1. APPLICATION OF TERMS. The following terms and conditions shall govern the sale by HUTH-BEN PEARSON INTERNATIONAL, LLC HUTH (“HUTH”) to all of its customers (“Customer”), as the same are set forth on the invoice, quotation, written purchase order or other document for the purchase and sale of HUTH’s products (the “Products”). Customer agrees to be bound by and accept these terms and conditions, and acknowledges that these terms and conditions supersede any terms and conditions of any purchase order or similar document placed by Customer and are a condition to HUTH’s obligations hereunder. Any attempt to modify, supplement or amend these terms and conditions will be void unless agreed to in writing by HUTH. Notwithstanding the foregoing, in the event Customer has a written Purchase Agreement in place with HUTH, the terms of such Purchase Agreement shall supplement and modify (as applicable) these terms and conditions.
2. ORDERS/QUOTES; PAYMENT TERMS. All written purchase orders sent to HUTH shall be binding on Customer upon receipt by HUTH. Orders can be rejected for any reason at any time by HUTH. Customer may not cancel or modify orders, except that orders for stocked Products may be cancelled prior to HUTH’s shipment of the Products, upon the payment of a 10% restocking fee. Special or custom order Products may not be cancelled for any reason. Any quotation provided by HUTH will be valid for the duration stated in the quotation, or if no duration is stated, such quotation will be valid for 30 days unless sooner revoked by HUTH. Customer shall pay as quoted or agreed in writing with Huth. Customer agrees to pay interest on all past due sums at the rate of 1½% per month.
3. SHIPPING; PRICE; TAXES/DUTIES. All Products purchased by Customer will be shipped “Ex-Works” per Incoterms 2010 from HUTH’s facility. Additional charges may be included for the shipment of expedited or special order items. Prices for Products shall be as quoted by HUTH, and shall be subject to change by HUTH without notice to Customer. Prices do not include shipping and handling charges, sales, use, excise, gross receipts, export or similar taxes, customs charges or duties. Customer is responsible for all such taxes and charges.
4. RISK OF LOSS; DELIVERY; ACCEPTANCE. Risk of loss shall pass to Customer upon delivery to Customer from HUTH's facility. “Delivery” shall mean the point at which Customer receives possession of the Product from carrier. HUTH may deliver the Products ordered in installments in HUTH’s discretion. Customer shall be deemed to accept Products in their current condition unless Customer gives HUTH written notice within 3 bus. days of Delivery.
5. HUTH LIMITED WARRANTY. HUTH shall warrant the Products as provided in the HUTH limited warranty (the “HUTH Limited Warranty”), which is incorporated herein by reference. Customer agrees to look solely to the HUTH Limited Warranty for any warranty claims. The HUTH Limited Warranty shall be Customer’s sole and exclusive warranty and remedy.
6. DISCLAIMER OF WARRANTIES. HUTH MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE PRODUCT, EXCEPT FOR THE HUTH LIMITED WARRANTY, WHICH IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHICH ARE HEREBY DISCLAIMED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Some states do not allow limitations on the term of an implied warranty, so the above limitation may not apply. No oral or written information or advice given by HUTH, its dealers, distributors, agents or employees shall create a warranty or in any way increase the scope of the HUTH Limited Warranty, and no such persons have authority to modify any aspect of the HUTH Limited Warranty or create any other warranties.
7. LIMITATION OF DAMAGES. UNDER NO CIRCUMSTANCES SHALL HUTH BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE SALE OR USE OF THE PRODUCT, WHETHER BASED UPON BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, AND THE LIABILITY OF HUTH IN CONNECTION WITH SUCH SALE OR USE OF ANY PRODUCT SHALL NOT EXCEED THE PRICE OF THE PRODUCT ON WHICH SUCH LIABILITY IS BASED. Such damages include, but are not limited to, the loss of profits, revenue, use of the Product, the cost of capital, substitute or replacement equipment, facilities or services, down time, any claims of third parties, including customers, and injury to property. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply.
8. PRODUCT AVAILABILITY; STORAGE. Product availability may be limited and not be available for immediate delivery. HUTH reserves the right, without liability or notice, to revise or cease to make available any or all Products. HUTH may charge Customer a reasonable storage fee for Products held more than 30 days.
9. FORCE MAJEURE. HUTH SHALL NOT BE LIABLE IF IT IS UNABLE TO PERFORM ANY OF ITS OBLIGATIONS CONTAINED IN THESE TERMS AND CONDITIONS DUE TO, DIRECTLY OR INDIRECTLY, THE FAILURE OF HUTH’S SUPPLIER TO DELIVER AS PROMISED; SABOTAGE; FAILURE OR DELAYS IN TRANSPORTATION, UTILITY SERVICE OR COMMUNICATION SYSTEMS; ANY LABOR OR INDUSTRIAL DISPUTE; SHORTAGES OF LABOR, FUEL OR SUPPLIES; WAR; EXPLOSION; ACT OF GOD OR TERRORISM; OR ANY OTHER EVENT BEYOND THE CONTROL OF HUTH.
10. GOVERNING LAW AND JURISDICTION. The sale of Products shall be governed by the laws of the State of Wisconsin. State and federal courts located in the State of Wisconsin shall have personal jurisdiction over HUTH and Customer for all disputes arising hereunder, and all such disputes shall be heard exclusively in such courts.
11. ENFORCEMENT; BREACH; REMEDIES. If Customer breaches any provision of these terms and conditions, HUTH shall be entitled, in addition to all other available remedies, to recover all consequential, incidental and collection costs, including but not limited to reasonable attorneys’ fees. Any failure by HUTH to strictly enforce these terms and conditions shall not be deemed a waiver by HUTH of any right hereunder. HUTH’s rights and remedies are cumulative and in addition to all other rights and remedies available in law or equity.
12. ASSIGNMENT; SECURITY INTEREST. Customer may not assign its rights or obligations hereunder without the express written consent of HUTH. HUTH reserves a purchase money security interest in all Products and any proceeds thereof until any and all payments and charges are paid in full. Customer shall reasonably assist HUTH in perfecting such security interest. Customer hereby grants HUTH to complete any credit or background check on Customer prior to the fulfillment of any order.