Order Terms and Conditions
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THIS CONFIRMATION OF PURCHASE ORDER AND AGREEMENT TO SELL THE ABOVE PRODUCT IS EXPRESSLY CONDITIONED UPON BUYER’S AGREEMENT TO TERMS AND CONDITIONS CONTAINED HEREIN AND ON THE REVERSE SIDE HEREOF. THESE TERMS AND CONDITIONS GOVERN THE SALE OF GOODS HEREUNDER TO THE EXCLUSION OF ANY CONTRARY CONDITIONS IN THE BUYER’S PURCHASE ORDER. IF BUYER DECLINES THESE TERMS AND CONDITIONS THIS ORDER IS CANCELLED AND BECOMES NULL AND VOID AND NO OBLIGATIONS WILL BE OWED TO THE BUYER BY THE SELLER.
TERMS AND CONDITIONS OF SALE
GENERAL : Notwithstanding any inconsistent or additional terms that may be embodied in Buyer’s purchase order, Seller accepts Buyer’s order on the express condition that Buyer agrees to the terms and conditions set forth hereafter as the only terms governing Buyer’s order, and Buyer’s receipt and acceptance of the goods shipped hereunder shall constitute such agreement.
1. TITLE AND RISK : Title & risk of loss passes to Buyer at the time of delivery FOB at the delivery point.
2. DELIVERY TERMS : The goods shall be delivered FOB Seller’s Plant (Sheboygan, Wisconsin) unless other delivery terms have been specifically agreed between the parties. Seller reserves the right to make delivery in installments and each such installment shall be paid for as invoiced. Delivery dates are only indicative and will be observed as far as the circumstances reasonably permit. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries and shall not give rise to any liability on the part of the Seller.
3. DISCLAIMER OF LIABILITY : Seller assumes no liability for goods which are improperly handled, stored or damaged in transit. Seller assumes no liability for goods which are not timely picked up at Seller’s plant by Buyer or Buyer’s carrier. Buyer becomes obligated to pay for the goods at the time of shipment.
4. TECHNICAL ADVICE : Seller assumes no liability for any technical advice given or results obtained therefrom, all such advice being given and accepted at Buyer’s risk. Buyer shall be responsible for making its own tests and verifications before applying such technical advice.
5. WARRANTIES : Seller warrants that the goods will be sold free and clear of all liens and that the goods shall conform to Seller’s written specifications for the types of goods involved.
AS INSTALLATION CONDITIONS (INCLUDING, AMONG OTHERS, PIPE TYPE & CONDITION, GROUNDWATER DEPTH & TEMPERATURE, DEPTH OF COVER & SOIL TYPE, LIVE LOADS, SITE ACCESS AND WEATHER) AND INSTALLER EXPERIENCE, TECHNIQUES AND TYPE OF EQUIPMENT VARY GREATLY, SELLER EXCLUDES ANY WARRANTY OF ANY KIND,EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS SOLD HEREUNDER AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR USE OR ANY OTHER MATTER WITH RESPECT TO THE GOODS WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS.
Buyer agrees and acknowledges that Seller has not provided any design specifications and relies entirely on Buyer’s specifications; accordingly Seller does not warrant the design.
Buyer understands and agrees that none of Seller’s agents, employees or representatives have the authority to make any promise, representation or warranty related to the goods sold by Seller other than those warranties contained in this contract.
SELLER’S WARRANTIES PROVIDED ABOVE ARE EXCLUSIVE AND REPLACE ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MECHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO IMPLIED WARRANTIES APPLY TO THE GOODS AND ARE EXPRESSLY DISCLAIMED. THE ABOVE WARRANTIES FROM SELLER TO BUYER APPLIES TO BUYER ONLY, AND MAY NOT BE ASSIGNED TO OR ENFORCED BY ANY PERSON OTHER THAN BUYER.
6. CLAIMS : Any claim for shortage or for damage incurred in transit of goods must be made within ten (10) days after Buyer’s receipt of the goods. All other claims, including claims for alleged defective goods, must be made within ten (10) days after Buyer learns of the facts on which such claim is based, but in no event later than sixty (60) days after Buyer’s receipt of the goods. All claims not made in writing and received by Seller within the time periods specified above shall be deemed waived. No claim will be allowed or returned goods accepted if the goods have been treated or processed in any manner, except upon proof satisfactory to Seller of the existence of a latent defect not ascertainable before treating or processing and then only if such proof is submitted within ten (10) days after such defect becomes apparent.
7. LIMIT OF LIABILITY : Seller’s liability for any and all losses or damages to Buyer resulting from defective goods or from any other cause shall be limited in all cases to the purchase price of the defective goods . Transportation charges for the return of goods shall be paid by Seller only if such return is requested by Buyer and Seller agrees, in writing, to said return. Seller shall in no event be liable for any indirect or consequential damages or losses. Buyer assumes responsibility for and shall indemnify Seller against liability for any personal injury and/or property damage arising out of the handling, possession or use of the goods by the Buyer.
EXCEPT AS PROVIDED EXPRESSLY ABOVE, SELLER WILL HAVE NO LIABILITY TO BUYER OR ANY OTHER PERSON FOR LOSS OF PROFITS OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING OUT OF BREACH OF WARRANTY OR BREACH OF ANY OTHER PROVISION HEREOF, NEGLIGENCE OR OTHER SORT, OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF POTENTIAL LOSS OR DAMAGE. The purchase price for the goods was determined considering the above limitation on recovery of lost profits and of incidental and consequential damages. The limitation on recovery of lost profits and of incidental and consequential damages was bargained for in allocating risk and determining the purchase price.
8. PAYMENT : If Buyer fails to pay when due any payment the Buyer will be in default for all outstanding invoices without further notice. Without prejudice to any other rights or remedies of Seller, Seller shall have the right to cancel further deliveries and to charge interest on all overdue amounts at the rate of one and a half per cent (1.5 %) per month. In addition, Buyer shall reimburse Seller for all administrative and legal expenses incurred by Seller in the collection of the amounts payable.
9. TERMINATION : If payment is not received by the due date, or if : Buyer shall or has become insolvent; shall be declared bankrupt; shall be subject of proceedings under insolvency or bankruptcy law; or shall make an assignment for the benefit of creditors, Seller reserves the right to consider the sale cancelled, without having to give notice of default. Any installments paid may be retained by the Seller by way of damages or interest. Seller shall have the right to enter Buyer’s premises where the goods are stored in order to take possession of and remove the goods.
10. FORCE MAJEURE : Deliveries may be cancelled by Seller without liability in case of Act of God, war, riots, fire, explosion, flood, strike, lockout, injunction, inability to obtain fuel, power, raw materials, labor, containers, or transportation facilities, accident, malfunction of machinery or apparatus, national defense requirements, or any cause beyond the reasonable control of Seller, which prevents or hinders the manufacture or shipment of the goods or of a material upon which the manufacture of the goods is dependent. If, because of any such circumstance, Seller is unable to supply the total demand for the goods, Seller may allocate its available supply among itself and all of its customers, including those not under contract, in an equitable manner. Except to the extent of cancellation of deliveries or allocation of supply hereunder, the contract shall remain unaffected.
11. TRANSPORTATION COSTS AND SALES TAXES: Transportation costs and applicable sales and use taxes, if any, are the responsibility of and to the account of the Buyer.
12. APPLICABLE LAW - ENTIRE AGREEMENT : This contract is to be construed according to the laws of the State of Wisconsin except that its laws on conflict of laws shall be disregarding in their entirety when interpreting this agreement or the performance of the parties. Any controversy or claim (“Claim”) arising out of or related to this contract, or the breach thereof, shall be settled by consultation between the parties. In the event of failure of such consultations within sixty (60) days (unless otherwise extended by mutual agreement of the parties) after receipt of the written notice of such Claim, then any such Claim shall be venued in the location of Seller’s headquarters and Buyer consents to such venue as the exclusive jurisdiction for any claim arising with respect to the goods.
THIS DOCUMENT CONSTITUTES THE FULL UNDERSTANDING OF THE PARTIES, AND NO TERMS, CONDITIONS, UNDERSTANDING OR AGREEMENT PURPORTING TO MODIFY OR VARY THE TERMS OF THIS DOCUMENT SHALL BE BINDING UNLESS HEREAFTER MADE IN WRITING AND SIGNED BY THE PARTY TO BE BOUND.