemnify the Supplier for all expenses incurred (for example only, for specific equipment, engineering costs, labor costs, materials and tooling) and for all direct and indirect consequential damages resulting therefrom, and Supplier shall be entitled to apply and retain any refundable deposits in partial payment of the same.
Work Preparatory to Agreement – All proposals, samples, prototypes, plans and other materials or information furnished by the Supplier in proposing, negotiating and performing the Agreement are confidential and the property of Supplier, whether marked “Confidential” or not, and shall not be shown or disclosed to any other competitor of Supplier, and shall not be shown or disclosed to any third party, or used by Purchaser, except as may be necessary for the selection or use of the Products. Any such property of Supplier shall be returned by Purchaser to Supplier if an order is not given to Supplier on Supplier’s reasonable request.
Supplier’s Property – Purchaser shall reimburse Supplier for Supplier’s costs in the design, manufacture, maintenance, repair and replacement of equipment and tooling dedicated to the production of any custom Products. All designs, modifications, and adaptions of equipment and processes shall belong to Supplier. Supplier may, at its option, destroy any such equipment or tooling at any time after two years from the last order from Purchaser for any custom Products.
Open Orders and Fixed Orders – Any Agreement that does not fix the quantity or amount to be supplied shall be an “Open Order”. If Purchaser orders under an Open Order less than 80% or more than 120% the quantity or amount estimated or forecasted for any given period, there shall be an equitable adjustment in the purchase price, delivery times, and other terms to compensate Supplier for its additional costs such as, but not limited to, overtime, amortization of additional capital equipment, shift premiums, subcontracting, and idle facilities. A “Fixed Order” specifies firm quantities, prices, and delivery periods.
Status of Parties – Purchaser and Supplier acknowledge that they are merchants in respect to the Products, they have had an opportunity to review the Agreement, and the provisions of the Agreement are reasonable when considered as a whole.
Brand Protection – Purchaser may not resell the Products under any brand name other than the brand name under which the Products are provided by Supplier.
(A) Supplier warrants Products to Purchaser only, subject to the disclaimers and limitations detailed HERE. Because the Products may be subject to a wide variety of use, installation, maintenance and cleaning, the warranty is only against such defects and not against any other failures such as, but not limited to, those due to wear and tear, normal maintenance and perishable items which are excluded from this warranty against defects. (B) Supplier warrants to Purchaser that the Products will be as described in the Agreement in all material respects, subject to the limitations stated herein and Supplier’s published and internal standards; however, Supplier retains the right to change the dimensions, composition, design, performance, color and appearance of the Products without liability if, in its judgment, the change is nonmaterial. Supplier may, in its discretion, also rely on any generally accepted industry standards. (C) Supplier’s warranties shall apply only if the Products: (i) have been installed, maintained, and used in conformity with instructions furnished by Supplier from time to time, if any, and otherwise in conformity with the highest industry practices; (ii) have been subjected to normal use for the purpose for which Products were designed; (iii) have not been subjected to misuse, negligence, or accident; and, (iv) have not been altered or repaired by persons other than Supplier in any respect which, in the judgment of Supplier, adversely affects the condition or operation of the Products. (D) Purchaser shall create, maintain, and make available to Supplier, permanent records of the installation, maintenance, use and disposition of the Products.
There are no express warranties other than those contained in the Agreement. Any representations as to performance and other matters, except as contained in the Agreement, were for illustrative purposes only and do not constitute a warranty. Whether or not the Products are to be used exclusively by Purchaser, there shall be no third party beneficiaries to the express warranties contained herein. Supplier does not warrant any portion of the Products not conceived, designed, developed, or manufactured by Supplier (whether or not specified by Purchaser), but Supplier shall assign to Purchaser upon request all assignable warranties of Supplier’s suppliers related to such Products. Supplier is not responsible for any errors or omissions or for any loss or damage resulting from reliance on catalogues, brochures, price lists or other information provided to Purchaser from the Supplier, including, without limitation, any descriptions, shipping specifications, illustrations, representations as to quality or capabilities, or any other information. Such information provided by the Supplier is intended for general information only. Supplier does not warrant that it or the Products are in compliance with any entity, organization or industry standards, guidelines, or procedures unless specifically contained in the Agreement.
THE SUPPLIER DISCLAIMS ALL IMPLIED WARRANTIES (OTHER THAN GOOD TITLE) INCLUDING BUT NOT LIMITED TO THOSE OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT. There are no warranties which extend beyond those express warranties contained in the Agreement. Purchaser affirms that it has not relied upon the Supplier’s skill nor judgment to select or furnish Products for any particular purpose beyond the specific express warranties in the Agreement. Purchaser has the responsibility to determine whether the Products are fit for Purchaser’s intended purpose. Products provided by Supplier (including but not limited to goods, design, plans, drawings, and specifications) are based on information provided by Purchaser. Supplier may rely entirely on information provided by Purchaser and is under no obligation to verify such information or take any actions to obtain explanatory or supplemental information from Purchaser or third parties. Purchaser’s approval of any goods, designs, plans, drawings, specifications, and/or prototypes constitutes Purchaser’s acceptance and waiver of any responsibility for a failure to consider information provided by Purchaser. Any modifications of goods, designs, plans, drawings, specifications, prototypes and other work of Supplier after approval by Purchaser shall be at Purchaser’s expense at Supplier’s normal rates for services and materials. Supplier does not warrant the Products as furnished will comply with the requirements of any safety or environmental code or regulation of any federal, state, municipality or other jurisdiction beyond the specific express warranties in the Agreement. Purchaser has the responsibility for using the Products under normal conditions and in compliance with all laws including but not limited to those relating to hazardous materials, environment and safety.
(A) Shipping dates are estimates based on Supplier’s present engineering and manufacturing capacity and scheduling, and may be revised by Supplier upon receipt or scheduling of Purchaser’s order. All shipping dates are approximate and shall be computed from the date of entry of the order on Supplier’s books. All shipping dates are further subject to Supplier’s prompt receipt from Purchaser of a written purchase order or acceptance, letter of credit, down payment, and other conditions as specified in the Agreement, and of all drawings, information and approvals necessary to provide the Products and to grant any credit proposed in the Agreement. (B) Supplier shall deliver the Products by tendering the Products on its docks for placement in the possession of a carrier. Supplier shall, without liability, make such Agreement for their transportation as Supplier decides having regard for the nature of the Products and other circumstances. Supplier will generally follow Purchaser’s shipping instructions, but may make reasonable changes thereto without liability and at Purchaser’s cost. On Purchaser’s request, Supplier shall obtain and send to Purchaser documents necessary to enable Purchaser to obtain insurance. The Supplier is not responsible to prepay transportation or insurance costs. Purchaser shall pay all handling and other charges incidental to transportation. Purchaser is responsible for making any claim against the carrier and other handlers of the Products after delivery. (C) Supplier shall package the Products in accordance with Supplier’s standard practices. Supplier has no responsibility to collect to dispose of any packaging. (D) Whether or not Supplier prepays shipping charges, risk of loss passes to Purchaser upon tender of the Products to a carrier. Supplier’s breach of the Agreement shall not affect the passing of the risk of loss to Purchaser notwithstanding any provision of law to the contrary.
(A) If shipment of any item or other performance by Supplier is delayed at the request of or due to the fault of Purchaser, the Supplier may at its option hold the item at the place of manufacture at the risk and expense of Purchaser from the time it is ready for shipment. In the event of any such delay in shipment, full and final payment for an item shall be due and payable 30 days after Purchaser is notified that the item is ready for shipment. If the Supplier is unwilling to accommodate Purchaser by holding such item, Purchaser shall accept shipment immediately. (B) All inspection, delivery, and other dates for Supplier’s performance are estimates only. In addition, the Supplier shall not be in default because of its delay or failure to deliver or perform under the Agreement resulting, in whole or in part, from: (i) any foreign or domestic embargoes, seizures, acts of God, insurrections, war, or the adoption or enactment of any law, ordinance, regulation, ruling or order; (ii) shortages of raw materials or labor; (iii) the lack of usual means of transportation, fires, floods, explosions, strikes or other work actions, or any other accidents, contingencies, or events, at the Supplier’s or its supplier’s plant or elsewhere (whether or not beyond the Supplier’s control) which directly or indirectly interfere with, or render substantially more burdensome, Supplier’s production, delivery, or performance; (iv) delays by Purchaser in inspecting and acceptance, in furnishing requested specifications, materials, tooling or information, in making payments, or otherwise. If one or more deliveries hereunder is delayed by reason of any one or more of such occurrences for a period of 30 days, the Supplier may, at its option, terminate the Agreement as to the undelivered Products or waive such delay and establish a new delivery schedule. (C) Whenever the Supplier’s supply of the Products, materials or means of production is insufficient to meet the estimated delivery schedule or in the event of any occurrence mentioned above in Subsections A and B, the Supplier, in its sole discretion, may allocate its supply to its own use or other Purchasers. (D) This Section shall be effective even as to events described in Subsections A, B and C which exist on the date of a quotation or of Agreement formation.
(A) All drawings, specifications, technical documentation, samples, prototypes and Products shall be deemed approved and/or accepted by Purchaser if Purchaser does not provide a written objection and/or rejection within seven days of receipt or other reasonable time established by Supplier. Purchaser shall have seven days after receipt of the item to inspect and either accept or provide notice of objection and/or rejection. If it is rejected, notice must be given to the Supplier so that it will arrive no later than 10 days after receipt of the item by Purchaser. Failure to so act shall constitute an irrevocable acceptance by Purchaser of the item. Any objection and/or rejection by Purchaser must be in writing and state with specificity all defects and non-conformities upon which Purchaser will rely to support its rejection. ALL DEFECTS AND NON-CONFORMITIES WHICH ARE NOT SO SPECIFIED ARE WAIVED. If Purchaser rejects any tender of the Products and if requested by Supplier, Purchaser shall return them to the Supplier, express, collect, within three days after such request. A failure to so return shall constitute an irrevocable acceptance. No attempted revocation of acceptance shall be effective, and Purchaser shall be limited to any available remedies specifically provided in the Agreement. There shall be no limitation on the period of time in which Supplier may cure any non-conformity or breach, provided it continues to make reasonable efforts to cure. (B) If the Agreement requires, or Supplier requests in writing, inspection or testing prior to shipment, and upon notification by Supplier that the Products are ready for inspection or testing, Purchaser shall provide at the place of manufacturer or other location selected by Supplier, at its own expense, one or more qualified and authorized employees to inspect and/or test the Products, check them for general compliance with the Agreement, and authorize shipment. If Purchaser fails to do so within seven days, then the Supplier may, in its own discretion, determine that Purchaser has waived the right of inspection, testing and/or acceptance prior to shipment and ship the Products. Correction of defects or non-conformities, which would likely have been discovered by Purchaser’s inspection and/or testing and are otherwise covered by Supplier’s warranty, will be at Purchaser’s expense.
Purchaser assumes all risk of using the Products in its location and in connection with other equipment. Supplier has no responsibility to determine the adequacy of the Purchaser’s application or work.
(A) Any design, invention or other information developed by Supplier in the performance of the Agreement shall remain the property of Supplier, whether or not Supplier charges for design, research, development, testing, or similar services. Any patentable features developed by Supplier shall be the property of Supplier and Supplier shall be under no obligation to refrain from using in its business any information, manufacturing processes or unpatented disclosures which may pass to it from Purchaser in the performance of the Agreement. (B) Supplier is not obligated to furnish detailed or shop working drawings, engineering calculations, computer programs, or other information for any Products or part thereof. (C) Purchaser shall treat as confidential any business proposal from Supplier and all technical data which shall be made available, directly or indirectly to Purchaser by Supplier and by Supplier’s licensors, including but not limited to drawings, schematics, specifications, bills of material, test results, analysis, recommendations, models, and designs, and Purchaser shall use such business proposals and technical data only to evaluate its business relationship with Supplier and to enable Purchaser to perform under the Agreement. Purchaser shall not disclose, or authorize or instruct Supplier to disclose, any confidential or proprietary information of Supplier to any third party that is not bound by Agreement to at least the same duty of confidentiality to Supplier as is Purchaser. In addition, only those employees and contractors of Purchaser having a need-to-know and bound by Agreement by the same confidentiality provisions as Purchaser may be given access to such technical data. Purchaser shall maintain, for Supplier’s inspection, written records which shall include the names and address of such employees and contractors granted such access. Purchaser shall indemnify Supplier from all expenses and damages related to the improper use or disclosure by Purchaser or its employees and contractors. Business proposals and technical data of Supplier may be protected by patent, copyright, trademark and other law. No license or other right to business proposals or technical data of Supplier is granted.
(A) Prices contained in Supplier’s published price lists, if any, are subject to change without notice. Prices contained in individual written quotations or proposals are firm only for a period of 30 days from the date of the quotation. Beyond the 30-day period the prices are subject to change, and Purchaser should inquire of Supplier as to their validity and request a written confirmation or revision. Prices do not include taxes and Purchaser shall pay all applicable sales or other taxes levied with respect to Products (and replacements) and the Agreement, unless exempt therefrom. All prices are in United States dollars and must be paid in U.S. dollars at the location specified in Supplier’s invoice. Purchaser shall pay all government fees levied on the installation and inspection of the Products. Purchaser shall pay upon receipt all invoices rendered by Supplier for any such items Supplier may pay. (B) The Agreement is for a shipment Agreement and the Products shall be delivered F.O.B Supplier’s dock. (C) Supplier may unilaterally increase prices to cover increased costs (plus reasonable overhead and profit) of design, materials, manufacturing, and other performance by Supplier, required by changes requested by Purchaser to the Products, schedule, or any other performance by Supplier after the date of any quotation. Supplier is not obligated to perform any such changes, but Purchaser shall pay Supplier for such changes if Supplier complies with such requested changes. (D) Except as otherwise provided in the Agreement, Supplier shall not be responsible for any freight, transportation, insurance, shipping, storage, handling, demurrage or similar charges arising out of the performance of the Agreement. If such charges are specifically included in the price, any increase in rates for such services becoming effective after the date the price is quoted to Purchaser shall be added to the price. (E) If, at any time, reasonable grounds for insecurity arise with respect to Purchaser’s performance of its payment or other obligations hereunder, Supplier may demand immediate payment in full or a documentary letter of credit approved by a U.S. bank acceptable to Supplier or other financial security for such payment or other obligations. In addition, all amounts owed by Purchaser to Supplier shall be accelerated and payable immediately if Purchaser fails to make any payment on time and as otherwise required or if Purchaser sells or transfers the line of business for which the Products are purchased or is a participant in a merger. (F) All export and import permits and licenses and the payment of all export and import duties and customs fees shall be the responsibility of Supplier, if Supplier is obligated by the Agreement to deliver the Products within the United States. All export and import duties, fees, permits, licenses, etc. for Products to be delivered outside of the United States shall be the responsibility of Purchaser. (G) Invoices may be rendered separately for each shipment (including any early shipment) made by Supplier. Purchaser shall pay all invoices net 30 days after the date of shipment unless other terms are agreed to by Supplier in writing. Supplier may change any payment term to Purchaser on seven days written notice. (H) Supplier may elect to deliver the Products in installments. Each installment of Products to be delivered is to be considered as a separate sale and Purchaser shall pay timely the price for each installment which is delivered. Any Products indicated as back-ordered now or in the future shall be considered an installment delivery. A failure to pay for an installment within the time for payment is a material anticipatory breach of other installments by Purchaser. (I) All amounts not paid to Supplier when due shall incur a carrying charge of 1.5% per month to the extent allowed by law and otherwise at the highest written Agreement rate allowed by law. (J) All amounts due on installation or other event which requires the action or cooperation of Purchaser which Purchaser fails to supply timely shall become due upon such failure. (K) If the Agreement permits or requires the use of a letter of credit, the letter of credit must be a documentary letter of credit assignable, irrevocable, confirmed by a United States bank in Wisconsin acceptable to Supplier, payable in installments, and requiring payment to Supplier on submission of Supplier’s invoice and a bill of lading. Purchaser shall pay all costs related to the letter of credit. (L) Supplier may offset or recoup any amounts owed by Supplier or an affiliate of Supplier to Purchaser or an affiliate of Purchaser against any amounts owed by Purchaser or an affiliate of Purchaser to Supplier or an affiliate of Supplier. Purchaser waives any right of offset or recoupment and shall pay all amounts owed to Supplier when due regardless of any claim of Purchaser regarding warranties or other issues. (M) Supplier may allocate payments from Purchaser among outstanding invoices in Supplier’s discretion.
All warranty and non-warranty parts, labor, service, software, and training, if any, provided by the Supplier or its agents and contractors (including those provided under purchase orders subsequent to the Agreement) related to the Products are subject to all limitations and disclaimers of warranties and remedies provided in the Agreement. Purchaser shall pay Supplier for all non-warranty work in advance or upon such other terms as may be agreed. The Supplier may have access to the Products during or after installation of the Products. The Supplier is not under any duty to inspect the Products for any defects or any improper use or modification of the Products nor to correct or advise Purchaser of any such condition, use or modification, which is observed. Any notification which may be given is voluntary and subject to all limitations and disclaimers in the Agreement.
(A) Defective or non-conforming Products or parts thereof discovered during the express warranty period shall be corrected, repaired, or replaced by Supplier without any additional charge and shipped to Purchaser, FOB Supplier’s plant, for reinstallation by Purchaser at its cost, subject to the terms hereof. The warranty obligation of Supplier is limited to the correction, repair or replacement at Supplier’s plant of any part of the Products which Purchaser shall, within the warranty period, return to Supplier, with transportation charges prepaid by Purchaser, and which Supplier shall determine upon examination to be defective or not in conformity with the express warranties contained herein. Products cannot be deemed defective or non-conforming if Supplier cannot duplicate the alleged failure. If the alleged failure can be duplicated by Supplier, Supplier will discuss the potential causes with Purchaser, and then determine whether the failure is due to a non-conformity or defect attributable to Supplier. In lieu of correction, repair or replacement, if Supplier elects, Supplier may, upon return of such Products and making a determination of nonconformity or defect, keep the Products and refund the purchase price. Purchaser’s remedies shall be limited (even in the event of Supplier’s default of its warranty obligations or a failure of a term to meet its intended purpose) exclusively to those provided in this Section. Purchaser waives any causes of action or theories of liability including, but not limited to, those arising under Agreement, tort, strict liability, product liability, statutes, or otherwise, except as specifically provided by the UCC as modified and limited herein. The correction, replacement or repair of Products by the Supplier does not give rise to any new warranty, and the warranty period provided for herein shall not be extended by the length of any period from the date the defective or non-conforming Products are received by the Supplier until the date repaired or replacement Products are delivered to Purchaser. (B) Purchaser must contact Supplier requesting warranty coverage plus a return authorization number and other instructions for the return of Products to Supplier or other instructions. If requested by Supplier, Purchaser shall issue a new purchase order or amendment to Supplier for replacement parts, subject to Supplier issuing a credit memo if Purchaser’s claim for warranty coverage is approved. Purchaser must comply with Supplier’s return instructions (including return of the Products) within 30 days or the claim shall be deemed conclusively to have been abandoned. Purchaser is responsible for properly tagging, identifying, and packing returned Products. Products returned without compliance with the above procedures shall be returned to the sender at sender’s cost. (C) Purchaser shall defend and indemnify Supplier from all liability for claims, damages, losses, and expenses incurred: (a) as a result of the use or disclosure of Supplier’s confidential or proprietary information (except in the performance of the Agreement) by Purchaser or its contractors; and (b) as a result of the advice furnished by Supplier to, and relied on by, Purchaser’s contractors to the extent the liability exceeds any liability as limited by the Agreement had the advice been furnished to, and relied on by, Purchaser. (D) Supplier shall not be liable for any costs related to a recall, service campaign, or similar action without its prior written consent. Supplier’s maximum obligation in any such activity (including the provision of replacement Products and all other costs) shall not exceed 3% of the Supplier’s average annual rates of the specific good. (E) Any amounts to be paid as stipulated damages under the Agreement shall be in full satisfaction of Supplier’s liability. (F) Under no circumstance shall Supplier’s liability exceed Purchaser’s uninsured loss. Purchaser waives any right of subrogation. (G) Supplier shall not be liable for any action taken pursuant to a good faith exercise of any of its rights under the Agreement or law.
PURCHASER AND THIRD PARTIES SHALL NOT BE ENTITLED TO ANY CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES, AS DEFINED IN THE UCC OR OTHERWISE. This limitation shall be enforced regardless of whether Supplier has defaulted in its warranty or other obligations or the limited warranty is held to fail of its essential purpose. Any legal inability to limit or restrict the right of Purchaser or a third party to such damages shall not affect the right of Supplier to indemnification hereunder, and under no circumstance shall Purchaser recover more than the purchase price.
(A) Purchaser shall indemnify the Supplier from any and all third party claims, damages, and expenses (including reasonable attorney fees) under theories of tort, product liability, negligence (ordinary or gross), warranty, Agreement, statute, or otherwise arising out of the use, storage, sale, processing or other disposition of the Products, Products or materials used in connection with the Products, or parts manufactured with the Products, if the action or inaction of Purchaser or its employees, Purchasers or agents, or Purchaser’s design specifications, were a material or proximate cause of injuries or damages giving rise to claims against the Supplier. (B) Purchaser shall use and shall require its employees to use all safety devices and guards furnished with or intended to be used with the Products, and to follow proper safe operating procedures in accordance with general industry standards and as set forth in manuals and instruction information furnished by Supplier. If Purchaser fails to comply with the obligations set forth in this subsection, Purchaser shall indemnify and save Supplier harmless from any liability or obligation incurred by Supplier to persons injured directly or indirectly in connection with the operation of the Products and all warranties of Supplier shall become automatically void. Purchaser shall notify Supplier promptly, and in any event within 30 days, of any accident or malfunction involving Products which results in personal injury or damage to property and shall cooperate fully with Supplier in investigating to determine the cause of such accident or malfunction, including allowing Supplier access to the Products and Purchaser’s reports regarding the Products for Supplier’s inspection. If Purchaser fails to provide such notice and cooperation to Supplier, Purchaser shall indemnify Supplier from any claims arising from such accident or malfunction whether or not the Products are non-conforming or defective.
Purchaser shall insure all materials, fixtures, tooling, and other property delivered to Supplier against all risks and waives subrogation in the event of loss of or damage to such property or personal injury arising from the use of storage of such property.
In addition to any security interest granted by the UCC or other law, Purchaser hereby grants a security interest to the Supplier in all Products and documents related thereto and proceeds and products therefrom to secure all obligations of Purchaser to the Supplier, whether or not arising under the Agreement. Supplier may file a financing statement and at Supplier’s request, Purchaser shall sign financing statements, evidencing the security interest, and Supplier may file a copy of the Agreement or portion thereof as a financing statement. Purchaser grants Supplier an irrevocable power of attorney to sign Purchaser’s name to a financing statement if necessary or convenient to perfect Supplier’s security interest. In case of a default by Purchaser, Supplier may peaceably enter the premises of Purchaser and others and take other actions to repossess all Products in which it has a security interest. In case of a default by Purchaser, Purchaser hereby irrevocably appoints the Supplier as its agent to obtain possession of the Products and documents related thereto. Purchaser shall maintain the Products in a segregated area and not co-mingle any Products which are not fully paid. Purchaser shall not sell, exchange, transfer, convey, mortgage, pledge, hypothecate, or grant a security interest in any Products which are the subject to the Agreement if payment therefor shall not have been made in full to Supplier. Purchaser shall immediately advise Supplier in writing of any damage to, change in location of, or seizure of, any of the Products the price of which have not been paid to Supplier.
Purchaser shall not engage in any transaction with respect to the Products, by way of resale, lease, shipment or otherwise, which violates any statute or regulation of the United States of America.
Any proceeding by Purchaser for breach of the Agreement or any other right against Supplier arising from or in connection with the payment cannot be filed nor maintained unless: (i) it is commenced within one year after the cause for action has accrued; (ii) Purchaser has given timely written notice to Supplier of its claim as provided herein; and (iii) Purchaser pays all amounts due to Supplier or deposits the unpaid portion of the purchase price with the tribunal pending final adjudication. An action for breach of the Agreement shall accrue no later than shipment of the Products to Purchaser whether or not installation or other post shipment services are required by the Agreement.
No litigation may be commenced (other than for injunctive relief) by a party unless it first proposes a meeting of management and technical personnel of the parties to resolve the dispute. The proposed discussions shall be at the location of the other party on dates selected by the other party from alternatives provided by the complaining party. Each party may invite an independent expert to attend the discussions to offer opinions on relevant technical matters to assist the parties.
For all disputes, differences or questions which cannot be amicably solved, the parties shall attempt to resolve them by mediated negotiation with the assistance of a neutral person, a mediator. The parties shall appoint the mediator within 15 days from the date when either party gives written notice of its willingness to use such procedure.
(A) Every dispute arising out of, or relating in any manner to, this Agreement which cannot be resolved through the negotiations of the parties or mediation shall, on the written notice by any party, be submitted to final and binding arbitration by three arbitrators under the Rules of Commercial Arbitration of the American Arbitration Association (“AAA”) in effect at the time, at the AAA regional office in Wisconsin. The arbitration panel shall have full authority to grant all forms of relief including all prejudgment remedies and equitable relief. As used in this Agreement, “any dispute” includes, but is not limited to, claims for breach of Agreement, breach of the covenant of good faith and fair dealing, torts of any kind (including, but not limited to, fraud, intentional and/or negligent infliction of emotional distress, defamation, invasion of privacy, interference with business relations, assault, battery, negligence of any kind, intentional conduct of any kind, and any other tort not specifically listed), and all statutory claims. The scope of the obligation to arbitrate includes claims against officers, directors, agents and employees, claims arising under any federal or state law or regulation, and claims by employees, agents, shareholders, partners, lenders, heirs, personal representatives, spouses, other family members, successors and assigns. The arbitration panel shall be bound by the terms of this Agreement. The arbitrators shall have no authority to award punitive or exemplary damages against either party, or to amend or modify this Agreement. (B) Either party may apply to a court of record in the jurisdiction adopted by this Agreement for interim relief prior to the appointment and acceptance of an arbitration panel. The Commercial Arbitration Rules shall be supplemented by the Expedited Procedures (Rules E-1, et. seq.) for all claims regardless of amount. Notice may be given personally, by fax, or courier service to the last known addresses of the parties. (C) All final and interim orders and awards of the arbitrator or arbitration panel shall be final and enforceable by any court of record having jurisdiction. The parties shall bear their own expenses of the arbitration, unless the arbitrators otherwise award. The prevailing party in the arbitration, as determined by the arbitration panel, shall have the right to recover costs and reasonable attorney fees. This arbitration will be the sole and exclusive remedy for any such controversy or claim. A demand for arbitration must be filed by a party within one (1) year after the party discovers the conduct, act, event or occurrence first giving rise to the claim, but no later than two (2) years after the conduct, act, event or occurrence first giving rise to the claim occurs, or the right to any remedy will be deemed forever waived and lost. (D) The parties shall provide to each other all relevant documents as may be requested by a party, and each party shall submit for discovery deposition one knowledgeable party representative. All other discovery must be approved by the arbitration panel.
This Agreement shall be governed, construed and enforced under the law of Agreements of the State of Wisconsin, including the Uniform Commercial Code in force on the initial date of the Agreement (“UCC”), to the extent applicable and otherwise by the common law of Agreements. The U.N. Convention on the International Sales of Goods shall not apply. The courts of Wisconsin shall have exclusive jurisdiction over the parties and the disputes arising under or related to the Agreement, unless such exclusivity is waived by Supplier. Any declaration of unenforceability of a provision shall be as narrow as possible and shall not affect the enforceability of the other provisions. At the request of Supplier, a tribunal with jurisdiction may reform a provision of the Agreement, to the extent minimally required for enforcement.
No right or interest in the Agreement may be assigned by Purchaser without the prior written consent of Supplier. Any assignment attempted by Purchaser shall be void and ineffective for all purposes unless made in conformity with this section.