1. Contract Formation.
Wrought Washer Mfg., Inc., TurnaSure LLC, or Diversified Tooling Innovations LLC, as applicable (the “Seller”), agrees to sell the products described in Seller’s quotation, order acknowledgment, or invoice (collectively, the “Products”) only upon the terms and conditions of sale set forth herein, which supersede any of Buyer’s additional, different, or inconsistent terms or conditions. Seller’s offer is expressly conditioned upon Buyer’s acceptance of these terms. If Seller does not receive a written objection to any of these terms and conditions within ten (10) days after transmittal, or if Buyer accepts delivery of the Products, these terms and conditions shall be deemed accepted by Buyer. Failure of Seller to object to provisions contained in any purchase order or other communication from Buyer shall not be construed as an acceptance of any such provisions nor as a waiver of these terms and conditions. No modification of these terms shall be binding unless in a writing signed by Seller. All prior or contemporaneous oral statements, negotiations, or representations not expressly included herein are of no force or effect.
2. Payment Terms and Prices.
(A) Unless other terms are specified in writing by Seller, payment is due and payable in full thirty (30) days from the date of invoice. If accounts are not paid when due, the contract price shall be increased by one percent (1%) per month on the unpaid balance. Seller may, at any time and in its sole discretion, require payment in advance, require reasonable assurances of Buyer’s ability to pay, or suspend shipments to Buyer until all past-due amounts are paid.
(B) Any manufacturer’s, retailer’s, occupation, use, sales, or excise tax, 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 any transaction between Seller and Buyer shall be paid by Buyer in addition to the contract prices quoted or invoiced unless Seller specifically states that such taxes or charges are included in the contract price. In the event Seller is required to pay any such tax, fee, or charge, Buyer shall reimburse Seller therefor, or, in lieu of such payment, at the time the order is submitted Buyer shall provide Seller an acceptable certificate exempting Seller for any such tax, fee, or charge. Buyer shall indemnify Seller for any liability resulting from Buyer’s failure to provide a valid exemption certificate.
(C) Contract prices are subject to adjustment to Seller’s prices in effect at the time of shipment in the event of increases in the cost of labor or materials from the date of any quotation or order. All prices are based on the quantity specified and for single shipment to one destination. Prices may also include charges for special tooling, non-recurring engineering, or setup required for Buyer’s order. Seller reserves the right to implement surcharges or adjustments attributable to unusually volatile raw material, energy, or freight markets.
(D) Prices do not include PPAP or special documentation charges unless agreed in writing. Buyer shall pay Seller’s costs for any such documentation requested or required.
(E) Buyer shall make all payments due hereunder without setoff or deduction of any kind and shall not withhold payment based on any actual or alleged claim against Seller.
3. Tolerances and Samples: Measure of Quantity: Acceptance of Products.
(A) Unless otherwise specified by Seller in writing, contract prices reflect products manufactured to Seller’s standard tolerances and do not include submitting samples prior to production. Dimensions taken from Buyer’s sample will be to the nearest .016″; Seller’s standard tolerances shall apply from that dimension. Samples illustrate shape and approximate size only, and do not show tolerances, composition of material, plating, heat treatment, or performance characteristics; samples do not represent that the products will necessarily conform to the sample. Unless otherwise specified by Seller, a regular punched edge will be furnished, and dimensions shall be measured from the sheared portion and not from the broken portion of the edge. For machined products or tension-indicating devices, unless otherwise specified in Seller’s written quotation or order acknowledgment, industry-standard machining tolerances or Seller’s published product specifications shall apply. Performance characteristics of direct tension indicators shall be determined solely by reference to Seller’s written specifications.
(B) The quantity of all products sold is measured by weight unless otherwise specified by Seller in writing. Seller’s weight measurement calculations shall be the final and conclusive determination of the quantity of products delivered. Due to thickness tolerances for standard washers and other products, and Seller’s standard tolerances for special washers and other special products, the number of pieces per pound or cwt., wherever shown, is only approximate and cannot be guaranteed. For products sold on a unit or piece-count basis, including bagged or machined components, quantities shall be as stated on Seller’s documentation unless otherwise agreed in writing.
(C) All claims for errors, shortages, or damaged products must be made by Buyer within thirty (30) days after products are received. Failure to make any such claims within such time is deemed to constitute an irrevocable acceptance of products delivered in conformity with this Agreement. Any use, processing, installation, or resale of the products by Buyer shall constitute acceptance. Buyer shall provide Seller a reasonable opportunity to inspect any alleged nonconforming products before any further handling or disposition.
4. Tooling: Dies: Finish.
(A) Tooling means stamping dies and their die holders. Payment of “Partial Tooling” charges does not convey title or give Buyer any rights of possession to any tooling. For machined or specialty products, “Tooling” shall also include fixtures, jigs, gauges, patterns, models, CNC programs, CAD/CAM files, and other manufacturing aids created or used by Seller, all of which shall remain the sole property of Seller unless otherwise agreed in writing.
(B) Where “Complete Tooling” charges are paid by Buyer: (i) only stamping dies and their die holders shall be returned to Buyer, freight collect, in their then “as is” condition upon reasonable advance notice and payment of customary shipment preparation charges; and (ii) Seller will provide its customary normal maintenance for stamping dies for the useful life of the original die. Buyer shall pay for replacement, reconditioning, or rebuilding of tooling (including stamping dies and holders) unless Seller otherwise agrees in writing. Dies and tooling shall be deemed obsolete and may be scrapped by Seller if no products have been produced from such tooling during the three years preceding scrapping. Buyer acknowledges that payment of Complete Tooling charges does not grant any ownership or access rights to Seller’s proprietary manufacturing processes, CNC programs, engineering data, or know-how, which shall remain the exclusive property of Seller.
(C) Unless otherwise specified by Seller in writing, the products shall be manufactured from hot-rolled steel. Prices of plated parts cover commercial coating thickness. For machined components or direct tension indicators, materials, surface finishes, and coatings shall conform only to Seller’s written quotation or order acknowledgment. Custom finishes, testing, or certifications may involve additional charges.
5. Confidential Information and Intellectual Property.
All drawings, specifications, technical data, samples, tooling, CNC programs, CAD files, know-how, and other information furnished by Seller shall remain the property of Seller and shall be treated as confidential. Buyer shall not disclose such information to any third party or use such information for any purpose other than performance of this Agreement. No rights or licenses in any patent, trademark, trade secret, or other intellectual property of Seller are granted or implied by the sale of products hereunder.
6. Delivery.
(A) Delivery will be F.O.B. point of shipment, where risk of loss passes to Buyer. Seller may make delivery in installments or partial shipments. All such installments or partial shipments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries. Seller reserves the right to undership or overship within ten percent (10%) of specified quantities and to make delivery prior to scheduled delivery dates. Shipping dates are estimates only, and Seller shall not be liable for any failure to meet any requested or scheduled delivery date. Buyer shall be responsible for all transportation, packaging, handling, and insurance charges unless otherwise stated in writing by Seller.
(B) If shipment is deferred at Buyer’s request, payment shall be due and payable upon notification by Seller that products manufactured pursuant to this Agreement are ready for shipment. In case of such delay in shipment, storage shall be at the Buyer’s risk and expense. Seller may invoice reasonable storage, handling, or carrying charges for any such delay, and Buyer shall be responsible for maintaining appropriate insurance coverage during the storage period.
(C) Seller shall not be liable for any costs, expenses, or damages of any nature (whether general, consequential, as a penalty or liquidated, or otherwise) arising out of or owing to (i) any delays in delivery or (ii) failure to make delivery at agreed or specified times due to circumstances beyond Seller’s reasonable control. In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost by reason of the delay. Circumstances beyond Seller’s reasonable control shall include delays or failures by carriers, shortages of materials or transportation, unavailability of labor, or any other cause impacting Seller, its suppliers, or its carriers.
7. Order Changes and Cancellations.
Buyer may not modify, change, or cancel any order except with Seller’s written consent and upon terms that will reimburse Seller for all loss, damage, and expense resulting therefrom, including without limitation the cost of materials, work-in-process, finished goods, tooling, and reasonable overhead. Any change in specifications, quantities, or delivery dates requested by Buyer shall be subject to Seller’s written approval and to price and delivery adjustments as determined by Seller.
8. Security Interest.
Seller retains a security interest in the products until Buyer has paid in cash the full purchase price when due, interest at the highest lawful contract rate until so paid, and the costs of collection including reasonable attorney’s fees. Buyer shall perform all acts necessary to perfect retention of the Seller’s security interest against the rights or interest of third persons. Buyer authorizes Seller to file financing statements, continuation statements, or other documents necessary to perfect and maintain such security interest without further signature by Buyer. Buyer shall keep the products insured against loss or damage until the purchase price is paid in full. In the event Buyer defaults in payment of any part of the purchase price when due or fails to comply with any and all provisions of this contract, Seller shall have the remedies available under the Uniform Commercial Code. All such remedies shall be cumulative and may be exercised successively or concurrently.
9. Warranty Matters.
(A) LIMITED WARRANTY: For a period of ninety (90) days from Buyer’s receipt, Seller warrants to Buyer that the products sold hereunder will be:
(i) in conformity with applicable written specifications and descriptions;
(ii) free from defects in materials and workmanship;
(iii) merchantable; and
(iv) suitable for a particular purpose only to the extent such warranty is implied by state law under the circumstances of this transaction.
(B) WARRANTY ADJUSTMENT: All claims for adjustment under this limited warranty must be made within the warranty period. The obligation of Seller under this warranty shall be limited, at Seller’s sole option, to reworking, replacing, or refunding the purchase price of any products which may prove to be thus defective, provided that Buyer gives Seller prompt notice of defects during the warranty period and, if required by Seller, returns the product to Seller with transportation charges prepaid, and Seller’s inspection confirms the defects. The choice among rework, replacement, or refund shall rest exclusively with Seller. It is expressly agreed that this remedy of reworking, replacement, or refund, at Seller’s option, is the Buyer’s exclusive remedy under this contract.
GOODS RETURNED WITHOUT WRITTEN PERMISSION OF SELLER WILL NOT BE ACCEPTED FOR CREDIT and will be returned freight collect to Buyer F.O.B. Seller’s plant. Expenses incurred by Buyer in reworking or replacing any defective products will not be allowed except by written permission of the Seller.
(C) LIMITATION OF LIABILITY: THIS WARRANTY IS LIMITED SOLELY TO THE ABOVE AND APPLIES ONLY FOR THE PERIOD SET FORTH. SELLER WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE, DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED UPON WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY OR ARISING IN CONNECTION WITH THE SALE OR USE OF THE PRODUCTS. SELLER’S MAXIMUM LIABILITY SHALL NOT IN ANY CASE EXCEED THE CONTRACT PRICE FOR THE PRODUCTS CLAIMED TO BE DEFECTIVE OR UNSUITABLE.
(D) EXCLUSION OF FURTHER WARRANTY: THE FOREGOING IS IN LIEU OF ALL OTHER WARRANTIES, ORAL OR EXPRESS, OR IMPLIED, INCLUDING ANY WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION OF THE PRODUCTS. THERE ARE NO EXPRESS WARRANTIES OTHER THAN THOSE CONTAINED IN THIS PARAGRAPH 7 AND, TO THE EXTENT PERMITTED BY LAW, THERE ARE NO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. THE PROVISIONS OF THIS PARAGRAPH 7 SHALL BE APPLICABLE TO BOTH IMPLIED WARRANTIES (IF ANY) AND EXPRESS WARRANTIES.
10. Patent indemnity.
If any product incorporates a design furnished or modification requested by Buyer, Buyer shall indemnify Seller against all expenses, costs, and loss relating to any real or alleged infringement of any United States or other patent by reason thereof, and shall defend any such claimed infringement. Seller shall have no liability for any claimed infringement arising from the use of the products in combination with other goods or equipment, or from the products’ use in Buyer’s system, structure, assembly, or end application. Buyer shall hold Seller harmless from any such claims.
11. Performance Delays.
Seller shall not be liable for loss, damage, or delay resulting from acts of God or causes beyond Seller’s reasonable control or caused by strikes or labor difficulties, acts or omissions of any governmental authority or the Buyer, accident, insurrection or riot, fires, floods, breakdown of essential machinery, priorities or embargoes, shortages, delays in transportation, or inability to obtain labor, services, energy, fuels, or materials from usual sources. In the event of any delay from such sources, performance will be postponed by such length of time as may be reasonably necessary to compensate for the delay. Delays or failures of Seller’s suppliers or carriers, or disruptions in transportation or logistics systems, shall also constitute causes beyond Seller’s reasonable control.
12. Compliance with Laws; Export Controls.
Buyer shall comply with all applicable federal, state, and local laws, regulations, and ordinances relating to the purchase, use, resale, export, or disposition of the products. Buyer represents that it is not, and will not permit the products to be supplied to, any person or entity prohibited under applicable export control, sanctions, or trade laws. Seller shall not be required to supply any products where such supply would violate applicable law or governmental order.
13. Complete Agreement.
THE COMPLETE AGREEMENT BETWEEN THE SELLER AND BUYER IS CONTAINED HEREIN AND NO ADDITIONAL OR DIFFERENT TERM OR CONDITION STATED BY BUYER SHALL BE BINDING UNLESS AGREED TO BY SELLER IN WRITING. No course of prior dealings and no usage of the trade shall be relevant to supplement or explain any terms used in the Agreement. This Agreement (a) may be modified only by a writing signed by both the Seller and Buyer, (b) shall be governed by the Wisconsin Uniform Commercial Code, and (c) may not be cancelled or terminated by Buyer except with Seller’s written consent and upon payment of Seller’s loss, damages, and expenses arising from any cancellation or termination. The failure of Seller to insist upon strict performance of any of the terms and conditions stated herein shall not be considered a continuing waiver of any such term or condition or any of the Seller’s rights. Buyer shall not assign this Agreement or any rights hereunder without Seller’s prior written consent. All disclaimers of warranty, limitations of liability, payment obligations, and other provisions intended by their nature to survive shall continue in effect after delivery of the products. Venue for any dispute shall be in a state or federal court located in Milwaukee County, Wisconsin.
WROUGHT WASHER MFG., INC.