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EXCLUSIVE TERMS . THIS ORDER, INCLUDING THE TERMS
AND CONDITIONS CONTAINED HEREIN, IS THE COMPLETE AND FINAL AGREEMENT
BETWEEN THE SELLER AND THE BUYER FOR THE SALE AND PURCHASE OF THE GOODS
IDENTIFIED ON [THE FRONT SIDE] [THE PURCHASE ORDER ATTACHED HERETO]. THIS
ORDER MAY BE CONSTRUED AS AN OFFER OR AN ACCEPTANCE OF AN OFFER. IF THIS
ORDER IS CONSTRUED AS AN OFFER, IT EXPRESSLY LIMITS ACCEPTANCE BY SELLER
TO THE TERMS OF THIS OFFER AND CONSTITUTES NOTICE OF OBJECTION TO ANY
ADDITIONAL OR DIFFERENT TERMS IN THE ACCEPTANCE. IF THIS ORDER IS
CONSTRUED AS AN ACCEPTANCE, IT IS EXPRESSLY CONDITIONED ON SELLER’S ASSENT
TO ANY ADDITIONAL OR DIFFERENT TERMS CONTAINED HEREIN. All sections of the
Uniform Commercial Code which expressly or impliedly protect a buyer are
hereby incorporated by reference in this form. No action by Buyer shall be
construed as acceptance of any additional or different terms in Seller’s
forms. Buyer may revoke this offer at any time prior to acceptance by
Seller. Seller shall be deemed to have accepted this order by signing and
returning the acknowledgment copy hereof or by other written indication of
acceptance, by accepting any whole or partial payment from Buyer or by
commencement of performance provided that, the only effect
thereof shall be to accept this order on the terms and conditions
hereof.
PRICE; F.O.B.;
RISK OF LOSS. Unless specified on the front hereof to the
contrary, the prices charged to Buyer (a) are F.O.B. Buyer’s premises, (b)
include all applicable federal, state and local taxes, charges or duties
including, without limitation, sales and use taxes, and (c) include
packaging per Buyer’s instructions. No additional charges of any kind will
be allowed unless specifically agreed to by Buyer in writing. Seller
warrants that the prices charged Buyer on this order shall be no higher
than prices charged to its other customers. Risk of loss shall remain with
Seller until the goods are delivered to Buyer’s
premises.
INDEMNIFICATION.
Seller agrees to defend, indemnify and hold Buyer, its employees,
customers, successors and assigns, harmless against any claim demand,
action, proceeding, liability, loss, cost or expense whatsoever, including
attorney’s fees, arising in connection with any actual or alleged (a)
defect in the goods, (b) failure by Seller to comply with Buyer’s
specifications or with the express or implied warranties of Seller, (c)
violation by the goods, or in their manufacture or sale, of any federal,
state or local law, rule or regulation, (d) infringement of any patent,
trademark, trade name, trade secret, copyright or other property right by
reason of the sale or use of the goods ordered, or (e) enforcement by
Buyer of its rights hereunder. In the event of any claim, demand, action
or proceeding being commenced against Buyer by reason of any of the above
matters, Buyer shall give Seller prompt notice thereof in
writing.
WARRANTY.
Seller warrants that the goods ordered shall be free from all
liens and encumbrances, shall comply with Buyer’s specifications, shall be
free from defects in design, materials and workmanship, and shall be
merchantable and fit for the purposes for which such goods are intended.
Seller further warrants that the goods/products sold pursuant to this
agreement are free of asbestos or asbestos containing materials. Should
any of the goods/products be found to contain asbestos, Seller will bear
all costs associated with the labor and materials associated with the
removal, disposal and replacement of said goods/products (this warranty
survives the acceptance of the goods/products by the
Buyer).
INSPECTION;
REJECTION; REMEDIES. Goods purchased hereunder are subject to
inspection and approval at Buyer’s destination notwithstanding any prior
payment. Buyer may inspect the goods/services at Seller’s premises. Buyer
reserves the right to reject, refuse acceptance of, and withhold payment
for goods which are not in compliance with Buyer’s instructions and
specifications, or with Seller’s express or implied warranties. Goods not
accepted will be held or returned to Seller at Seller’s risk and expense.
All remedies specified herein shall be cumulative and in addition to all
other or future remedies provided at law or in equity.
CANCELLATION.
Time is of the essence and Buyer may cancel this order, in whole
or in part, without liability to Buyer if deliveries are not made at the
time and in the quantities specified, or in the event of any other breach
or failure of any of the terms and conditions hereof, or for the
convenience of the Buyer any time prior to shipment of the goods by the
Seller.
CHANGES.
Buyer at any time may make changes in the quantities ordered or
in the specifications or drawings relating to the goods, or may change or
amend any other term or condition of this order. Any claim for actual
losses incurred by Seller due to any such change must be made within 10
days from the date of receipt by Seller of such change or shall be deemed
waived. Price increases or extension by Seller of delivery time shall not
be binding on Buyer unless agreed to in writing by
Buyer.
COMPLIANCE WITH
LAWS. Seller shall comply with all applicable federal, state and
local laws, regulations and orders. Without limiting the foregoing, Seller
warrants that the goods shall be produced in compliance with and shall
meet all applicable requirements and standards of the Fair Labor Standards
Act and the regulations and orders of the United States Department of
Labor issued thereunder, the Occupational Health and Safety Act, and
applicable affirmative action laws.
CONFIDENTIALITY.
Seller agrees not to utilize or disclose to others any
confidential information, drawings or data, whether or not designated as
such, supplied, furnished or disclosed to Seller by Buyer except as
reasonably required for the purpose of filling this order. Seller shall
immediately return any such confidential materials to Buyer at Buyer’s
request.
ASSIGNMENT.
Seller shall not assign or subcontract any of its rights, duties
or obligations under this order without Buyer’s prior written consent.
Such consent shall not relieve Seller from its obligations, from any
liability for breach or from any duty to perform. Buyer may assign any or
all of its rights, duties, or obligations under this order without
Seller’s prior written consent if Buyer sells, spins off, or otherwise
disposes of the division or product line which is the primary beneficiary
of this order of if the Buyer merges with or into another
company.
WAIVER.
Waiver by Buyer of a breach by Seller of any provision of this
order shall not be deemed a waiver of any other provision of or future
compliance with all provisions of this order, and all such provisions
shall remain in full force and effect. The Buyer’s failure to exercise any
of its rights hereunder or to insist upon strict performance of any of the
terms and conditions stated herein shall not be considered as a waiver of
any such term or condition, any other term or condition, or any of the
Buyer’s rights.
CONTROLLING LAW.
This transaction shall be governed by, and this agreement shall
be construed and enforced in accordance with, the internal laws of the
State of Wisconsin. The sole and exclusive venues for any action relating
to this agreement or to the goods shall be the United States District
Court for the Eastern District of Wisconsin or the Circuit Court for and
in Milwaukee County, Wisconsin.
FORCE MAJEURE.
The consequences, direct or indirect, of labor disputes, fires,
floods, acts of God, war or any other cause or condition beyond the
reasonable control of Buyer or Seller, shall excuse performance to the
extent which such performance has been prevented by such occurrence. In
the event that either party shall be unable to perform any of its
obligations, it shall promptly advise the other of its inability to
perform. If the cause is not removed within 60 days, Buyer, in addition to
its other remedies, may cancel this order.
SERVICES.
If Seller is to perform any services on the premises of Buyer,
Seller shall indemnify and hold Buyer harmless from any claims, damages,
losses and expenses, including attorney’s fees, arising out of or
resulting from the provision of such services, including but not limited
to injury to employees of Seller or to third parties or damage to
property. Prior to the performance of such services, Seller shall provide
Buyer with certificates showing the following types of insurance in such
amounts and by insurance carriers acceptable to Buyer: worker’s
compensation, public liability, property damage, automobile, pressure
vessel and such other special coverage as conditions may
require.
HAZARDOUS
MATERIALS. Before any chemical, material or equipment that
contains a chemical is permitted to be brought into a Buyer facility, a
Material Safety Data Sheet (MSDS) must be forwarded to the plant
environmental coordinator who will complete a review and approve or reject
the acceptance of the shipment(s). Shipment(s) made to any Buyer facility
not following this procedure will be rejected at Buyer’s dock and returned
to Seller at its sole expense and
liability.
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