TERMS AND CONDITIONS OF SALE
1. APPLICABILITY. These terms and conditions of sale (these “Terms”) are the only terms that govern the sale of products and/or services (the “Products”) by Sussex IM (the “Seller”) to the buyer issuing the purchase order for such Products or otherwise named on the order acknowledgment or confirmation accompanying such purchase order (“Buyer”) and are not an acceptance of any offer made by Buyer. Any accompanying order acknowledgment or confirmation and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties and communications, both written and oral. This Agreement supersedes any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Seller expressly rejects Buyer’s general terms and conditions of purchase, and fulfillment of Buyer’s order does not constitute acceptance of Buyer’s terms and conditions or serve to modify or amend these Terms. Acceptance of the Products or any order acknowledgment or confirmation by Buyer, which shall be deemed accepted should Buyer not object in writing within 10 days after Buyer’s receipt thereof, is a prerequisite to the purchase of the Products and shall operate as an acceptance of these Terms. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products (“Master Agreement”), then the Master Agreement shall prevail to the extent of any inconsistency with these Terms. No additional or different terms or conditions will be binding upon Seller unless specifically agreed to in writing; failure of Seller to object to provisions contained in any purchase order or other communication from Buyer shall not be construed as a waiver of these Terms or an acceptance of any of such provisions.
2. PRICES. Unless Seller agrees otherwise in writing, the price for Products is f.o.b. Seller’s plant in Sussex, WI, and assumes that (a) Seller may ship Products in installments, in such quantity and at such times as Seller deems appropriate, and (b) no delay or interruption in production and shipments will occur. Buyer is responsible for all taxes, duties, customs, inspection or testing fees and any other governmental charges or interest imposed on any amounts payable by Buyer in connection with the sale; provided, that Seller will charge sales tax on all sales unless Buyer has provided Seller an exemption certificate. Prices quoted are firm for 30 days from the date of Seller’s quotation, except that prices are subject to increase at any time if the cost of raw materials increases. Seller’s prices are conditioned upon Buyer’s acceptance of Sections 9 and 12 of these Terms. If Buyer desires Seller to provide additional warranties or remedies or to be liable for some or all of damages and liabilities disclaimed by Seller, Seller may increase its prices in its sole discretion.
3. PAYMENT. Buyer shall pay Seller all amounts due upon receipt of Seller’s invoice. All payments hereunder shall be in US dollars and made by any payment method acceptable to Seller. Interest will be charged at the highest rate permitted under applicable law on accounts more than 30 days past due. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorney’s fees. Installments may be invoiced separately, and payment is due upon receipt of invoice otherwise approved by Seller. Seller reserves the right to change or withdraw credit terms for any reason and at any time. In addition to all other remedies available under this Agreement or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products if Buyer fails to pay any amounts when due hereunder and such failure continues for 10 days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.
4. CHANGES AND CANCELLATION. Seller may obtain suitable substitutes for unobtainable materials for any reason. Buyer may not cancel or modify Buyer’s order or any specifications provided to Seller without Seller’s prior written consent. Notwithstanding any such consent by Seller, Seller will be entitled to the full contract price, including reasonable engineering charges, less any expenses saved by Seller because of the modification or cancellation; Buyer shall also be responsible for any costs for which Seller became liable, including without limitation any charges imposed by the manufacturer of any tooling ordered for such order. Any changes can result in a price and schedule change.
5. DELIVERY; TITLE AND RISK OF LOSS. Delivery of Products to a carrier at Seller’s plant or other loading point (the “Delivery Point”) shall constitute delivery to Buyer. Title and risk of loss shall pass to Buyer upon delivery of the Products at the Delivery Point. Seller reserves the right to make delivery in installments. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries. All delivery dates are approximate. Time is not of the essence. If Seller delivers to Buyer a quantity of Products of up to 10% more or less than the quantity specified in the order, Buyer shall not be entitled to object or to reject the Products or any portion of them by reason of the surplus or shortfall and shall pay for the Products at the price set forth in the Terms adjusted pro rata.
6. CLAIMS; ACCEPTANCE. Buyer shall inspect the Products upon receipt of shipment. Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any Nonconforming Products (defined below) within 10 days after Buyer’s receipt of shipment and furnishes such written evidence or other documentation as required by Seller. Claims for loss or damage to Products while in transit should be made to the carrier and not to Seller. Acceptance of an installment shipment constitutes acceptance of any previous installment shipment. Adjusting or modifying Products, or using Products in any processing, manufacturing or assembly, will also constitute acceptance. “Nonconforming Products” means only the following: (i) product shipped is different than identified in the order confirmation or acknowledgment; or (ii) product’s that do not otherwise conform to the agreed upon Terms. If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (i) repair or replace such Nonconforming Products with conforming Products, or (ii) credit or refund the price for such Nonconforming Products, together with any reasonable third-party shipping and handling expenses actually incurred and paid by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to Seller’s facility located at Sussex, Wisconsin. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Buyer’s shipment of Nonconforming Products, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Products to the Delivery Point. Buyer acknowledges and agrees that the remedies set forth in Section 6 are Buyer’s exclusive remedies for Nonconforming Products. Except as provided under Section 6, all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under this Agreement to Seller. Any Products that conform to samples approved by Buyer shall be deemed to be conforming.
7. SUPPLIES FROM BUYER. Buyer shall supply all raw materials and supplies specified on the face hereof. Seller shall not be liable for any failure or delay in delivery if Buyer has not provided any raw materials or supplies to be provided by Buyer in accordance with the schedule established by Seller. Buyer shall furnish 10% or more supplies than are required to fill the order for molded pieces. All materials supplied by Buyer are subject to acceptance by Seller according to its then-current acceptance procedures.
8. STORAGE. If Seller, in its sole discretion, determines that the quantity of materials Buyer supplies pursuant to Section 7 exceeds Seller’s short-term requirements for such materials, or if finished Products are not shipped within 15 days after notification to Buyer that they are ready for shipping, for any reason beyond Seller’s reasonable control, including Buyer’s failure to give shipping instructions, Seller may store such materials or Products at Buyer’s risk in a warehouse or yard or upon Seller’s premises, and Buyer shall pay all handling, transportation and storage costs at the prevailing commercial rates upon submission of invoices therefor.
9. WARRANTIES; EXCLUSIVE REMEDY. Seller warrants to Buyer that Products manufactured by Seller and supplied hereunder will be free from defects in materials and workmanship until (i) 90 days from date of shipment, or (ii) the alteration or processing of such Products, whichever occurs first (the “Warranty Period”). Unless otherwise specified in writing by Seller, finish on Products will be that obtained directly from the molding process. Neither normal voids in the molded plastic nor normal wear and tear shall constitute a defect in material or workmanship. If within the Warranty Period any such Product shall be proved to Seller’s satisfaction to be defective, such Product shall be repaired or replaced at Seller’s option. Such repair or replacement shall be Seller’s sole obligation and Buyer’s exclusive remedy hereunder and shall be conditioned upon Seller’s receiving written notice of any alleged defect within 10 days after Buyer discovers, or upon reasonable inspection should have discovered, such defect. At Seller’s option, Buyer shall ship the relevant Products within 10 days of the date of its notice to Seller, at Seller’s expense, to Seller for inspection and testing, f.o.b. its factory in Sussex, Wisconsin. No Products may be returned for warranty service unless Seller has authorized the return. Repair or other salvage work for Products not covered by this warranty will be billed to Buyer at Seller’s regular rates. THIS SECTION 9 SETS FORTH BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY IN THIS SECTION 9. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 9, SELLER MAKES NO OTHER WARRANTY OR REPRESENTATION TO BUYER, EITHER EXPRESS OR IMPLIED, AND TO THE FULLEST EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, OR ANY WARRANTY RELATING TO SELLER RECOMMENDATIONS (DEFINED IN SECTION 10). BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER INDIVIDUAL OR ENTITY ON SELLER’S BEHALF, EXCEPT AS PROVIDED IN THIS SECTION 9.
10. PRODUCT RECOMMENDATIONS; LIMITATION OF LIABILITY. At Buyer’s request, Seller may make recommendations for the design, material or construction of Products to enhance the manufacturing process, including molding (“Seller Recommendations”). All such Seller Recommendations are for Buyer’s evaluation and approval, and Seller shall have no responsibility or liability of any nature whatsoever in connection with any Seller Recommendations.
11. PATENTS, TRADEMARKS AND COPYRIGHTS. Buyer shall be solely responsible for any patent, trademark, copyright and other similar proprietary right related to Products, and Buyer does hereby indemnify Seller against any and all losses, damages, costs and expenses (including without limitation attorneys’ fees and costs of defense) arising from or relating to claims of infringement, contributory infringement or other claims of a similar nature related to Products.
12. LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, LOST SALES, LOSS OF PRODUCT USE OR OF ANY ASSOCIATED EQUIPMENT, DOWNTIME, SHUTDOWN OR SLOWDOWN COSTS, LOSS OF BUSINESS, OR COSTS OF SUBSITUTE PRODUCTS, FACILITIES OR SERVICES ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE PRICE PAID TO SELLER PURSUANT TO THIS AGREEMENT IN THE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Buyer shall indemnify Seller against any and all losses, liabilities, damages and expenses (including, without limitation, attorneys’ fees and other costs of defending any action) which Seller may incur as a result of any claim by Buyer or others arising out of or in connection with Products and/or services sold hereunder and based on Product or service defects not proven to have been caused solely by Seller’s negligence.
13. TECHNICAL INFORMATION; PROCESSES. Any sketches, models or samples submitted by Seller shall remain Seller’s property and shall be treated as confidential information. Buyer shall not use or disclose, or permit others to use or disclose, such sketches, models or samples, or any design or production techniques revealed thereby. Seller considers confidential certain aspects of its manufacturing processes. Buyer shall, therefore, keep confidential all aspects of Seller’s manufacturing process seen by or known to buyer.
14. CONFIDENTIAL INFORMATION. All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, sketches, models, production techniques, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement, is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section 13. This Section 13 does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
15. FORCE MAJEURE. Seller shall not be liable or responsible to Buyer, or be deemed to have defaulted under or breached this Agreement, for any damage as a result of any delay or failure in fulfilling or performing any term of this Agreement due to any cause beyond Seller’s reasonable control, including, without limitation, any act of God, act of Buyer (including failure or delay of Buyer in providing approvals, drawings, specifications or other information), embargo or other governmental act, regulation or request, flood, fire, earthquake, accident, strike, slowdown, war, riot, epidemic, pandemic, quarantine, delay in transportation, failure of any subcontractor or supplier or Seller to perform its obligations, changes in materials by Seller’s suppliers without Seller’s consent, or inability to obtain necessary labor, materials or manufacturing facilities on customary terms. Buyer’s exclusive remedy for these and other delays and for Seller’s inability to deliver for any reason shall be rescission of this agreement.
16. INSURANCE; LIMITATION ON LIABILITY. Seller will not insure any property of Buyer that may at any time be in Seller’s possession for the performance of this Agreement, and Seller will have no responsibility or liability whatsoever for any loss thereof or damage thereto for any reason whatsoever.
17. AMENDMENT AND MODIFICATION; CORRECTIONS. These Terms may not be amended or modified by Buyer except with Seller’s prior written consent. These Terms may be amended or modified by Seller upon advance notice thereof; provided, however, that Seller reserves the right to correct typographical errors in these Terms, whether in Seller’s favor or Buyer’s, at any time.
18. ARBITRATION. All disputes between the parties arising out of or relating to this agreement shall be finally settled by arbitration under the Rules of Conciliation and Arbitration of the American Arbitration Association, by one arbitrator appointed in accordance with said Rules. Such arbitration shall occur in Milwaukee, Wisconsin. The award of any such arbitration shall be final and binding on both parties and shall be enforceable against a party in any court having jurisdiction over that party.
19. ENTIRE AGREEMENT; GOVERNING LAW. Any accompanying order acknowledgment or confirmation and these Terms constitute the entire agreement between the Seller and Buyer, and shall be governed by and construed according to the internal laws of the state of Wisconsin without giving effect to any conflicts of laws provisions thereof.
20. ASSIGNMENT. Buyer’s rights, interests, or obligations hereunder may not be assigned, transferred, or delegated by Buyer without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
21. COMPLIANCE WITH LAW. Buyer shall at all times comply with all laws applicable to these Terms, Buyer’s performance of its obligations hereunder, and Buyer’s use of the Products. Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase or use of the Products and (b) not engage in any activity or transaction involving the Products, by way of shipment, use, or otherwise, that violates any law.
22. WAIVER. No waiver by Seller of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms by Seller operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by Seller precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by Seller.
23. RELATIONSHIP OF THE PARTIES. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
24. NOTICES. All notices shall be in writing and addressed to the parties at the addresses set forth on the face of the order for the Products or to such other address for either party as that party may designate by written notice. All notices must be delivered by nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested).
25. SEVERABILITY. If any term or provision of these Terms is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
26. TOOLING SALES ADDENDUM. A Tooling Sales Addendum which contains supplemental terms and conditions of sale distinct from those in these Terms shall apply to sales of capital equipment, tooling and molds
ALL SALES ARE SUBJECT TO THESE TERMS AND CONDITIONS OF SALE.
Rev 7.7.25