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Stoughton Parts Sales, LLC Terms and Conditions of Sale
WEBSITE AND CATALOG ORDERS.
By placing an order, you make an offer to us to purchase the products you have selected from the list of items for sale on our website, catalog, or advertising. You may place an order by completing the order form in our catalog or on our website, which constitutes acknowledgement by you that your order is binding. Despite our best efforts, some items in our catalog, advertising, or on our website may be priced incorrectly, and the information contained in our catalog, advertising, or on our website may change from time to time. In the event that a product is listed at an incorrect price for any reason, Stoughton Parts reserves the right to refuse or cancel any orders placed for product(s) listed or conveyed at the incorrect price prior to the shipment of the products, including the period after an order has been confirmed by us. Stoughton Parts may refuse or cancel any such orders whether or not the order has been confirmed, even if you have paid, been billed, or your credit card has been charged. We may accept or reject any order at our sole discretion. If we accept your order, we will notify you of our acceptance by issuing an order confirmation. If we do not accept your order we will notify you of our rejection. When you receive our order confirmation, a contract between us shall enter into force.
OFFER/PRIORITY OF SELLER’S TERMS.
This writing is an offer by Stoughton Parts Sales, LLC (Seller) to sell the goods and/or services (Goods) described herein to you, the (Buyer), subject to the terms and conditions set forth herein. These terms and conditions shall be deemed accepted and included as part of any order or orders placed with Seller in accordance with or as a result of this offer. The terms of this offer supersede the terms of Buyer’s purchase order and any terms of sale proposed by Buyer are rejected unless specifically incorporated by reference herein. Acceptance is limited to these Stoughton Parts Sales, LLC Terms and Conditions of Sale; any additional or different terms on Buyer’s purchase order form are deemed material alterations to any contract between Buyer and Seller, and Seller hereby gives notice of its objection to them. The terms and conditions set forth by this offer are limited to orders placed with Seller or resulting from this offer. Any term of this offer may be changed by Seller at any time prior to acknowledgement by Seller.
All prices are in United States dollars and are F.O.B., the plant of Seller, 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. Prices are subject to change without notice. Additional charges may be applied to non-standard package quantities.
Seller will ship prepaid freight shipments via a carrier of its choice. Seller will attempt to ship freight collect shipments via the carrier requested by the Buyer, however, Seller shall have sole and absolute discretion to select the carrier.
TERMS OF PAYMENT.
Payments are due thirty (30) days from the date of the invoice of the net amount of the invoice. Any amount invoiced to Buyer but not paid when due shall be subject to late fees as set forth below. Buyer’s failure to pay any amount when due shall also entitle Seller to suspend performance of any other purchase orders placed with Seller by Buyer.
CANCELLATIONS OR CHANGES.
An accepted order is not subject to cancellation, change or delay by Buyer, except on terms acceptable and satisfactory to Seller, including reasonable cancellation charges in the event of cancellation or an equitable price adjustment in the event of changes in an accepted order. Direction from Buyer to cancel may be treated as a repudiation, making Buyer immediately liable for loss, expense and other damages sustained.
The price specified in Buyer’s order does not provide for the payment of any sales, use, manufacturing, excise, occupation, value added, duty, custom, ad valorem, excise, inspection or any other tax, fee or charge of any nature whatsoever. In addition to the price of the Goods, Buyer shall pay to Seller, in cash on demand, any local, state or federal taxes, (other than net income, excess profits and similar taxes) or license fees, including penalties, interest and expenses in connection therewith, levied or imposed by any taxing authority upon and paid by Seller with respect to, or measured by, the sale, use, payment, delivery or transfer of title to the Goods, or any part thereof, to Buyer.
Any assignment by either Seller or Buyer of any rights or obligations hereunder shall be of no force and effect without the prior written consent of the other party.
CHANGE IN LAW.
In the event Seller is required to make changes or additions to any or all of the Goods pursuant to any law, rule or regulation prior to delivery of such Goods, the price of the Goods shall be increased to include all costs incurred by Seller for such changes or additions.
It is understood and agreed that the terms contained herein, when accepted by the Buyer, shall constitute the entire contract between the parties with respect to the subject matter hereof and the provisions hereof supersede all other prior oral or written communications, negotiations, orders, confirmations and memoranda of every kind and nature between the parties with respect to the Goods. The terms and conditions hereof may not be revised or modified in any way except by written instrument signed by the party against whom enforcement of such revision or modification is sought. Buyer shall be deemed to have accepted these Stoughton Parts Sales, LLC Terms and Conditions of Sale when Buyer (a) places an order for Goods with Seller, (b) has accepted any Goods ordered from Seller, (c) Seller has shipped any Goods ordered by Buyer, or (d) has signed below.
FAILURE TO DELIVER.
Seller shall not be responsible for delays in delivery, or failure to deliver due to causes beyond its reasonable control, including without limitation, acts of God, acts of Buyer, fires, strikes, lockouts, or other labor difficulties, or terrorist or other hostilities, embargoes, Goods breakdown, inability to obtain necessary labor, material or manufacturing facilities due to causes beyond its reasonable control or any like dissimilar cause beyond its reasonable control. In the event of such delay, the date of delivery shall be extended for a period equal to the time lost by reason of the delay.
Delivery dates are measured from receipt of order. Delivery dates are estimates and not guarantees, and Buyer understands and agrees to reasonable delays in delivery. Overtime and other direct costs incurred to hasten delivery of any order at Buyer’s request shall be added to the stated prices and paid by Buyer. Shipment of Goods ready for delivery can be deferred beyond date for delivery only with Seller’s consent and upon full payment of Seller’s invoice for same plus storage costs. There shall be no penalties for late shipments unless arranged prior to production and confirmed by Seller in writing.
RISK OF LOSS.
Risk of loss passes to Buyer upon delivery of the Goods to the carrier. Seller assumes no responsibility for delays, breakage or damage after having made delivery to a common carrier.
No rejections can be made and no claims for variances from Buyer’s specifications detectable upon inspection or shortages in orders will be considered by Seller unless presented to it in writing within thirty (30) days after acceptance of Goods.
In the event any voluntary or involuntary bankruptcy or insolvency proceeding is filed concerning Buyer under the bankruptcy or any insolvency laws, Seller shall be entitled to cancel any order then outstanding, and shall receive reimbursement for its reasonable cancellation charges.
In the event of any default by Buyer, Seller, without prejudice to any other remedy provided herein or by law, may treat such default as breach of the entire contract or may defer further deliveries until such default is cured, in which latter event, if Seller so elects, the dates of all subsequent deliveries shall be extended for a period equal to the length of time of such deferral. Default by Buyer occurs when Seller has not received payment within ten (10) business days after the date specified for any payment. If, despite any default by Buyer, Seller elects to continue to make deliveries, its actions shall not constitute a waiver of any default by Buyer.
Seller warrants to the original Buyer at time of delivery that the Goods will be free of defects in material and workmanship, when used for the purpose for which the Goods were designed.
Seller makes no warranty as to parts, accessories, or other products manufactured by others, or specified by the Buyer, or utilized as the result of Buyer’s requirements. The Seller will assign and pass on to Buyer any product warranties given to Seller by its suppliers of such items, but the Seller does not ratify, warrant, or adopt said warranties.
Buyer and Seller further agree that Buyer’s sole remedy for any defects in new Goods delivered hereunder, whether Buyer’s claim arises under the warranty set forth above or otherwise, shall be limited to the repair or replacement, at Seller's option, to the first purchaser of any defective Goods which are returned by Buyer to Seller with transportation charges prepaid by Buyer within twenty (20) days after delivery of the subject Goods to the Buyer, if Buyer is the original purchaser of the Goods. All warranty repairs must be approved in writing by the Seller before any warranty work is authorized. Unauthorized warranty charges will not be honored. Seller shall have no obligation to pay for installation or removal of any Goods. Any description of the Goods or services, whether in writing or made orally by Seller or Seller’s agents, specifications, samples, models, bulletins, drawings, diagrams, engineering sheets or similar materials used in connection with Buyer’s order are for the sole purpose of identifying the Goods and/or services and shall not be construed as an express warranty. Any suggestions by Seller or Seller’s agents regarding use, application or suitability of the Goods and/or services shall not be construed as an express warranty unless confirmed to be such in writing by Seller. This warranty is not assignable.
THIS WARRANTY COMPRISES THE SOLE AND ENTIRE WARRANTY PERTAINING TO THE GOODS SOLD BY SELLER, AND SELLER MAKES NO OTHER WARRANTY, GUARANTEE OR REPRESENTATION OF ANY KIND WHATSOEVER PERTAINING TO THE GOODS. SELLER HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, MERCHANTIBILITY AND FITNESS FOR PARTICULAR PURPOSE, OR THOSE ARISING BY OPERATION OF LAW, TRADE USAGE, OR COURSE OF DEALING.
LIMITATION OF LIABILITY/EXCLUSION OF CONSEQUENTIAL DAMAGES AND DISCLAIMER OF OTHER LIABILITIES.
Seller liability with respect to the Goods sold hereunder shall be limited to the limited warranty provided in section 16 hereof, and, with respect to other performance of the contract arising out of this offer, shall be limited to the contract price.
SELLER SHALL NOT BE SUBJECT TO AND DISCLAIMS:
ANY OTHER OBLIGATION OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR OF WARRANTY.
ANY OBLIGATIONS WHATSOEVER ARISING FROM TORT CLAIMS (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, AND STRICT LIABILITY)OR ARISING UNDER OTHER THEORIES OF LAW WITH RESPECT TO GOODS SOLD OR SERVICES RENDERED BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO, AND
ALL CONSEQUENTIAL, INCIDENTAL, SPECIAL AND CONTINGENT DAMAGES.
Without limiting the generality of the foregoing, Seller specifically disclaims any liability for property or personal injury damages, penalties, special or punitive damages, damages for lost profits or revenues, loss of use of Goods or any associated equipment, cost of capital, cost of substitute goods, facilities or services, down-time, shut-down costs, or for any other types of economic loss, and for claims of Buyer’s customers or any third party for any such damage.
LATE FEES; COLLECTION COSTS.
Seller reserves the right to charge, and Buyer agrees to pay, a late fee on any amount unpaid as of the due date, and on any other outstanding balance, equal to one and one-half percent (1-1/2%) per month or the maximum rate allowable by law, if less. In the event it is necessary to place any contract based on this proposal in the hands of an attorney for collection, purchaser shall pay Seller’s reasonable costs of collection of money due and unpaid, including reasonable attorneys’ fees and costs. The Seller has the right to offset any amount paid by Buyer.
INTELLECTUAL PROPERTY RIGHTS.
Seller shall retain all rights in all intellectual property, including any rights under any patents as well as any unpatented information, such as trade secrets, confidential information, trademarks, trade dress, or copyrights possessed by Seller which may protected by state, federal and/or common law, and nothing in this offer shall be deemed or construed to be a transfer or license of any of Seller’s intellectual property. Buyer shall obtain rights to such intellectual property only to the extent that Seller may grant such rights (whether by license or otherwise) in a separate writing.
INTELLECTUAL PROPERTY INDEMNITY.
Buyer agrees to defend, protect, and save harmless Seller against all suits from all damages, claims and demands for actual or alleged infringement of any patent copyright or trademark by reason of Seller providing Goods to Buyer according to designs, prints, drawings, requirements, or specifications provided to Seller by Buyer.
Seller shall have the right to scrap, without liability, prints submitted for quotation, as well as models, patterns, tools, fixtures or other property belonging to Buyer unless written directions for shipment of such property are given to Seller within ten (10) days of notification by Seller. Modifications made to tooling in order to manufacture an acceptable part will be at the discretion of Seller.
GOVERNING LAW/CHOICE OF FORUM.
The rights and obligations of Buyer and Seller shall be governed by the laws of the State of Wisconsin without giving effect to principles of conflicts of law. Any lawsuit between purchaser and Seller shall be filed exclusively in a court either located in or having jurisdiction over Dane County, Wisconsin.
If the Buyer does not remove the Goods from Seller’s facility within fifteen (15) days after notification to the Buyer that the Goods are ready for shipping, Seller may store such Goods at Buyer’s risk in Seller’s yard or upon Seller’s premise’s, and Buyer shall pay all handling, transportation and storage charges at the prevailing commercial rates upon submission of invoices by Seller. Such invoices shall be paid net thirty (30) days.
A copy of a Return Merchandise Authorization (RMA) is required prior to returning merchandise, for any reason. All returns must have an RMA number referenced on the box/material. All returns must be returned freight PREPAID. No returns will be accepted if shipped freight collect. Obsolete parts will NOT be accepted. Each return may be subject to a 25% handling and restocking charge. Returns of 'special order' items will not be accepted.
To secure full payment of the purchase price of the Goods, Buyer grants to Seller a security interest in the Goods. Buyer will join the Seller in executing, filing and doing whatever acts may be necessary under the applicable law to perfect Seller's security interest and until Seller has been paid the full purchase price.
When this offer is accepted by Buyer and approved by Seller, either by signed agreement, acceptance of the Goods by the Buyer, payment by the Buyer or otherwise, it shall constitute the entire agreement between the parties, superseding any other oral or written representations or agreements outside of this offer. This Agreement may not be modified except in writing signed by both parties. Seller retains the right to recoupment and/or setoff.
Please complete this section and return the original copy to us.
ALL SALES ARE SUBJECT TO THESE TERMS AND CONDITIONS OF SALE. THE UNDERSIGNED BUYER ACCEPTS THIS OFFER, SUBJECT TO THE TERMS AND CONDITIONS OF SALE APPEARING ON THE FACE AND REVERSE SIDES OF THIS PAGE, ANY OTHER PAGE AND ON ANY ATTACHMENTS THERETO.