TERMS AND CONDITIONS OF SALE
1. Complete Agreement and Acceptance: These terms and conditions apply to the sale of any goods and services covered by the quotation and statement of work (“Quotation”) of Trident Engineered Solutions, LLC (“Seller”). Any additional or different terms or conditions proposed by the Buyer shall not be effective unless and until the additional or different terms or conditions are accepted by the Seller by written signature or e-mail acknowledgment. Buyer’s issuance of a purchase order (“PO”) constitutes Buyer’s acceptance of the provisions herein. All terms and conditions contained in any PO or other documents from Buyer are hereby expressly rejected. All sales are expressly conditioned upon Buyer’s assent to these terms and conditions.
2. Warranties and Standards: Seller makes those of the following warranties as are appropriate for any goods and services supplied: as of the date goods are ready to ship and for one year thereafter: (1) the goods, if manufactured by Seller, will be produced according to Seller’s standard manufacturing process, free from defect; and (2) services shall be provided in a timely, workmanlike and professional manner in accordance with industry standards. This warranty does not cover goods, parts or services furnished by third parties.
Buyer’s sole and exclusive remedy in the event of a breach of warranty is, at Seller’s sole discretion, repair, replacement of, or credit against future purchases for, the non-conforming portion of the goods. Seller excludes any warranty or liability arising out of or relating to: (a) accident, theft, misuse or neglect; (b) lack of routine care or maintenance; (c) failure to use or take proper precautions; (d) modification of any product; (e) defects, problems, or failures created by third-party products or their interface with Seller’s products; (f) damage to goods occurring during loading at Seller’s facility or during transit to Buyer’s destination; and (e) Force Majeure.
THE ABOVE ARE SELLER’S SOLE AND EXCLUSIVE WARRANTIES AND THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO BUYER. EXCEPT AS OTHERWISE SET FORTH HEREIN, SELLER EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OF TITLE, AND NON-INFRINGEMENT.
3. Delivery and Title: Unless otherwise stated in writing, all prices, quotes, order acknowledgments, shipments, and deliveries are FOB Seller’s facility and title and risk of loss passes to Buyer upon loading. Buyer is responsible for all costs of loading and transportation from Seller’s facility including carrier freight insurance covering the goods while in transit and any third-party cargo insurance. Buyer acknowledges and agrees that if Seller procures transportation for the goods, in procuring freight insurance for the goods Seller may rely on Buyer’s reasonable declaration of value for goods Buyer supplies (“Buyer’s Declared Value”). Seller shall not be liable for any loss of or damage to goods occurring during loading or while in transit even if such loss or damage is in excess of freight insurance limits. Seller retains a purchase money security interest in the product until all payments (including deferred payments) are received in full. Upon Seller’s written request, Buyer agrees to do all acts necessary to perfect and maintain such security interest.
4. Assumption of Risk and Limitation of Liability: Buyer assumes all risk and liability for transportation, receipt, storage, and use of products. In no event will Seller be liable (a) for indirect damages (including but not limited to, special, incidental and consequential damages, even if Seller has been advised of the possibility of same); (b) for damages to goods occurring during loading, transportation, inspection or unloading; and (c) in an amount exceeding the invoiced price of the goods and services Buyer paid to Seller in the Quotation. In no case will Seller be liable to Buyer or anyone claiming under Buyer for obligations or liabilities arising out of breach of contract, warranty, negligence or other theory of liability with respect to the goods and services provided hereunder. Buyer expressly agrees that the above limitation of liability is an allocation of risk constituting part of the consideration supporting sale of the products.
5. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever.
6. Proprietary and Confidential Information. All non-public, confidential or proprietary information of either party (“Confidential Information”), including but not limited to intellectual property, trade secrets and other sensitive and proprietary information, disclosed by one party (the “Disclosing Party”) to the other party (“Receiving Party”) is confidential, solely for use in performing this Agreement and may not be disclosed or copied unless authorized by the Disclosing Party in writing. The Receiving Party shall protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information. Confidential Information does not include any information that (a) is or becomes generally available to the public other than by breach of this section; (b) is obtained by the Receiving Party on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing it; (c) the Receiving Party establishes by documentary evidence, was in its possession prior to the Disclosing Party’s disclosure hereunder; (d) was or is independently developed by the Receiving Party without using the Disclosing Party’s Confidential Information; or (e) is required to be disclosed under applicable federal, state or local law or a valid order from a court of competent jurisdiction.
Each party’s obligation under this section shall survive for a period of five (5) years, except for Confidential Information that constitutes a trade secret under any applicable law, in which case, such obligation shall survive as long as such Confidential Information remains a trade secret under such law.
7. Cancellation or Breach; Remedies. In the event Buyer cancels an order after issuing a PO, fails to take delivery or timely pay Seller’s invoice, Seller’s damages shall be, at Seller’s option, restitution of the costs Seller has incurred since the PO was issued, or Seller’s damages for breach of contract.
8. No Waiver; Modification; Entire Agreement: Seller’s waiver of any breach of these terms and conditions shall not constitute a waiver of any other breach. Seller’s Quotation and these terms and conditions constitute the entire understanding and agreement between Seller and Buyer and may only be modified or amended by a written document signed by one of Seller’s officers.
9. Payment. Unless otherwise described in the Quotation, payment is due in full within 30 days of invoice. Seller shall impose interest on late payments at the rate of 1.5% per month.
10. Other: This Quotation and any resulting contract for the sale of products shall be interpreted and governed by the laws of the State of Wisconsin, without regard to its conflict of law principles. Buyer expressly agrees that any dispute will be resolved by a court of competent jurisdiction in the State of Wisconsin and Buyer expressly submits to personal jurisdiction in the State of Wisconsin. In the event Seller must seek legal action to recover amounts due and owing or for other breach, Seller shall be entitled to recover its costs of collection including actual attorney’s fees.