These Galland Henning Nopak, Inc. (“Seller”) Terms and Conditions of Sale shall govern all sales and all orders placed by buyer (“Buyer”) for goods or products (collectively, “Products”) from Seller.
1. ACCEPTANCE; CONTRARY TERMS; ENTIRE AGREEMENT. All orders for Products are subject to acceptance by Seller at its offices in Franklin, Wisconsin. Seller’s written price quotation, if any (“Seller’s Quotation ”) and these Terms and Conditions of Sale are intended by the parties to be the complete and exclusive agreement of the parties with respect to the subject matter hereof and supersede all prior understandings, representations, warranties or agreements between the parties, whether written or oral. BUYER’S ORDERS ARE ACCEPTED ONLY ON THE TERMS AND CONDITIONS CONTAINED HEREIN AND THE PROVISIONS OF ANY PURCHASE ORDER OR OTHER WRITING WHICH ARE INCONSISTENT HEREWITH SHALL NOT CONSTITUTE PART OF THESE TERMS AND CONDITIONS OF SALE. SELLER’S ACCEPTANCE OF BUYER’S ORDER IS SUBJECT TO AND CONDITIONED ON BUYER’S ASSENT TO THESE TERMS AND CONDITIONS OF SALE.
2. PRICE AND DELIVERY: Prices shall be as set forth on Seller’s Quotations, provided however, that prices may be adjusted by Seller without notice to conform to prices in effect at the time of shipment. Unless otherwise specified by Seller in writing, all prices are F.O.B. Seller’s plant. All Seller’s Quotations automatically expire thirty (30) calendar days from date of issuance unless communicated otherwise by Seller. Unless otherwise specified by Seller in writing, prices stated on Seller’s Quotations do not include any sales, use or value-added taxes, or any other taxes, charges or duties applicable to the sale of Products, which taxes, charges and duties (including any interest and penalties) shall be the sole responsibility of Buyer. Buyer shall provide Seller with tax exemption certificates if requested by Seller. Unless otherwise agreed to by the parties in writing, all Products are shipped F.O.B Seller’s plant. Risk of loss shall pass to Buyer at the time the Products are delivered to a carrier at Seller’s plant and Buyer shall be solely responsible for procuring commercially reasonable insurance coverage for the Products after such delivery for the benefit of Seller and Buyer. Title to the Products will remain with Seller until full payment (including deferred payments) is received by Seller. All freight, storage, insurance or other fees or charges (including, without limitation, any sales, use or value-added taxes and import duties on the Products, if any) shall be paid by Buyer and if advanced by Seller, shall be added to Seller’s invoice and payable together with payment for the Products purchased. Seller will package the Products in a commercially reasonable manner acceptable to commercial carriers. All risk of loss relating to any goods or products not manufactured by Seller which are delivered by Buyer to Seller shall at all times remain the sole and exclusive responsibility of Buyer.
3. DELAYS; PERFORMANCE: Seller does not guarantee arrival of shipment(s) at a particular time or date under any circumstances. Seller shall have no liability whatsoever for any failure or delay in shipment or other nonperformance if shipment or performance is rendered impossible, impracticable or unreasonably burdensome by any event, whether or not forseen or forseeable, brought about by any cause other than the willful conduct of Seller, including, without limitation, accidents; breakdowns; riots; war; terrorism; interruptions in or failures of sources or subcontractors to supply materials or equipment; failures in manufacturing processes or equipment; strikes, labor or transportation problems; fires, explosions or other acts of God; or orders, contracts, priorities, directives, requisitions or requests of the federal or state governments, whether or not voluntarily assumed. In the event of any such failure or delay in shipment or other nonperformance, Seller may, at its option and without liability, cancel all or any portion of Buyer’s order and/or extend any date upon which any performance hereunder is due.
4. PAYMENT TERMS: Unless otherwise agreed to in writing by the parties, all invoices for Products shall be paid net 30 days and shall be payable in U.S. Dollars. If all Product(s) from an order are not shipped on the same date, pro rata invoices shall be rendered for such partial shipments. If shipment of any Product(s) (and/or materials or parts thereof) is delayed, either directly or indirectly by the Buyer, the date of completion of the Product(s) shall be deemed as the date of shipment and invoice. No orders by Buyer can be cancelled or returned without the written consent of Seller (in which case Buyer shall reimburse Seller for is reasonable costs associated with such cancelled or returned Products). OUTSTANDING BALANCES NOT PAID WHEN DUE SHALL BE SUBJECT TO A DELINQUENCY CHARGE ACCRUING AT THE RATE OF THE LOWER OF 1.5% PER MONTH OR THE MAXIMUM INTEREST RATE ALLOWABLE UNDER LAW. Buyer shall also pay Seller any collection fees and reasonable attorneys’ fees incurred by Seller in collecting payment of the purchase prices or any other amounts for which Buyer is liable under the terms and conditions hereof. Seller shall have the right to cancel all or any portion of Buyer’s order in the event Buyer has outstanding balances which are delinquent by 15 days or more.
5. EXCLUSIVE WARRANTY: Seller warrants to the Buyer that the Products sold are to be free from defects in material and workmanship for (i) with respect to Products that contain perishable elastomers (e.g. rubber), a period of six (6) months from the date of shipment, (ii) with respect to the paint and finish of any Products, a period of six (6) months from the date of shipment and (iii) for all other Products (excluding paint and finish of Products), a period of five (5) years from the date of shipment, subject to the terms and limitations of the exclusive warranty and remedies described herein. THIS FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER NEITHER ASSUMES (NOR HAS AUTHORIZED ANY PERSON TO ASSUME) ANY OTHER WARRANTY OR LIABILITY IN CONNECTION WITH SELLER’S PRODUCTS. IF BUYER’S ORDER IS FOR PRODUCTS WHICH CONTAIN COMPONENTS MANUFACTURED BY A PARTY OTHER THAN SELLER, BUYER ACKNOWLEDGES THAT SELLER IS NOT THE MANUFACTURER OF SUCH COMPONENTS AND AGREES THAT ALL SUCH COMPONENTS ARE NOT COVERED BY THE WARRANTY PROVIDED HEREIN AND ARE WARRANTED ONLY TO THE EXTENT OF THE MANUFACTURER’S EXPRESS WARRANTIES TO SELLER, WHICH SELLER SHALL PROVIDE TO BUYER AT BUYER’S REQUEST. SELLER’S WARRANTIES CONTAINED IN THESE TERMS AND CONDITIONS SHALL AUTOMATICALLY BECOME NULL AND VOID IN THE EVENT OF (I) INSTALLATION OF ANY PARTS NOT SUPPLIED OR AUTHORIZED IN WRITING BY SELLER, (II) MODIFICATION OF A PRODUCT, OR (III) IMPROPER OR UNAUTHORIZED REPAIRS ARE MADE TO A PRODUCT. THE FAILURE OF BUYER TO PAY THE FULL PURCHASE PRICE FOR ANY PRODUCT ACCORDING TO THESE TERMS AND CONDITIONS OF SALE OR ANY OTHER OUTSTANDING BALANCE DUE FOR A PRIOR, CURRENT OR FUTURE OBLIGATION OWED TO SELLER SHALL AUTOMATICALLY VOID ANY OF SELLER’S WARRANTY OBLIGATIONS CONTAINED HEREIN.
6. LIMITATION OF REMEDIES AND DAMAGES: Buyer shall provide Seller with written notice of any alleged defects in material or workmanship that arise under proper and normal use of the Products during the warranty period set forth in Section 5, above. Seller shall arrange for inspection of such Products within fifteen (15) days of its receipt of such notice. Before the end of such fifteen (15) day period, Seller shall advise Buyer whether Seller will, at its sole option, repair or replace Products found to be defective or credit Buyer for the same. Seller shall not be liable for damage to any Product resulting from (i) improper installation or operation, (ii) installation of any parts not supplied or authorized by Seller, (iii) modification of such Product, (iv) improper or unauthorized repairs, (v) improper storage or handling of such Product, (vi) negligent or willful misconduct of Buyer or (vii) Buyer’s designs, change orders or changes in specifications. No Products shall be returned to Seller without its prior written consent. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, SELLER WILL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OF SALE OR THE PERFORMANCE OR BREACH HEREOF, INCLUDING, BUT NOT LIMITED TO, LABOR COSTS, LOSS OF USE, LOST REVENUES, LOST PROFITS, DAMAGE TO ASSOCIATED EQUIPMENT OR FACILITIES, COSTS OF REPLACEMENT POWER, COSTS ASSOCIATED WITH DOWNTIME, AND ANY SIMILAR LOSSES, COSTS OR DAMAGES, AND REGARDLESS OF HOWEVER CAUSED, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND IN NO EVENT SHALL SELLER’S LIABILITY WITH RESPECT TO A BREACH OF THE LIMITED WARRANTY PROVIDED BY THESE TERMS AND CONDITIONS EXCEED THE PURCHASE PRICE PAID BY BUYER FOR THE PRODUCT(S) IN QUESTION.
7. INTELLECTUAL PROPERTY: Buyer represents and warrants that Buyer has all right, title and interest to and in, or has been granted a license to use, any patent, trademark and/or other intellectual property that Buyer has or will request Seller to affix to, or use in the production of an any Product supplied hereunder. Buyer further represents and warrants that the use or omission of any designs, devices, or words, including any wording required by any Federal, State or local laws or ordinances which Buyer may from time to time order incorporated in or imprinted or placed on the Products is in conformance with all applicable laws and does not infringe on any third party’s intellectual property rights (regardless of whether or not Seller consulted thereon or performed design work or other special services in connection therewith).
8. CLAIMS AND MODIFICATIONS: Buyer shall have ten (10) days after receipt of the Products to inspect and make any claims for error in design and specifications. Failure to make such a claim and reject Products within such period shall constitute an irrevocable acceptance of the Products and an admission that the Products fully comply with design and specifications. Seller reserves the right to accept or reject any such claim in whole or part. Replacement of defective Products or repayment of the purchase price for non-conforming Products shall be made only upon return thereof after inspection by Seller and Buyer’s compliance with written shipping instructions from Seller. Any claims for loss or damage during transit must be prosecuted by Buyer solely against the carrier and/or insurer. Buyer may not make any changes to Buyer’s order without the prior written consent of Seller. Any price variation from any such changes shall become effective immediately upon the acceptance of such changes by Seller.
9. INDEMNIFICATION: Buyer shall indemnify and hold Seller and each of its officers, directors, employees, shareholders, affiliates, agents, representatives, successors and assigns harmless from and against any and all claims, actions, demands, legal proceedings, judgments, settlements, sums, costs, liabilities, losses, obligations, damages, penalties, fines, costs and other expenses (including, but not limited to, reasonable attorneys’ fees) relating to, arising out of or resulting from (i) Buyer’s use of any Product, including, without limitation, any third party claims for personal injury or property damage resulting from Buyer’s negligence or willful misconduct, (ii) any act by Buyer or its employees, agents or representatives, which causes the warranties contained in these terms and conditions to be null and void, (iii) any infringement or claim of infringement of any proprietary right of a third party by reason of Buyer’s plans, specifications or the production, use or sale of any Product purchased by Buyer and (iv) Buyer’s violation or alleged violation of any Federal, state, county or local laws or regulations, including, without limitation, the laws and regulations governing product safety, labeling, packaging and labor practices. If any claim should be asserted or action commenced against Seller for which Seller is entitled to indemnification hereunder, Buyer shall, upon Seller’s demand, promptly undertake the defense of such claim or action, employing counsel satisfactory to Seller or, alternatively, Seller may elect to defend the same on its own behalf. In either case, Buyer will, upon demand, pay all reasonable attorney’s fees and other costs or expenses incurred by Seller in connection with such defense, including, but not limited to, any judgment or award resulting from any such claim or action and any settlement paid by Seller with Buyer’s consent.
10. ASSIGNMENT: Buyer may not assign any of its rights, duties or obligations under these Terms and Conditions of Sale without Seller’s prior written consent. Any attempted assignment without Seller’s written consent, even if by operation of law, shall be null and void.
11. CONTROLLING LAW; VENUE: These Terms and Conditions of Sale and the interpretation, construction and enforcement thereof and all provisions, suits and special proceedings thereunder shall be governed by the internal laws of the State of Wisconsin, without regard to rules of construction concerning the drafter thereof and without regard to conflicts of law principles. Buyer (i) consents to submit to the exclusive jurisdiction of the state and federal courts located in Milwaukee County, Wisconsin for the resolution of any dispute between the parties concerning any Products or these Terms and Condition of Sale; (ii) agrees not to commence any such proceeding except in such courts; and (iii) waives any objection to the laying of venue of any such proceeding in the state or federal courts located in Milwaukee County, Wisconsin.
12. INVALIDITY; UNENFORCEABILITY: In the event that any provision of these Terms and Conditions of Sale is found invalid or unenforceable, whether in whole or in part, for any reason, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decisions. The invalidity or unenforceability of any such provision or part of such provision will not affect the validity or enforceability of the remaining terms and conditions hereof.
13. WAIVER: The failure of Seller or Buyer, at any time, to require the performance of any obligation or to assert a right contained herein will not affect either party’s right to require such performance or assert such right at any time thereafter; nor shall the waiver of any right or obligation be construed in any way as a waiver of any succeeding breach.
Galland Henning Nopak
10179 South 57th Street
Franklin, WI 53132