STANDARD SALES TERMS OF SALE FOR PRODUCTS
These Standard Sales Terms of Sale for Products (“Sales Terms”) apply to the sale of A.P. Nonweiler Co., Inc. (“Seller”) products (“Products”) to you (“Customer”), which are deemed a part of and incorporated by reference into all other documents exchanged between us, whether electronic or in writing, including, without limitation, all quotations, acknowledgments, packing slips, invoices, and purchase orders. Seller’s offer to sell Products to Customer, and Seller’s acknowledgment of any purchase order or other Customer document (“Order”) is expressly limited to, and expressly conditioned on Customer’s acceptance of these Sales Terms. The applicability of terms contained in Customer’s Order is limited to the identification and the quantity of Products ordered. Seller objects to and rejects all other Customer terms, in any form, that are different from or additional to these Sales Terms.
1. Compliance. Seller will manufacture and sell the Products in compliance with the federal, state, and local laws applicable to each Product. Customer will comply with the federal, state, and local laws applicable to the handling, transportation, storage, use, processing, disposal, distribution, sale, and resale of Products and to any of Customer’s products that contain or are made by using Products. Under no circumstances will either party offer or make any payment or give anything of value to another person or entity where such payment or action would violate an applicable law or regulation, including, but not limited to, any applicable anti-bribery, anti-corruption, or anti-kickback law.
2. Product Information, Selection, and Use. Seller may provide Product information, including technical information, specifications, recommendations, literature, and other materials (collectively “Product Information”) for Customer’s convenience in Customer’s selection of Products. The accuracy or completeness of Product Information is not guaranteed and is subject to change without notice. No license under any Seller or third-party intellectual property rights is granted or implied with this Product Information. Customer is solely responsible for evaluating and selecting Products and determining whether each Product is fit for a particular purpose and suitable for Customer’s use and method of application. Products are not manufactured to any Customer requirements or specifications unless expressly agreed to in writing by Seller. Products that are sold for Customer’s use or consumption may not be repackaged, resold, or redistributed in any manner without Seller’s prior written consent.
3. Order Cancellation. Customer may cancel an Order only with Seller’s written consent. In the event of an approved cancellation, and where Seller has incurred costs and expenses that cannot reasonably be recovered through sale of the Products to another person or entity, Customer will pay Seller for all such costs and expenses, which may include costs of related raw materials, packaging, and other items dedicated to Products. Seller may cancel a Customer Order without obligation or liability upon notice to Customer.
4. Delivery; Title; Risk of Loss. Unless otherwise agreed to by Seller, all goods shall be shipped FOB Seller’s facility, freight prepaid and added to invoice. Customer shall reimburse Seller for extra freight charges, special packaging, and incidental costs incurred for goods shipped at Customer’s request by means other than Seller’s customary shipping methods. The time of delivery is not of the essence, and Seller shall not be liable or responsible for any costs, charges, expenses, damages, or for any penalty, liquidated or otherwise, for late or delayed delivery. All shipping dates are approximate and are, in any case, dependent upon prompt receipt from Customer of all information necessary for the proper execution of Customer’s purchase order and subject to Seller’s confirmation.
5. Inspections and Claims. All goods must be inspected by Customer immediately upon receipt. If the goods are found to be non-conforming or otherwise not delivered in accordance with the Product specifications or these Sales Terms, then Customer shall notify Seller of such defect within ten (10) calendar days after Customer’s receipt of goods. A failure to notify Seller that goods delivered by Seller are non-conforming within such ten (10) calendar day period shall constitute a waiver of such a claim. Upon receipt of such a notice, Seller will be afforded a reasonable opportunity to investigate the claim and to correct the non-conformance or repair or replace, at Seller’s option, the non-conforming goods.
6. Warranty; Disclaimer; Limited Remedy. Unless a different warranty is expressly specified on the applicable Product Information or Product packaging (in which case such warranty governs), Seller warrants that each Product meets Seller applicable Product specifications at the time Seller ships each Product. SELLER MAKES NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ARISING OUT OF A COURSE OF DEALING, PERFORMANCE, CUSTOM, OR USAGE OF TRADE. If a Product does not conform to this warranty, Customer’s sole and exclusive remedy is, at Seller’s option, repair or replacement of the nonconforming Product or refund of its purchase price. Seller has no obligation under this warranty with respect to Products that are modified or damaged by Customer, including through misapplication, misuse, abuse, accident, neglect, or mishandling. Customer must notify Seller within 45 calendar days after receipt that it believes a Product is non-conforming and, thereafter, cooperate with Seller’s investigation of such claim, otherwise Customer waives any right or claim with respect to such non-conformance. The foregoing warranty and remedy shall not apply to experimental or developmental Products, which are sold “as is” and without any warranty.
7. Limitation of Liability. Except for the limited remedy above, and except to the extent prohibited by law, Seller is not liable for direct, indirect, incidental, special, punitive, or consequential damages (including, but not limited to, lost profits, revenue, business, opportunity, or goodwill) that directly or indirectly arise from or relate to Products, regardless of the legal or equitable theory asserted, including, but not limited to, warranty, contract, negligence, fraud, or strict liability.
8. Force Majeure. Seller will not be liable or deemed to be in breach of these Sales Terms for any delay or failure to perform any or all of its obligations by reason of fire, explosion, accidents, pandemic, hurricanes, tornados, flood, unusually severe or abnormal weather, war or threat of war, riots or civil commotion, acts of terrorism, acts of any governmental authority or agent, interruption of or delay in transportation of Products, labor disputes, shortage of materials or raw materials, inability to obtain raw materials at a reasonable price, acts of God, or any other circumstance or event beyond the reasonable control of Seller. If Seller is rendered unable by force majeure to carry out any or all of our obligations under these Sales Terms, we will use reasonable efforts to give notice to you, and upon the giving of such notice the obligations of Seller shall be suspended or terminated as may be necessary under the circumstances.
9. Export Control. Products are sold for use or consumption within the United States only. If Seller authorizes Customer in writing to export Products outside of the U.S., Customer (a) assumes all responsibility for such Products, (b) will comply with all laws and regulations relating to the export and sale of Products outside the U.S., and (c) will adhere to all applicable Seller policies and procedures relating to the export of Products as a condition to purchase and export.
10. Indemnification. Subject to applicable law and these Sales Terms, Customer you shall be solely responsible for the proper transportation, handling, exportation, storage, processing, alteration, use, application, and/or disposal of such Product. To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold Seller harmless from and against any and all actual, alleged, or threatened claims, liabilities, and costs and expenses (including attorneys’ fees and litigation costs) arising out of or resulting from (a) any transportation, handling, exportation, storage, processing, alteration, use, application, and/or disposal of a Product by Customer and/or its applicator; and (b) any actual or alleged breach by Customer of, or any inaccuracy in, any representation, warranty, covenant, or undertaking made by you in these Sales Terms.
11. Confidentiality. If Customer and its agents, employees, or representatives visit Seller’s facilities, or Customer receives any proprietary or non-public information from Seller, Customer will retain and treat such information as confidential and will not use or disclose such information to any third party without our prior written consent.
12. Audit. Unless permitted by Seller in its sole discretion, Customer shall have no rights to audit or inspect Seller’s facilities, records, and/or operations. If Customer requests to audit or inspect Seller’s facilities, records, and/or operation, and such request is granted by Seller, then the audit shall be conducted at Customer’s sole expense and Seller shall exclusively control the conditions, scope, and parameters of such audit, including the time and location.
13. Applicable Law; Jurisdiction; Venue. Wisconsin law, without regard to conflicts of laws principles, shall exclusively govern Seller’s sale of Products to Customer. The United Nations Convention on Contracts for the International Sales of Goods does not apply. Except where Seller files a claim or action to collect unpaid amounts due from Customer, all claims and disputes arising from or relating to these Sales Terms, any Order, or the Products must be resolved exclusively through the following dispute resolution processes: (a) good faith negotiations between duly authorized representatives of each party conducted within 60 calendar days of a request for negotiations; (b) if necessary, non-binding mediation before a neutral mediator jointly selected and paid for by the parties within 120 calendar days of a request for mediation at a location acceptable to both parties; and (c) as a last resort, litigation. The Winnebago County Circuit Court, Wisconsin shall be the sole and exclusive jurisdiction and venue for any litigation between Customer and Seller. Customer agrees to submit to the jurisdiction of the Winnebago County Circuit Court, Wisconsin in the event of any litigation. The Parties waives all rights to a jury trial.
14. Assignment. The Order, including any right or obligation hereunder, may not be assigned or delegated by Customer without Seller’s prior written consent.
15. Authority; Modifications. No agent, employee, or representative of the Seller, other than the Chief Financial Offer, shall have any authority to modify any Order, after acceptance, or to modify the Sales Terms, at any time, and any such modification shall not be binding upon Seller unless signed by the Chief Financial Offer.
16. Changes. Seller reserves the right to change its Sales Terms at any time without notice.