Terms and Conditions
[Shipping and Sales Tax]
[Payment Methods]
[Terms and Conditions]
TERMS AND CONDITIONS
1. Agreement Governed by Following Terms and
Conditions and No Others. This document is an offer
by Busch Precision, Inc. ("BPI") to sell the products
and/or services described herein and are expressly
conditioned upon Customer's assent to these terms and
conditions. No additional or different terms or
conditions will apply to this sale or be binding upon
BPI. BPI hereby objects to any terms or conditions
which are in addition to or different from these
terms and conditions. By accepting this offer,
Customer agrees to and accepts all of the terms and
conditions set forth in this Quotation/Acceptance,
and Customer further agrees that any additional or
different terms or conditions contained in any
document sent by Customer to BPI shall be of no
effect. By acceptance of any goods or services
produced hereunder, Customer specifically waives any
additional or different terms or conditions. If, for
any reason, this offer is construed as an acceptance
of any offer made by the Customer, such acceptance is
hereby expressly conditioned upon Customer's assent
to all of the terms and conditions of this
Quotation/Acceptance including, but not limited to,
this provision which hereby expressly invalidates all
additional or different terms contained in the
Customer's offer.
2. Acceptance by Customer. Acceptance hereof shall
occur when Customer (i) in writing, by facsimile
transmittal ("Fax"), e-mail, or otherwise orders any
of the products, or authorizes BPI to perform any of
the services shown on the face hereof, or (ii)
receives any product or service from BPI, whichever
occurs first.
3. Shipping Terms, Risk of Loss, Delivery, Claims and
Delays. All products are sold F.O.B. BPI’s plant and
Customer shall bear all risk of loss or damage in
transit, and shall pay all shipping and handling
charges. No loss or damage shall relieve Customer of
any obligation hereunder, including payment for lost
or damaged goods. BPI may deliver products in
installments with each installment to be separately
invoiced and paid for when due. Any delivery not in
dispute shall be paid for regardless of any
controversies relating to other deliveries. A dispute
as to any delivery shall not relieve Customer of its
obligation to accept and pay for any other delivery
installment. Any delivery or performance date for the
goods and/or services specified by BPI is a desired
and not a promised date. Time is not of the essence
as to any agreement or contract arising from or out
of this Quotation/Acceptance. Claims for shortages or
damages or other errors in delivery or from failure
of products to conform to Customer's specifications
must be made in writing to BPI within thirty (30)
days from date of invoice. Failure to give such
notice shall constitute Customer's unqualified
acceptance of delivery and waiver of any such claims.
BPI shall not be responsible for, nor liable for
damages resulting from its failure to deliver any
goods or services hereunder if such failure is the
result of any cause beyond BPI’s control including,
without limitation, an act of God, act of the
Customer, act of Subcontractor, embargo or other
government act, regulation or request, fire,
accident, strike, slowdown, war, riot, delay in
transportation, inability to obtain necessary labor,
materials, or manufacturing facilities.
4. Title Passage and Insurance. Except as otherwise
expressly stated herein, title of and risk of loss or
damage to goods shall be transferred from BPI to
Customer from such time as the goods shall have
effectively been delivered to common carrier at BPI’s
plant. Customer shall effect insurance satisfactory
to and for BPI on all goods produced to cover all
sorts of risks and losses including risks and losses
from claims of Customer's customers and/or other
third parties and shall pay all premium for taking
out the aforesaid insurance coverage and including
BPI as an additional insured.
5. Cancellation of and Changes to Orders. No
agreement or contract arising from or out of this
Quotation/Acceptance may be canceled or altered by
Customer except upon BPI’s prior written consent. In
the event that BPI consents to any alteration by
Customer, any changes in drawings, materials, design
specifications, or masters which affect cost will
entitle BPI to establish new prices, and if work has
been started, BPI shall be properly reimbursed for
work already performed regardless of whether products
or services are accepted by Customer. BPI similarly
reserves the right to establish new prices if changes
involve an increase or decrease in the quantities due
or in the time requested for performance under the
contract. BPI has the right to cancel and declare
null and void any agreement or contract arising from
or out of this Quotation/Acceptance without liability
to the Customer other than refunding to Customer any
payment for goods and/or services tendered prior to
cancellation, which goods and/or services were not
delivered or performed. BPI shall reasonably notify
Customer of any such cancellation and the reasons
therefor.
6. Quotations/Acceptances and Prices. All prices are
subject to change by BPI without notice to Customer
if based on increases by Third Party Subcontractors
or Material Suppliers. The price of products on order
but unshipped will be adjusted to the price in effect
at the time of shipment. Quotations/Acceptances
automatically expire thirty (30) calendar days from
the date issued unless otherwise stated in the
Quotation/Acceptance and are subject to change or
withdrawal at any time. BPI reserves the right to
unilaterally extend such Quotation/Acceptance up to
six (6) months from date of issuance. Prices shown on
the published price lists and other published
literature issued by BPI are not unconditional offers
to sell, and are subject to change without notice.
BPI’s prices for equipment, unless otherwise
specified, do not include an allowance for
installation and/or final on-site adjustment. Prices
to be paid by Customer shall be subject to adjustment
to those in effect at time of shipment of goods or
performance of services.
7. Terms of Payment. Invoices are due and payable
within thirty (30) days of date of invoice ("Due
Date"). Any amount not paid by Due Date shall be
subject to a finance charge of one and one-half
percent (1.5%) per month until paid. Customer agrees
to pay all BPI’s reasonable attorney fees, collection
fees, and costs arising out of any breach by Customer
of any agreement or contract arising from or out of
this Quotation/Acceptance.
8. Taxes and other Charges. Any tax, fee, or charge
of any nature whatsoever imposed by any federal,
state, county or local governmental authority shall
be paid by Customer in addition to the prices quoted
or invoiced. All shipping and handling charges of any
nature whatsoever associated with BPI’s shipment of
product under any agreement or contract arising from
or out of this Quotation/Acceptance shall be paid by
Customer in addition to the prices quoted or invoiced.
9. Disclaimer of Damages. IN NO EVENT SHALL BPI BE
LIABLE FOR ANY TYPE OF SPECIAL, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE OR PENAL DAMAGES, WHETHER SUCH
DAMAGES ARISE OUT OF OR ARE A RESULT OF BREACH OF
CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY OR OTHERWISE; such damages shall
include but not be limited to loss of profits or
revenues, cost of substitute goods, facilities down
time costs, increased construction costs or claims of
Customer's customers or contractors for such damages.
Customer agrees that in the event of a sale,
transfer, assignment, or lease of the products sold
under any agreement or contract arising from or out
of this Quotation/Acceptance, the Customer shall
secure for BPI the protection afforded to it in this
paragraph. Customer agrees that BPI’s liability and
Customer's remedy for damages, whether in contract,
in tort, under any warranty, in negligence, or
otherwise, shall not exceed the amount of the
purchase price paid by Customer to BPI. The price
stated for the goods and/or services is based upon
and in consideration for limiting BPI’s liability as
set forth herein. No action arising out of the
transactions under any agreement or contract arising
from or out of this Quotation/Acceptance may be
brought by Customer more than one (1) year after the
date of shipment of the goods or performance of the
services.
10. Limitation of Liability. BPI shall not be liable
for any loss, claim, expense or damage caused by,
contributed to by or arising out of the acts or
omissions of Customer or third parties, whether
negligent or otherwise.
11. Tooling, Molds, and Masters; Security Interest.
To secure Customer's obligations to BPI, Customer
hereby grants to BPI a security interest in all
tools, masters, dies, molds, models, prototypes, and
other equipment constructed by BPI for Customer or
furnished to BPI by Customer (collectively
the "Equipment") which is or may hereafter be in
BPI’s possession. If amounts remain outstanding to
BPI or if BPI is performing services or manufacturing
products for Customer and BPI has not been paid in
full therefor (whether or not payment is then due and
owing), BPI may lawfully retain possession of the
Equipment and possession shall constitute perfection
of this security interest. BPI shall have all the
rights and remedies provided by law, including those
of a secured creditor under Chapter 409 of the
Wisconsin Statutes. If a master is in BPI’s
possession, it is with the understanding that risk of
loss or damage to such master remains with the
Customer. BPI will take all reasonable precautions to
protect the master from loss or destruction while in
BPI’s possession, but BPI shall not be liable for any
loss, damage, or wear and tear that may occur while
the master is in BPI’s possession and BPI does not
undertake to cover any such property by any
insurance. Any master in BPI’s possession may be
disposed of, and BPI shall be entitled to dispose of
the same, ninety (90) days following the commencement
of production of any part or good derived from or
similar to the master. Within the ninety (90) day
period, Customer may request in writing that BPI ship
the master to Customer. BPI will honor such written
request and will ship the master to Customer at
Customer's expense F.O.B. BPI’s plant. The master
shall be delivered "as is" and without any warranty
as to its condition. BPI shall not be obligated to
retain any tooling or mold beyond its normal
productive life, as determined by BPI. Further, BPI
shall have no obligation or responsibility to retain
any mold after the production of its guaranteed
number of parts or for a period longer than one
hundred eighty (180) days following completion of the
most recent model or prototype order, whichever
occurs first.
12. Special Fixtures to be Provided by Customer. All
special inspection jigs and fixtures shall be
furnished by Customer.
13. Security Interest. Customer shall, and hereby
does, grant to BPI a security interest in, and lien
upon, all goods relating to this Quotation/Acceptance
or any agreement or contract arising from or out of
this Quotation/Acceptance, whether in the possession
of BPI, Customer, or common carrier, for the purposes
of securing the payment of all amounts owing or to
become owing by Customer to BPI under any agreement
or contract arising form or out of this
Quotation/Acceptance. Customer agrees to execute any
and all documents which BPI reasonably deems
necessary to create and/or perfect such security
interest.
14. Default. Upon Customer's failure to pay or
otherwise perform in accordance with the terms of
this Quotation/Acceptance, all amounts owing to BPI
by Customer shall, at BPI’s option and without
notice, become immediately due and payable. In
addition to all the rights and remedies of a seller
of goods and/or a secured party under the Wisconsin
Uniform Commercial Code and other applicable law, BPI
may require Customer to assemble the goods for
shipment at a place designated by BPI which is
reasonably convenient to both parties and/or may take
immediate possession of the goods or render them
unusable and sell, lease or otherwise dispose of them
in whole or in part, at public or private sale, on or
off the premises of Customer. Upon default, Customer
shall be liable for all costs of collection and
realization on the collateral, including BPI’s
attorney's fees if placed in the hands of an attorney
for collection.
15. Warranty. BPI warrants that products actually
manufactured, repaired or serviced by BPI for
Customer shall be completed in a workmanlike manner
of sound material. Any such product which proves
defective in material or, workmanship within twelve
(12) months after shipment shall be repaired or
replaced at BPI’s option, but BPI's liability shall
not exceed the price paid to BPI by Customer for the
product. This remedy shall be Customer's exclusive
remedy for breach of BPI's warranty. Customer shall
give BPI written notice of any alleged defect within
ten (10) days after discovery by Customer. Upon
request, Customer shall return the allegedly
defective item, F.O.B. BPI's factory, transportation
charges prepaid. No warranty hereunder shall be
assignable or transferable by Customer, or shall
inure to any third party. This Warranty shall not
apply to any product which has been installed or
operated in a manner not recommended by BPI, nor to
any product which has been repaired, altered,
neglected or used in any way which, in the opinion of
BPI, adversely affects it performance; nor to any
product in which components not authorized by BPI
have been used, which components or use of which have
damaged, caused defects in, or otherwise adversely
affected the product or its performance; nor to
normal maintenance services or replacement or normal
service items. THE FOREGOING WARRANTY AND REMEDY ARE
EXCLUSIVE AND IN LIEU OF ALL CONTRACT OR TORT
LIABILITY AND ALL OTHER WARRANTIES OR RIGHTS OF
REJECTION, EXPRESS OR IMPLIED BY LAW, EQUITY,
CONTRACT, CUSTOM, USAGE, OR COURSE OF DEALING
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE. BPI SHALL NOT BE LIABLE TO CUSTOMER OR ANY
OTHER PERSON FOR ANY CONSEQUENTIAL, INCIDENTAL,
EXEMPLARY, PENAL, PUNITIVE, OR CONTINGENT DAMAGES
WHATSOEVER.
16. Patents. BPI neither warrants nor represents that
any products or services furnished hereunder may be
patentable or copyrightable. Customer shall review
and approve all plans, drawings, sketches,
renderings, diagrams, specifications, models, and
prototypes prepared for Customer by BPI
(collective "Design Work"). Such approval shall
constitute Customer's warranty and representation to
BPI that no Design Work or product produced by BPI
for Customer infringes upon any patent, copyright, or
trade secret. Customer acknowledges that BPI is
relying upon Customer's representations herein and
that BPI has not made, and is not obligated to make,
any independent inquiry or investigation.
17. Indemnity. Customer shall, at no expense to BPI
indemnify, defend, and hold BPI harmless against any
and all losses, damages, and expenses (including
punitive damages, multiple damages, attorney fees,
and other costs of defending any action) that BPI may
incur as a result of any claim made against BPI by
any person including, without limitation, Customer,
its successors, assigns, and customers, actually or
allegedly arising in any way out of any of the
products or services furnished hereunder by BPI or
out of any products manufactured or sold by Customer
including, without limitation, any claim which in
whole or in part actually or allegedly arises out of
(i) BPI's negligent or other wrongful act or
omissions, (ii) danger or defect in any product or
service sold by BPI to Customer, or (iii)
infringement by BPI of any patent, copyright, or
trade secret relating to any Design Work or to any
products made by BPI for Customer.
18. Technical Information. Any sketches, models,
samples or photographs submitted by BPI to Customer
shall remain the confidential property of BPI unless
or until Customer has paid BPI in full for the same.
Customer shall not use or disclose, or permit any
other person to use or disclose, any sketches,
models, samples or photographs for which Customer has
not paid BPI in full and, in any case, shall not
reveal any design or production technique revealed
thereby or inferable therefrom.
19. No License. Neither this Quotation/Acceptance nor
any purchase of goods or services under any agreement
or contract arising from or out of this
Quotation/Acceptance shall be construed to confer
upon Customer or its customers any license under
patents or other proprietary rights of BPI, except
the right to use such goods for the purposes for
which they are sold.
20. Waiver. No provision hereof and no breach of any
provision hereof shall be deemed waived by any
previous waiver of such provision or of any breach
thereof, by any previous custom, practice, or course
of dealing or by BPI's failure to object to
provisions contained in any communication or order
from Customer.
21. Entire Agreement. This document constitutes the
entire agreement between BPI and Customer.
22. Applicable Law. This agreement shall be governed
by and be construed according to its terms and the
internal laws of the State of Wisconsin. Wisconsin
courts shall be the only forum for any disputes
arising hereunder. BPI and Customer consent and
submit to the exercise of personal jurisdiction by
the courts located in Milwaukee County, State of
Wisconsin.
23. Severability. Any provision hereof prohibited or
unenforceable under applicable law shall be
ineffective only to Busch extent and without
invalidating the remaining provisions of this
document.
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