BRAND ADVANTAGE GROUP
NO WARRANTY, PROMISE OR REPRESENTATION AS TO ANY PRODUCT SOLD BY BRAND ADVANTAGE GROUP NOR ANY WAIVER OR MODIFICATION OF THE FOLLOWING TERMS AND CONDITIONS OF THIS CONTRACT OF SALE (THIS “CONTRACT”) SHALL BE BINDING UPON BRAND ADVANTAGE GROUP UNLESS REDUCED TO WRITING AND SIGNED BY AN AUTHORIZED OFFICER OF SELLER. AS USED IN THIS CONTRACT, “SELLER” SHALL MEAN BRAND ADVANTAGE GROUP.
DELIVERY
Deliveries are subject to Seller’s ability to secure materials for the manufacture of the product or products to be supplied under this Contract (the “Product”) and are subject to an event of Force Majeure as defined below. In cases where more than one product, component, or item is placed on the same order and only one shipping date for the entire order is specified and in the absence of a specific schedule of shipments applied to each product, component, or item, Seller reserves the right to ship any part of the order in advance of the shipping date, and Customer shall make payment in accordance with the terms specified below.
If Customer fails to meet Seller’s obligations (preparation for delivery, payment, etc.) or Customer otherwise delays delivery (by request for changes, etc.), Seller is entitled to adjust the delivery time and price resulting from such failure or delay. If Customer fails to accept delivery as agreed, such failure shall not relieve the Customer from payment of an installment or other term or obligation due on delivery, and Seller will endeavor to arrange for storage of the Product at the risk and cost of Customer. If requested by Customer, Seller shall insure the Product at Customer’s expense, but shall have no obligation to do so absent Customer’s prepayment of said insurance. If Seller notifies Customer in writing that Customer must accept delivery within a fixed time, and the Customer fails to do so within such time, Seller shall be entitled to immediately terminate this Contract upon providing written notice of termination to Customer and claim compensation for any loss and expense resulting from such failure.
FORCE MAJEURE
Seller shall not be responsible for failure to perform under this Contract due to circumstances beyond Seller’s control, including, but not limited to, fires, floods, and other catastrophes caused by nature, riots, civil commotion, strikes, labor disputes, freight embargoes or transportation delays, shortage of labor, inability to secure fuel, materials, supplies, equipment or power at reasonable prices or on account of shortages thereof, delays in deliveries from subcontractors, acts of God or of a public enemy, or any existing or future laws, rules, regulations or acts of any national state or local government (including specifically, but not exclusively, any orders, rules or regulations issued by any official or agency of any such government) affecting a party which would delay or prohibit performance under this Contract. Technical difficulties shall also be an event of Force Majeure provided that the difficulties are reasonably unforeseen. Seller’s obligation to perform under this Contract shall be suspended as long as the event of Force Majeure exists. The delivery schedule shall be extended for a period equal to the duration of the event of Force Majeure.
SHIPMENT
Shipment will be made f.o.b. Seller’s Shipping Department. In the absence of specific shipping or packaging instructions, shipping will be made in accordance with the Seller’s standard practices and/or best judgment. Seller’s responsibility ceases (except as stated in Seller’s limited warranty) with the delivery of the Product to the carrier.
CLAIMS
Claims for shortages or objections to the Product based on any non-conformities, irregularities, discrepancies, or defects (“Non-Conformities”) that are ascertainable by reasonable inspection of the Product by Customer must be made in writing and received by Seller within 15 days after Customer’s receipt of the Product. Upon receipt of any such claim, Seller will fill the shortage or will, at Seller’s expense, either: (1) repair the Non-Conformities or (2) replace the Product with the same or a substantially equivalent product. The choice among the foregoing remedies shall be made solely by Seller. No claims shall be made against Seller for expenses or loss resulting from infringement of patents or trademarks in connection with the purchase, manufacture, or use of the Product, and Customer shall hold Seller harmless against any expense or loss resulting from infringements of patents or trademarks, arising from compliance with Customer’s designs or specifications or instructions.
LIMITED WARRANTY
Seller warrants that the Product is free from defects in materials or workmanship for a period of 12 months from the date of receipt of the Product by the Customer or 18 months from the date of shipment of the Product from Seller’s Shipping Department (whichever occurs first) as follows:
Seller will, at Seller’s expense, either: (1) repair the Product or (2) replace the Product with the same or a substantially equivalent product; provided that the warranty claim is made in writing and received by either Seller or one of its authorized repair centers within the warranty period with a brief narrative description of the claimed defect, Customer’s name and return address, and proof of purchase and date of receipt of the Product. The choice among the foregoing remedies shall be made solely by Seller. This will be the Buyer’s exclusive remedy for breach of warranty. The Seller will not be liable for Customer’s incidental or consequential damages, even if the Seller fails in its attempt to fix the defects. But in such a case, the Customer will be entitled to a refund of monies paid to the Seller under this Contract.
Customer is responsible for the examination of the Product upon receipt. Seller shall have no liability to Customer for any Non-Conformities that are ascertainable by reasonable inspection of the Product by Customer, unless Customer notifies Seller in writing and within 15 days of Customer’s receipt of the Product, as set forth above.
This limited warranty is void if warranty labels on the Product are broken. This limited warranty does not cover cosmetic damage or damage due to acts of God, accident, misuse, abuse, vandalism, negligence, or modification of or to any part of the Product. This limited warranty does not cover damage due to improper installation, operation, repair or maintenance of this Product. Refer to the user’s manual for product safety warnings and proper use instructions. This limited warranty is valid only if the factory-applied serial number appears on the Product and if Customer provides proof of the date of Customer’s receipt of the Product. This limited warranty is valid only in the United States.
Consumable items (including, but not limited to, lamps, fuses, and worn O rings or shaft-seals) are excluded from this limited warranty.
The foregoing limited warranty is exclusive of all other warranties, express or implied, with respect to quality, condition, capabilities or performance of any Product sold by Seller to Customer, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR REPRESENTATION OF ANY KIND BY SELLER OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, MANUFACTURE OR DELIVERY OF THE PRODUCT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF merchantability OR FITNESS FOR PARTICULAR PURPOSE; and the foregoing alternative remedies shall constitute Seller’s sole responsibility, and Customer’s exclusive remedy, on account of any claimed defect or deficiency with respect to the Product sold by Seller to Customer, whether such claim is based on any statutory duty, or otherwise. The maximum liability of Seller shall not, in any case, exceed the price of the Product.
REPAIR, REPLACEMENT OR REFUND AS PROVIDED UNDER THIS LIMITED WARRANTY IS THE EXCLUSIVE REMEDY OF CUSTOMER PURSUANT TO WISCONSIN COMMERCIAL CODE SECTION 402.719. UNDER NO CIRCUMSTANCES SHALL SELLER OR ANY OTHER PERSON INVOLVED IN THE CREATION, MANUFACTURE OR DELIVERY OF ANY PRODUCT BE LIABLE TO CUSTOMER OR TO ANY PERSON WHO ACQUIRES THE PRODUCT FROM OR THROUGH CUSTOMER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF USE, ON ACCOUNT OF ANY CLAIMED DEFECT OR DEFICIENCY WITH RESPECT TO THE PRODUCT, WHETHER THE CLAIM FOR SUCH DAMAGES BE BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE.
Seller does not warrant any part not manufactured by Seller. All parts not of Seller’s manufacture shall carry the warranties of their respective manufactures.
TERMS
Terms of sale are C.O.D. or cash in advance, unless Customer obtains credit approval from Seller’s Credit Department prior to the time of shipment, in which case terms of sale are net 30 days from the date of shipment or date of invoice, whichever is later. The lessor of the maximum interest rate permitted by law or a 1.5% service charge per month will be charged on any unpaid balance computed from the date the indebtedness becomes past due and until it is satisfied; however, in no event shall a service charge be assessed in excess of the maximum permitted law. Seller reserves the right to restrict the terms of payment or to require payment prior to the date of shipment if, in Seller’s opinion, Customer’s financial condition or other circumstances so warrant.
In the event of the filing of any petition in bankruptcy or for reorganization by or against Customer, or the appointment of a receiver of Customer’s insolvency, Seller may refuse to make further deliveries and all terms of sale shall become immediately due and payable. Customer hereby waives all notice and demand and consents that all terms of sale shall become immediately due and payable upon the happening of such events.
TAXES AND DUTIES
Customer shall be solely responsible for and shall pay: (a) all manufacturer’s, sales, use and transfer taxes and all governmental charges, if any, due upon the sale or transfer of the Product from Seller to Customer imposed by any jurisdiction; and (b) all licensing fees, import/export duties or fees or similar taxes and excises due to any jurisdiction.
RETURNS
No credit shall be allowed for returns unless Customers first obtains Seller’s approval in writing. Only items, components and other products of current design in original cartons will be considered for credit, and when returned, Customer shall pay a reasonable handling charge to cover necessary inspection, adjustment, repackaging, and clerical expenses incurred by Seller. Items, components and other products not listed in Seller’s published price list when ordered (“Special Orders”) are not subject to return for credit under any circumstances.
CANCELLATION
Cancellation of Special Orders will not be accepted. Any order for Seller’s standard products may not be canceled within 30 days of the accepted delivery date, or if delivery can actually be made within 30 days of the date on which cancellation is requested. Otherwise, the order may be canceled in accordance with the following:
(a) By mutual written agreement of Customer and Seller
(b) If the items covered by the order are being purchased for ultimate delivery to the Government pursuant to a Government contract, or for use on a Government contract with or without other equipment, then it is agreed that any part or all of this order may be canceled only in accordance with the cancellation provisions of the correspondent Government contract.
TITLE
Title to the Product sold under this Contract shall remain with Seller, and the Product shall remain personal property of Seller, until all payments under the terms of sale, including deferred payments, whether evidenced by notes or otherwise, shall have been made in full in cash and until all other terms of sale have been fully performed by Customer. Customer agrees to do all acts necessary to perfect and maintain such title in Seller, including, but not limited to, executing and filing financing statements to perfect a security interest of Seller in the Product.
PROPRIETARY RIGHTS; CONFIDENTIALITY
Seller will retain sole ownership of and all rights in all technical and business information, test reports, ideas, designs and materials pertaining to the Product, including, for example, all product and system design (whether or not patented or patentable), trademarks, copyrights or processes, and other assembly, production, marketing or sales information (the “Proprietary Rights”). Seller also will be the sole owner of all improvements, enhancements and modifications to any Proprietary Rights (whether patented or patentable) designed, produced, created or conceived by any person or party in connection with the manufacture, use and sale of the Product and of any goodwill associated with the Property or the Proprietary Rights. Customer may use the Proprietary Rights only for Customer’s own purposes consistent with the intended use of the Product; Customer shall not use or permit the Proprietary Rights to be used to compete with Seller or to manufacture or develop products or services which compete with Seller’s products and services.
Customer will keep all information and knowledge regarding the Proprietary Rights provided by Seller confidential and will institute reasonable procedures and policies to prevent disclosure. If Customer or any of its representatives becomes legally compelled to disclose any information or knowledge regarding the Proprietary Rights, Customer will provide Seller with prompt notice of such requirement and will cooperate with Seller in seeking to obtain a protective order or other arrangement pursuant to which the confidentiality of such information is preserved.
Customer acknowledges and agrees that breach of any of the Proprietary Rights or confidentiality agreements contained in this Contract would give rise to irreparable injury to Seller and that monetary damages would be an inadequate remedy for any such breach. Accordingly, Seller may seek and obtain injunctive relief against any such breach or threatened breach, without the need of proving actual damages or the posting of a bond or other security, in addition to any other legal remedies which may be available.
DEFAULT
If Customer defaults in the payment or performance of any term of sale, Seller may retake possession of the Product, and for this purpose, Seller may peaceably enter upon the premises of Customer without judicial process. Whenever Seller, by reason of Customer’s default, shall have the right to retake possession, Seller shall serve written notice on Customer at least 5 days prior to the date set for repossession, setting forth therein the circumstances of default or breach. Seller will not retake possession of the Product if Customer then fully cures said default or breach prior to the date set for repossession. Nothing contained herein shall limit Seller’s right to sue for and collect any unpaid term of sale, or to enforce any other remedy available to Seller hereunder or under the Uniform Commercial Code as adopted by the State of Wisconsin.
QUOTATIONS AND PRICES
All prices are subject to change without notice in Seller’s sole discretion. All orders calling for future delivery shall be billed according to the price in effect at the time of delivery. Written quotations shall automatically expire 30 days from the date issued, subject to earlier termination by notice within that period.
ERRORS AND CHANGES
Seller reserves the right to correct clerical or stenographic errors or omissions and to make changes in design at any time without incurring any obligation to install such changes on the Product previously purchased by Customer.
ENTIRE AGREEMENT; MODIFICATION
Unless modified in writing signed by both parties, this Contract is understood to be the complete and exclusive agreement between the parties, superseding all oral or written prior agreements and all other communications between the parties relating to the subject mater of this Contract, including statements made by salespersons. No employee of Seller or any other party is authorized to make any warranty in addition to those made in this Contract. The Customer is warned, therefore, to check this Contract carefully to see that it correctly reflects those terms that are important to Customer. No previous or subsequent course of dealing or performance or usage of trade not specifically set forth in this Contract shall be admissible to explain, modify or contradict any of the express terms or conditions of this Contract.
Orders submitted on Customer’s own purchase order forms, which may contain statements, clauses, or conditions modifying, adding to, repugnant to, or inconsistent with the terms and provisions contained in this Contract, will be accepted by Seller only upon condition and with the express understanding that notwithstanding any such statements, clauses, or conditions contained in any forms of Customer, Seller’s liabilities shall be determined solely by Seller’s terms and conditions of sale as stated in this Contract. Orders, acceptances or confirmations that state additional or differing terms from this Contract shall be operative as acceptances of this Contract; provided, however, that all additional or differing terms shall be deemed material alterations within the meaning of Wisconsin Commercial Code Section 402.207(2)(b), and notice of objection to them pursuant to Wisconsin Uniform Commercial Code Section 402.207(2)(c) is hereby given.
NO WAIVER
Seller’s failure to require performance by Customer of any provision of this Contract shall in no way be deemed a waiver or otherwise affect the right of Seller to require such performance at any time thereafter. Seller’s failure to object to any provisions contained in any communication from Customer which are at variance with the provisions of this Contract shall not be deemed a waiver or modification of the provisions of this Contract.
GOVERNING LAW; VENUE
This Contract shall be governed by and construed in accordance with the substantive laws of the State of Wisconsin, without reference to any conflict of laws rules of that State which would require the use or employment of the laws of any other jurisdiction. Seller and Customer agree that the venue of any judicial proceeding for the enforcement of, or otherwise pertaining to, any of the terms of this Contract shall be in either the state courts located in Milwaukee County, Wisconsin, or the federal courts located in Milwaukee, Wisconsin, and both parties hereby consent and submit to the jurisdiction of these courts for any such proceeding.
Seller and Customer also agree that, if either Seller or Customer so chooses, all controversies or claims arising out of or relating to this Contract, or the breach thereof, shall be settled by arbitration in Milwaukee, Wisconsin administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in either court set forth above. If a judicial proceeding is commenced, Seller or Customer must exercise its option to demand arbitration on or before the date its Answer or first other responsive pleading must be filed or served.
ATTORNEYS’ FEES
In the event that any suit, action or arbitration proceeding is commenced by a party under this Contract to enforce its terms or seek damages or equitable relief in connection with this Contract, the prevailing party in such action or arbitration (as determined by the court or arbitrator) will be entitled to reasonable attorneys’ fees and costs to be fixed by the court or arbitrator, including such fees and costs as may be incurred in any appellate proceeding or in collection.
SEVERABILITY
In the event that any of the provisions of this Contract are construed by a court of competent jurisdiction to be invalid or for any reason unenforceable, the remaining provisions of this Contract nonetheless shall continue in full force and effect in accordance with their terms.
NOTICES
All notices or other writings to Seller shall be sent by prepaid registered or certified mail, or by a recognized overnight delivery service (such as Federal Express or UPS), to Brand Advantage Group, 5097 Nathan Lane, Minneapolis, Minnesota 55442, or such other address as the Seller may designate in writing. All notices or other writings to Customer shall be sent by prepaid registered or certified mail, or by recognized overnight delivery service, to Customer’s last known business address or such other address as the Customer may designate in writing.
STATEMENT PROCESSING