Wangen America, Inc.: Terms and Conditions of Sale
1. Definitions.
As used in these terms and conditions (“Agreement”), (a) “Order” means the order to purchase Products on the reverse side of this Agreement; (b) “Seller” means Wangen America, Inc.; (c) “Buyer” means the party executing the Order and/or the party accepting delivery of Seller's products; (d) “Products” means the products provided by Seller under this Agreement, and (e) “Manufacturer” means the Pumpenfabrik Wangen GmbH.
2. Acceptance, Merger and Integration.
Seller will be deemed to have accepted this Agreement when Seller returns an acknowledgement copy of the Order or begins substantial performance under the Order. Buyer accepts this Agreement by acknowledging a copy of the Order, by confirming the Order through a purchase order or confirmation, or by accepting of delivery of the Products. Notwithstanding the manner in which Buyer accepts, Buyer's acceptance is limited exclusively to the acceptance of Seller's terms and conditions set forth in this Agreement. Seller objects to and rejects any proposal by Buyer for additional or different terms in connection with the Products. Any and all terms, conditions and provisions contained in Buyer’s purchase order, acknowledgement form or other communications with respect to the transaction contemplated by the Order, if any, are agreed to be without any force and effect. This Agreement, which includes all attached riders or limited warranties, is intended to be the exclusive and final statement of the parties’ understanding regarding the Products, merging and superseding all negotiations and prior written or oral agreements between the parties as to the Products. There are no promises, representations or understandings made in connection with the Order or contemporaneous with its execution, except as set forth in this Agreement.
3. Changes to Order.
Any changes to the Order following the acceptance or deemed acceptance of said Order by Seller ("Changed Order") are subject to acceptance pursuant to Section 2 above. A Changed Order is subject to a new price reflecting the changes of the ordered article(s) and in addition a change fee of USD 900 plus up to 25 % of the order value of the changed article(s).
4. Prices and Taxes.
The price of the Products specified the Order does not include (i) United States federal taxes, state or local sales taxes; (ii) Canadian federal and provincial sales taxes including, but not limited to, any Canadian goods and services and/or harmonized sales taxes and (iii) use taxes or occupational taxes. Unless prohibited by law, Buyer is responsible for and shall pay all applicable sales, use, occupational, excise, value added or other similar taxes applicable to the manufacture, sale, price, delivery or use of the Products, or in lieu thereof, Buyer shall provide Seller with a tax exemption certificate acceptable to and considered valid by the applicable taxing authorities.
5. Payment.
Terms of payment are 30 days from the invoice date with approved credit, if applicable. Seller reserves the right to determine at its sole discretion the parties and extent of any such credit approval. Failure to make prompt and full payment constitutes a material breach of this Agreement. Past due balances shall be subject to interest charges at an annual rate of 5%. Seller may charge late fees or administrative fees if Buyer’s funds are not in Seller’s bank account on the 30th day following the invoice date. Buyer agrees to pay taxes appearing on the invoice or furnish Seller with a valid resale/exemption certificate no later than the time of payment.
6. Delivery.
All sales are ex works Seller's warehouse. Unless otherwise directed, Seller will prepay all freight and invoice the Buyer for the amount of freight paid.
7. Delivery Delays.
Seller shall use reasonable efforts to make deliveries promptly and in a commercially reasonable manner. Delivery dates and estimates are not guaranteed. Seller disclaims any liability or responsibility for the late delivery or non-delivery of the Products. Seller shall not be liable for failure to deliver or delays in delivery of the Products if such failure or delay is due, in whole or part, to any cause or conduct beyond the reasonable control of Seller.
8. Risk of Loss.
Risk of loss, destruction of or damage to the Products shall be Seller's until delivery of the Products to a carrier at the Seller's warehouse. Thereafter, Buyer shall be fully responsible for and assume all risk of loss, destruction of or damage to the Products. Loss or damage to the Products after risk of loss has passed to Seller will not release or excuse Buyer from its obligations under this Agreement to Seller, including the obligation to make full payment.
9. Short Shipments/Damage Claims.
Seller will endeavor to ship all Orders completely or as completely as reasonably possible. Upon written authorization by Buyer, Seller may ship incomplete Orders, in which case Seller shall have no liability for such short or incomplete Order. To preserve any claim against carriers for damages or short shipments, Buyer must report the claim in writing directly to carrier, with a copy of the claim to Seller. Buyer must make such report as soon as possible after receipt of the merchandise, but in no case more than seven (7) days for air shipments and fourteen (14) days for all other shipments.
10. Rejection and Revocation of Acceptance.
Any rejection or revocation of acceptance by Buyer must be made within thirty (30) days of delivery and any attempted rejection or revocation of acceptance made thereafter shall be null and void.
11. Cancelled Orders.
Buyer may cancel the Order only if Seller approves such cancellation in a signed writing. Cancelled orders approved by Seller are subject to a restocking charge of 20% of the purchase price of the Products. Custom orders, special orders or orders for specific equipment requiring a factory order may not be cancelled.
12. Designs and Specifications.
The design and specifications of the Products are subject to change without notice. Seller reserves the right to ship the latest type and design of the Products at current prices and shall have no liability or obligation for changes in design or specifications. In the event designs or specifications are changed, Buyer may, within fourteen (14) days of receiving notice of any changes in design or specifications, cancel the Order without liability, but only if the changes in design or specifications would have a negative material impact upon the business or operations of Buyer or otherwise render the Order or the delivery or use of the Products commercially impracticable.
13. Governing Law.
This agreement shall be governed by and subject to the internal laws (exclusive of the conflicts of law provisions) and decisions of the courts of the State of Illinois.
14. Assignment.
The rights and obligations of the parties under this agreement shall not be assignable unless consent to the assignment is in writing and signed by the parties.
15. Limited Warranty and Disclaimer of All Other Warranties.
EXCEPT FOR THE EXPRESS LIMITED WARRANTY, IF ANY, WHICH IS ATTACHED AS A RIDER TO THE ORDER OR THIS AGREEMENT, SELLER AND MANUFACTURER MAKE NO EXPRESS OR IMPLIED WARRANTIES IN THIS AGREEMENT, THE ORDER OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER AND MANUFACTURER DISCLAIM ALL WARRANTIES, WRITTEN, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. SELLER AND MANUFACTURER EXPRESSLY DISCLAIM ANY AND ALL LIABILITY TO BUYER FOR ANY CONSEQUENTIAL DAMAGES, DAMAGES FOR LOSS OF USE, LOSS OF PROFITS, INCOME, OR REVENUE, LOSS OF TIME OR INCONVENIENCE, LOSS OR DAMAGE TO ASSOCIATED EQUIPMENT, COST OF SUBSTITUTED OR REPLACEMENT EQUIPMENT, LOSS TO FACILITIES, LOSS OF CAPITAL, LOSS OF SERVICES OR COST OF REPLACEMENT, OR ANY OTHER INCIDENTAL CONSEQUENTIAL OR SPECIAL DAMAGE ARISING OUT OF THIS ORDER OR THE OPERATION, FUNCTION OR CHARACTERISTICS OF THE PRODUCTS PURCHASED HEREUNDER OR OTHERWISE PROVIDED BY SELLER OR MANUFACTURER. IN THE EVENT A LIMITED WARRANTY IS GIVEN BY SELLER OR MANUFACTURER, IT IS EXPRESSLY UNDERSTOOD THAT SAID LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE REMEDY OF BUYER.
16. Limitation of Liability.
To the fullest extent permitted by law, the parties waive and relinquish any claims, demands, causes of action or recoveries for punitive damages, exemplary damages, or statutory damages. Seller and Manufacturer shall not be liable for indirect, special, incidental or consequential damages arising under this Agreement or otherwise with respect to the sale of the Products, including any lost revenues or profits, consequential and/or incidental damages, business interruption or damage to business reputation, regardless of the theory upon which any claim may be based. Notwithstanding the terms of any limited warranty provided by Seller or Manufacturer, in no event will Seller's or Manufacturer’s entire liability to Buyer exceed the purchase price actually paid by Buyer for the Products, or any defective portion thereof, whichever is the lesser amount.
17. Force Majeure.
Seller shall have no liability or obligation to Buyer of any kind, including but not limited to any obligation to deliver the Products, arising from any delay or failure to perform all or any part of the Order or this Agreement as a result of causes, conduct or occurrences beyond Seller's reasonable control, including, but not limited to, commercial impracticability, fire, flood, act of war, civil disorder or disobedience, act of public enemies, problems associated with transportation (including car or truck shortages), acts or failure to act of any state, federal or foreign government or regulatory authorities, labor disputes, strikes, or failure of suppliers to make timely deliveries of materials, goods or services to Seller.
18. Default.
The failure of Buyer to perform any obligations hereunder, including without limitation, the payment of the purchase price for Products and all other amounts due, the failure to materially perform other agreements between Buyer and Seller, or Buyer's bankruptcy or insolvency, shall constitute a default under this Agreement and shall, in addition to any other remedies provided by law, equity or this Agreement, afford Seller all of the remedies of a secured party under the Uniform Commercial Code of the State of Illinois.
19. Attorneys' Fees.
In the event it becomes necessary for Seller to enforce the terms and conditions of the Order or this Agreement by litigation or otherwise, or to defend itself in any controversy, litigation, claim, demand or cause of action arising out of or as a result of the Order, this Agreement or the Products, and if Seller is the substantially prevailing party in said controversy, litigation, claim, demand or cause of action, then Seller shall be entitled to recover from Buyer, in addition to any other relief granted or damages assessed, its reasonable attorneys' fees, expert witness fees, costs and expenses of litigation.
20. Waiver.
No claim or right arising out of a breach of this Agreement can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party.
21. Severability.
If any term, covenant, warranty or condition of this Agreement, or the application thereof to any person or circumstance shall, to any extent, be held or deemed invalid or unenforceable, the remainder of this Agreement or the application of such term, covenant or provision, to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each remaining term, covenant or provision of this Agreement shall be deemed valid and enforced to the fullest extent permitted by law.
22. Indemnification.
To the fullest extent permitted by law, Buyer shall defend, indemnify and hold Seller and Manufacturer and their respective employees, officers, directors and representatives (each, an “Indemnified Party”) harmless from any and all claims, demands, subrogation claims by Buyer's insurers, causes of action, liabilities, fines, regulatory actions, seizures of product, losses, costs, expenses (including, but not limited to attorneys' fees, expert witness expenses and litigation expenses) (each a “Claim”), arising from or in connection with any Claim asserted against any Indemnified Party for damage, injury, death, loss, property damage, delay or failure in delivery of the Products or any other Claim, whether in tort, contract, or otherwise, relating to the Order or this Agreement, the business relationship between the parties or the Products. Notwithstanding the foregoing, Buyer has no indemnity obligation to either Indemnified Party with respect to any Claims that result solely from the negligence of such Indemnified Party, and this indemnity provision does not purport to indemnify either Indemnified Party solely for its own negligence, but rather for the negligence or conduct, whether sole or concurrent, of Buyer. Buyer, for itself and its insurers, expressly waives any and all limitations or liability caps, if any, on Buyer's contribution liability to the Indemnified Parties, and any and all statutory or common law lien rights or Claims against the Indemnified Parties arising from any applicable workers’ compensation or disability acts, which Buyer might or could assert against an Indemnified Party or the Indemnified Party’s insurers in the event of the personal injury or death of Buyer's employees, representatives or servants. Without limiting the foregoing, Buyer, for itself and its insurers, also waives any liens, claims or other rights it may have as a result of being subrogated to any rights of its employees, representatives or servants.
23. Forum Selection.
The parties consent to the exclusive jurisdiction of the federal court in Chicago, Illinois or the state court located in Cook County, Illinois with respect to all litigation, claims, causes of action, demands, controversies or disputes among the parties. The only exception to this forum selection provision is a claim by Seller seeking the replevin of the Products in the event the courts specified in this provision will not or cannot assert jurisdiction. All counterclaims, if any, in connection with the replevin claim, shall be subject to this forum selection provision.
24. Modification.
Seller reserves the right at its sole discretion to adjust, from time to time, any and all provisions of this Agreement.