Terms and Conditions of Sale
This document, together with the terms and conditions on the reverse hereof, serves as the offer of Sure Controls, Inc., (“Seller”) to the buyer identified herein (“Buyer”) to sell the Goods described on the face hereof (“Goods”).
All orders are accepted in accordance with these terms and conditions and those on the reverse hereof. Acceptance by Seller is expressly made conditional on Buyers assent to Seller’s terms that are additional to or different from those proposed by Buyer, if any. If Seller’s terms are not acceptable, Buyer shall immediately notify Seller of its objections, and Buyer’s failure to so object and its delivery of a purchase order or acknowledgment, or acceptance of the Goods, whichever occurs first, shall constitute Buyer’s consent to the terms hereof. Seller hereby objects to any different or additional terms or conditions, which may now or in the future appear on Buyer’s order, acknowledgment or other forms. Any reference to Buyer’s order or other communication is for convenience only and not an incorporation of the terms thereof. In the event of any conflict between the terms set forth herein and the face hereof, the latter shall control.
Prices are based on costs and conditions existing on the date of quotation and are subject to change by the Seller before final acceptance. Unless otherwise stated on the face hereof, the price of Goods does not include sales, excise, or use taxes or any tariffs, customs duties, imposts, demurrage, packaging, crating, freight or insurance charges, credit card surcharge, or expenses to be incurred in the sale of Goods, which shall be paid for the account of and paid or reimbursed by Buyer. In the event Buyer’s order is changed in any respect (and when permitted by Seller), Seller may adjust the price accordingly.
Following acceptance by Seller, orders are not subject to cancellation or modification except with the written approval of Seller, and shall be subject to reasonable cancellation charges as determined by Seller.
Seller reserves the right to correct any typographical, stenographical or clerical errors.
If payment terms are not stated on the face hereof, terms are net 30 days from the date of invoice and payment shall be due and payable in one installment. Any payment not made when due shall be subject to a late payment charge of 1-½% per month until the unpaid balance is paid in full. All credit sales and the terms thereof are subject to Seller’s continuing credit approval. Seller reserves the right to demand cash on delivery or satisfactory security, at its option, or withhold shipment and/or cancel outstanding orders in the event of Buyer’s default of credit terms or if Buyer’s credit becomes impaired or unsatisfactory to Seller.
Buyer shall have the right by giving written notice to Seller, to make changes in the quantity, drawings, designs or specifications for the Goods to be manufactured. Upon receipt of any such notice, Seller shall notify Buyer as promptly as possible of changes in the price of, or the time required for performance of, the order and an equitable adjustment shall be made in the contract price or delivery schedule, or both, prior to incorporating said changes into the manufactured Goods.
Blanket orders will be accepted for a defined quantity with scheduled releases for a given period not to exceed one year unless otherwise negotiated. Blanket orders will be price protected for 60 days after notice to Buyer of a price change.
The Goods shall be delivered F.O.B. Seller’s plant, Greenville, Wisconsin 54942 unless otherwise specified on the face hereof. All shipments shall be on a prepay and add basis. Packing and insurance charges are included in the shipping charges. Title to and risk of loss to the Goods shall pass to Buyer upon delivery of the Goods by Seller to a common carrier or other designee of Buyer at the above-referenced point of shipment. Buyer shall notify Seller in complete detail as to shipping and delivery dates and places.
Shipments, partial or complete, will be made based on customer requests. Requests for “partial shipments” or for “complete shipments” must be clearly marked or stated not later than the time of Buyer’s order or acceptance of this quote.
Shipments made within 10 days after the scheduled delivery date shall be deemed to have fulfilled the sale agreement. In any event, Seller shall not be liable to Buyer for any damages claimed to have resulted from any delay in the delivery of Goods unless time of delivery is expressly stated herein to be of the essence.
Buyer shall inspect Goods promptly upon receipt. All claims for alleged defects in the Goods resulting from their failure to conform to the warranty provided in paragraph 12, subject to the terms herein, and any right of rejection or revocation of acceptance are waived if (a) Buyer fails to give Seller notice of any claim within 30 days after tender of delivery of goods or (b) Buyer has used the Goods or done any other act inconsistent with rejection or revocation of acceptance (except for reasonable tests). Buyer shall afford Seller prompt and reasonable opportunity to inspect all claimed non-conforming Goods and Seller must give written authorization before Goods may be returned for credit.
All claims for shortage or shipping damage must be made within ten (10) days after Buyer’s receipt of the Goods. Visible damage must be noted on the freight bill or carrier’s receipt and signed by the carrier’s agent. In the event of concealed physical damage to the Goods, Buyer shall make a request for inspection by the carrier’s agent and file a claim with the carrier.
If the Goods received by Buyer hereunder are pursuant to a risk assessment, recommendation or audit by the Buyer, itself, or a third party (“Independent Recommendation”), the Buyer hereby acknowledges that Seller has not and will not make an independent investigation into the Independent Recommendation and in no way endorses or agrees or disagrees with the Independent Recommendation. For all Goods provided pursuant to an Independent Recommendation, Seller will solely work with Buyer to install such Goods, but makes no representations or warranties as to the Goods, including any fitness for a particular purpose. This section shall in no way limit the other terms contained herein and shall be in addition to such terms.
Where Buyer delivers to Seller parts, equipment, material, fixtures, wiring or other property for use by Seller in manufacturing, processing, assembly or modification of Goods for Buyer, the Buyer agrees that Seller shall not be liable for any loss or damage to such property while in Seller’s possession and Buyer agrees to maintain insurance coverage on such property as it deems advisable. Buyer warrants that to the best of its knowledge and belief, that the Goods into which Buyer’s property may be incorporated, together with any Goods produced to Buyer’s design or specifications, will not infringe upon the patent rights of any third party, and Buyer agrees, at its sole expense, to defend, indemnify, reimburse and otherwise save Seller harmless against any and all liabilities, costs or expenses (including reasonable attorney’s fees) for actual or alleged infringement of any patent or other intellectual property right which may arise from manufacture, sale or use of the Goods.
Seller shall not be liable for failure to deliver or delays in delivery caused by acts of God, acts of Buyer, acts, rules or regulations of any governmental authority (civil or military, executive, legislative, or otherwise), strikes or other concerted acts of workers, lock-outs, labor difficulties or controversies and adjustments thereof, fires, floods, storms, accidents, earthquakes, tidal waves, or other natural disasters, epidemics, war, riots, rebellion, sabotage, insurrection, difficulties, or delays in public transportation or in public or postal delivery services, car shortages, fuel shortages, inability to obtain Seller’s usual sources of supply (including disruptions precluding receipt of delivery against supply, forward, and future contracts), inability to obtain suitable or sufficient energy, labor, machinery, facilities, supplies, or materials, as or when required, or by any other circumstances beyond Seller’s reasonable control, whether of similar or dissimilar nature.
The contract for the sale of the Goods shall be governed by the laws of the State of Wisconsin (regardless of the laws that might be applicable under principles of conflicts of law). If any of the provisions hereof shall be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. No right or interest in the contract arising from this document shall be assigned by Buyer and no delegation of any obligation owed by Buyer shall be made without the prior written permission of Seller. The individual rights and remedies of Seller reserved herein shall be cumulative and in addition to any other rights or remedies provided by law or in equity. Waiver by Seller of performance or breach of any provision hereof by Buyer, or failure of Seller to enforce any provision hereof which may establish a defense or limitation of liability, shall not be deemed a waiver of future compliance therewith or a course of performance modifying such provision, and such provision shall remain in full force and effect as written. Any action concerning, relating to or involving the contract between Buyer and Seller must be venue in Outagamie County, Wisconsin and the parties hereby irrevocably consent to the jurisdiction of the courts in Outagamie County, Wisconsin.
Seller certifies that the Goods produced by it were produced in compliance with all applicable requirements of the Fair labor Standards Act of 1938, as amended, and the Regulations and Orders of the Administrator of the Wage and Hour Division issued under Section 14 thereof. Seller continues to attempt to comply with all applicable Wisconsin and federal laws. However, Seller is not responsible for compliance with any laws or regulations applicable to the Goods, or with any product standard or specification, whether of general or particular application, unless Buyer has furnished specific written notice thereof prior to Seller’s entry of Buyer’s order.
WARRANTY, DISCLAIMERS AND LIMITATIONS OF REMEDIES
Seller warrants that the Goods will conform to the description and specifications set forth on the face hereof, subject to those variations and tolerances accepted within the industry that are applicable at the time of manufacture, whether arising by publication or usage of trade. Seller further warrants that it has good title to the Goods transferred, exclusive of purchasers’ property incorporated in the Goods.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR CUSTOM, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. SELLER IS NOT LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY KIND WHATSOEVER, WHETHER ANY CLAIM FOR RECOVERY IS BASED UPON THEORIES OF CONTRACT, NEGLIGENCE OR TORT (INCLUDING STRICT LIABILITY) AND BUYER HEREBY WAIVES, FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, (1) ANY CLAIM FOR PUNITIVE, INCIDENTAL AND CONSEQUENTIAL DAMAGES AND (2) ANY AND ALL CLAIMS OF NEGLIGENCE OR STRICT LIABILITY OR BOTH AGAINST SELLER.
In the event of nonconformity of the Goods or any part thereof, Buyer’s sole and exclusive remedy is, at Seller’s option, repair, replacement or a credit of the purchase price for the nonconforming Goods, plus reimbursement of reasonable freight charges. Buyer recognizes that the provision so this Section are material factor in Seller’s sale of the Goods at the price specified, and agrees that any accommodation to Buyer by Seller, whether for sales policy reasons or otherwise, shall not be taken to establish any liability of Seller or any contract term inconsistent herewith. In no event shall Seller’s liability for any breach or nonconformity exceed the purchase price of the affected Goods.