1. Exclusive Terms The sale of the goods indicated on purchase order (the "Goods") will only be made on the express condition that the terms contained below govern the sale, notwithstanding any inconsistent or additional terms that may be embodied in any other writing. Any inconsistent terms included in Buyer's purchase order shall have no effect and are hereby rejected unless agreed to in writing by Seller. Any order or payment by Buyer will be deemed an acceptance in full of these Terms and Conditions of Sale.
  2. Credit Authorization Buyer authorizes Seller to investigate Buyer's credit using any tools available to Seller. Seller may delegate the credit investigation to third parties.
  3. Seller's Acceptance Required Each order for Goods is subject to acceptance by Seller and will not become a contract until acknowledged by Seller in writing.
  4. Changes Seller may make price changes at any time with written notice to Buyer. Any request by Buyer for changes to this order is subject to Seller's approval and any necessary price adjustments. Prices apply to only the specific quantity and delivery schedule quoted by Seller.
  5. Delivery Seller shall make reasonable efforts to meet Buyer's delivery requirements. Seller's obligations are dependent on Seller's ability to obtain the necessary raw materials. Any delay or failure in performance by either Seller or Buyer shall be excused if and to the extent that such delay or failure is caused by occurrences beyond the reasonable control of such party, including, but not limited to, governmental rulings, regulations, decrees, or restraints (whether or not valid), acts of God, strikes, differences with workmen or other labor disturbances, war, sabotage, or any other similar or dissimilar cause beyond the reasonable control of such party. Such failure or delay shall be so excused during the continuance of the inability of the party to perform so caused, but for no longer period, and the cause thereof shall be remedied as far as possible with all reasonable dispatch, provided that the foregoing shall not impose on either party an obligation to terminate a strike or labor disturbance on unsatisfactory terms. Unless otherwise specified on the purchase order, the Goods shall be delivered to Buyer's carrier F.O.B. Seller's plant in Stoughton, Wisconsin. Risk of loss will pass to Buyer upon delivery of the Goods to Buyer's carrier.
  6. Acceptance Buyer's acceptance of Goods occurs upon the earlier of delivery to Buyer or to Buyer's carrier and will be presumed unless Buyer issues a written claim within 30 days from the delivery date. No return of Goods will more than 60 days from the delivery date will be accepted other than with Seller's prior written approval.
  7. Payment Buyer agrees to pay for all goods manufactured on behalf of and/or shipped to Buyer by or on behalf of Seller in accordance with the terms granted by Seller. Payment shall be made in accordance with the terms specified on the purchase order. In the absence of any such specification, terms of payment shall be net cash 30 days in U.S. dollars. If Seller, in its sole opinion, at any time believes that Buyer's financial condition does not warrant these terms, Seller may, by written notice to Buyer, impose more restrictive terms of sale, including, but not limited to, C.I.A. or sale on consignment.
  8. Taxes Taxes imposed or levied on any sale will be added to the price unless an exemption certificate accompanies Buyer's purchase order or payment by Buyer.
  9. Seller's Rights on Default In the event of any failure by Buyer to pay when due any amounts owing to Seller, Seller may take any or all of the following actions in additional to any other rights available to Seller by law:
    • In the event of and during the continuation of a default, Buyer will pay Seller a late fee of 1.5% per month on the unpaid balance unless Buyer is disputing such invoice in good faith.
    • If Buyer has provided Seller with a copy of Buyer's credit card or debit card, Buyer hereby authorizes Seller to obtain payment of any amounts owed by Buyer to Seller that are not being disputed in good faith by charging such credit card or debit card without further notice or approval. This authorization is permanent and irrevocable.
    • Upon default by Buyer of any payment due, Seller may at its option decline to make further deliveries until all overdue amounts have been paid and may decline to make further deliveries except for cash or cash in advance or may cancel this order. In addition, Buyer shall pay Seller's costs of collection of money due and unpaid, including reasonable attorneys' fees.
    • In the event of a default in payment, Seller may terminate the unfilled balance of this order and repossess any goods for which it has not received payment, and Customer will cooperate in delivering or otherwise making such goods available to Seller. All such goods that are repossessed by Seller will become the absolute property of Seller without the necessity of any legal proceedings, and Customer hereby consents to such repossession, as long as Customer is given full credit for such repossessed goods, less the costs incurred by Seller in such repossession and any loss incurred by Seller in disposition of the goods. This right of repossession is in addition to any other legal remedies that may be available to Seller, including, but not limited to, remedies provided by the applicable Uniform Commercial Code or any other applicable law.
    • Upon notice to Buyer, Seller may stop any delivery hereunder and may revise the credit terms or suspend credit at any time when Seller, in its sole opinion, deems that the creditworthiness of Buyer has become impaired.
  10. Creditworthiness Change Upon notice to Buyer, Seller may stop any delivery hereunder and may revise the credit terms or suspend credit at any time when Seller, in its sole opinion, deems that the creditworthiness of Buyer has become impaired.
  11. Retained Security Interest Seller retains a security interest in the Goods until full payment is made. Buyer shall execute any and all documents requested by Seller relating to its security interest and hereby authorizes Seller to file one or more financing statements evidencing Seller's security interest.
  12. Insolvency of Buyer If Buyer becomes insolvent, is unable to pay its debts when due, is the subject of voluntary bankruptcy proceedings or involuntary bankruptcy proceedings that are not dismissed within 30 days after the filing, has a receiver appointed or has its assets assigned for the benefit of creditors, Seller may cancel any unfilled order(s).
  13. Custom Tooling If Seller requests, Buyer shall provide at its cost tooling that is specific for the Goods to be produced for Buyer. Such tooling shall remain the property of Buyer unless Seller purchases it from Buyer.
  14. Suitability Seller is manufacturing the Goods for and selling them to Buyer on the understanding that Buyer has the sole responsibility to determine the suitability of products and services, since Seller has no control over Buyer's use of the Goods. Buyer has complete responsibility for having qualified personnel with requisite skills, training and experience to select, use, handle, sell and/or dispose of the Goods.
  15. Warranty Seller makes no warranty concerning the Goods, except that the Goods will comply with Seller's published specifications therefor. SELLER MAKES NO OTHER EXPRESS REPRESENTATION OR WARRANTY OF ANY KIND. ALL IMPLIED WARRANTIES INCLUDING WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY ARE EXCLUDED. Seller's liability for breach of the foregoing warranty shall not exceed refund of payment made by Buyer for such Goods and shall not include any labor costs. In no event shall Seller be liable for special, incidental, exemplary or consequential damages. The remedy in this section shall be Buyer's exclusive remedy for breach under these Terms and Conditions. Except as stated in this section, Seller shall not be liable under any theory of law, including without limitation contract, negligence, or strict liability. Buyer acknowledges that the foregoing disclaimers and limitations of liability apply to both Buyer and all subsequent purchasers.
  16. Claims Notice of any and all claims shall be given to Seller in writing within thirty (30) days from the date of delivery to Buyer, and failure to give notice within said time period shall constitute a waiver by Buyer of all claims with respect to the Goods. Buyer assumes all risks upon the earlier of delivery to Buyer's carrier or the delivery to Buyer. Goods held by Seller for any reason after the shipping date specified on the front side hereof shall be at Buyer's expense and risk.
  17. Supplier Managed Inventory Program The following terms will generally apply to Seller's Supplier Managed Inventory Program (SMIP) provided as a service to its customers: (a) Seller will produce Goods for Buyer, store them on premises owned or controlled by Seller and release them on 30-day terms as directed by Seller; (b) if the SMIP is cancelled or the supply relationship is terminated, Seller will promptly ship to Buyer the remaining Goods held in the program and all specialty raw materials purchased by Seller in order to maintain the required inventory for Buyer; (c) all inventories of Goods in the program over 90 days old will be shipped to Buyer and paid for under 30-day terms; and (d) the SMIP will be automatically renewed for one-year periods at the end of each calendar year until terminated at the end of any calendar year on 90 days' notice.
  18. Confidentiality Buyer shall hold in confidence any proprietary or otherwise confidential commercial or technical information of Seller or any employee or agent of Seller and will not use such information other than in transactions under these Terms and Conditions. Upon request by Seller or upon termination of sales to Buyer, Buyer shall return immediately to Seller all such information in any tangible form. Buyer shall not retain any copies thereof.
  19. Assignment Buyer may not assign its rights or delegate its performance hereunder without the prior written consent of Seller.
  20. Entire Agreement Subject to Section 1 above, these Terms and Conditions constitute the full agreement between the parties with respect to their subject matter, supersede all prior or contemporaneous oral or written agreements and understandings between the parties with respect to their subject matter and may not be added to, modified or waived in whole or in part except by a writing signed by the party against whom such addition, modification or waiver is sought to be enforced.
  21. Severability In the event that any provision of these Terms and Conditions is declared to be void, invalid or unlawful by any court or other tribunal of competent jurisdiction, such provision shall be deemed severed from these Terms and Conditions, and the balance of these Terms and Conditions shall remain in full force and effect. The parties shall undertake to replace the invalid, ineffective or unenforceable provision or provisions with valid, effective and enforceable provisions that, in their commercial effect, approximate as closely as possible the intentions of the parties as expressed in such stricken provisions.
  22. Governing Law; Disputes These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Wisconsin and may not be modified except in a written document signed by both Seller and Buyer. Any disputes under these Terms and Conditions that cannot be amicably resolved will be submitted to binding arbitration under the Commercial Rules of the American Arbitration Association in Madison, Wisconsin.
  23. Waiver No claim or right arising out of a breach of this contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. The failure of Seller to enforce at any time or for any period of time any of the provisions hereof shall not be construed to be a waiver of such provisions nor of the right of Seller thereafter to enforce each and every such provision.
  24. Modifications The Seller may modify these Terms and Conditions from time to time on its website www.naugahyde.com. Such modifications shall be effective upon posting. Buyer is advised to review Seller's website from time to time, in order that it may be aware of the current Terms and Conditions.