1. PRICE, TAXES: THE PRICES OF THE PRODUCTS SPECIFIED HEREIN ARE SUBJECT TO CHANGE WITHOUT PRIOR NOTICE TO PRICES IN EFFECT AT THE TIME OF EACH SHIPMENT. In addition to the prices specified herein, the amount of any present or future tax applicable to the sale, purchase, manufacture, delivery, use, handling or consumption of products or services hereunder shall be paid by the BUYER.
2. DELAYS, ALLOCATION: SELLER shall not be liable for any failure or delay in delivery due in whole or in part to fires, floods, accidents, riots, demonstrations, acts of God, declared or undeclared war, strikes or other labor difficulties, shortage or unavailability of fuel, power, raw materials or supplies, production breakdowns, delay or failure of usual sources of transportation, requirements or requests of any government or subdivision thereof or acts, demands, orders, or interpositions of any government or any subdivision thereof or agent thereof which makes performance commercially impracticable or any other cause beyond the SELLER’S control. Under any such circumstances SELLER shall have such additional time within which to perform this contract as may be reasonably necessary and may, without liability for any failure to perform the contract, allocate its available supply among any or all BUYERS, including subsidiaries, affiliates and departments of SELLER, in such a manner as SELLER, in its sole discretion, may select. SELLER SHALL NOT BE LIABLE IN ANY EVENT FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR FAILURE OR DELAY IN PERFORMANCE OR DELIVERY DUE TO ANY CAUSE WHATSOEVER.
3. WARRANTY: SELLER warrants that all products sold hereunder shall be free from defects in materials and workmanship and shall conform to the description and specifications on the face product invoice. SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING THAT OF MERCHANT ABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, EXCEPT FOR APPLICABLE PRODUCT WARRANTIES PUBLISHED AND SO DESIGNATED BY SELLER. BUYER shall notify SELLER immediately of any defective product or products not meeting specifications. SELLER will be given a reasonable opportunity to inspect the goods prior to return. No product may be returned by BUYER until after receipt by BUYER of written shipping instructions. BUYER’S REMEDY AND SELLER’S LIABILITY SHALL BE LIMITED SOLELY TO REPLACEMENT AT ORIGINAL POINT OF DELIVERY, REPAIR OF, OR REFUNDING THE PURCHASE PRICE OF ANY DEFECTIVE PRODUCT OR PRODUCTS NOT MEETING SPECIFICATIONS, AT SELLER’S OPTION. SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES, OR EXPENSES FOR BREACH OF WARRANTY OR FOR NEGLIGENCE, ANY COURSE OF DEALING BETWEEN THE PARTIES TO THE CONTRARY NOTWITHSTANDING, ANY CLAIM FOR BREACH OF WARRANTY OR NEGLIGNECE, FAILURE OR DELAY IN DELIVERY OR OTHEWISE SHALL BE DEEMED WAIVED BY BUYER UNLESS PRESENTED IN WRITING TO SELLER WITHIN SIXTY (60) DAYS FROM DATE OF DELIVERY UNLESS MODIFIED BY THE GENERAL PRICE DATA TERMS FOR THE APPLICABLE PRODUCT. THE PRICE STATED FOR THE PRODUCT IS A CONSIDERATION IN LIMITING SELLER’S LIABILITY.
4. CREDITS, PAYMENT TERMS: Initial terms of payment shall be as set forth on the face of product invoice. Remittances shall be as directed by SELLER. BUYER agrees that payment to a bank or depository designated by SELLER shall not constitute payment in full or a final settlement of BUYER’S account until accepted as such by SELLER notwithstanding any language to the contrary on BUYER’S check, draft or other order. THE MAXIMUM LAWFUL SERVICE CHARGES are applicable to unpaid invoices from the due dates thereof. BUYER agrees to pay SELLER’S cost of collection, if any, on overdue invoices, including reasonable attorney’s fees. If the financial responsibility of BUYER is unsatisfactory to SELLER’S Credit Department, becomes impaired, or if BUYER fails to make any payment in accordance with the terms of this contract, SELLER may at its sole option defer or decline to make any shipment hereunder except upon receipt of security satisfactory to SELLER or cash payment in advance of delivery, or SELLER may terminate this contract, in which event all remaining unpaid amounts arising from this, as well as any other contract(s) will immediately become due and payable.
5. TITLE, RISK OF LOSS: Title to products produced and shipped hereunder and risk of loss shall remain in SELLER until delivery is made in accordance with Paragraph 10 herein. If products are held or stored by SELLER at the request of the BUYER, title shall transfer to BUYER upon SELLER’S receipt of payment of invoice. If BUYER’S credit at any time becomes unsatisfactory to SELLER as provided in Paragraph 4 hereof and SELLER declines to make shipments except upon receipt of satisfactory security or cash payment advance, title to the products shall not transfer to BUYER until such security or cash payments are received by SELLER. The same shall apply to SELLER’S invoice for raw materials or goods in process which SELLER elects to sell pursuant to Paragraph 13 herein. ANY INSOLVENCY PROCEEDING IS CONCLUSIVE PROOF THAT THE BUYER’S CREDIT IS UNSATISFACTORY.
6. INFRINGEMENT: Products sold hereunder may be used and resold without further permission with respect to SELLER’S proprietary rights (patents, trademarks, copyrights and trade secrets), but no other license is granted under said rights. SELLER agrees to indemnify, save harmless and defend BUYER against all claims of proprietary rights infringement under United States law because of SELLER’S OR BUYER’S manufacture, use or sale of any product sold hereunder, in the form so sold, except any product which is manufactured or sold by SELLER to meet BUYER’S specifications or requirements and is not part of SELLER’S standard line offered in the usual course of business. In the case of such excepted product BUYER agrees to indemnify, save harmless and defend SELLER against all such claims of infringement. If any product sold hereunder shall include printed or graphic matter approved by BUYER, irrespective of the origin of the matter, BUYER agrees to indemnify, save harmless and defend SELLER with respect to claims of infringement of proprietary rights or of unfair competition because of such matter. If the BUYER uses or sells abroad any product sold hereunder BUYER agrees to indemnify, save harmless and defend SELLER against any charge of infringement of any foreign proprietary rights concerning the product.
7. ADVICE BY SELLER: SELLER’S giving or failing to give any technical or other advice shall not impose any liability on the SELLER.
8. SHIPPING TOLERANCE: The total order and each delivery hereunder shall be subject to SELLER’S published shipping tolerances in effect at times of delivery. If the products covered hereunder are not listed in the SELLER’S publications, then the total order and each delivery shall be subject to a shipping tolerance plus or minus 10%.
9. EQUIPMENT. Any equipment (including dies, tools, printing plates or cylinders, etc.) which SELLER constructs or acquires solely for use in the production of products ordered hereunder shall be and remain SELLER’S property and SELLER’S sole possession and control. Any charges made by SELLER therefor shall be only for the use of such equipment and shall confer on BUYER no right of any kind with respect to such equipment. When SELLER has not made shipments to BUYER for products to be made with such equipment for a period of one year, then after 30 days written notice to BUYER, SELLER may make such disposition of equipment as it considers appropriate. Until the expiration of any such one year period, SELLER shall keep such equipment available for the production of products by SELLER for BUYER.
10. DELIVERY TERMS: Delivery Terms, as stated on the invoice, are defined as follows:
F.O.B. DESTINATION: SELLER will bear transportation charges to the SHIP TO location served by common carrier where BUYER or his designee takes custody of the products, when custody is taken at a point within the United States, excluding Alaska and Hawaii. If SELLER permits BUYER to designate route, method or agency (common carrier only) of transportation, BUYER will be invoiced for the difference between the transportation charges incurred by SELLER and an amount determined by multiplying the quantity shipped by the lowest available rate, whether carload or truckload. No transportation allowance will be made for BUYER pickup at any point.
F.O.B. SHIPPING POINT: BUYER will bear all transportation charges, and he or his designee will take custody of the products at the SHIPPING POINT.
OTHER DELIVERY TERMS are as stated on the face of each invoice and as further defined in SELLER’S price catalog. ALL DELIVERY TERMS ARE SUBJECT TO CHANGE WITHOUT NOTICE TO THOSE IN EFFECT AT THE TIME OF SHIPMENT.
11. EARLY SHIPMENT: SELLER reserves the right to ship up to 14 calendar days prior to the Estimated Shipping Schedule.
12. DEFERRAL OF SHIPMENT: BUYER may defer the shipment of products for a term agreed to by both parties in writing if such an agreement is reached prior to scheduled shipment. Products shall be invoiced immediately and shall carry a storage charge to be billed monthly. BUYER assumes all risks of product deterioration that might occur beyond 30 days from the originally scheduled shipping date. Upon advance written notice to SELLER, BUYER may inspect any held material within
10 days of receipt of invoice. FAILURE TO INSPECT SHALL CONSTITUTE A WAIVER OF ANY RIGHT TO REJECT SHIPMENTS AT A LATER DATE ON THE BASIS OF
PRODUCT DETERIORATION.
13. CANCELLATION: All orders are considered non-cancelable and non-returnable (NCNR) unless Seller provides written consent and the Buyer remits payment to Seller of Seller’s cancellation charges which include, among other things, all costs and expenses incurred, and, to cover commitments made, by the Seller and a reasonable profit thereon. The seller’s determination of such cancellation charges shall be conclusive and final. Buyer may request changes or additions to the Goods consistent with Seller’s specifications and criteria. In the event such changes or additions are accepted by Seller in writing, Seller may revise the price, warranties, and dates of delivery dates. Seller reserves the right to change designs and specifications for the Goods without prior notice to Buyer, except with respect to custom Goods that are unique for Buyer or Goods that are the subject of accepted Orders. Goods may not be returned without Seller’s prior written consent and the payment of a restocking fee; provided, however, customer Goods that are only usable by Buyer, as determined by Seller, may not be returned.
14. LIMITATION OF LIABILITY; RIGHTS TO DEDUCTION. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, (I) IN NO EVENT WILL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROPERTY OR EQUIPMENT, LOSS OF PROFITS OR REVENUE, LOSS OF CAPITAL, LOSS OF PURCHASED OR REPLACED GOODS, OR CLAIMS OF CUSTOMERS WHICH, IN EACH CASE, BUYER ACKNOWLEDGES CONSTITUTE CONSEQUENTIAL DAMAGES) ARISING OUT OF, OR IN CONNECTION WITH, ANY GOODS SOLD BY SELLER, ORDERS, OR THE AGREEMENT (WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) REGARDLESS OF WHETHER THOSE DAMAGES WERE FORESEEABLE OR SELLER WAS ADVISED OF THE POSSIBILITY OF THOSE DAMAGES AND (II) SELLER’S TOTAL AGGREGATE LIABILITY UNDER THE AGREEMENT OR ORDERS, WHETHER ARISING FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, INSTALLATION, OR USE OF ANY GOODS SOLD BY SELLER OR OTHERWISE RELATED TO CLAIMS ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL NOT EXCEED THE PRICE OF THE GOODS UPON WHICH THE LIABILITY IS BASED. SELLER HAS NO, AND BUYER WAIVES ALL, RIGHTS TO INDEMNIFICATION FROM SELLER RELATED TO THE AGREEMENT, ORDERS, OR THE GOODS WHETHER UNDER THE AGREEMENT, ORDERS, ARISING UNDER COMMON LAW, IMPLIED BY LAW, OR OTHERWISE. SELLER MAY SETOFF, DEDUCT, AND RECOUP ANY AMOUNTS PAYABLE BY SELLER TO BUYER UNDER THE AGREEMENT, ORDERS, AT LAW, OR IN EQUITY AGAINST ANY AMOUNTS PAYABLE BY BUYER OR ITS AFFILIATES TO SELLER OR SELLER’S AFFILIATES UNDER THE AGREEMENT, ORDERS, OR OTHERWISE.
15. AGREEMENT: (a) supersedes all prior or contemporaneous oral or written understandings, representations and agreements between the parties and represents the entire agreement between the parties with respect to the subject matter thereof; (b) is solely for the benefit of Buyer and Seller and no other third parties; and (c) may not be assigned or transferred by Buyer (by operation of law or otherwise) without Seller’s prior written consent. Any purported transfer or assignment in violation of the foregoing will be null and void. If any clause in the Agreement is determined by a court of competent jurisdiction to be invalid, the invalidity of such clause shall not affect the validity of the remainder of the Agreement. Any waiver of any provision of the Agreement must be made in writing and any waiver of one provision on one occasion shall not be deemed a waiver on another occasion or with respect to another transaction. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. The Agreement (including these Terms) and any other agreements between the parties will be governed by and construed in accordance with the laws of the State of Wisconsin, without regard to the choice of law provisions. Buyer agrees that the sole and exclusive jurisdiction for resolving any disputes with Seller will be in the state and federal courts in or having jurisdiction over Dane County, Wisconsin.