All references in these terms and conditions of sale to "products" includes all hand tools, testing equipment, calibration equipment, and other items manufactured or distributed by Stahlwille Tools LLC ("Seller").
1. Offer, Governing Provisions
This writing constitutes an offer or counteroffer by Seller to sell products to Buyer in accordance with these terms and conditions. THIS WRITING IS NOT AN ACCEPTANCE OF ANY OFFER MADE BY BUYER, AND ACCEPTANCE OF THIS OFFER IS EXPRESSLY CONDITIONED UPON BUYER'S ASSENT TO THESE TERMS AND CONDITIONS. Buyer will be deemed to have assented to these terms and conditions when: (a) Buyer shall have given to Seller (orally or in writing) an order specifying type and or quantity of product, delivery dates, shipping instructions, instructions to bill, or the like, as to all or any part of the products; (b) Buyer has received delivery of the whole or any part thereof; or (c) Buyer has otherwise assented to the terms and conditions hereof. NO ADDITIONAL TERMS OR DIFFERENT TERMS OR CONDITIONS SHALL BE BINDING UPON SELLER, NOR CAN BUYER'S ACCEPTANCE LIMIT OR ALTER THESE TERMS AND CONDITIONS UNLESS SPECIFICALLY AGREED TO IN WRITING SIGNED BY DULY AUTHORIZED PERSONNEL OF SELLER. SELLER HEREBY OBJECTS TO ANY SUCH ADDITIONAL OR DIFFERENT PROVISIONS CONTAINED IN ANY PURCHASE ORDER, REQUEST FOR QUOTE, ACKNOWLEDGEMENT, CONFIRMATION OR OTHER COMMUNICATION FROM BUYER. Any document received from Buyer which contains terms and conditions conflicting with Seller’s documents shall not become part of the contract. Only those terms and conditions as specified in Seller’s documents shall be binding, unless otherwise modified in writing and no implied terms and conditions shall be substituted for Seller’s terms and conditions to resolve any conflict.
2. Delivery, Risk of Loss and Transportation Costs
All products are sold F.O.B. Seller’s location in Yorkville, Wisconsin unless otherwise stated on the reverse side hereof. Delivery of products to a carrier at Seller’s location shall constitute delivery to Buyer; and regardless of shipping terms or freight payment, all risk of loss or damage in transit shall be borne by Buyer. Unless otherwise specified on the face hereof, method and route of shipment shall be at the discretion of Seller.
3. Claims and Delays
Except as may otherwise be expressly provided, Buyer shall be responsible to inspect the products delivered and to notify Seller in writing within TEN (10) DAYS after receipt of shipment of any complaint that relates to such products (including without limitation claims for shortages), 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 products in transit shall be made to the carrier and not to Seller. Seller shall not be liable for any damage as a result of any delay due to any cause beyond Seller’s reasonable control, including, without limitation, any act of God, act of Buyer, embargo or other governmental act, regulation or request, fire, accident, strike, slow-down, war, riot, delay in transportation, or inability to obtain necessary labor, materials, or manufacturing facilities.
Net THIRTY (30) DAYS from date of invoice on approved credit, unless otherwise specified on invoice. If during the period of performance of an order, the financial conditions of Buyer shall not justify the payment terms specified, or if Buyer shall fail to make any payments in accordance with Seller’s terms, Seller may, in its discretion, require full or partial payments in advance before proceeding with the order. Late payments accrue a late charge of 1% per month, but shall not exceed the maximum rate allowed by law. Buyer shall reimburse Seller for all costs incurred in collection (including reasonable attorneys’ fees). Title to the products shall remain in Seller until the purchase price due hereunder shall have been paid in full. If Buyer fails or refuses to pay any part of the amount when due hereunder, then title to the products shall not pass to Buyer, and Seller can repossess itself of the products. In the event, no price is specified, then the price shall be Seller list price for the products.
Buyer hereby grants to Seller a priority lien, purchase money security interest, and/or chattel mortgage in the products and in any accounts receivable or cash from the resale thereof until full payment is made by Buyer to Seller. This paragraph is not meant to alter the parties’ agreement that title to the products remains with Seller until the purchase price is paid in full, but rather, is meant to give Seller a security interest in the products in the event Buyer is ever found to have received title to the products by operation of law or equity contrary to the terms hereof.
5. Taxes and Other Charges
All taxes and charges imposed by any governmental authority on or measured by the transaction between Seller and Buyer shall be paid by Buyer in addition to the price quoted or invoiced. The price quoted or invoiced includes only those taxes separately stated on the face hereof. In the event Seller is required to pay any liability for such tax or charge, Buyer shall indemnify Seller and hold Seller harmless from and against all liability relating to such tax.
Seller warrants products manufactured and/or distributed by it to be free from defects in materials and workmanship for a period of one (1) year from date of shipment, provided they have been installed and/or used as recommended, and have not been subjected to misuse, alteration, accident, abuse or unauthorized repair. If, within the applicable warranty period, any products shall be proven to Seller’s satisfaction to be defective in materials or workmanship, such products shall be either repaired, replaced, or their price refunded, at Seller’s sole option. Seller’s obligation for non-performance, defective products, or any damage caused by its products or their use, and Buyer's exclusive remedy therefor, shall be limited to such repair, replacement or refund at Seller’s sole option and shall be conditioned upon Seller receiving written notice, together with a demand for such repair, replacement or refund, within the applicable warranty period for such products. This warranty gives Buyer specific legal rights and Buyer may have other rights which may vary from state to state. This exclusive remedy shall not be deemed to have failed its essential purpose under any circumstances so long as Seller is willing and able to repair or replace defective products, or to refund the purchase price.
7. Disclaimers of Warranty and Liability
THE WARRANTIES PROVIDED IN SECTION 6 HEREOF ARE EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. None of Seller’s agents, employees, or representatives, other than Seller’s managing member, have authority to bind Seller to any affirmation, representation or warranty other than those stated herein. Seller shall not be subject to any other obligations or liabilities whatsoever with respect to the products manufactured and/or distributed by it, any undertakings, acts or omissions relating thereto, or this agreement.
8. Cancellation and Return
No order accepted by Seller may be canceled or altered by Buyer except upon terms and conditions acceptable to Seller as evidenced by written consent signed by duly authorized personnel of Seller. Products may be returned to Seller only with Seller’s written permission, signed by duly authorized personnel of Seller, having been obtained by Buyer, in advance. Products may not be returned unless they are in marketable condition. Products manufactured to special order are not subject to return. Returned products must be securely packaged to reach Seller without damage; and any cost incurred by Seller to put products in marketable condition will be charged to Buyer.
9. Disclaimer of Consequential Damages and Other Liability; Buyer's Indemnity
Seller’s liability with respect to breaches of warranties shall be limited as provided in Sections 6 and 7 hereof. With respect to other breaches of this contract, Seller’s liability shall in no event exceed the contract price. SELLER SHALL NOT BE SUBJECT TO AND DISCLAIMS: (a) ANY OTHER OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT, EXPRESS OR IMPLIED WARRANTY, OR UNDER STATUTE; (b) ANY OBLIGATIONS WHATSOEVER ARISING FROM TORT CLAIMS OR ARISING OUT OF OTHER THEORIES OF LAW WITH RESPECT TO PRODUCTS SOLD BY SELLER, OR ANY UNDERTAKING, ACTS OR OMISSIONS RELATING THERETO; WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER SPECIFICALLY DISCLAIMS LIABILITY FOR THE TORTS OF NEGLIGENCE, MISREPRESENTATION, AND STRICT LIABILITY; (c) ALL CONSEQUENTIAL, INCIDENTAL, CONTINGENT AND PUNATIVE DAMAGES WHATSOEVER; AND (d) ALL LABOR OR OTHER COSTS INCURRED IN REPAIRING, REMOVING, INSTALLING, SERVICING OR HANDLING OF ANY PRODUCTS.
Without limiting the generality of the foregoing, Seller specifically disclaims any liability for penalties (including administrative penalties), special or punitive damages, DAMAGES FOR LOST PROFITS OR REVENUES, loss of use of products or any associated equipment, cost of capital, facilities or services, down time, cost of recalls shut down or slow down costs, or for any other types of economic loss. All of the limitations and disclaimers contained in this paragraph and in the rest of these terms and conditions shall apply to claims of Buyer's customers or any third party.
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, the products sold hereunder and based on product defects not proven to have been caused solely by Seller’s negligence.
SELLER’S PRICES ARE BASED ON THE POLICIES STATED HEREIN WHICH LIMIT ITS LIABILITY. IF BUYER DESIRES FOR SELLER TO PROVIDE A WARRANTY GREATER THAN THAT WHICH IS STATED ABOVE, THEN SELLER WILL ADJUST UPWARDS THE PRICE FOR THE PRODUCTS TO REFLECT THE ADDITIONAL EXPENSE TO SELLER WHICH SUCH A WARRANTY OBLIGATION COULD CAUSE. BUYER ACKNOWLEDGES THAT SELLER’S PRICE IS LOWER THAN IT OTHERWISE WOULD BE BECAUSE OF SELLER’S DISCLAIMER OF TORT LIABILITY, AND SPECIFICALLY BECAUSE OF SELLER’S DISCLAIMER OF THE TORTS OF NEGLIGENCE, MISREPRESENTATION, AND STRICT LIABILITY. BUYER FURTHER ACKNOWLEDGES THAT THE LOWER CONTRACT PRICE GIVEN IN EXCHANGE FOR SUCH DISCLAIMERS FORMS PART OF THE BASIS OF THIS BARGAIN.
10. Mandatory Arbitration
All claims, matters in dispute, or controversies of every kind or nature of the parties related to these terms and conditions or the sale of the products (hereinafter “disputes”) shall be resolved by arbitration conducted by, and in accordance with, the rules of, the American Arbitration Association (“AAA”) with such arbitration to be held in Racine County, Wisconsin.
Each provision of these terms and conditions shall be considered severable and if for any reason any provision or provisions hereof are determined to be invalid and contrary to law, to the extent permitted by law, such invalidity shall not impair the operation of, or affect those portions of, these terms and conditions which are valid.
12. Final Agreement
This writing is intended by the parties as a final expression of their agreement and is intended also as a complete and exclusive statement of the terms and conditions of their agreement. Any subsequent modification or amendment to it may be made only in writing signed by both parties hereto. This writing and these terms and conditions shall be governed by and construed according to the internal laws of the State of Wisconsin.