Terms & Conditions of Purchase before 8/11/2015
KOLBE & KOLBE MILLWORK CO., INC.
TERMS AND CONDITIONS OF PURCHASE
These Terms and Conditions of Purchase constitute a material part of the agreement between Seller and Buyer. Kolbe & Kolbe Millwork Co., Inc. is at all times referred to herein, as the "Buyer." Buyer objects to and does not agree to be bound by any changes to these Terms and Conditions. These Terms and Conditions supersede any inconsistent terms and conditions in any documentation submitted by Seller to Buyer. No waiver, modification or additions to these Terms and Conditions shall be valid unless agreed to by Seller in writing. The purchase order must be accepted in writing by Seller. If Seller should fail to accept in writing, any conduct by Seller which recognizes the existence of a contract pertaining to the subject matter hereof shall constitute acceptance by Seller of the purchase order and all of these Terms and Conditions.
2. TERMINATION FOR CONVENIENCE; FOR CAUSE:
Buyer reserves the right to terminate the purchase order or any part thereof for its sole convenience. In the event of such termination, Seller shall immediately stop all work thereunder, and shall immediately cause any of its suppliers or subcontractors to cease such work. Seller shall be paid a reasonable termination charge consisting of a percentage of the order price reflecting the percentage of the work performed prior to the notice of termination, plus actual direct costs resulting from termination. Seller shall not be paid for any work done after receipt of the notice of termination, nor any costs incurred by Seller's suppliers or subcontractors which Seller could reasonably have avoided. In no event shall the Seller be entitled to recover incidental or consequential damages. Buyer may also terminate the order or any part thereof for cause in the event of any default by Seller, or if Seller fails to comply with these Terms and Conditions. Late deliveries, deliveries of products which are defective or which do not conform to the purchase order, and failure to provide Buyer, upon request, of reasonable assurance of future performance, shall all be causes allowing Buyer to terminate the purchase order for cause. In the event of termination for cause, Buyer shall not be liable to Seller for any amount, and Seller shall be liable to Buyer for any and all damages sustained by reason of the default which gave rise to the termination.
3. PROPRIETARY INFORMATION; CONFIDENTIALITY:
All specifications, documents, and drawings delivered by Buyer to Seller are the property of Buyer. They are delivered solely for the purpose of Seller's performance of the purchase order and on the express condition that neither they nor the information contained therein shall be disclosed to others nor used for any purpose other than in connection with the purchase order without the prior express written consent of Buyer. Such specifications, documents, and drawings are to be returned to Buyer promptly upon its written request. Such request may be made at any time during or after completion of Seller's performance. The obligation under this clause will survive the cancellation, termination, or completion of the purchase order.
Whether or not Seller is a merchant of goods and/or services provided by it, Seller warrants that all goods and/or services provided by it: (a) shall be of good quality and workmanship and free from defects, latent and patent; (b) shall conform to all specification drawings, descriptions, furnished, specified or adopted by Buyer; (c) shall be merchantable and suitable and sufficient for their intended purpose; and (d) shall be free of any claim of a third party. None of the remedies available to the Buyer for the breach of any of the foregoing warranties may be limited except to the extent and in the manner agreed upon by Buyer in a separate agreement specifically designating such limitation and signed by an authorized representative of Buyer. Buyer's inspection and/or acceptance of and/or payment for goods and/or services shall not constitute a waiver by it of any warranties. Buyer's approval of any sample or acceptance of any goods shall not relieve Seller from responsibility to deliver goods and to perform services conforming to specifications, drawings, and descriptions.
5. FORCE MAJEURE:
Buyer may delay delivery and/or acceptance occasioned by causes beyond its control.
Seller agrees upon receipt of notification to promptly assume full responsibility for defense of any suit or proceeding which may be brought against Buyer or its subsidiaries, affiliated entities, directors, officers, agents, employees, customers or other vendors for alleged patent infringement, as well as for any alleged unfair competition resulting from similarity in design, trademark or appearance of goods or services furnished hereunder, and Seller further agrees to indemnify Buyer or its subsidiaries, affiliated entities, directors, officers, agents, employees, customers or other vendors against any and all expenses, losses, royalties, profits and damages including court costs and attorney's fees resulting from any such suit or proceeding, including any settlement. Buyer may be represented by and actively participate through its own counsel in any such suit or proceeding if it so desires and the costs of such representation shall be paid by Seller.
Seller agrees, warrants and represents to Buyer that Seller will maintain adequate insurance to cover any liabilities described in the purchase order. Seller further warrants and represents to Buyer that Seller will maintain adequate insurance to cover any public liability, property damage and/or automobile liability for any damage incurred with Seller's performance of any work on or about the Buyer's premises as indicated on the face of the purchase order. Seller shall maintain proper Worker's Compensation Insurance covering all employees performing the purchase order.
Seller shall defend, hold harmless, and indemnify Buyer from and against any liability and expenses, including, but not limited to, attorneys' fees and court costs, arising from or related to any claims, damages, and liabilities caused by, related to, or arising out of any of the goods or services supplied by Seller, except to the extent that such damage or loss results from Buyer's negligent actions or misuse of the goods provided by Seller.
9. INSPECTION; TESTING:
Payment for the goods delivered hereunder shall not constitute acceptance thereof. Buyer shall have the right to inspect such goods and to reject any or all of said goods which are in Buyer's judgment defective or nonconforming. Products rejected or supplied in excess of quantities called for in the order may be returned to Seller at its expense and, in addition to Buyer's other rights, Buyer may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Buyer receives goods whose defects or nonconformity is not apparent on examination, Buyer reserves the right to require replacement, as well as payment of damages. Nothing contained in the purchase order shall relieve, in any way, the Seller from the obligations of testing, inspection and quality control.
10. MATERIAL SAFETY DATA SHEETS:
If some or all of the product being provided by Seller are on OHSA's "Hazardous Substance List," Seller must forward a completed Material Safety Data Sheet (MSDS).
11. INDEPENDENT CONTRACTOR:
The parties to the purchase orders are independent contractors and neither the purchase order, nor these Terms and Conditions, shall be construed as creating a joint venture, partnership, agency or franchise relationship.
12. GOVERNING LAW:
THESE TERMS AND CONDITIONS OF PURCHASE AND ANY PURCHASE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF WISCONSIN, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN MARATHON COUNTY, WISCONSIN AND SELLER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF, AND WAIVES THE RIGHT TO CHANGE VENUE. SELLER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING.
13. INVOICE, PAYMENT, AND SETOFF:
Buyer shall have no obligation to pay for any items until a correct invoice for the product is received at the address shown on the face of the purchase order. Payment is due thirty (30) days from receipt of a correct invoice. Each invoice shall be printed on Seller's standard printed bill form, and shall included at a minimum: (a) the purchase order number; (b) Seller's name and address; (c) the nature of the invoice charged; (d) the total invoiced amount; and (e) such detail as is reasonably necessary to permit Buyer to evaluate the goods supplied and/or the services performed. Amounts owed to Buyer due to rejections of goods or services or discrepancies in said invoices will be, at the Buyer's option, fully credited against future invoices payable by the Buyer, or paid by Seller within thirty (30) days from Seller's receipt of a debit memo or other written request for payment by Buyer. Buyer shall have the right, at any time, to set off any amount owing from Seller to Buyer against any amount payable by Buyer pursuant to the purchase order or any other transaction or occurrence.
14. ENTIRE AGREEMENT; ASSIGNABILITY; WAIVER:
These Terms and Conditions, and any documents referred to on the face of the purchase order shall constitute the entire agreement between the parties. Neither the purchase order nor any interest therein shall be assigned by Seller except upon the prior written consent of Buyer. Buyer's failure to insist on performance of any of the terms and conditions herein or to exercise any right or privilege or Buyer's waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.
15. SHIPMENT; DELIVERY:
Unless otherwise stipulated on the face of the purchase order or as modified by a routing letter from Buyer's Purchasing Department, goods covered by the purchase order shall be shipped "FOB destination." Risk of loss and title to said goods shall pass to Buyer only upon delivery to Buyer's specified end destination. Delivery in advance of the specified Buyer's shipping date, however, will not cause passage of title, transfer of risk of loss and/or establish FOB point. Transportation charges on goods delivered FOB destination must be prepaid. No charges for unauthorized transportation will be allowed. Any unauthorized shipment which will result in excess transportation charges must be fully prepaid by Seller. Unauthorized transportation charges not prepaid will be offset by Buyer. Time is of the essence in the fulfillment of the purchase order. The purchase order is subject to cancellation if not shipped at the specified time. Buyer reserves the right to refuse deliveries made in advance of the delivery schedule. Product shipped after the time specified may be returned at Seller's expense for full credit. Retention of all or any part of such product shall not be considered acceptance of same. Acceptance of such product shall not be deemed a waiver of Buyer's right to hold Seller liable for any loss or damage resulting therefrom, nor shall it act as a modification of Seller's obligation to make future deliveries in accordance with the delivery schedule. Buyer shall be reimbursed in full for all product returned. In addition thereto, Buyer shall have the privilege, if shipment is not made on time, to purchase similar product in the open market in such quantities as found necessary not exceeding the amount called for in the purchase order and hold Seller responsible for the difference, if any, between the price so paid and the purchase order price.
IN NO EVENT SHALL BUYER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF, OR IN CONNECTION WITH, THE PURCHASE ORDER, WHETHER OR NOT BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. BUYER'S LIABILITY ON ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THE PURCHASE ORDER OR FROM THE PERFORMANCE OR BREACH THEREOF SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE PRODUCTS OR SERVICES OR UNIT THEREOF WHICH GAVE RISE TO THE CLAIM. BUYER SHALL NOT BE LIABLE FOR PENALTIES OF ANY DESCRIPTION. ANY ACTION RESULTING FROM ANY ALLEGED BREACH ON THE PART OF BUYER AS TO THE GOODS OR SERVICES DELIVERED BY SELLER MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
For questions or comments regarding these terms, please submit them in writing. Addresses are available in