TERMS AND CONDITIONS OF PURCHASE 

TERMS AND CONDITIONS 

EXCLUSIVE TERMS. THIS ORDER MAY BE CONSTRUED AS AN OFFER OR AN ACCEPTANCE OF AN OFFER. IF THIS ORDER IS CONSTRUED AS AN OFFER, IT EXPRESSLY LIMITS ACCEPTANCE BY SELLER TO THE TERMS OF THIS OFFER AND CONSTITUTES NOTICE OF OBJECTION TO ANY ADDITIONAL OR DIFFERENT TERMS IN THE ACCEPTANCE. IF THIS ORDER IS CONSTRUED AS AN ACCEPTANCE, IT IS EXPRESSLY CONDITIONED ON SELLER’S ASSENT TO ANY ADDITIONAL OR DIFFERENT TERMS CONTAINED HEREIN. All sections of the Uniform Commercial Code which expressly or impliedly protect a buyer are hereby incorporated by reference in this form. No course of dealing, usage of trade or course of performance or other action by Buyer shall be construed as acceptance of any additional or different terms than the terms provided herein. Buyer may revoke this offer at any time prior to acceptance by Seller. Seller shall be deemed to have accepted this order by signing and returning the acknowledgment copy hereof or by other written indication of acceptance, by accepting any whole or partial payment from Buyer or by commencement of performance provided that, the only effect thereof shall be to accept this order on the terms and conditions hereof.

PRICES AND PAYMENT; F.O.B.; RISK OF LOSS. Unless specified on the front hereof to the contrary, the prices charged to Buyer (a) are F.O.B. Buyer’s premises, and (b) include all applicable federal, state and local taxes, charges or duties. No additional charges of any kind will be allowed unless specifically agreed to by Buyer in writing. Seller warrants that the prices charged Buyer on this order shall be no higher than prices charged to its other customers. Payment for Products by Buyer shall be due NET sixty (60) days (10th/25th prox.) after the later receipt by Buyer of: (i) an appropriate invoice from Seller or (ii) the corresponding goods. Buyer may deduct from Seller's invoices any monies owed to Buyer by Seller.  Payment by Buyer will not constitute acceptance of the goods, nor impair Buyer’s right to inspect the goods or invoke any of its remedies. Risk of loss shall remain with Seller until the goods are delivered to Buyer’s premises.

INDEMNIFICATION. Seller agrees to defend, indemnify and hold Buyer, its agents, affiliates, representatives, employees, customers, successors and assigns, harmless from and against any claim demand, action, proceeding, liability, loss, cost or expense whatsoever, including attorneys' fees, arising in connection with any actual or alleged (a) defect in the goods or services, (b) failure by Seller to comply with Buyer’s specifications or with the express or implied warranties of Seller, (c) violation by Seller of any federal, state or local law, rule or regulation, (d) infringement of any patent, trademark, trade name, trade secret, copyright or other property right by reason of the sale, design, construction or use of the goods ordered or services rendered, (e) negligence or misconduct of Seller, its agents, employees or subcontractors, or (f) enforcement by Buyer of its rights hereunder. In the event of any claim, demand, action or proceeding being commenced against Buyer by reason of any of the above matters, Buyer shall give Seller prompt notice thereof in writing.

REPRESENTATIONS AND WARRANTIES. Seller represents and warrants that all goods ordered hereunder shall: (a) be new and not contain any reconditioned parts or materials, (b) be free from all liens and encumbrances or claims against title, (c) conform strictly with Buyer’s specifications and all other requirements referred to hereunder, (d) be free from defects in design, materials and workmanship, (e) be merchantable and fit for the purposes for which such goods are intended, and (f) not infringe upon any patent, trademark, copyright or other proprietary right. Seller agrees at Buyer's option to promptly replace or otherwise correct, without expense to Buyer, any of the goods which do not conform to the foregoing warranties.  In the event that Seller fails to promptly make such replacement or correction, Buyer may cause such replacement or correction to be made and charge Seller for all expenses associated therewith.  Seller further warrants that the goods/products sold pursuant to this agreement are free of asbestos or asbestos containing materials. Should any of the goods/products be found to contain asbestos, Seller will bear all costs associated with the removal and disposal of said goods/products.  The foregoing warranties survive the acceptance, inspection and payment of and for the goods/products by the Buyer.

INSPECTION; REJECTION; REMEDIES. Goods purchased hereunder are subject to inspection and approval at Buyer’s destination notwithstanding any prior payment. Buyer may inspect the goods/services at Seller’s premises. Buyer reserves the right to reject, refuse acceptance of, and withhold payment for goods which are not in compliance with Buyer’s instructions and specifications, or with Seller’s express or implied warranties. Goods not accepted will be held or returned to Seller at Seller’s risk and expense. All remedies specified herein shall be cumulative and in addition to all other or future remedies provided at law or in equity.

CANCELLATION. Time is of the essence and Buyer may cancel this order, in whole or in part, without liability to Buyer: (a) if deliveries are not made at the time and in the quantities specified, (b) in the event of any breach by Seller or Seller's failure to comply with any of Buyer's specifications, or (c) if Seller files a voluntary petition under any federal or state bankruptcy or insolvency act, an involuntary bankruptcy petition is filed against Seller, or Seller is declared insolvent or has a receiver or trustee appointed for it or its assets, or if Seller makes an assignment for the benefit of creditors or commences proceedings under any state insolvency or similar law.

CHANGES. Buyer at any time may make changes in the quantities ordered or in the specifications or drawings relating to the goods, or may change or amend any other term or condition of this order. Any claim for actual losses incurred by Seller due to any such change must be made within 10 days from the date of receipt by Seller of such change or shall be deemed waived. Price increases or extension by Seller of delivery time shall not be binding on Buyer unless agreed to in writing by Buyer.

COMPLIANCE WITH LAWS. Seller shall comply with all applicable federal, state and local laws, regulations and orders. Without limiting the foregoing, Seller warrants that the goods shall be produced in compliance with and shall meet all applicable requirements and standards of the Fair Labor Standards Act and the regulations and orders of the United States Department of Labor issued thereunder, the Occupational Health and Safety Act, and applicable affirmative action laws.

CONFIDENTIALITY. All information furnished by Buyer or learned or observed about Buyer hereunder is confidential and Seller agrees not to utilize or disclose to others such information, except as reasonably required for the purpose of filling this order. Seller shall immediately return any such confidential materials to Buyer at Buyer’s request.

ASSIGNMENT. Seller shall not assign or subcontract any of its rights, duties or obligations under this order without Buyer’s prior written consent. Such consent shall not relieve Seller from its obligations, from any liability for breach or from any duty to perform.

WAIVER. Waiver by Buyer of a breach by Seller of any provision of this order shall not be deemed a waiver of any other provision of or future compliance with all provisions of this order, and all such provisions shall remain in full force and effect.

CONTROLLING LAW. This transaction shall be governed by, and this agreement shall be construed and enforced in accordance with, the internal laws of the State of Wisconsin, without regard to its conflicts of laws principles.  Seller hereby consents to the jurisdiction and venue of the courts located in Wisconsin.

FORCE MAJEURE. The consequences, direct or indirect, of labor disputes, fires, floods, acts of God, war or any other cause or condition beyond the reasonable control of Buyer or Seller, shall excuse performance to the extent which such performance has been prevented by such occurrence. In the event that either party shall be unable to perform any of its obligations, it shall promptly advise the other of its inability to perform. If the cause is not removed within 60 days, Buyer, in addition to its other remedies, may cancel this order without penalty.  In the event that Buyer is rendered unable by such occurrence to receive and use the goods ordered, it shall be entitled to cancel this order without penalty.  

SERVICES. If Seller is to perform any services on the premises of Buyer, Seller shall indemnify and hold Buyer harmless from any claims, damages, losses and expenses, including attorneys' fees, arising out of or resulting from the provision of such services, including but not limited to injury to employees of Seller or to third parties or damage to property. Prior to the performance of such services, Seller shall provide Buyer with certificates showing the following types of insurance in such amounts and by insurance carriers acceptable to Buyer: worker’s compensation, public liability, property damage, automobile, pressure vessel and such other special coverage as conditions may require.  Seller represents and warrants that all services provided hereunder shall be performed by competent and qualified personnel in a proper manner consistent with currently accepted industry standards.

HAZARDOUS MATERIALS. Before any chemical, material or equipment that contains a chemical is permitted to be brought into a Menasha facility, a Material Safety Data Sheet (MSDS) must be forwarded to the plant environmental coordinator who will complete a review and approve or reject the acceptance of the shipment(s). Shipment(s) made to any Menasha facility not following this procedure will be rejected at Menasha’s dock and returned to Seller at its sole expense and liability.