TERMS AND CONDITIONS OF SALE

These terms and conditions shall apply to all orders entered into by and between the buyer (“Buyer”) and Fourinox, Inc. (“Seller”). These terms and conditions and any Seller quotation form submitted herewith or separately shall be collectively referred to hereinafter as the “Agreement.” Seller shall accept orders, sell Goods, and do business only upon these terms and conditions. The term “Goods” means all products and services sold and/or provided by Seller to Buyer, whether goods, materials, products to be manufactured and delivered, services to be rendered, or any combination thereof.

Acceptance. Seller’s acceptance of Buyer’s order is expressly conditioned on Buyer’s unqualified acceptance of all of the terms and conditions of this Agreement.  If the terms and conditions of this Agreement differ in any way from the terms and conditions of Buyer’s purchase order, work order, acknowledgment or other form, correspondence or communication, the terms and conditions set forth here shall be construed as a counter-offer and shall not be effective as an acceptance unless Buyer assents to the terms and conditions contained herein, which shall constitute the entire agreement between the parties.  The failure of Buyer to object thereto in writing within ten (10) days from the date of receipt hereof shall constitute assent thereto.  No course of dealing, usage of trade or course of performance will be relevant to supplement or contradict any terms used in this Agreement.

Price.  If any price has been stated in a quotation, such price quotation shall be good only for a period of thirty (30) days from the date of such quotation. Thereafter, the price for Goods sold hereunder shall be the Seller’s price in effect as of the date of shipment or Buyer’s acceptance of the Goods. All prices are F.O.B., the Seller’s plant of manufacture, unless otherwise stated.  Prices also do not include any federal, state, or local taxes or other governmental charges upon or with respect to the sale, purchase, manufacture, delivery, storage, processing, use, or consumption of any of the Goods provided hereby.

Invoicing and Payments.  Buyer shall pay Seller in accordance with the payment terms set forth in the most recent offer accepted by the Seller.  Seller may add interest to all amounts outstanding more than fifteen (15) days after the invoice date at a rate of one and one-half percent (1.5%) per month. If Buyer fails to make any payments in accordance with the terms of this Agreement, Seller may, in addition to its rights and remedies provided hereunder or at law or equity: (a) defer or suspend further shipments or provision of Goods until Buyer reestablishes satisfactory credit; (b) cancel the unshipped or unperformed portion of any order and invoice Buyer for incurred costs and reasonable profit without any liability on the part of Seller for failure to ship or provide Goods; or (c) make shipment of Goods to Buyer on a cash on delivery or cash in advance basis.

Cancellation, Suspension, or Modification. Buyer may not suspend, modify, or cancel any orders placed with Seller, except with Seller’s prior written consent and then only if Buyer submits such cancellation, suspension, or modification in writing to Seller and reimburses Seller for all losses incurred due to such suspension, modification, or cancellation, including without limitation, all incidental and consequential damages and expenses arising therefrom. Direction from Buyer to suspend, modify, or cancel any order may be treated as repudiation, making Buyer immediately liable for loss, expense and other damages sustained.

Delivery.  If the Goods involve the provision of services, title to such Goods shall pass to Buyer upon delivery of the services to Buyer.  In all other cases, title for the Goods shall pass to Buyer upon Buyer’s full payment of the purchase price.  In the event Buyer desires Seller to ship the Goods to Buyer and Buyer does not specify shipping instructions, Buyer hereby authorizes Seller to make shipping arrangements on Buyer’s behalf and Buyer shall be responsible for all freight costs and expenses associated therewith, based on freight rates in effect at the time of shipment.  Buyer shall not remove any Goods from Seller’s possession until Buyer has paid or amortized in full all of Seller’s costs and expenses. All timeframes provided by Seller, whether verbally or in writing, are good faith estimates of the expected delivery date for the Goods. Seller shall use commercially reasonable efforts to fill Buyer’s orders within the time stated but in no event shall Seller be liable for any damages associated with Seller’s inability to meet any such timeframes or deadlines regardless of the reason(s), including but not limited to incidental or consequential damages arising therefrom.

Inspection & Rejection. Buyer shall inspect and/or test all Goods sold hereunder immediately upon receipt or Seller’s notification to Buyer of the Goods completion.  Buyers shall have the sole responsibility to determine the suitability of the Goods Seller provides Buyer pursuant to this Agreement.  The failure of Buyer to give Seller written notice of any defect, rejection, or claim within ten (10) days after its receipt or inspection of the Goods shall be construed as an unqualified acceptance of such Goods, any course of dealing between the parties to the contrary notwithstanding.

Change in Customer’s Financial Condition. Notwithstanding anything contained herein to the contrary, Seller reserves the right to cancel an order at any time, or require full payment of any balance due within ten (10) days of written notice to Buyer, in the event of the occurrence of any of the following: (a) Buyer’s insolvency; (b) Buyer files a petition in bankruptcy; (c) A receiver or trustee is appointed for Buyer under any bankruptcy or state insolvency code or statute; (d) Buyer executes an assignment for the benefit of its creditors; or (e) Seller deems itself insecure by written notice of such insecurity to Buyer. Under any of the above circumstances, Seller reserves the right to stop and/or suspend any work, otherwise anticipated as a result of the order, including the design, manufacture, delivery, or provision of any Goods and to otherwise cancel any or all remaining obligations Seller may have relative to an order.

Limited Warranty. On the condition that Buyer is not in breach of any term or condition set forth herein, Seller warrants that all Goods sold by Seller and purchased by Buyer shall be free from defects in materials and workmanship for one (1) year from the date of installation. This limited warranty covers only labor, performed by Seller, and replacement goods made necessary due to defects in materials or workmanship. This limited warranty does not cover conditions or circumstances resulting from improper or negligent installations when installations are not performed by Seller, improper maintenance of, negligence involving, abuse of, or any alteration or modification to the Goods. Any damage to the Goods that occurs due to misuse or improper care, including, but not limited to, shipping damages, accidents, or use of the Goods for other than their normal, customary intended use, are not covered by this limited warranty. Buyer shall be obligated to cooperate, fully, with all Seller’s efforts to diagnose, evaluate, and remedy any warranty claim.  Failure of Buyer to cooperate, fully, with all Seller’s efforts to diagnose, evaluate, and remedy any warranty claim shall void all warranties with respect to the particular Goods for which a warranty claim is being made.  Notwithstanding anything contained herein to the contrary, Seller’s total liability and obligation to Buyer, as the result of this limited warranty with respect to any single warranty claim or a warranty claim arising out of or related to the same, substantially similar or related services of, shall be limited to Seller’s repair, replacement or re-execution of the Goods alleged to be defective in materials or workmanship; provided, however, that Seller’s financial liability with respect to any warranty claim shall be limited to not greater the price actually received by Seller, for the Goods alleged to be defective in materials or workmanship.

EXCLUSION OF OTHER WARRANTIES. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, SELLER HAS MADE NO WARRANTY THAT THE GOODS COVERED BY THIS AGREEMENT ARE MERCHANTABLE FOR FIT FOR ANY PARTICULAR PURPOSE, AND FURTHER, SELLER PROVIDES NO WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, CONCERNING THE CHARACTERISTICS, QUALITY, OR STATE OF THE GOODS THAT SELLER HAS SUPPLIED TO BUYER UNDER THIS AGREEMENT. NO WARRANTY IS MADE WHICH EXTENDS BEYOND THAT WHICH IS EXPRESSLY CONTAINED HEREIN.

Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER THIRD PARTY FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, DOWN TIME, OR OTHER SIMILAR DAMAGES) ARISING FROM OR IN MANNER CONNECTED WITH THE GOODS, ANY BREACH BY SELLER OR ITS AGENTS OF THIS AGREEMENT, OR ANY OTHER CAUSE WHATSOEVER, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY. BUYER’S REMEDY WITH RESPECT TO ANY CLAIM ARISING UNDER THIS AGREEMENT IS STRICTLY LIMITED TO NO MORE THAN THE AMOUNT PAID BY THE BUYER FOR THE GOODS.

Indemnification.  Buyer agrees to protect, defend and indemnify Seller and its officers, directors, employees, agents, subsidiaries, affiliates, successors and assigns (“Seller’s Protected Group”) from and against any and all causes of action, suits, losses, liabilities, claims, demands, judgments, penalties, fines, proceedings, damages (including consequential and economic), costs and expenses (including actual attorneys’ fees), whether based upon contract, tort, statutory violation, strict liability or otherwise, and whether based upon bodily injury, property damage (including intellectual property) or otherwise relating to or arising out of or in any manner connected with: (a) Buyer’s breach of this Agreement; (b) any defects in the Goods attributable to Buyer’s acts or omissions; (c) any recall claim and/or product liability claim attributable to Buyer’s acts or omissions; (d) any claim by a third-party that Buyer’s design, drawing, requirement, technical manual, specification or the like, or Seller’s use thereof, infringes upon any patent, patent application, copyright, trademark, trade dress, or misappropriates any trade secret or other intellectual property right; or (e) any other act or omission of Buyer.  The foregoing shall be collectively referred to as “Claims”.  Buyer’s duty of indemnity hereunder shall extend to the acts or omissions of Buyer, its officers, directors, employees, agents and representatives which caused, in whole or in part, any such Claims. Buyer shall, at its own expense, if requested by Seller’s Protected Group, defend any and all Claims which are the subject of this duty of indemnity, and Buyer shall pay all attorneys’ fees, costs and other expenses arising therefrom whether defended by Buyer of Seller.  Seller agrees to provide Buyer with prompt notice following receipt of notice by Seller’s Protected Group of any Claims.  This indemnification provision shall survive the termination of this Agreement.

Force Majeure.  Seller shall not be responsible for any delay in the delivery of, or failure to deliver, Goods due to causes beyond Seller’s reasonable control including, without limitation, acts of God, acts of war or terrorism, enemy actions, hostilities, accidents, casualties, strikes, labor difficulties, embargoes, non-delivery or late delivery of materials, parts and equipment or transportation delays not caused by the fault of Seller, delays caused by civil authorities, governmental regulations or orders, fire, lightening, natural disasters or any other cause beyond Seller’s reasonable control.  In the event of any such delay, performance will be postponed by such length of time as may be reasonably necessary to compensate for the delay.

Work By Others; Safety Devices. Unless agreed to in writing by Seller, Seller has no responsibility for labor or work performed by Buyer or others, of any nature, relating to use, installation or provision of Goods. Buyer is solely responsible for furnishing, and requiring its employees and customers to use all safety devices, guards and safe operating procedures required by law and/or as set forth in manuals and instruction sheets furnished by Seller.

Accord and Satisfaction. Notwithstanding any common law, practice, or other circumstance, any statement to the effect that a payment is intended as payment in full and/or full satisfaction of a debt or obligation owed to Seller which is in dispute or, in the eyes of a reasonable person would be believed to be in dispute, shall not be binding upon Seller unless specifically agreed to in writing by Seller.

No Waiver. No waiver of this Agreement or any of its provisions is valid unless expressly agreed to in a writing signed by Seller.  No waiver by Seller of any default under this Agreement is a waiver of any other or subsequent default. The failure of Seller to insist upon strict and timely performance of any term or condition of this Agreement shall not be deemed a waiver of any right or remedy that Seller may have under this Agreement or at law or equity, and shall not be deemed a waiver of any subsequent default in performance of the terms and conditions of this Agreement.

Modification. No additions to or modification of any terms and conditions of this Agreement by Buyer are valid unless expressly agreed to in a writing signed by Seller.

Severability. If any court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, then such invalidity or unenforceability shall have no effect on the other provisions hereof, which shall remain valid, binding and enforceable and in full force and effect, and such invalid or unenforceable provision shall be construed in a manner so as to give the maximum valid and enforceable effect to the intent of the parties expressed in this Agreement.

Independent Contractor. In producing, supplying or providing any Goods under this Agreement, Seller shall operate as an independent contractor. The officers, employees and agents of one party shall not be considered officers, employees or agents of the other party for any purpose whatsoever.

Successors and Assigns.  Neither party shall assign this Agreement in whole or part without the prior written consent of the other party which consent shall not be unreasonably withheld; provided, however, that either party may assign this Agreement and its rights and obligations to any successor corporation resulting from a merger, consolidation or reorganization of such party.  Subject to the foregoing, all of the terms, conditions, covenants, and agreements contained herein shall inure to the benefit of, and be binding upon, any such successor corporation and any permitted assignees of the respective parties hereto.  It is further understood and agreed that consent by either party to such assignment in one instance shall not constitute consent by the party to any other assignment.

Remedies. Each of the rights and remedies of Seller under this Agreement is cumulative and in addition to any other or further remedies provided under this Agreement or at law or equity.

Attorney’s Fees.  In the event legal action is necessary to recover monies due from Buyer or to enforce any provision of this Agreement, Buyer shall be liable to Seller for all costs and expenses associated therewith, including Seller’s actual attorneys’ fees and costs.

Governing Law/Venue.  This Agreement shall be construed and governed under the laws of the State of Wisconsin, without application of conflict of law principles. Each party agrees that all actions or proceedings arising out of or in connection with this Agreement shall be commenced, tried, and litigated only in the state courts sitting in Brown County, Wisconsin or the u.s. Federal Court for the Eastern District of Wisconsin.  Each party waives any right it may have to assert the doctrine of “forum non conveniens” or to object to venue to the extent that any proceeding is brought in accordance with this section.  Each party consents to and waives any objection to the exercise of personal jurisdiction over it by courts described in this section. Each party waives to the fullest extent permitted by applicable law the right to a trial by jury.

Entire Agreement.  This Agreement constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties and/or subsidiaries of the parties pertaining to the same subject matter hereof.  There are no warranties, representations and/or agreements between the parties in connection with the subject matter hereof except as specifically set forth or referred to herein.

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