SPECIALIZED PRODUCTS, LTD. (“Seller”) – TERMS AND CONDITIONS OF SALE

 

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1. Contract Formation.  ANY TERMS CONTAINED IN BUYER’S REQUEST FOR PROPOSAL, PURCHASE ORDER, OR ANY OTHER FORM OR COMMUNICATION RECEIVED FROM BUYER (a “Purchase Order”) WHICH ARE IN ADDITION TO OR DIFFERENT FROM THE TERMS AND CONDITIONS CONTAINED HEREIN ARE EXPRESSLY OBJECTED TO AND SHALL BE DEEMED REJECTED BY SELLER, UNLESS EXPRESSLY ACCEPTED IN WRITING BY SELLER.  If (a) such Purchase Order effectively states that acceptance by Seller of such Purchase Order is expressly limited to the terms and conditions contained therein, (b) Seller does not affirmatively assent in writing to such terms and conditions, and (c) Buyer accepts Seller’s performance hereunder, Buyer shall be deemed to have waived the express condition that acceptance by Seller of such Purchase Order be limited to the terms and conditions contained therein.

 

 2.  Cancellation by Customer.  BUYER SHALL NOT HAVE THE RIGHT TO CANCEL OR SUSPEND ALL OR ANY UNDELIVERED OR UNEXECUTED PORTION   

      OF THE GOODS AND SERVICES TO BE PROVIDED UNDER THIS AGREEMENT.  IF, CONTRARY TO THE PROHIBITIONS OF THIS PARAGRAPH 2, BUYER            EXPRESSLY OR, BY BUYER’S ACTIONS OR OMISSIONS, IMPLIEDLY CANCELS OR SUSPENDS ALL OR ANY SUCH UNDELIVERED OR UNEXECUTED

      PORTION OF THE GOODS AND SERVICES TO BE PROVIDED UNDER THIS AGREEMENT, BUYER SHALL PAY SELLER ALL COSTS AND EXPENSES WHICH

      HAVE BEEN PAID OR INCURRED, DUE AND PAYABLE BY SELLER PRIOR TO OR AS A RESULT OF SUCH CANCELLATION.  SUCH COSTS SHALL INCLUDE

     OVERHEAD, TRANSPORTATION COSTS, THE COST OF ANY MATERIALS INCORPORATED IN THE GOODS AND THE COST OF MATERIALS PURCHASED

     AND COMPONENTS APPLICABLE TO THE PERFORMANCE OF SELLER'S OBLIGATIONS HEREUNDER, INCLUDING ANY CANCELLATION CHARGES

     IMPOSED ON SELLER BY ITS SUPPLIERS AND SUBCONTRACTORS.  IN ADDITION TO SUCH COSTS, BUYER SHALL PAY SELLER A REASONABLE CHARGE

     FOR PROFIT, WHICH SHALL BE PROPORTIONATE TO SUCH COSTS.  ANY ADVANCED PAYMENTS OR PROGRESS PAYMENTS MADE BY BUYER     

     PURSUANT TO THE AGREED-TO PAYMENT TERMS PRIOR TO BUYER'S WRITTEN CANCELLATION NOTICE SHALL BE CREDITED TO THE FOREGOING

     COSTS AND PROFIT.  IN ADDITION, IN THE EVENT THE COSTS AND EXPENSES OF SELLER ARE LESS THAN THE ADVANCED PAYMENTS AND PROGRESS

     PAYMENTS  MADE BY BUYER, SELLER MAY KEEP ALL ADVANCED PAYMENTS AND PROGRESS PAYMENTS MADE BY BUYER AS LIQUIDATED DAMAGES. 

 

 3.  Delivery.  Unless and only to the extent otherwise agreed by Seller, Seller shall deliver the goods to Buyer or Buyer’s agent free on board (F.O.B.) at        Seller’s plant or other point of shipment designated by Seller on the date of the availability of the goods for shipment, which date shall be   

      determined in Seller’s sole discretion, or, if applicable, at such other time and/or place as shall be specified pursuant to Buyer’s written instructions 

      which are agreed to in writing by Seller.  Regardless of whether Buyer or Seller is to pay shipment charges, Buyer hereby authorizes any truck, rail,          or other carrier to whom delivery of goods is made hereunder to act as Buyer’s agent for the purposes of acceptance of possession of such goods,

      allocation of risk of loss, and transfer of title.  Risk of loss to goods will be borne by and title to goods will pass to Buyer from the point and at the     

      time of delivery specified in this paragraph 3.

 

 4.  Force Majeure.  In the event of the existence, happening, or continuance, whether or not foreseeable, of any contingency preventing, curtailing or 

      substantially interrupting or interfering with the ability of Seller or suppliers to Seller to supply the goods or perform the services required under

      this Agreement including, but not limited to, fire, theft, accident, war, insurrection, act, order, authority, regulation, directive, recommendation or

      request of or threat thereof by any federal, state, local or foreign unit of government or department or agency thereof, state of emergency, judicial

     action, industrial disturbance, shortage of labor or impairment of obtaining workers, work stoppages, the shortage of fuel, power, components,

     facilities or raw materials, embargos, delay of suppliers, act of or omission to act by Buyer, restriction or lack of transportation facilities, failure or

     delay in transportation, breakage or accident to machinery or equipment, involuntary or requested shutdown of Seller's production facilities, act of

     God or nature, disease, illness, virus, bacterium, epidemic or pandemic, whether or not related to any type of coronavirus or COVID-19 occurrence,

     or any other cause, whether similar or dissimilar to any of the foregoing, then, independent of and in addition to any right of Seller under law or

     equity excusing Seller’s performance in any manner, Seller shall not be under any obligation during the period of such prevention, curtailment,

     interruption, or interference to continue production or make delivery of any goods described herein. If any period of such prevention, interruption,       or curtailment to continue production or make delivery of any goods described herein is caused, in whole or in part, directly or indirectly, by an act         of or omission to act by Buyer, Buyer shall pay to Seller all additional charges resulting therefrom. Seller will be entitled to an extension of time for         performance of its obligations equal to the period of such prevention, curtailment, interruption, or interference. Upon the occurrence of any such         contingency, Seller may, but is under no obligation to, allocate production and delivery among Seller's customers. If Seller, in Seller's sole           

     discretion, determines that Seller's performance hereunder would result in a loss to Seller on this sale, as computed under Seller's normal             

     accounting procedures, because of any cause enumerated above, then Seller may terminate this Agreement, in whole or in part, without liability for

     loss or damage of any nature whatsoever including, but not limited to, incidental and consequential damages for any delay in the delivery of or

     failure to deliver the goods otherwise to be sold to Buyer hereunder.

 

 5. Pricing.  Unless and only to the extent otherwise agreed by Seller, all prices for goods are exclusive of any charges for packaging, shipping, technical

     advice, or other necessary services incidental to Seller’s performance hereunder.  All such charges will be made in accordance with rates

     established by Seller on or prior to the date on which the services to which they apply are rendered and are subject to change without notice at any

     time prior to such date.  All prices for goods are subject to change without notice at any time prior to the date of the availability of the goods for

     shipment or, if applicable, such other time as shall be specified pursuant to Buyer’s written instructions that are agreed to in writing by Seller, to

     prices prevailing on such date.  If Seller’s price for the goods described herein is based upon delivery to and acceptance by Buyer of a specified

     quantity of goods, such price shall be subject to adjustment if Buyer does not accept the applicable quantities of goods at the times specified herein

     and Buyer will be invoiced at Seller’s price for such goods prevailing on the date of the availability of such goods for shipment without quantity

     discounts, if any, for the quantity of goods actually accepted by Buyer.

 

 6. Change Orders.  Seller shall not be required by Buyer to provide any goods or services other than that described in this Agreement without a

      change order in the form.  All change orders (1) shall be documented in writing, (2) shall be signed by Buyer and Seller before any work affected by

      the change order has been performed, and (3) shall document (x) the nature of the change in the work, (y) the amount of the adjustment in the

      payments due to Seller hereunder, if any, and (z) the extent of the adjustment in the time for performance of the work by Seller hereunder, if any.

 

 7. Taxes.  All prices are exclusive of any applicable present or future domestic or foreign federal, state, or local manufacturer’s, retailer’s, occupation,

      sales, use, excise, goods and services or other similar taxes, duty, custom, inspection, or testing fees, or any other taxes, fees, or charges of any

      nature whatsoever which may be imposed by any governmental authority on, or which are measured by this transaction between Buyer and

      Seller.  All such taxes shall be borne by Buyer and will be paid by Buyer to Seller upon submission of Seller’s invoices.  In the event Seller is required

      to pay any such taxes, fees, or charges, Buyer shall promptly reimburse Seller therefor upon submission of Seller’s invoices or, in lieu of such

      payment, Buyer shall provide to Seller at or prior to the time of contract formation an exemption certificate or other similar document acceptable

      to the governmental authority imposing such tax, fee, or charge the effect of which is to exempt Seller from the duty to remit such taxes, fees, or

      charges to such governmental authority.

 

 8. Credit.  All sales are subject to the approval of Seller’s credit department.  Seller may, at any time and from time to time and without prejudice to

     Seller’s other legal and equitable remedies, suspend or terminate performance or delivery hereunder or require full or partial payment in cash or

     by letter of credit prior to delivery, security, guarantees, or other adequate assurance satisfactory to Seller when, in Seller’s opinion, the financial

     condition of Buyer or other grounds for insecurity warrant such action.

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 9. Express and Implied Warranties

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     a. Express Warranties.  Seller expressly warrants to Buyer that all goods to be provided by Seller under this Agreement will be free from all material

         defects in materials and workmanship and that all services to be performed by Seller under this Agreement will be performed in a good and         

         workmanlike manner.  All claims under the foregoing warranty must be made in writing to Seller within a period of ninety (90) days after

         completion of the installation of the goods to be provided and services to be performed under this Agreement.  Notwithstanding the foregoing,

         with respect to any goods delivered to Seller by Buyer wherein Seller is modifying Buyer’s goods the foregoing warranty only applies to the

         specific modifications provided by Seller.  

     b. Disclaimer of Implied Warranties.  SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS, IMPLIED (EXCEPT TITLE), STATUTORY,

         ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR

         FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE GOODS SOLD AND SERVICES, IF ANY, PROVIDED HEREUNDER.  BUYER

         ACKNOWLEDGES THAT IT ALONE HAS DETERMINED THAT THE GOODS AND SERVICES PURCHASED HEREUNDER WILL SUITABLY MEET THE

         REQUIREMENTS OF THEIR INTENDED USE.  NO EMPLOYEE, REPRESENTATIVE, OR AGENT OF SELLER IS AUTHORIZED TO ALTER OR MODIFY ANY

         PROVISION OF THIS PARAGRAPH 9 OR TO MAKE ANY GUARANTEE, WARRANTY, OR REPRESENTATION, EXPRESS OR IMPLIED, ORALLY OR IN

         WRITING, WHICH IS CONTRARY TO THE FOREGOING.

    c. Exclusions.  This warranty does not (i) apply and shall be void with respect to any goods operated in excess of rated capacity or otherwise not in

        accordance with installation, maintenance, or operating instructions or requirements, to goods repaired or altered by others than Seller or Seller’s

        authorized service agencies, or to goods which was subjected to negligence, misuse, misapplication, accident, power spikes, damages by

        circumstances beyond Seller’s control, to improper installation (if by others than Seller), operation, maintenance or storage, or to other than

        normal use or service, (ii) apply to items which are normally consumed during normal operation (such as lights, fuses, cylinders, belts, cutters,

        suction cups, filters, and similar wear items), and (iii) apply to equipment or components not manufactured by or for Seller.

    d. No Other Warranties.  Any description of the goods, whether in writing or made orally by Seller or Seller’s agents, specifications, samples, models,

        bulletins, drawings, diagrams, engineering sheets, or similar materials used in connection with Buyer’s order are for the sole purpose of 

        identifying the goods and shall not be construed as an express warranty.  Any suggestions by Seller or Seller’s agents regarding use, application,

        or suitability of the goods shall not be construed as an express warranty unless confirmed to be such in writing by Seller’s authorized officer.

 

 10. Return of Goods.  Buyer shall have no right to return goods to Seller without Seller’s written authorization to do so and shipping instructions. 

       Unless otherwise agreed by Seller, any such return of goods to Seller shall be at Buyer’s expense.  A Seller Return Goods Authorization (RGA) 

       number is required for all returned product(s). 

 

 11. Limitation of Seller’s Liability.  SELLER’S LIABILITY FOR ANY LEGAL CLAIM, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO,

       NEGLIGENCE AND STRICT LIABILITY, WHETHER SOLE OR CONCURRENT)  OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, OR RESULTING

       FROM THE MANUFACTURE,  SALE, DELIVERY, RESALE, REPAIR, REPLACEMENT,  OR USE OF THE GOODS SOLD OR SERVICES PERFORMED BY SELLER

       HEREUNDER SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF SUCH GOODS OR SERVICES AND ALSO SHALL BE LIMITED TO, AT SELLER’S

      OPTION, REPLACING OR REPAIRING OR ISSUING A CREDIT OR REFUND FOR THAT PART OF THE PURCHASE PRICE OF SUCH GOODS OR SERVICES

      WHICH IS ALLOCABLE TO THE PART OR PARTS OF THE GOODS OR ANY SERVICES RELATED THERETO WHICH GIVE RISE TO SUCH CLAIM.  BUYER

      SHALL INSPECT AND PERFORM ANY NECESSARY TESTS OF GOODS SOLD HEREUNDER PRIOR TO ANY USE THEREOF BY BUYER OR BUYER’S

      CUSTOMERS OR USERS OF BUYER’S PRODUCTS AND, IF SUCH GOODS ARE CLAIMED BY BUYER TO BE DEFECTIVE, SHALL GIVE WRITTEN NOTICE OF

      SUCH CLAIMED DEFECT TO SELLER WITHIN: (I) TWENTY-ONE (21) DAYS AFTER DELIVERY OF SUCH GOODS TO BUYER, OR (II) IN THE EVENT SELLER IS

      INSTALLING THE GOODS WHICH HAVE BEEN DELIVERED, WITHIN FIVE (5) DAYS AFTER A TECHNICIAN FROM SELLER ARRIVES FOR SUCH

      INSTALLATION.  ANY DEFECTIVE GOODS MAY, AT SELLER’S OPTION, BE RETURNED BY BUYER, AT SELLER’S EXPENSE FREIGHT COLLECT, TO SELLER’S

      FACTORY FOR INSPECTION.  SELLER MAY, AT SELLER’S OPTION, DELIVER REPAIRED OR REPLACEMENT GOODS TO BUYER, AT SELLER’S EXPENSE

      FREIGHT PREPAID, TO THE ORIGINAL DESTINATION OF THE ORIGINAL GOODS.  SELLER SHALL HAVE NO LIABILITY FOR ANY COSTS OR EXPENSES OF

      DISASSEMBLY, REMOVAL, REASSEMBLY, OR REINSTALLATION OF ANY DEFECTIVE, REPAIRED, OR REPLACEMENT GOODS OR OF FINISHING THE

      REINSTALLATION THEREOF.  GOODS RETURNED TO SELLER FOR WHICH SELLER ELECTS TO PROVIDE REPAIRED OR REPLACEMENT GOODS UNDER

      THIS PARAGRAPH 11 SHALL BECOME THE PROPERTY OF SELLER.

 

12. Incidental and Consequential Damages.  IN NO EVENT SHALL SELLER BE LIABLE FOR ANY PENALTIES, SPECIAL, CONTINGENT, PUNITIVE,

       INCIDENTAL, OR CONSEQUENTIAL LOSSES, DAMAGES, OR EXPENSES DUE TO BREACH OF WARRANTY, BREACH OF CONTRACT, OR OTHERWISE

       INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR DESTRUCTION OF OR LOSS TO PROPERTY, PERSONAL INJURY, LOSS OF USE OF THE GOODS OR

       ANY ASSOCIATED EQUIPMENT, LOSS OF PRODUCTION, REVENUE, OR PROFITS, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES, OR

       SERVICES, OR FOR ANY OTHER TYPES OF ECONOMIC LOSS, OR FOR CLAIMS OF CUSTOMERS OF BUYER OR USERS OF BUYER’S PRODUCTS FOR ANY

       SUCH DAMAGES.

 

13. Security Agreement and Financing Statements.  To secure payment of the purchase price and of all monies which may be due hereunder, and

       performance of all of Buyer’s obligations hereunder, Buyer hereby grants to Seller a security interest in all goods sold by Seller and agrees to

       execute such other Security Agreements and Financing Statements as Seller may reasonably request.

 

14. Notices.  All written notices, requests, demands, consents, certificates, or other communications required or permitted to be given hereunder shall

       be sufficiently given when mailed by certified mail, return receipt requested, postage prepaid, addressed to Seller at 200 Summer Street,

       Clintonville, Wisconsin 54929 and to Buyer at the most current address for Buyer in Seller’s possession.  Either party may by like notice at any time

       and from time to time designate a different address to which notices shall be sent.

 

15. Subcontracting.  Seller may, without the necessity of obtaining Buyer’s prior written consent, subcontract the production of all or any portion of

        the goods or services covered by this Agreement.

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 16. Waiver.  No waiver shall be implied by Seller’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or

        privilege granted to Seller hereby.  No express waiver by Seller shall be construed as waiving any breach hereunder or the performance of any of

        the terms or conditions hereof not specified in the express waiver, and then only for the time and to the extent stated therein.  One or more

        waivers of any covenant, term, or condition hereof shall not be construed as a waiver of a subsequent breach of the same covenant, term, or

        condition.

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 17. Severability.  If any covenant, term, or condition hereof or the application thereof to any circumstance or person shall, to any extent, be held

        invalid or unenforceable by any court of competent jurisdiction, the remaining valid and enforceable covenants, terms, and conditions hereof and

        the application of such invalid or unenforceable covenant, term, or condition to circumstances or persons other than those as to which it has

        been held invalid or unenforceable shall not be affected thereby and each remaining valid and enforceable covenant, term, and condition shall be

        valid and enforceable to the fullest extent permitted by law.

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 18. Entire Agreement.  The terms and conditions contained in this Agreement, together with all additional terms and conditions contained on all

       attachments hereto and all amendments hereof, shall constitute the complete and exclusive statement of the terms and conditions of the contract

       between Buyer and Seller for the purchase and sale of the goods and services to be purchased and sold hereunder and may hereafter be

      modified, amended, or changed only by written instrument or change order executed by the duly authorized representatives of both Buyer and

      Seller.  No statements, representations, writing, understandings, or agreements by either party or any representative of either party in negotiations

      leading to this Agreement shall be binding or of any force or effect.  No course of performance, course of dealing, or usage of trade shall be

      relevant to explain or supplement this Agreement.

 

19.  Statute of Limitations.  ANY ACTION BY BUYER, WHETHER BASED UPON THEORIES OF BREACH OF WARRANTY, BREACH OF CONTRACT,

        NEGLIGENCE, OR OTHERWISE, WITH REGARD TO THE GOODS OR SERVICES DELIVERED HEREUNDER MUST BE COMMENCED WITHIN NINETY (90)

        DAYS AFTER THE CAUSE OF ACTION HAS ACCRUED.

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 20.  Governing Law.  This agreement shall be governed and construed according to the internal laws of the State of Wisconsin without regard to

        conflicts of laws principles.  The rights and obligations of Seller and Buyer shall not be governed by the provisions of the United Nations

        Convention on Contracts for the International Sale of Goods.  The terms and conditions contained herein shall be applicable to sales of goods

        only, to mixed sales of goods and services (regardless of which factor predominates), and to sales of services only and, in either of the latter two

        cases, the term “goods” as used herein shall be construed as including all services rendered hereunder, unless the context clearly indicates

        otherwise.

 

21.  Forum and Jurisdiction.  Seller and Buyer hereby agree that any legal action deemed necessary by either party to this Agreement shall be brought

        in either the District Court in and for the Eastern District of Wisconsin or the Circuit Court in and for Waupaca County, Wisconsin and hereby

        consent to the personal jurisdiction of such courts in any such action over the parties hereto.  If, contrary to the provisions of this paragraph 21,

        Buyer commences any legal action involving this Agreement or the goods provided hereunder in any forum other than either of those specified

        above, Seller shall be entitled to the dismissal of such action based upon the agreement of the parties contained in this paragraph 21.