SCHUMACHER COMPANY, L.C.
TERMS AND CONDITIONS OF SALE
The following terms and conditions shall apply to all orders received and all sales made by
Schumacher Company, L.C., its subsidiaries, and affiliates (“Seller”):
1. GENERAL: The terms and conditions set forth herein, along with any written quote or proposal delivered by the Company (the “Proposal”), constitute the sole and entire agreement between Seller and the buyer of Seller’s products and services (“Buyer”) with respect to the subject matter hereof. Price lists and leaflets do not constitute quotations. In the event of any
conflict between the terms of any Proposal and these Terms and Conditions, the Proposal shall control. Any term or condition in any order, confirmation or other document furnished by Buyer which is in any way inconsistent with or in addition to the terms and conditions hereof is hereby expressly rejected. Seller’s acceptance of any offer or order of Buyer is hereby expressly made in reliance on Buyer’s assent to all the terms and conditions hereof.
2. PRICE. Unless otherwise provided in the Proposal, prices are firm for a period of thirty (30) days from the date of the Proposal, provided Buyer’s order is received within such period. Prices are subject to change without notice on any order received thereafter. Seller reserves the right to adjust pricing to accommodate change in the cost of materials if more than four (4)
months has elapsed between acceptance of the Order and delivery date.
Prices do not include any amount for freight, insurance, fees, duties, federal, state, or local excise, service, sales, use, value added, occupation or similar taxes. All such taxes shall be paid by Buyer unless Buyer provides Seller with evidence satisfactory to Seller of exemption from such taxes. When Seller is required by law or regulation to collect such taxes, Seller will add such taxes to the sale price of the goods or services.
3. ORDERS. Buyer’s order shall be deemed confirmed upon Seller’s receipt of a valid, signed Purchase Order referencing the Proposal. New orders are accepted and entered into Seller’s production schedule, or assigned delivery and installation date upon receipt of Purchase Order and down payment if applicable.
4. CHANGES. Buyer may not make any change, addition, or alteration to the Products or Services ordered, without obtaining Seller’s written consent. We reserve the right to make changes to design and form due to technical progress or legal requirements provided that the product ordered has not been materially changed. If any such change affects the cost of the Product or Service to be rendered, the amount to be added to the price by reason of any such change shall be determined by Seller. All such changes shall be made in writing and executed by the Buyer and Seller.
5. CREDIT. Acceptance of any Purchase Order or shipment of any Order hereunder shall at all times be subject to approval of Buyer’s financial condition in Seller’s sole discretion. If the financial condition of Buyer at any time becomes unsatisfactory to Seller or if Buyer fails to make any payment when due, in addition to any other rights Seller may have, Seller may decline to make any shipment or shipments hereunder or may condition any such shipment upon receipt of satisfactory security or cash payments in advance.
6. TERMS OF PAYMENT. For stock items or services, unless otherwise specified in the Proposal, terms of payment are net thirty (30) days. Payment terms shall be as set forth in the Proposal for special order Products and Services. Except as otherwise expressly stated herein, Seller shall invoice Buyer when payment is due.
A service charge of 15% per annum will be charged on the unpaid balance of any account thirty (30) days past due.
7. DELIVERY. All pricing is F.O.B., Durant, Iowa, and does not include freight, transportation or insurance costs. Delivery or shipping dates, if any, set forth in the Proposal are approximate only and merely represent Seller’s best estimate of the time required to make delivery or shipment. In no event will Seller be liable for any premium transportation, reprocurement or other cost or losses incurred by Buyer as a result of Seller’s failure to deliver Product in accordance with estimated delivery schedules. Seller will not be liable for any loss or expense (consequential or otherwise) incurred by Buyer as a result of any delay in delivery for any reason. Seller reserves the right to make partial deliveries.
8. RISK OF LOSS. Except as otherwise expressly stated in the Proposal, all deliveries shall be F.O.B. Seller’s plant, Durant, Iowa. At Buyer’s option, shipping shall be by carrier selected by Seller, freight prepaid or freight collect, to Buyer at the address set forth on Buyer’s order, or with carrier selected by Buyer. All goods will be packed in Seller’s standard shipping packages. In all such cases risk of loss or damage will pass to Buyer upon Seller’s delivery of
the goods to the carrier for shipment to Buyer, and no loss or damage will relieve Buyer of any obligation hereunder, including payment for lost or damaged goods. If shipment of any goods is delayed at Buyer’s request, Seller may invoice Buyer for such goods, and risk of loss of such goods will pass to Buyer on the date that Seller is prepared to make shipment to Buyer. Buyer shall reimburse Seller for any and all costs of storage incurred by Seller after the date that Seller is prepared to make shipment.
9. TITLE PASSAGE. Title to the goods delivered hereunder shall not pass until the goods have been accepted by Buyer, and Buyer has made payment in full for all goods delivery hereunder.
10. INSPECTION AND ACCEPTANCE: Buyer shall examine each shipment upon its arrival and shall promptly notify Seller in writing of any shortage, loss, damage or failure. Notwithstanding any custom of trade or course of dealing between Seller and Buyer, all goods and Services delivered or rendered hereunder shall be conclusively deemed accepted unless, within thirty (30) days after the date of delivery of goods or rendering of Services (which the
parties agree is a reasonable time), Seller receives written notice of rejection. Such acceptance shall constitute acknowledgment of full performance by Seller of all its obligations hereunder, an unconditional waiver of all claims for shortage, loss, damage or failure and an unconditional waiver of the right to receive a refund of or credit for the purchase price or repair or replacement of the goods sold hereunder.
Notwithstanding the foregoing, Seller shall have no liability whatsoever for any deficiency unless (i) Seller is notified in writing promptly (and in no event later than 30 days) after discovery by Buyer of the alleged deficiency, which notice shall include a detailed explanation of the alleged deficiency, (ii) the goods containing the alleged deficiency are promptly returned to Seller, F.O.B. Seller’s plant, Durant, Iowa and (iii) Seller’s examination of such goods discloses to Seller’s satisfaction that such alleged deficiency actually exists and occurred in the course of proper and normal use and was not caused by accident, misuse, neglect, alteration or improper installation, repair or testing.
11. CANCELLATION; RETURNS; REMEDIES OF SELLER: No order hereunder is subject to cancellation by Buyer, nor are any goods delivered and accepted hereunder subject to return, except upon (a) written approval of Seller, and (b) the payment to Seller of a fair and equitable cancellation or return charge based upon actual costs (including overhead and other indirect
costs) incurred to the date of approval of cancellation or return, together with a reasonable allowance for profit, which shall be not less than ten percent (10%) of such costs. If Buyer wrongfully rejects or revokes acceptance of goods sold hereunder, or fails to make any payment when due, Seller shall have all the rights and remedies provided by law and, without limitation of the foregoing, may recover as damages the price and any costs of collection,
including reasonable attorneys’ fees. In addition, Seller may, at its option, complete the manufacture of all partially manufactured goods and hold Buyer responsible for their price. Upon recovery of the price, such goods shall become the property of Buyer.
Seller reserves the right, by written notice of default, to cancel this order, without liability to Buyer, in the event of the happening of any of the following: insolvency of Buyer, the filing of a voluntary petition in bankruptcy by Buyer, the filing of an involuntary petition to have Buyer declared bankrupt, the appointment of a receiver or trustee for Buyer, the execution by Buyer of an assignment for the benefit of creditors, the discontinuance of business by Buyer, or the sale of Buyer’s business.
12. SUBSTITUTIONS AND MODIFICATIONS: Seller may substitute or modify goods or services provided the substituted or modified goods or services comply with applicable specifications.
13. PRODUCT USE. Buyer warrants that it will not change, remove or render inoperable or unsafe any guards, shields, or other safety features of the equipment or any product; or remove, obliterate, or obstruct any warning, caution, or instruction labels or fail, refuse, or neglect to install any retrofit kits from time to time marketed or provided by Seller to improve personnel safety. Seller assumes no responsibility for and is not liable for changes to the
Product made by the Buyer. Buyer agrees that if it breaches any of such warranty, or if it is negligent in maintaining the Product or in hiring and training operators or service personnel, the Buyer will indemnify and hold Seller harmless from any and all types of action, suits, claims, or demands (including product liability claims) brought by any party for death, injury or
loss arising out of the operating, maintenance, repair or other use of such equipment.
14. LIMITED WARRANTY: Seller’s warranty for products purchased hereunder is set forth in the standard warranty documents.
15. ASSUMPTION OF RISK: Buyer assumes all risk and liability whatsoever for any and all injuries (including death), losses or damages to persons or property or otherwise resulting from or arising in connection with Buyer’s possession, handling, storage, transportation, use, sale or other disposition of any product sold hereunder, whether used alone or in conjunction with
other products, or incorporated in a finished product, or in connection with any Services provided hereunder and Buyer agrees to indemnify and hold harmless Seller, its officers, directors, agents, employees, affiliates, successors and assigns from and against any and all damages (including consequential and incidental damages), costs, claims, suits, judgments, liabilities and expenses (including attorneys’ fees) arising out of or in connection with any of the foregoing.
16. CONTINGENCIES; FORCE MAJEURE: Seller shall not be liable for delay in performance or nonperformance of any of its obligations hereunder, in whole or in part, if such performance is rendered impracticable by the occurrence of any contingency or condition beyond the control of either Seller or Seller’s suppliers, including without limitation war, sabotage, embargo, riot or other civil commotion, failure or delay in transportation, act of any government or any court or administrative agency thereof (whether or not such action proves to be invalid), labor dispute (whether or not involving Seller’s employees), accident, fire, explosion, flood or other casualty, delay or default of vendors, shortage of labor, fuel, energy, raw materials or machinery or technical failure.
17. NO LICENSE: Neither this agreement nor any purchase of goods hereunder shall be construed to confer upon Buyer or its customers any license under any patent nor other proprietary rights of Seller, except the right to use such goods for the purposes for which they are sold.
18. NON-WAIVER OF DEFAULT: No failure or delay by Seller in insisting on strict performance of any term or condition hereof or in exercising any right, power or privilege hereunder shall constitute a waiver of the same, nor shall such failure or delay in any way affect Seller’s legal remedies with respect to any default by Buyer hereunder. Seller’s waiver of any breach hereunder shall not constitute a waiver of any other terms, conditions or privileges, whether of the same or similar type.
19. APPLICABLE LAW; JURISDICTION; SERVICE: This agreement is entered into applicable to contracts and agreements made and wholly to be performed in Iowa by residents of Iowa. The parties agree that the exclusive jurisdiction and venue of any action with respect to this agreement shall be in state courts in Cedar County, Iowa or the United States District Court for
the Southern District of Iowa, and each of the parties hereby submits itself to the exclusive jurisdiction and venue of such courts for purposes of such action. By or hereby consent to serve as a process by registered or certified mail, return receipt requested to it at its address at forth above.
20. ASSIGNMENT: Buyer may not transfer or assign this agreement or any interest herein, by operation of law or otherwise, without the prior express written consent of Seller and any attempted transfer or assignment of this agreement or any rights or duties hereunder without such consent shall be void. Seller may assign its rights and delegate its duties hereunder.
21. EXPENSES OF SUIT: If legal action is commenced to enforce the performance of any part of this agreement, including without limitation any order or release made hereunder, the prevailing party shall be paid by the other party reasonable attorneys’ fees and expenses.
22. ENTIRE AGREEMENT; MODIFICATION; SEVERABILITY: This agreement supersedes all prior written and oral agreements and understandings between Seller and Buyer with respect to the goods and Services specified herein. No representation or statement not contained
herein shall be binding upon Seller as a warranty or otherwise. No addition to or waiver, modification or cancellation of any provision hereof shall be binding upon Seller unless in writing and signed by a duly authorized officer of Seller. Without limiting the generality of the foregoing, no addition hereto or modification hereof shall be effected by Seller’s receipt or acceptance of Buyer’s purchase orders, confirmations or other documents or communications or by manufacture or shipment of goods or performance of Services. No finding that a part of these terms and conditions is invalid or unenforceable shall affect any other part hereof and the remainder of these terms and conditions shall remain in full force and effect.