SOHN MANUFACTURING INCORPORATED TERMS AND CONDITIONS OF
SALES ALL QUOTATIONS ARE MADE AND ALL ORDERS ARE ACCEPTED BY
SOHN MANUFACTURING INCORPORATED SUBJECT ONLY TO THESE TERMS
AND CONDITIONS. THROUGHOUT THIS DOCUMENT, SOHN
MANUFACTURING INCORPORATED SHALL BE REFERRED TO AS SELLER.
1.) MODIFICATIONS OF SALES TERMS: Any Terms and Conditions contained in
any purchase order or other form of communication from Seller's customers which are
additional to or different from these Terms and Conditions shall be deemed rejected by
Seller unless expressly accepted in writing by Seller. In general, no modification,
amendment, waiver or other charge of any of these Terms and Conditions and those
contained on the reverse side hereof and/or in attachments hereto ("Terms and
Conditions"), or any of Seller's rights or remedies thereunder shall be binding on Seller
unless expressly accepted in writing by Seller's authorized officers. No course of
dealing, usage of trade or course of performance shall be relevant to explain or
supplement any of these Terms and Conditions printed on this page and those
contained on the face side or in attachments hereto, the latter shall control. If any
document issued by any party hereto is sent by facsimile or another form of electronic
document transmission, the parties hereto agree that (a) the copy of any such
document printed on the facsimile machine or printer of the recipient thereof is a
counterpart original copy thereof and is a "writing". (b) delivery of any such document
transmission is authorized by the recipient thereof and is legally sufficient for all
purposes as if delivered by United States mail. (c) the typewritten name of an
authorized agent of the party sending such document on any such document is
sufficient as a signature thereon on behalf of such part and the intent of such signature
is to authenticate the writing, and, (d) an electronically stored and reproduced copy of
any such document shall be deemed to be legally sufficient evidence of the terms of
such document for all purposes.
2. ACCEPTANCE OF ORDERS: Acceptance by Seller of Buyer's purchase order(s) is
expressly conditioned upon Buyer's assent to these Terms and Conditions. Buyer will
be deemed to have assented to such Terms and Conditions unless Seller receives
written notice of any objections within fifteen (15) days after Buyer's receipt of this term
and in all events prior to any delivery or other performance by Seller of Buyer's order.
3. QUOTATIONS: Quotations by Seller shall be deemed to be offers by Seller to sell
the equipment described therein subject to these Terms and Conditions, and
acceptance of such offers is expressly limited to acceptance by Buyer of all of these
Terms and Conditions within thirty (30) days from the date of the quotation. Purchase
order submitted by Buyer for the equipment quoted by Seller shall be subject to and will
be deemed to constitute acceptance of these Terms and Conditions. All purchase
orders will be subject to approval by Seller.
4. PRICES; PRICE CHANGES: All prices are net F.O.B. shipping point and are
subject to change without notice. In the event of a change in Seller's prices, the price
for equipment unshipped will be the price in effect on the date of shipment.
If Seller's quoted price was based upon delivery to and acceptance by Buyer of a
specified quantity of equipment, such price shall be subject to adjustment if Buyer does
not accept the quantity at the times specified in Seller's quotation, and Buyer will be
invoiced at Seller's standard price without quantity discounts, if any, for the quantity of
equipment actually accepted by Buyer.
5. TAXES: In addition to any prices, Buyer shall pay the amount of any present or
future manufacturer's tax, retailer's occupation tax, use tax, sales tax, excise tax, duty,
custom, inspection or testing fee, or any other tax, fee or charge of any nature
whatsoever imposed by any governmental authority, on or measured by the transaction
between Seller and Buyer. In the event Seller is required to pay any such tax, fee or
charge. Buyer shall reimburse Seller therefor; or, in lieu of such payment, Buyer shall
provide seller at the time the order is submitted with an exemption certificate or other
document acceptable to the authority imposing such tax, fee or charge.
6. TERMS OF PAYMENT: All orders are subject to the approval of Seller. Terms of
payment are cash in full prior to shipment. Seller may demand full or partial payment in
advance before proceeding with the work. At its option without prejudice to other
lawful remedies, Seller may defer delivery or cancel this contract. If delivery is
deferred, the equipment may be stored as provided in Section 9 hereof and Seller may
submit a new estimate of cost for completion based on prevailing conditions. If Buyer
defaults in any payment when due, or in the event any voluntary or involuntary
bankruptcy or insolvency proceedings involving the Buyer are initiated by or against
Buyer, then the whole contract price shall immediately become due and payable upon
demand, or Seller, at its option without prejudice to its other lawful remedies, may defer
delivery or cancel this contract.
If shipments are delayed by the Buyer for any cause, payments shall become
due from the date on which Seller is prepared to make shipment and storage shall be
the Buyer's risk and expense as provided in Section 9 hereof. If manufacture is
delayed by the Buyer for any cause, a partial payment based upon the proportion of the
order completed shall become due from the date on which Seller is notified of the delay.
7. DELIVERY; RISK OF LOSS: All sales are F.O.B. Seller's plant or other point of
shipment designated by Seller. Shipping dates are estimates only which are not
guaranteed and are based upon prompt receipt from Buyer of all necessary shipping
and other information. Seller reserves the right to make delivery in installments, all
installments to be separately invoiced and paid for by Buyer when due per invoice,
without regard to subsequent deliveries.
Delivery of equipment to a commercial carrier at Seller's plant or other loading
point shall constitute delivery to Buyer, and any risk of loss and further cost and
responsibility thereafter for claims, delivery, loss or damage, including, if applicable,
placement and storage, shall be borne by Buyer. When equipment is delivered by
Seller's truck, unloading at Buyer's dock shall constitute delivery to Buyer. Claims for
shortages or other errors in delivery must be made in writing to Seller within ten (10)
days after receipt of shipment and failure to give such notice shall constitute unqualified
acceptance and a waiver of all such claims by Buyer. Claims for loss or damage to
equipment in transit by common carrier must be made to the carrier and not to Seller.
Freight and handling charges by Seller may not reflect actual freight charges
prepaid to the carrier by Seller due to incentive discounts earned by Seller based upon
Seller's aggregate volume of freight tendered to a carrier or when a carrier must be
used which charges a rate which is different than the rate upon which Seller's freight
and handling charges were based. When shipments are delivered in Seller's private
trucks Buyer will be charged an amount approximating the prevailing common carrier
rate.
8. EXCUSABLE DELAYS; FORCE MAJEURE: Seller shall not be liable for any
ordinary, incidental, or consequential loss or damage as a result of Seller's delay in or
failure of delivery or installation due to (i) any cause beyond Seller's reasonable control,
(ii) an act of God, act of the Buyer, embargo or other government act, authority,
regulation or request, fire, theft, accident, strike, slowdown or other labor disturbance,
war, riot, delay in transportation, or (iii) inability to obtain necessary labor, materials,
components, or facilities.
Should any of the aforementioned events of force majeure occur, Seller, at its
option, may cancel Buyer's order with respect to any undelivered equipment or extend
the delivery date for a period equal to the time lost because of delay. Notice of such
election shall be given promptly to Buyer. In the event Seller elects to so cancel the
order. Seller shall be released of and from all liability for failure to deliver the
equipment, including, but not limited to, any and all claims on behalf of Buyer for lost
profits, or any other claim of any nature which Buyer might have.
If shipping or progress of the work is delayed or interrupted by Buyer, directly or
indirectly. Buyer shall pay Seller for all additional charges resulting therefrom.
9. STORAGE: If the equipment is not shipped within thirty (30) days after notification
has been made to Buyer that it is ready for shipping, for any reason beyond Seller's
control, including Buyer's failure to give shipping instructions, Seller may store the
equipment at Buyer's risk and expense in a warehouse or on Seller's premises, and
Buyer shall pay all handling, transportation and storage costs at the prevailing
commercial rates promptly following Seller's submission of invoice for such costs.
10. LIMITED WARRANTIES
The Seller warrants the equipment (except for expendable parts and normal wear of
components and parts) sold to the original Buyer to be free from defects in materials
and workmanship. This warranty shall be effective for a period of one (1) year from the
date of purchase of the equipment. This one (1) year Manufacturer's warranty covers
only those components manufactured by the Seller. All other components may be
covered under the Manufacturer's vendor warranty, if any. Seller's warranty, in
Manufacturer's sole discretion, shall be limited to the repair or replacement of materials
determined by Seller to be defective or non-conforming. Seller
assumes no responsibility for reimbursing any repair or replacement costs incurred
without the express written consent of Seller. Defective parts must be returned,
shipping charges prepaid to Seller, after authorization by Seller to make
such a return; replacement parts will be shipped to Buyer by surface transportation; air
or priority shipping costs will be at the Buyer's expense. The above warranty is
effective only if all conditions of payment have been met and if the equipment has not
been misused, or negligently or improperly used by the Buyer.
THE ABOVE WARRANTY BY SELLER IS MADE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESSED OR IMPLIED AND THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE
EXPRESSLY EXCLUDED AS TO ANY PRODUCT MANUFACTURED OR
ASSEMBLED BY SELLER AND SOLD BY ANYONE.
The foregoing express warranty is in lieu of all other warranties expressed or implied,
and of all obligations or liabilities on the part of Seller for damages, including, but not
limited to, consequential and/or incidental damages, arising out of or in connection with
the use or operation of the equipment sold, or for any loss profits or consequential
damages arising from the breach of any warranty, or from any delays in delivery, repair
or replacement. The Seller shall not be liable for any injury, loss or damage, direct or
consequential, arising out of the use or inability to use a Sohn product. In no event
shall Seller be liable for damages of any kind or nature including incidental or
consequential damages if such damages arose out of bodily injury resulting from
improper or negligent use or operation of the equipment sold, or in the event that the
said equipment has been altered or improperly repaired.
THIS MACHINE IS FOR INDUSTRIAL USE ONLY IN AN INDUSTRIAL
ENVIRONMENT.
Sohn has supplied guarding to its best ability on all electrical components, shafts,
power drives, pulleys, belts and on objects that are designed to be objects in motion or
considered by Sohn to be obvious operator danger points. However, due to the
variances in OSHA Codes, which allows OSHA Inspectors to determine OSHA
violations in accordance to their interpretation of OSHA Codes. Sohn does not warrant
the machine to meet all OSHA requirements, which can vary in accordance to the
location and OSHA Inspectors. It is agreed that in accepting this warranty, the meeting
of final OSHA requirements for operation in their facility is the responsibility of the
Buyer.
The foregoing warranty and disclaimers may not be altered or modified unless such
alterations or modifications are reduced to writing and are signed by an officer of
Seller.
Any description of the equipment, whether in writing or made orally by the 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 equipment and shall not be construed as an express
warranty unless confirmed to be such in writing by Seller's authorized officer.
11. LIMITATIONS OF LIABILITY; CONSEQUENTIAL DAMAGES:
Consequential Damage Disclaimer - Seller's liability with respect to equipment
proved to its satisfaction to be defective within the warranty period shall be limited to
repair, replacement or refund as provided in Section 10 hereof, and in no event shall
Seller's liability exceed the purchase price of the equipment involved. Seller shall not
be subject to any obligations or liabilities, whether arising out of breach of contract,
warranty, tort (including negligence) or other theories of law, with respect to equipment
sold or services rendered by Seller, or any undertakings, acts or omissions relating
thereto. Without limiting the generality of the foregoing, Seller specifically disclaims
any liability for property or personal injury damages, penalties, special or punitive
damages, damages for lost profits or revenues, loss of use of equipment or any associated
equipment, cost of capital, cost of substitute products, facilities or services, downtime,
shutdown, or slowdown costs, or for any other types of economic loss, and for claims of
Buyer's customers for any such damages.
SELLER SHALL NOT BE LIABLE FOR AND DISCLAIMS ALL
CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES
WHATSOEVER, EVEN IF THE REPAIR OR REPLACEMENT REMEDY SHALL BE
DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE UNDER SECTION 2-
719 OF THE UNIFORM COMMERCIAL CODE, SELLER SHALL HAVE NO
LIABILITY TO BUYER FOR CONSEQUENTIAL DAMAGES, SUCH AS LOST
PROFITS, LOST REVENUE, DAMAGE TO OTHER EQUIPMENT OR LIABILITY
OR INJURY TO A THIRD PARTY.
12. INDEMNIFICATION BY BUYER: Buyer shall indemnify, hold harmless, and
defend Seller and Seller's employees and agents from and against any and all damages,
liability, claims, losses, and expenses (including reasonable attorneys', fees, court
costs, and out-of-pocket expenses) arising out of or resulting in any way from claims by
customers of Buyer or third-parties against Seller alleging a breach of contract or
warranty by Seller to the extent that such damages, liability, claims, losses, and
expenses which may be payable by Seller to Buyer pursuant to and as limited by
Seller's warranty and damage obligations as contained in Sections 10 and 11 hereof so
as to effectively limit Seller's obligations to customers of Buyer or third parties to those
set forth and Sections 10 and 11 hereof.
13. PATENT INDEMNIFICATION: Seller will, at its own expense, defend or settle any
suits that may be instituted against Buyer for alleged infringement by the equipment of
any patent, provided that: (a) such alleged infringements consist of the use of the
equipment for any of the purposes for which such equipment was sold; (b) Buyer shall
have made all payments for such equipment then due hereunder; (c) Buyer shall give
Seller immediate notice in writing of any such suit and transmit to Seller immediately
upon receipt of all processes and papers served upon Buyer; and (d) Buyer shall permit
Seller through its counsel, either in the name of Buyer or in the name of Seller, to
defend such suit(s) and give all needed information, assistance and authority to enable
Seller to do so.
In case of a final award or damages in any such suit, Seller will pay such award
but will not be responsible for any compromise or settlement made without its written
consent. In case the equipment itself is in such suit held to infringe any valid patent
issued and its use enjoined, or in the event of a settlement or compromise approved by
Seller which shall preclude future use of the equipment sold to Buyer hereunder, Seller
shall, at its own expense and at its sole option, either: (a) procure rights to continue
using such equipment; (b) modify the equipment to render it non infringing; (c) replace
the equipment with non infringing equipment; or (d) refund the purchase price paid by
Buyer for the equipment after return of the equipment to Seller. Notwithstanding the
foregoing, Seller shall not be held responsible for infringements of combination or
process patents covering the use of equipment in combination with other goods or
materials not furnished by Seller.
The foregoing states the entire liability of Seller for patent infringement, and IN
NO EVENT SHALL SELLER BE LIABLE FOR CONSEQUENTIAL OR
INCIDENTAL DAMAGES ATTRIBUTABLE TO AN INFRINGEMENT nor for
infringement based on the use of the equipment for a purpose other than that for which
sold by Seller. As to any equipment furnished by Seller to Buyer manufactured in
accordance with designs proposed or furnished by Buyer or any claim of contributory
infringement resulting from the use or resale by Buyer of equipment sold hereunder,
Buyer shall indemnify Seller for any award made against Seller or settlement by Seller
for any patent, trademark or copyright infringements including attorneys' fees and
defense costs.
14. 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's
security interest in all equipment sold by Seller and agrees to execute such other Security
Agreements and Financing Statements as Seller may reasonably request.
15. INSURANCE: Until payment in full of the purchase price, Buyer shall maintain
insurance covering all equipment sold by Seller to Buyer in such amounts and against
such risks as is customary by companies engaged in the same or similar business and
similarly located, and shall, upon Seller's request, furnish evidence of such insurance
satisfactory to Seller.
16. DRAWINGS; OTHER DESIGN DATA: All specifications, drawings, designs, data,
information, ideas, methods, tools, gages, dies, fixtures, patterns and/or inventions
made, conceived, developed or acquired by Seller in connection with procuring and/or
executing Buyer's order will vest in and inure to Seller's sole benefit notwithstanding
any changes therefor which may have been or may be imposed by Seller.
Buyer shall not give, loan, exhibit, sell or transfer to any person not then
employed by Buyer and authorized to receive such information, or to any organization
or entity, any drawing, photograph, or specification furnished by Seller or reproduction
thereof which may enable such person, organization or entity to furnish similar goods or
parts therefor.
17. RETURN OF EQUIPMENT: No equipment or part shall be returned to Seller
without written authorization and shipping instructions first having been obtained from
Seller.
18. ASSIGNMENT AND SUBCONTRACTING: None of the Buyer's rights under any
order shall be assigned by the Buyer to any other person, whether by operation of law
or otherwise, without Seller's prior written approval. Seller may, without the necessity of
obtaining Buyer's prior written consent, subcontract the production of all or any portion
of the equipment.
19. CANCELLATION: No order submitted to Seller may be canceled by Buyer without
the prior written consent of Seller, which consent will at all times be conditioned on
Buyer's agreement to pay Seller's cancellation charge. For finished equipment which in
Seller's judgment is readily resalable to others, the cancellation charge shall be 15% of
the invoice price of the equipment. For all other cancellations, the cancellation charge
shall amount to all costs and expenses incurred by Seller and arising out of or in
connection with Buyer's order, net of recoverability, but in no event less than 10% of the
invoice price of the equipment or more than the invoice price.
20. GENERAL:
Governing law - These Terms and Conditions, and the contract of sale between
Seller and Buyer, shall be governed by and construed in accordance with the laws of
the State of Wisconsin. Seller and Buyer hereby agree that any legal action deemed
necessary by either party hereto shall be brought in the Circuit Court in and for Seller
County, Wisconsin and hereby consent to the personal jurisdiction of such court in any
such action over the parties hereto. The rights and obligations of Seller and Buyer
shall not be governed by the provisions of the United Nations convention on Contracts
for the Internal Sale of Goods.
Attorneys' Fees - Buyer agrees to pay all of Seller's costs and expenses of
collection and related litigation, including but not limited to attorneys' fees and costs.
Salvatory Clause - The Invalidity, in whole or in part, of any of the provisions of
these Terms and Conditions, shall not affect the enforceability of any of the other
provisions thereof.
Applicability - The Terms and Conditions as stated herein are applicable as of
the date of this printing and until such time as changed by Seller.