Please read these terms and conditions carefully. They materially affect the parties’ obligations. TEKRA, whose legal name is SWM AMS, LLC (“Seller”) will accept orders and do business only on these terms and conditions.
1. Controlling Provisions. This document (the “Contract”) constitutes an offer by Seller to provide the goods and/or services described herein (the “Products”) to the buyer to which this offer is addressed (the “Buyer”). Buyer’s acceptance of this offer is limited to the terms contained in this offer. Seller objects to and rejects any additional, different or varying terms proposed by Buyer and Seller’s offer shall be deemed accepted without such additional, different or varying terms. All orders for Products are subject to acceptance by Seller. BUYER’S ORDER WILL BE ACCEPTED ONLY ON THE TERMS AND CONDITIONS CONTAINED HEREIN. If this document is deemed an acceptance of a prior offer by Buyer, such acceptance is limited to the terms of this Contract. This Contract is intended by Seller and Buyer to be the complete, exclusive, and final statement of their agreement. Any changes to this Contract must be in writing and signed by Seller and Buyer.
2. Acceptance. Buyer shall be deemed to have accepted these terms and conditions on the earliest of the following to occur: (a) Seller’s receipt of a copy of this Contract signed by Buyer; (b) Buyer’s payment of any amounts due under this Contract; (c) Buyer’s delivery to Seller of any material to be furnished by Buyer; (d) Seller’s delivery of the Products; (e) failure by Buyer to notify Seller to the contrary within ten days of receipt of this Contract; or (f) any other event constituting acceptance under applicable law.
3. Compliance with Laws. Buyer agrees to comply with all laws and regulations applicable to the purchase, transport, use, storage, sale, lease and/or disposal of the Products including, without limitation, to the extent applicable, the U.S. Export Administration Act and all regulations thereunder.
4. Excuse From Performance. Seller is excused from performance if performance is rendered impracticable by any accident; war or terrorism; delay, interruption in or failure of sources or subcontractors to supply materials and equipment; labor or transportation problem; flood, fire, earthquake or other act of God; or other causes and conditions that are beyond Seller’s reasonable control; or any governmental orders, contracts, priorities, directives, requisitions or requests, whether or not voluntarily assumed. In the event of any such occurrence, Seller may, at its option and without incurring liability, prorate its deliveries, cancel all or any portion of the Contract and/or extend any date upon which performance is due hereunder.
5. Taxes and Fees. Unless otherwise specified on the front of this form, prices do not include any manufacturer’s, sales, use or excise taxes, or other taxes, charges or duties. Buyer will pay or reimburse Seller on demand for all such taxes, charges and duties. Buyer will also pay Seller any collection fees and reasonable attorneys’ fees incurred by Seller in enforcing this Contract or collecting amounts due.
6. Prices; Payment Terms. Unless specifically held open for a length of time on Seller’s Quotation, all prices are subject to change without notice and any unshipped balances on purchase orders will be invoiced to and paid by Buyer at prices in effect at the time of delivery. Unless otherwise specified on the front of this form, invoices are payable in full 30 days following the invoice date. Seller may, in its sole discretion, agree to accept payment by credit card from time to time; however, cash/early payment discounts shall not apply. For credit card payments, information must be presented at time of order. Seller shall charge the purchase price against the credit card at time of order. Invoices not paid within 60 days following the invoice date are subject to a service charge on the unpaid balance equal to the lesser of 1½% per month or the maximum rate permitted by law. Notwithstanding the foregoing, terms of payment on all orders are subject to the approval of Seller’s credit department. If Buyer does not pay Seller any amount due under this Contract or any other agreement when such amount is due or if Buyer defaults in the performance of this Contract, Seller may, without incurring liability to Buyer and without prejudice to Seller’s other lawful remedies (a) terminate Seller’s obligations under this Contract; (b) declare immediately due and payable all Buyer’s obligations to Seller; (c) change credit terms with respect to any further work; (d) suspend or discontinue any further work; and/or (e) repossess the Products. Buyer shall not set off amounts due to Seller against claims against Seller.
7. Risk of Loss; Shipment. Unless otherwise specified on the front of this form, all shipments are F.O.B. Buyer’s facility named on the front of this form. Shipping dates on any order are estimates only. Seller will use every reasonable effort to meet the estimated shipping date, subject to Buyer’s prompt provision of all necessary, complete and correct specifications and information, but Seller will not be held responsible for failure to meet such estimated dates. All acknowledgments are based on Buyer accepting over-run and under-run not exceeding 10% of the quantity ordered; full mill trim will be accepted by Buyer. Title to Products shall pass to Buyer F.O.B. Seller’s facility. Buyer’s orders or mutually agreed change orders shall be subject to all provisions of this Contract, whether or not the order or change order so states.
8. Exclusive Limited Warranty.
(a) Products Made by Another. If Buyer’s order is for Products made by a third party, Buyer acknowledges that SELLER IS NOT THE MANUFACTURER OF THE PRODUCTS AND THEREFORE MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS. Seller’s sole obligation with respect to such Products shall be limited to assigning or transferring to Buyer any written warranty extended to Seller by the manufacturer of such Products to the extent such warranty may reasonably be assigned or transferred. However, Seller does not adopt, guarantee or represent that the manufacturer will comply with any of the terms of the warranty.
(b) Seller’s Standard Coating and Converting Policy; Buyer’s Testing Obligation. If Buyer’s order is for Products with standard coating or converting, Seller warrants to Buyer that upon delivery the Products will materially conform to Seller’s specifications, which will be provided at Buyer’s request. Because of the variable characteristics of the Products, Buyer shall, before using any Products in production, perform its own tests to determine to its satisfaction whether the Products are acceptable and suitable for its particular purposes under its operating conditions.
(c) Seller’s Toll Coating Policy. If Buyer’s order is for Products with toll coating, Buyer must provide performance specifications in advance of the coating operation. Seller will review Buyer’s specifications and advise Buyer if such specifications can be materially met. Buyer understands and acknowledges that, due to the variables of coating technology, high yield losses, i.e., 10% to 20%, may be experienced in the coating operation. Seller will invoice and Buyer agrees to pay for the amount of materials processed in the coating operation, rather than for the quantity of Products actually shipped. If Seller has reviewed and approved Buyer’s specifications in writing, Seller warrants to Buyer that upon delivery the Products will materially comply with such specifications. Orders manufactured to Buyer’s specifications, drawings, designs or descriptions are executed only with the understanding that Buyer will indemnify and hold harmless Seller from any and all damages sustained by Seller, including, but not limited to, reasonable attorneys’ fees, resulting from any action or threatened action against Seller for (i) infringement of the patents or proprietary right of any other party, or (ii) injury to person or property, including death, relating to defects in Buyer’s specifications, drawings, designs or descriptions.
(d) No Other Warranties: Warranty Exclusions. THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS. There is NO WARRANTY in cases of damage in transit, negligence, abuse, abnormal usage, misuse, accidents, normal wear and tear, damage due to environmental or natural elements, failure to follow Seller’s instructions or improper installation, storage or maintenance. Any oral or written description of the Products is for the sole purpose of identifying the Products and shall not be construed as an express warranty. Prior to using or permitting use of the Products, Buyer shall determine the suitability of the Products for the intended use and Buyer shall assume all risk and liability whatsoever in connection therewith.
9. Limitation of Remedies and Damages. SELLER’S LIABILITY AND BUYER’S REMEDIES UNDER THIS CONTRACT WILL BE LIMITED SOLELY TO REPAIR, REPLACEMENT OR CREDIT, AT SELLER’S OPTION, WITH RESPECT TO PRODUCTS RETURNED TO SELLER AT BUYER’S EXPENSE WITHIN THE LIMITED WARRANTY PERIOD (AS DEFINED BELOW), IF SELLER DETERMINES THAT SUCH PRODUCT IS COVERED BY AND IN BREACH OF THE ABOVE LIMITED WARRANTIES. THE LIMITED WARRANTY PERIOD FOR PRODUCTS COATED BY SELLER IS ONE YEAR FROM BUYER’S RECEIPT OF THE PRODUCT. THE LIMITED WARRANTY PERIOD FOR ALL OTHER PRODUCTS IS 30 DAYS AFTER BUYER’S RECEIPT OF THE PRODUCT. SELLER WILL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR CONSEQUENTIAL, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LABOR COSTS OR LOST PROFITS RESULTING FROM THE USE OF OR INABILITY TO USE THE PRODUCTS OR FROM THE PRODUCTS BEING INCORPORATED IN OR BECOMING A COMPONENT OF ANY OTHER PRODUCT. SELLER SHALL NOT BE LIABLE TO BUYER, OR TO ANYONE CLAIMING UNDER BUYER, FOR ANY OTHER OBLIGATIONS OR LIABILITIES, INCLUDING, BUT NOT LIMITED TO, OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORT OR ANY THEORY OF STRICT LIABILITY, WITH RESPECT TO THE PRODUCTS OR SELLER’S ACTS OR OMISSIONS OR OTHERWISE. SELLER’S AGGREGATE LIABILITY WITH RESPECT TO A DEFECTIVE PRODUCT AND THIS CONTRACT SHALL BE LIMITED TO THE MONIES PAID TO SELLER FOR THAT DEFECTIVE PRODUCT. Any assistance Seller provides to or procures for Buyer outside the terms, limitations or exclusions of this warranty will not constitute a waiver of the terms, limitations or exclusions of this limited warranty, nor will such assistance extend or revive the warranty. SELLER WILL HAVE NO RESPONSIBILITY INSOFAR AS ANY PRODUCT IS MADE OR MODIFIED BY BUYER OR ANOTHER AND BUYER WILL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS AGAINST ALL DAMAGES, COSTS OR EXPENSES, INCLUDING ATTORNEYS’ FEES, PAID OR INCURRED BY SELLER IN CONNECTION WITH ANY CLAIM OF INFRINGEMENT OF A PATENT, COPYRIGHT OR TRADEMARK, TRADE SECRET, OR OTHER PROPRIETARY RIGHT WHICH ARISES OUT OF PRODUCTS MADE OR MODIFIED BY BUYER OR ANOTHER. SELLER WILL ALSO HAVE NO RESPONSIBILITY WITH REGARD TO ANY SETTLEMENT, ADMISSION OR PROMISE MADE BY BUYER WITHOUT SELLER’S PRIOR WRITTEN CONSENT, NOR WILL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS, CLAIMED TO HAVE BEEN SUSTAINED BY BUYER OR ANY USER OF A PRODUCT ARISING OUT OF ANY CLAIM OF INFRINGEMENT.
10. Buyer’s Trademarks. Buyer warrants that any trademark Buyer requests Seller to affix to any Product labels or packaging is owned or authorized for use by Buyer.
11. Claims, Cancellation and Returns. All claims for damages, shortages or other errors must be made to Seller in writing within 15 days of delivery of the Products; all other claims must be made within 30 days of receipt of the Products. BUYER’S FAILURE TO MAKE ANY CLAIM WITHIN THE SPECIFIED TIME PERIOD WILL RESULT IN THE UNCONDITIONAL WAIVER OF SUCH CLAIM. Seller reserves the right to accept or reasonably reject any claim in whole or in part. Orders may not be cancelled, modified or suspended without Seller's prior written consent. Cancellation, modification, suspension, or delay in shipment of Buyer's order will not be accepted on terms that will not fully indemnify and reimburse Seller against all loss, including but not limited to incidental and consequential damages. Such indemnity will include recovery of all direct costs incurred, including normal indirect and overhead charges and normal profit. No Products may be returned to Seller without its prior, written authorization and Products may be returned only on the terms or conditions specified in such authorization. Returned Products must be of current manufacture, unused, in resalable condition, and securely packed to reach Seller without damage. Any cost incurred by Seller to put Products in first class condition will be charged to Buyer. All Product returned to Seller may be subject to a restocking charge plus the costs of freight, packaging, insurance and any import or export costs.
12. Notices. Any notice relating to this Contract will be sent by first class mail and will be presumed to be given when deposited, postage prepaid, in a United States Post Office or authorized depository and addressed to the other party at the address given herein. Alternatively, notices may be sent by facsimile or electronic mail and will be presumed to be given when sent if confirmed by mailed notice sent in accordance with the previous sentence.
13. Setoff. Seller may set off any amount due from Buyer, whether or not under this Contract, against any amount that may become due to Buyer hereunder.
14. Assignment. Buyer may not assign any of its rights, duties or obligations under this Contract without Seller’s prior written consent and any attempted assignment without such consent, even if by operation of law, will be void. Subject to the foregoing, this Contract shall inure to the benefit of and bind the parties and their successors and permitted assigns.
15. Controlling Law. The validity, construction and enforcement of this Contract will be governed by and interpreted under the internal laws of the State of Wisconsin. This Contract shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods (“CISG”). Upon termination of this Contract for any reason, Seller shall have all of the rights and remedies provided by law, including, without limitation, the rights of a secured party under Chapter 409, Wisconsin Statutes or any successor statute or similar statute in the jurisdiction where Buyer is located, incorporated or organized, or stores the Products. Any cause of action, claim, suit or demand by Buyer allegedly arising from or related to the terms of this Contract or the relationship of the parties shall be brought in a Court situated in the State of Wisconsin. Both parties hereby irrevocably admit themselves to and consent to the jurisdiction of said Court.
16. Severability; Waiver. The invalidity of any provision or clause of this Contract shall not affect the validity of any other provision or clause hereof. Seller reserves the right to correct clerical or similar errors relating to price or any other term shown in this Contract. The failure of either party to insist, in any one or more instances, upon performance of any term, covenant or condition of this Contract shall not be construed as a waiver or relinquishment or any right granted hereunder or the future performance of such term, covenant or condition.
17. Independent Contractor. Buyer is an independent contractor and neither Buyer nor any of its employees or agents shall be considered an employee or agent of Seller. Neither Buyer nor any of its employees or agents is authorized to incur any obligations or make any promises or representations on Seller’s behalf.
18. Survival. The provisions found in sections 1, 6, and 15 and the warranty and damage limitations and indemnity rights in sections 8 and 9, and any other provision the performance or effectiveness of which naturally survives, shall survive expiration or termination of the parties’ agreement for any reason. All of Seller’s remedies herein are cumulative and not exclusive of any other remedies available to Seller at law, by contract or in equity.
(10/13 Rev. 4)