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TERMS AND CONDITIONS
(d) In the case of motors, drives, gears and reducers manufactured or marketed by
Seller, Seller warrants only that such Goods, when shipped, shall be capable of
delivering the service rating as indicated in Seller's written documents, including
quotations and catalogs or as noted on such Goods, providing such Goods are
properly installed, connected, and maintained, correctly lubricated, operating
under normal conditions with competent supervision, andwithin the load limits and
voltage range for which it was sold, and provided further that the equipment is free
fromcritical speed, torsional or other type vibration, nomatter how induced.
(e) If any prototype or sample was provided to the Buyer, it was used merely to
illustrate the general type and quality of Goods and not to warrant that Goods
shippedwould be of that type or quality.
(f) UNLESS AUTHORIZED IN WRITING BY A CORPORATE OFFICER OR VICE
PRESIDENT, NO AGENT, EMPLOYEE OR REPRESENTATIVE OF SELLER HAS ANY
AUTHORITY TO BIND SELLER TO ANY AFFIRMATION, REPRESENTATION OR
WARRANTY CONCERNING THE GOODS SOLD UNDER THE SALES CONTRACT
AND ANY SUCH AFFIRMATION, REPRESENTATION OR WARRANTY HAS NOT
FORMED A PART OF THE BASIS OF THE BARGAIN AND SHALL BE
UNENFORCEABLE.
(g) THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
AND/ORANYOTHER TYPE, WHETHEREXPRESSOR IMPLIED.
(h) Products not manufactured and work not performed by Seller are warranted
only to the extent and in themanner that the same are warranted to Seller by Seller's
vendors, and then only to the extent that Seller is reasonably able to enforce such
warranty. In enforcing such warranty, it is understood Seller shall have no
obligation to initiate litigation unless Buyer undertakes to pay all costs and
expenses therefor, including but not limited to reasonable attorney's fees, and
indemnifies Seller against any liability to Seller's vendors arising out of such
litigation.
(i) THE FOREGOING IS SELLER'S ONLY OBLIGATION AND BUYER'S EXCLUSIVE
REMEDY FOR BREACH OF WARRANTY. BUYER'S FAILURE TO SUBMIT A CLAIM
AS PROVIDEDABOVE SHALL SPECIFICALLYWAIVEALL CLAIMS FOR DAMAGES
OR OTHER RELIEF INCLUDING BUT NOT LIMITED TO CLAIMS BASED ON LATENT
DEFECTS. 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 TOA THIRD PARTY.IN
NO EVENT SHALL BUYER BE ENTITLED TO INCIDENTAL, CONSEQUENTIAL, OR
SPECIAL DAMAGES, NOR SHALL SELLER'S LIABILITY EXCEED THE PURCHASE
PRICE OF THE GOODS. ANY ACTION ARISING HEREUNDER OR RELATED
HERETO MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF
ACTION OCCURS OR IT SHALL BE BARRED, NOTWITHSTANDING ANY
STATUTORYPERIODOF LIMITATIONS TOTHECONTRARY.
(j) In the event of the resale of any of the Goods, in whatever form, Buyer will include
the following language in a conspicuous place and in a conspicuous manner in a
written agreement covering such resale: “THE MANUFACTURER MAKES NO
WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, BY OPERATION
OF LAW OR OTHERWISE, AS TO THE MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE GOODS SOLD HEREUNDER. BUYER
ACKNOWLEDGES THAT IT ALONE HAS DETERMINED THAT THE GOODS
PURCHASED HEREUNDERWILL SUITABLYMEET THE REQUIREMENTS OF THEIR
INTENDED USE. IN NO EVENT WILL MANUFACTURER BE LIABLE FOR
CONSEQUENTIAL, INCIDENTALOROTHERDAMAGES.”
(k) Nuclear Use Disclaimer - Goods sold by Seller are not intended for use in
connection with any nuclear facility or activity. If so used, Seller disclaims all
liability for any nuclear damage, injury or contamination, and Buyer shall indemnify
and hold Seller, its officers, agents, employees, successors, assigns and
customers harmless from and against any and all losses, damages or expenses of
whatever formor nature (including attorneys' fees and other costs of defending any
action) which they or any of themmay sustain or incur, whether as a result of breach
of contract, warranty, tort (including negligence) or otherwise, by reason of such
use.
13. REMEDIESAND LIMITATIONSOF LIABILITY.
In the event Buyer claims Seller has breached any of its obligations under the Sales
Contract, whether of warranty or otherwise, Seller may request the return of Goods
and tender to Buyer, at Seller's option, a replacement shipment of Goods. If Seller
so requests the return of the Goods, the Goods will be redelivered to Seller in
accordance with Seller's instructions and at Buyer's expense. Except as herein
provided, Seller shall have no further obligation under the Sales Contract. The
remedies contained in this paragraph and paragraph 12 hereof shall constitute the
sole recourse of Buyer against Seller for breach of any of Seller's obligations under
the Sales Contract, whether warranty or otherwise.
14. TECHNICALADVICE.
Any technical advice furnished or recommendation made by Seller or any
representative of Seller concerning any use or application of any of the Goods is
believed to be reliable, but SELLER MAKES NO WARRANTY, EXPRESSED OR
IMPLIED, ON RESULTS TO BE OBTAINED. BUYER ASSUMES ALL
RESPONSIBILITY FOR LOSS OR DAMAGE RESULTING FROM THE HANDLING OR
USEOFANYOF THEGOODS.
15. FORCEMAJEURE.
Seller shall not be liable for failure to perform its obligations under the Sales
Contract in whole or in part caused by the occurrence of any contingencies beyond
the reasonable control either of Seller or of suppliers of Seller. If any such
contingency occurs, Seller may allocate Goods and deliveries among Seller's
customers.
16.ASSIGNMENTANDDELEGATION.
No right or interest in the Sales Contract shall be assigned by Buyer without
Seller's prior written consent, and no delegation of any obligation owed, or to the
performance of any obligation by Buyer shall be made without Seller's prior written
consent. Any attempt at assignment or delegation shall be wholly void and totally
ineffective for all purposes unlessmade in conformity with this paragraph.
17. PATTERNSAND TOOLING.
Unless otherwise agreed to in writing with Buyer, Seller shall retain title to and
possession of all special tooling, patterns and dies whether paid for by Buyer or
not, but such special tooling, patterns and dies that are specifically paid for by
Buyer will be held by Seller exclusively for the manufacture of Buyer's Goods for
not more than 2 years after the date of Buyer's last order requiring their use. Seller
will exercise reasonable care in handling and storing any tooling, patterns or dies
specifically paid for by Buyer, but Seller shall not be liable for damage or loss
thereof.
18. PATENTS. SELLER MAKES NO REPRESENTATION OR WARRANTY WITH
RESPECT TO THE PATENTABILITYOF THE GOODS OR THATANYOF THE GOODS
WILLBE FREE FROMCLAIMSOF INFRINGEMENT.
Buyer agrees to indemnify and defend Seller in any such suit, action or proceeding
for any claim resulting from actual or alleged infringement of any domestic or
foreign letters patent for (i) any feature, construction or design incorporated at
Buyer's request in any Goods or to adapt such Goods to the particular use of Buyer
or Buyer's customers or (ii) any additions, changes or adaptations made by Buyer
or Buyer's customers after delivery of the Goods.
19. CONFIDENTIAL INFORMATION.
All drawings, diagrams, specifications, technical data and other materials
furnished by Seller and identified by Seller as confidential are and shall remain the
exclusive property of Seller and shall be returned to Seller upon request. Buyer
agrees to treat such information and material as confidential and not to reproduce
or disclose such information or materials without Seller's prior written consent.
This paragraph does not apply to any information already known to and readily
accessible in the trade or whichmay become so through no fault of Buyer.
20. CHANGES.
Seller may, at any time, without notice, make changes (whether in design, material,
improvements or otherwise) in any catalog Goods, and may discontinue the
manufacture of any catalog Goods, all in its sole discretion, without incurring any
obligations of any kind as a result thereof, whether for failure to fill an order of
Buyer or otherwise.
21. CANCELLATION.
The Buyer may not cancel purchase orders without the prior written consent of
Seller. This consent will be conditioned on Buyer's agreement to pay Seller's
cancellation charges. Purchase orders for Goods that are substantially complete,
as judged by Seller, may not be cancelled and will be shipped and invoiced at the
price on the order. For Goods that are not substantially complete, 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 total invoice price of the equipment or more than the total invoice price.
22. INSTALLATION.
Installation of the Goods shall be by Buyer unless otherwise specifically stated in
the Sales Contract.
23. SEVERABILITY.
If any term or provision contained in the Sales Contract is declared or held invalid
by a court of competent jurisdiction, such declaration or holding shall not affect the
validity of any other term, clause or provision contained herein.
24. GOVERNINGLAWAND LIMITATION.
(a) 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 Ozaukee
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 International Sale of Goods.
(b) Attorney's Fees – Buyer agrees to pay all of Seller's costs and expenses of
collection and litigation, including but not limited to attorneys' fees and costs.
(c) 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.
REVISED, DECEMBER, 2007
TERMS AND CONDITIONS
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