Terms and Conditions of Sale

1.  Offer, Governing Provisions.
This writing constitutes an offer or counteroffer by REED SWITCH DEVELOPMENTS, CORP. (“Seller”) to sell the products described herein or on the face hereof in accordance with these terms and conditions.  This writing is not an acceptance of any offer made by Buyer, and acceptance of this offer is expressly conditioned upon the Buyer’s assent to these terms and conditions.  Buyer will be deemed to have assented to these terms and conditions when: at Seller’s option, Buyer shall have given to Seller (orally or in writing) specifications of quality and/or type of products, delivery dates, shipping instructions, instructions to bill, or the like, as to all or any part of the products described herein or on the face hereof; or the Buyer has received deliver of the whole or any part thereof; or the Buyer has otherwise assented to the terms and conditions hereof.  NO ADDITIONAL TERMS OR DIFFERENT TERMS OR CONDITIONS SHALL BE BINDING UPON SELLER NOR CAN THE BUYER’S ACCEPTANCE LIMIT OR ALTER SELLER’S TERMS AND CONDITIONS UNLESS SPECIFICALLY AGREED TO IN WRITING SIGNED BY DULY AUTHORIZED PERSONNEL OF THE SELLER.  SELLER HEREBY OBJECTS TO ANY SUCH ADDITIONAL OR DIFFERENT PROVISIONS CONTAINED IN ANY PURCHASE ORDER OR OTHER COMMUNICATIONS FROM BUYER.  Any document received from Buyer which contains terms and conditions conflicting with Seller’s documents, shall not become part of the contract; only those terms and conditions as specified in Seller’s documents shall be binding, unless otherwise modified in writing and no implied terms and conditions shall be substituted for Seller’s terms and conditions to resolve any conflict.  This contract and these terms and conditions shall constitute the entire agreement between Seller and Buyer and shall be governed by and shall be construed according to the internal laws of the State of Wisconsin.

2.  Delivery, Risk of Loss and Transportation Costs
All products are sold F.O.B. Seller’s warehouse in Racine, Wisconsin unless otherwise stated on the reverse side hereof.  Delivery of products to a carrier at Seller’s warehouse or other loading point shall constitute deliver to the Buyer; and regardless of shipping terms or freight payment, all risk of loss or damage in transit shall be born by the Buyer.  Method and route of shipment shall be at the discretion of Seller unless Buyer shall specify otherwise; any additional expenses of the method or route of shipment specified by Buyer shall be born entirely by Buyer.  Buyer shall bear all costs of bags, barrels, boxes, pallets, or other containers used to ship a product sold hereunder.  No shipping container may be returned to Seller unless such return is accepted by Seller in writing and unless all return freight is prepaid by Buyer.

3.  Partial Shipments, Claims and Delays
Seller reserves the right to make delivery in installments, unless otherwise expressly stipulated herein.  All such installments shall be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries.  Delay in deliver of any installment shall not relieve Buyer of his obligations to accept remaining deliveries.

Claims for shortages or other errors in deliver must be made in writing to Seller within THIRTY (30) DAYS after receipt of shipment and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer.  Claims for loss or damage to products in transit shall be made to the carrier and not to the Seller.

Seller shall not be liable for any damages as a result of any delay due to any cause beyond Seller’s reasonable control, including, without limitation, an act of God, act of the Buyer, embargo or other governmental act, regulation or request, fire, accident, strike, slow-down, war, riot, delay in transportation, ability to obtain necessary labor, materials, or manufacturing facilities.

4.  Payment
Net THIRTY (30) DAYS from date of invoice, on approved credit unless otherwise specified on invoice.  If during the period of performance of an order, the financial conditions of the Buyer shall not justify the payment terms specified, or if the Buyer shall fail to make any payments in accordance with the Seller’s terms, Seller shall require full or partial payments in advance before preceding with the order.  Late payments accrue a late charge of 1.5% per month, but shall not exceed the maximum rate allowed by law.  Buyer shall reimburse Seller for all costs incurred in collection (including reasonable attorney’s fees).  Invoice price shall be in effect on date of shipment.

5.  Taxes and Other Charges
Any manufacturer’s tax, retailer’s occupation tax, use tax, sales tax, excise taxes, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between Seller and Buyer shall be paid buy the Buyer in addition to the price quoted or invoiced.  In the event the Seller is required to pay any such tax, fee or charge, the Buyer shall reimburse Seller therefore; or, in lieu of such payment, the buyer shall provide Seller at the time order is submitted with an exemption certificate or other document acceptable to the authority imposing the same.

6.  Warranties
All references in these terms and conditions of sale to “products” includes all electrical equipment, systems and other items which are manufactured and/or distributed by Seller.  Seller warrants products manufactured and/or distributed by it to be free from defects in materials and workmanship for a period of THIRTY (30) DAYS from date of shipment.  If within such period, any such products shall be proven to Seller’s satisfaction to be defective, such products shall be replaced or their price refunded, at Seller’s option.  Seller’s obligation for non-performance, defective products, or any damage caused by its products or their use, and Buyer’s exclusive remedy therefore, shall be limited to such replacement or refund and shall be conditioned upon Seller receiving written notice, together with demand for such replacement or refund, THIRTY (30) DAYS after the date of shipment of such products.  This exclusive remedy shall not be deemed to have failed its essential purpose under any circumstances so long as Seller is willing and able to replace defective products or refund the purchase price within the time specified.  SELLER’S PRICES ARE BASED ON THE POLICY LIMITING ITS LIABILITY.  IF BUYER DESIRES FOR SELLER TO PROVIDE A WARRANTY GREATER THAN THAT WHICH IS STATED ABOVE, THEN THE SELLER WILL ADJUST UPWARDS THE PRICE FOR THE PRODUCTS DESCRIBED HEREIN OR ON THE FACE HEREOF TO REFLECT THE ADDITIONAL EXPENSE TO SELLER WHICH SUCH A WARRANTY OBLIGATION WOULD CAUSE. 

7.  Disclaimers of Warranty and Liability
THE FOREGOING WARRANTIES PROVIDED IN SECTION 6 HEREOF ARE EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES (EXCEPT OF TITLE) INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  Seller does not warrant it’s product to be suited for any particular purpose.  Any suggestions made by the Seller concerning the product, its use, its performance, its production capabilities, quality requirements and/or suggestions with respect to equipment design, engineering, use or the like, are to be construed as suggestions only and any and all specified intended uses should be conformed by Buyer’s independent testing.  Any description of the product given to the Buyer by the Seller is for the sole purpose of identifying it, is not part of the basis of the bargain, and does not constitute a warranty that the product shall conform to that description.  The use of any sample in connection with the sale is for illustrative purposes only, is not part of the basis of the bargain is not to be construed as a warranty that the product will conform to that sample.  None of the Seller’s agents, employees, or representatives have any authority to bind Seller to any affirmation, representation or warranty other than those stated herein.  Seller shall not be subject to any obligations or liabilities whatsoever with respect to this agreement, products manufactured and/or distributed by it or any undertakings, acts or omissions relating thereto.

It shall be the sole responsibility of the Buyer and/or user to comply with all federal, state and local rules and regulations concerning the use of products described herein or on the face hereof and shall not be the responsibility of the Seller.

8.  Cancellation and Return. 
No order accepted by Seller may be canceled or altered by Buyer except upon terms and conditions acceptable to Seller as evidenced by written consent signed by duly authorized personnel of Seller.  In the event of such approved cancellation by Buyer, Seller shall be entitled to payment for all finished and in-process products, as well as any cost incurred in the preparation of Buyer’s order to the date of cancellation.

Products may be returned to the Seller only with Seller’s written permission, signed by duly authorized personnel of Seller, having been obtained by Buyer, in advance.  Products may not be returned unless they are in marketable condition.  Returned products must be securely packaged to reach Seller without damage; and any cost incurred by Seller to put products in marketable condition will be charged to Buyer.

9.  Patents, Trademarks and Copyrights
Seller will at its own expense, defend any suits that may be instituted by anyone against Buyer for alleged infringement of any United States patent, trademark, or copyright related to any products manufactured and/or distributed by Seller hereunder, if such alleged infringement consists of the use of such products, or parts thereof, in Buyer’s business and provided Buyer shall have made all payments then due hereunder and shall give Seller immediate notice in writing of any such suit and transmit to Seller immediately upon receipt all processes and papers served upon Buyer and permit Seller through its counsel, either in the name of the Buyer or in the name of the Seller, to defend the same and give all needed information, assistance and authority to enable the Seller to do so.  If such products in such suit are held in and of themselves to infringe any valid United States patent, trademark or copyright, then:  (a) Seller shall pay any final award of damage in such suit attributable to such infringement, and (b) if in such suit use of such products by Buyer is permanently enjoined by reason such infringement, Seller shall, at its own expense and at its sole option, either (i) procure for Buyer the right to continue using the products, (ii) modify the products to render them non-infringing, (iii) replace the products with non-infringing products, or (iv) refund the purchase price and the transportation costs paid by Buyer for the products.

Notwithstanding the foregoing, Seller shall not be responsible for any compromise or settlement made without its written consent, or for infringements of combination or process patents covering the use of the products in combination with other products or materials not furnished by the Seller.  The foregoing states the entire liability of Seller for infringement, and in no event shall Seller be liable for consequential damages attributed to an infringement.

As to any product furnished by Seller to Buyer manufactured in accordance with drawings, designs or specifications purposed or furnished by Buyer or any claim of contributory infringement resulting from the use or resale by Buyer of products sold hereunder, Seller shall not be liable, and Buyer shall indemnify Seller and hold Seller harmless from and against any and all losses, liability, damage, claim or expenses (including but not limited to Seller’s reasonable attorneys fees and other costs of defense) incurred by Seller as a result of any claim of patent, trademark, copyright or trade secret infringements or infringements of any other proprietary rights of third parties.

10.  Disclaimer of Consequential Damages and Other Liability: Buyer’s Indemnity
Sellers liability with respect to breaches of warranties shall be limited as provided in Section 6 hereof.  With respect to other breaches of this contract, Seller’s liability shall in no event exceed the contract price.  SELLER SHALL NOT BE SUBJECT TO AND DISCLAIMS: (a) ANY OTHER OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR OF WARRANTY; (b) ANY OBLIGATIONS WHATSOEVER ARISING FROM TORT CLAIMS (INCLUDING NEGLIGENT AND STRICT LIABILITY) OR ARISING OUT OF OTHER THEORIES OF LAW WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY SELLER, OR ANY UNDERTAKING, ACTS OR OMISSIONS RELATING THERETO, AND; (c) ALL CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES WHATSOEVER.

Without limiting the generality of the foregoing, Seller specifically disclaims any liability for penalties (including administrative penalties), special or punitive damages, damages for lost profits or revenues, loss of use of products or any associated equipment, cost of capital, facilities or services, down time, shut down or slow down costs, or for any other types of economic loss.  All of the limitations and disclaimers contained in this paragraph and in the rest of this contract shall apply to claims of Buyer’s customers or any third party.

Buyer shall indemnify Seller against any and all losses, liabilities, damages and expenses (including, without limitation, attorney’s fees and other costs of defending any action) which Seller may incur as a result of any claim by Buyer or others arising out of or in connection with the products and/or services sold hereunder and based on product or service defects not proven to have been caused solely by Seller’s negligence.

11.  Final Agreement
This writing is intended by the parties as a final expression of their agreement and is intended also as a complete and exclusive statement of the terms of their agreement.  Any subsequent modification or amendment to it may be made only in writing signed by both parties hereto.

REED SWITCH DEVELOPMENTS, CORP. (TERMS AND CONDITION OF SALE) Revised 09/23/2005 10:58 PM – Latest Version in Effect as of 11/02/2021

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