Terms and Conditions
HOPPE NORTH AMERICA, INC.
TERMS AND CONDITIONS GOVERNING SALES
1. Governing Provisions. These Terms and Conditions Governing Sales (the "Agreement") constitute an offer by HOPPE North America, Inc. ("Seller") to provide the goods described herein (the "Products") to the buyer to which this offer is addressed ("Buyer"), subject to the terms and conditions set forth herein. Buyer may not modify, change, renounce or waive any term or condition hereof or any of Seller's rights or remedies hereunder, unless Seller consents thereto in writing. Seller agrees to provide the Products to Buyer only on the terms of this Agreement, notwithstanding any language in Buyer's purchase order, if one exists, or other writing or oral representation previously or hereafter received by Seller purporting to amend, modify or replace the terms of this Agreement with any different or additional terms or reciting that provision or delivery of the Products or any other action or inaction by Seller constitutes agreement or consent by Seller to such amendment, modification or replacement. SELLER'S AGREEMENT TO PROVIDE THE PRODUCTS IS EXPRESSLY CONDITIONED ON BUYER'S ASSENT TO ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN.
2. Acceptance. Buyer shall be deemed to have made an unqualified acceptance of this Agreement, on the earliest to occur of the following: (a) Seller's receipt of a copy of this Agreement signed by Buyer; (b) Buyer's payment of any amounts due under this Agreement; (c) Buyer's receipt of the Products; or (d) any other event constituting acceptance under applicable law.
3. Cancellation or Modification. Buyer may not cancel or modify its order except upon terms accepted by Seller in a writing signed by Seller's authorized officer. In the event of such cancellation or modification, Buyer shall compensate Seller for all costs and damages resulting there from, including, but not limited to, out-of-pocket expenses, lost profit, allocable overhead and all other incidental and consequential damages.
4. Taxes. Buyer shall pay any tax, duty, custom, inspection or testing fee or any other fee or charge imposed on, in connection with or measured by the transaction between Seller and Buyer in addition to the prices quoted or invoiced.
5. Schedules; Delay. All delivery dates hereunder are approximate. Seller shall not be liable to Buyer for delays in delivery due to state of war, riot, civil disorder, fire, strikes, work slow-downs, accidents, actions of government or civil authority, delay in transportation, energy failure, equipment breakdown, delay of suppliers, inability to obtain necessary labor, materials or manufacturing facilities, acts of God or any causes beyond the reasonable control of Seller. In the event of any such delay, Seller shall perform such parts of the work as Seller is capable of performing and, even if Buyer places all or any part of the work elsewhere, Seller shall be entitled to resume such work as soon as practicable. Buyer's exclusive remedy for such delays, and for Seller's inability to deliver for any reason, shall be rescission of the affected order.
6. Payment Terms. Payment terms are C.O.D. unless (a) Seller approves different terms based on a written credit or financing agreement submitted by Buyer or (b) Seller, in its sole discretion, requires payment in advance. Buyer shall pay interest on all past due amounts at the rate equal to the lower of 1.5% per month or the highest rate permitted by applicable law.
7. Rights Upon Default. If Buyer does not pay Seller any amount due Seller from Buyer under this Agreement or any other agreement when such amount is due or if Buyer defaults in the performance of any covenant or condition of this Agreement, Seller may, without liability to Buyer and without prejudice to Seller's other lawful remedies (a) terminate this Agreement, (b) declare immediately due and payable all Buyer's obligations to Seller, (c) change credit terms with respect to any further work or (d) suspend or discontinue any further work until Buyer pays all overdue amounts and Buyer deposits with Seller cash or security satisfactory to Seller covering further work. Seller's foregoing rights shall be in addition to any other rights Seller may have and shall not prejudice any such right. Buyer agrees to reimburse Seller for all costs incurred by Seller in collecting any sums owed by Buyer to Seller.
8. Limited Warranties and Remedies. Warranty and remedy rights and obligations are limited to those contained in Seller's applicable limited warranties, which are incorporated herein by reference. Copies of applicable limited warranties are available upon request and may be downloaded at www.us.hoppe.com.
9. DISCLAIMER OF IMPLIED WARRANTIES. THE WARRANTY PROVIDED IS EXCLUSIVE, AND SELLER MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, WITH RESPECT TO A PRODUCT. SELLER HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. ANY ORAL OR WRITTEN DESCRIPTION OF A PRODUCT IS FOR THE SOLE PURPOSE OF IDENTIFYING A PRODUCT AND SHALL NOT BE CONSTRUED AS AN EXPRESS OR IMPLIED WARRANTY. SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER FOR BREACH OF WARRANTY, FOR BREACH OR REPUDIATION OF ANY OTHER TERM OR CONDITION OF SALE, OR FOR LIABILITY ON THE BASIS OF NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SELLER SHALL HAVE BEEN ADVISED IN ADVANCE OF THE LIKELIHOOD THEREOF.
10. Delivery. The price quoted for the Products is F.O.B. Seller’s premises. Risk of loss for the Products passes to Buyer upon delivery. Title to the Products passes to Buyer upon Buyer's payment in full for the Products. The parties hereby agree that this Agreement shall constitute the security agreement required by the Uniform Commercial Code ("UCC") of the appropriate state. Buyer hereby grants Seller a security interest in the Products, wherever located, and all proceeds thereof, to secure Buyer's payment in full for the Products. Buyer hereby authorizes Seller to execute any UCC financing statement, or any other document necessary or appropriate, to protect Seller's security interest.
11. Governing Law. The internal laws of the State of Wisconsin shall govern the rights and obligations of Seller and Buyer under this Agreement.
12. Miscellaneous. Seller reserves the right to correct clerical or similar errors relating to price or any other term shown in this Agreement. Invalidity or unenforceability of any term or part of this Agreement shall not affect the validity or enforceability of the remainder of this Agreement. Failure of either party to insist, in any one or more instances, upon performance of any term, covenant or condition of this Agreement shall not be construed as a waiver or relinquishment of any right granted hereunder or the future performance of such term, covenant or condition.
13. FINAL WRITTEN EXPRESSION. THIS AGREEMENT CONSTITUTES A FINAL WRITTEN EXPRESSION OF THE TERMS BETWEEN SELLER AND BUYER AND IS A COMPLETE AND EXCLUSIVE STATEMENT OF THOSE TERMS. ANY NEGOTIATIONS OR UNDERSTANDINGS BETWEEN SELLER AND BUYER WHICH ARE NOT CONTAINED IN THIS AGREEMENT HAVE NO FORCE OR EFFECT. ANY AND ALL PURCHASE ORDERS, CORRESPONDENCE OR STATEMENTS THAT CONFLICT WITH, DIFFER FROM OR MODIFY THIS AGREEMENT SHALL HAVE NO FORCE OR EFFECT.