ACCEPTANCE. THE TERMS AND CONDITIONS SET FORTH BELOW AND ON THE FACE SIDE HEREOF CONSTITUTE THE EXPRESSION OF ALL THE TERMS OF THIS AGREEMENT AND A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT (BETWEEN BUYER AND SELLER). Any additional or different terms contained in any initial order or communication from Buyer pertaining to the Goods described on the face hereof were part of negotiations and not part of this Agreement. Any additional contradictory or different terms contained in any initial or subsequent order or communication from Buyer pertaining to the Goods described on the face hereof are hereby objected to. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any terms used in this Agreement. Acceptance or acquiescence in a course of performance rendered under this Agreement shall not be relevant to determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and the opportunity for objection. All orders are subject to the approval by Seller at its offices in Wausau, Wisconsin. No waiver or alteration of terms herein shall be binding unless in writing, signed by executive officer of the Seller.
2. PRICE. All prices are F.O.B. Seller’s plant, Wausau, Wisconsin unless otherwise specifically set forth on the face side hereof. Prices stated are subject to change with notice in the event of: (1) alterations in specifications, quantities, designs or delivery schedules; (2) increases in the cost of fuel, power, material, supplies or labor, and/or (3) foreign or domestic legislation enacted by any level of Government, including tax legislation, which increases the cost of producing, warehousing or selling the goods hereunder. Buyer shall pay price in effect at time of shipment.
3. PAYMENT. Payment for goods purchased hereunder shall be in U.S. Funds. Net (30) days after the date of invoice or in the case of international purchases, by an irrevocable Letter of Credit confirmed on a U.S. bank with Seller as the designated beneficiary. No discount will be allowed unless specifically set forth on the face side hereof. A delinquency charge of one and one-half percent (1 ½%) per month or eighteen percent (18%) per annum or, if such rate shall exceed the maximum allowed by applicable law, then a delinquency charge calculated at such maximum rate on the outstanding balances not paid when due will be added until payment is made in full. Until the purchase price and all other sums due pursuant hereto are paid in full, Seller retains a security interest in the materials described on the face hereof (herein sometimes referred to as “Goods”) and in all proceeds of said Goods. Buyer shall execute financing statement(s) on request and irrevocably authorizes Seller to file same. If Buyer defaults with respect to any payment described hereinabove, it shall pay Seller for all costs and expenses, including legal expenses and attorney’s fees incurred by Seller in exercising any of its rights or remedies. The provisions of the Wisconsin Uniform Commercial Code in effect at the time of sale shall apply to this security interest.
4. LIMITED WARRANTY. SELLER WARRANTS GOODS MANUFACTURED BY IT WILL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP FOR THIRTY (30) DAYS FOLLOWING THE DATE OF SHIPMENT. IF ANY OF THE GOODS ARE FOUND BY SELLER TO BE DEFECTIVE, SELLER AT ITS OPTION, WILL REPLACE SUCH GOODS OR CREDIT BUYER FOR THE PURCHASE PRICE FOR SUCH GOODS. THE PARTIES HERETO EXPRESSLY AGREE THAT BUYER’S SOLE AND EXCLUSIVE REMEDY AGAINST THE SELLER SHALL BE FOR THE REPLACEMENT OF DEFECTIVE GOODS CREDIT ADJUSTMENT AS PROVIDED HEREIN. THE SOLE PURPOSE OF THE STIPULATED EXCLUSIVE REMEDY SHALL BE TO PROVIDE THE BUYER WITH FREE REPLACEMENT OF DEFECTIVE GOODS OR A CREDIT ADJUSTMENT IN THE MANNER PROVIDED HEREIN. THE 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 GOODS OR PROVIDE A CREDIT ADJUSTMENT IN THE PRESCRIBED MANNER. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE NOT EXPRESSLY SET FORTH HEREIN. NO AFFIRMATION OF SELLER, BY WORDS OR ACTION OTHER THAN AS SET FORTH IN THIS SECTION 4 SHALL CONSTITUTE A WARRANTY. (GOODS WHICH MAY BE SOLD BY SELLER BUT WHICH ARE NOT MANUFACTURED BY SELLER ARE NOT WARRANTED BY SELLER, BUT ARE SOLD ONLY WITH THE WARRANTIES, IF ANY, OF THE MANUFACTURES THEREOF.) (THIS WARRANTY DOES NOT COVER LABOR OR OTHER COSTS OR EXPENSES TO REMOVE OR INSTALL ANY DEFECTIVE OR REPLACED GOODS.) SELLER’S WARRANTY DOES NOT APPLY TO ANY GOODS WHICH HAVE BEEN SUBJECTED TO MISUSE, MISHANDLING, MISAPPLICATION, NEGLECT (INCLUDING BUT NOT LIMITED TO IMPROPER MAINTENANCE), ACCIDENT, IMPROPER INSTALLATION, MODIFICATION (INCLUDING BUT NOT LIMITED TO USE OF UNAUTHORIZED PARTS OR ATTACHMENTS), OR ADJUSTMENT OR REPAIR PERFORMED BY ANYONE OTHER THAN SELLER OR ONE OF SELLER’S AUTHORIZED AGENTS.
ANY CLAIM BY BUYER WITH REFERENCE TO THE GOODS SOLD HEREUNDER SHALL BE DEEMED WAIVED BY THE BUYER UNLESS SUBMITTED IN WRITING TO SELLER WITHIN THE EARLIER OF (i) THIRTY (30) DAYS FOLLOWING THE DATE BUYER DISCOVERED OR BY REASONABLE INSPECTION SHOULD HAVE DISCOVERED ANY CLAIMED BREACH OF THE FOREGOING WARRANTY; OR (ii) THIRTEEN (13) MONTHS FOLLOWING THE DATE OF SHIPMENT. ANY CAUSE OF ACTION FOR BREACH OF THE FOREGOING WARRANTY SHALL BE BROUGHT WITHIN ONE (1) YEAR FROM THE DATE THE ALLEGED BREACH WAS DISCOVERED OR SHOULD HAVE BEEN DISCOVERED, WHICHEVER OCCURS FIRST.
5. LIMITATION OF LIABILITY. SELLER’S LIABILITY (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, OR STRICT LIABILITY) FOR ITS GOODS SHALL BE LIMITED TO REPLACING GOODS FOUND BY SELLER TO BE DEFECTIVE OR, AT SELLER’S OPTION, TO CREDITING BUYER WITH AN AMOUNT EQUAL TO THE PURCHASE PRICE OF SUCH GOODS. AT SELLER’S REQUEST, BUYER WILL SEND, AT BUYER’S SOLE EXPENSE, ANY ALLEGEDLY DEFECTIVE GOODS TO SELLER’S PLANT.
6. DISCLAIMER OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL SELLER BE LIABLE FOR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION BREACH OF ANY OBLIGATION IMPOSED ON SELLER HEREIN UNDER OR IN CONNECTION HEREWITH. CONSEQUENTIAL DAMAGES FOR PURPOSES HEREOF SHALL INCLUDE, WITHOUT LIMITATION, LOSS OF USE, INCOME OR PROFIT, OR LOSSES SUSTAINED AS THE RESULT OF INJURY (INCLUDING DEATH) TO ANY PERSON, OR LOSS OF OR DAMAGE TO PROPERTY (INCLUDING, WITHOUT LIMITATION, PROPERTY HANDLED OR PROCESSED BY THE USE OF THE GOODS). BUYER SHALL INDEMNIFY SELLER AGAINST ALL LIABILITY, COST OR EXPENSE WHICH MAY BE SUSTAINED BY SELLER ON ACCOUNT OF ANY SUCH LOSS, DAMAGE OR INJURY.
7. ACCEPTANCE AND TRANSPORTATION. Upon Buyer’s receipt of shipment Buyer shall immediately inspect the Goods. Unless Buyer provides Seller with written notice of any claim for shortages of or defects in the Goods within forty-eight (48) hours after receipt of shipment, such Goods shall be deemed finally inspected, checked and accepted by Buyer.
In absence of shipping and packing instructions, Seller shall use its own discretion in choice of carrier and method of packing. Seller shall not be responsible for insuring shipments unless specifically requested by Buyer and any insurance so requested shall be of the Buyer’s expense and valuation. Buyer is obligated to pay the price stated for the shipment upon Seller’s shipment of the Goods even if the shipment is lost or damaged during transportation.
Buyer shall bear any additional expenses incurred at Buyer’s request in making less than carload shipments or express shipments. Seller reserves the right to ship goods via the most economical routing. If shipped otherwise upon Buyer’s request, Buyer shall pay the difference in the rate of transportation.
8. TITLE AND RISK OF LOSS. Title to any Goods sold and risk of loss of such Goods passes to Buyer upon delivery by Seller to carrier and any claims for losses or damage shall be made by Buyer directly with carrier.
9. CREDIT TERMS. All orders and shipments shall at all times be subject to approval of the Seller’s Credit Department. The Seller reserves the right of declining to make shipment whenever for any reason, there is doubt as to Buyer’s financial responsibility and Seller shall not in such event be liable for breach or nonperformance of contract in whole or in part.
10. TAXES. Unless otherwise specifically provided on the face hereof, the price for the goods purchased is net and does not include sales, use, excise or similar taxes whether Federal, State or local. The amount of any such taxes applicable to the Goods shall be paid by the Buyer in the same manner and with same effects as if originally included in the purchase price.
11. PACKAGING. Prices stated are based on Seller’s standard packaging. Seller reserves the right of packaging materials in pallets, bulk or individual cartons. Packaging will be standard commercial package and acceptable to commercial carrier. Special customer packaging will be furnished only when specified and so stated herein, and the cost thereof shall be borne by Buyer.
12. DELAYS. Unless expressly specified to the contrary. Goods in stock will be shipped immediately and Goods not in stock will be shipped as soon as possible. However, all shipping dates are approximate and are based upon current availability of materials, present production schedules and prompt receipt of all necessary information. Seller will not be liable for any damage, loss, fault, or expenses arising out of delays in shipment or other non-performance of this Agreement caused by or imposed by (1) strikes, fires, disasters, riots, Acts of God, (2) acts of Buyer, (3) shortages of labor, fuel, power, materials, supplies, transportation, or manufacturing facilities, (4) government action, (5) subcontractor delay, or (6) any other cause or condition beyond Seller’s reasonable control in the event of such delay or non-performance. Seller may, at its option and without liability, cancel all or any portion of this Agreement and/or extend any date upon which performance hereunder is due.
13. TERMINATION, CANCELLATION AND CHANGES. Orders cannot be terminated, cancelled or modified, or shipment deferred after acceptance of Buyer’s order by Seller except with Seller’s written consent and subject to conditions then agreed upon which shall indemnify Seller against liability and expense incurred and commitments made by Seller and which shall provide for profit on work in process and contract value of products or parts completed and ready for shipment.
14. PATENTED PROCESS. The purchase of the Goods does not entitle Buyer to employ the same with any patented process owned by Seller or others.
In the event that Buyer shall be enjoined by a court of competent jurisdiction from which no appeal can be taken from using the goods for the intended purpose on the ground that use of the Goods infringes any such United States Patent, or if it is established to Seller’s satisfaction, upon due investigation, that use of the Goods infringes any such United States Patent. Seller at its option, may either (a) procure for Buyer a license to continue using the Goods, (b) modify the Goods so as to make them non-infringing without seriously impairing its performance, (c) replace the Goods which are substantially the equivalent but non-infringing, or (d) remove the Goods from Buyer’s plant, in which event Seller shall refund to Buyer the purchase price less depreciation at the rate of 20% per year. The foregoing sets forth Seller’s entire liability to Buyer for patent infringement based on the possession and use of the Goods by Buyer. Seller shall have no obligation whatsoever arising out of any patent infringement claims directed to a process or a method.
Buyer agrees to defend and indemnify Seller against any claims or liabilities for, or by reason of, the infringement of any United States Patent arising from the manufacture of any of the Goods in accordance with specifications furnished by Buyer or from the sale thereof.
15. PATENT INFRINGEMENT. Except in the case of articles, materials and designs furnished or specified by Buyer, Seller at its own expense shall defend any suit brought against Buyer on the ground that use of the Goods furnished hereunder by Seller infringes any United States Letters Patent existing on date of this agreement, and shall pay the amount of any judgment that may be awarded against Buyer in any such suit provided and upon condition that Buyer shall have made all payments due under this Agreement and shall (a) promptly deliver to Seller all infringement notices and other papers received by or served by Buyer, (b) permit Seller to take complete charge of the defense of such suit and to compromise the same, if deemed advisable and (c) assist in every reasonable way in the conduct of such defense.
In the event that Buyer shall be enjoined by a court of competent jurisdiction from which no appeal can be taken from using the Goods for the intended purpose on the ground that use of the Goods infringes any such United States Patent, or if it is established to Seller’s satisfaction, upon due investigation, that use of the Goods infringes any such United states Patent, Seller, at its option, may either (a) procure for buyer a license to continue using the Goods, (b) modify the Goods so as to make them non-infringing without seriously impairing its performance, (c) replace the Goods with goods which are substantially the equivalent but non-infringing, or (d) remove the Goods from Buyer’s plant, in which event Seller shall refund to Buyer the purchase price less depreciation at the rate of 20% per year. The foregoing sets forth Seller’s entire liability to Buyer for patent infringement based on the possession and use of the Goods by Buyer. Seller shall have no obligation whatsoever arising out of any patent infringement claims directed to a process or a method.
Buyer agrees to defend and indemnify Seller against any claims of liabilities for, or by reason of, the infringement of any Untied States Patent arising from the manufacture of any of the Goods in accordance with specifications furnished by Buyer or from the sale thereof.
16. ADDITIONAL CHARGES. If substitute or additional Goods, or repair parts are purchased by Buyer from Seller, the terms and conditions of this contract shall be applicable thereto, the same as if such substitute or additional Goods or repair parts had been originally purchased hereunder.
17. RETURNS. Buyer may return any goods purchased which are standard (stocking) merchandise provided Buyer has first obtained the written consent of Seller, and provided further that such returns shall be subject to the following conditions: (a) a request for return must include the date and number of Seller’s invoice covering the original purchase, (b) return transportation charges must be prepaid or will be deducted from any credit for the returned goods, (c) all returned goods must be in first class salable condition when received by Seller or the cost of reconditioning such goods will be deducted from any credit due, (d) a standard handling charge of 15 percent (15%) of invoice price or $50.00, which ever is greater, will be deducted from any credit. Returns will be accepted for up to six (6) months after the date of invoice, unless otherwise approved. SPECIAL OR NON-STANDARD MERCHANDISE IS NOT RETURNABLE.
18. IMPORTANT NOTICE. Published material and information concerning Seller’s products are based upon research which Seller believes to be reliable, but such material and information does not constitute a warranty. Because of the variety of possible uses for Seller’s products and the continuing development of new uses, the Buyer should carefully consider the fitness and performance of the product for each intended use and Buyer assumes all risks in connection with such use.
A. No agent, salesman or any other party is authorized to bind Seller by any Agreement, warranty statement, promise or understanding not herein expressed.
B. The sale of Goods pursuant to this order shall be governed by the laws of the State of Wisconsin. By entering into this Agreement, Buyer is doing business in the State of Wisconsin and in the event of any litigation concerning this transaction, Buyer hereby consents to personal jurisdiction and venue in Marathon County, Wisconsin, regardless of the location of the Buyer.
C. In addition to the rights and remedies conferred upon Seller by law, Seller shall not be required to proceed with the performance of an order or contract. If Buyer is in default in the performance of any order or contract with Seller, and in case of doubt as to Buyer’s financial responsibility, shipments under this order may be suspended or sent sight draft with bill of lading attached by Seller.
D. Any clerical errors are subject to correction.
E. No delay or omission by Seller in exercising any right or remedy provided for herein shall constitute a waiver of such right or remedy and shall not be constituted as a bar or a waiver of any such right or remedy on any future occasion.
F. This contract shall be binding upon and shall inure to the benefit of the successors, and assigns of Buyer and Seller, provided, however, that Buyer may not assign or transfer this contract, in whole or in part, except upon the prior written consent of Seller.
Upon Seller’s acceptance of Buyer’s order, the terms and provisions set forth herein and in Seller’s Acknowledgement shall constitute the entire agreement between Buyer and Seller and no statement, correspondence, sample or other term shall modify or affect the terms thereof.