Terms and Conditions Governing Sales

    • 1. GOVERNING PROVISIONS. TRI-PHASE AUTOMATION, LLC, INNOVATIVE TECHNICAL SERVICES, LLC, or any of their respective affiliates(s) (“Seller”) identified on the Quote, Acknowledgment, Invoice or other commercial document provided by Seller (“Commercial Document”) offers to provide the goods and/or services described in such Commercial Document (the “Products”) to the buyer to which this offer is addressed (“Buyer”), subject to the terms and conditions set forth herein and in such Commercial Document (together, the “Agreement”). Buyer may not modify, change, renounce or waive any term or condition hereof without Seller’s express written consent. Seller’s agreement to provide to Buyer the Products, and Buyer’s purchase of the Products, is expressly limited to the terms of this Agreement. Buyer may not amend, modify or replace the terms of this Agreement with any conflicting, different or additional terms previously or hereafter received by Seller, even if such terms recite that any action or inaction by Seller constitutes agreement or consent by Seller to such amendment, modification or replacement. If this document is deemed an acceptance of a prior offer by Buyer, such acceptance is limited to the express terms contained herein including, without limitation, all additional terms contained herein. Seller objects to and rejects any additional, different or varying terms proposed by Buyer, unless an authorized officer of Seller expressly accepts such terms in a signed writing. Any proposal of additional, different or varying terms by Buyer shall not operate as a rejection of Seller’s offer, and Seller’s offer shall be deemed accepted without such additional, different or varying terms.

    • 2. ACCEPTANCE. Buyer shall be deemed to have made an unqualified acceptance of this Agreement, and the terms and conditions herein, on the earliest to occur of the following (a) Seller’s receipt of a copy of this Agreement, or any Commercial Document or agreement incorporating this Agreement, signed by Buyer (with scanned or facsimile signatures treated as original signatures); (b) Buyer’s order of Products after receiving notice of this Agreement; (c) Buyer’s payment of any amounts due under this Agreement; (d) Buyer’s delivery to Seller of any material, parts, specifications or designs to be furnished by Buyer; (e) Buyer’s acceptance of Seller’s delivery of the Products; (f) Buyer’s failure to notify Seller to the contrary within ten days of receipt of this Agreement; or (g) any other event constituting acceptance under applicable law. Written quotations are void unless accepted within 30 days from date of issue. Other Seller publications are maintained as sources of general information and are not quotations or offers to sell.

    • 3. ORDERS; CANCELLATION OR MODIFICATION; RETURNS.
        • (a) Orders. Buyer shall ensure that its orders are received by Seller within the quoted lead times. Seller shall have the right to accept or reject purchase orders in its sole discretion. Buyer’s orders or mutually agreed change orders shall be subject to all provisions of this Agreement, whether or not the order or change order so states.

        • (b) Cancellation or Modification. Buyer may not cancel or modify its order without the prior, written consent of an authorized representative of Seller. Without limiting the generality of the foregoing, Seller may condition its acceptance of an order modification on a revised pricing and/or delivery schedule. Buyer’s postponement of delivery of any Product by more than 90 days from the scheduled delivery date shall be deemed a cancellation of the applicable order. In the event of any cancellation, Buyer shall compensate Seller for all costs and damages resulting therefrom, including, but not limited to, the full contract price for Products that are finished or in production at the time of cancellation, out-of-pocket expenses, and the fees and charges imposed by Seller’s suppliers.

        • (c) Returns. No Products may be returned to Seller without its prior, written authorization and Products may be returned only on the terms or conditions specified in such authorization. Returned Products must be of current manufacture, unused, in resalable condition, and securely packed to reach Seller without damage. Any cost incurred by Seller to put Products in first class condition will be charged to Buyer. All Product returned to Seller shall be subject to a restocking charge, plus the costs of freight, packaging, insurance and any import or export costs. Customized, non-standard, or modified components are not returnable.

    • 4. DELIVERY.
        • (a) Generally. Unless otherwise provided in Seller’s Commercial Document, for shipments within the United States, Seller shall deliver the Products F.O.B. Seller’s facility in Pewaukee, Wisconsin or other works, factory or warehouse designated by Seller (the “Facility”). “F.O.B.” shall be interpreted in accordance with the Uniform Commercial Code as adopted in the State of Wisconsin. Buyer shall pay for all costs of shipping, which may be prepaid and added to Seller’s invoice unless specified otherwise by Buyer. All risk of loss, damage or delay, and title to Products, shall pass from Seller to Buyer upon delivery at the Facility. Partial shipments shall be permitted and Buyer shall pay for them pro rata.

        • (b) Delivery Dates. All delivery dates are approximate. Delivery dates given by Seller are based on prompt receipt of all necessary information and materials regarding the order. Seller will use reasonable efforts to meet such delivery dates, but does not guarantee to meet such dates. Failure by Seller to meet any delivery date does not constitute a cause for cancellation and/or for damages of any kind. Time for delivery shall not be of the essence.

        • (c) Delivery Delays. Any delay in delivery due to causes beyond Seller’s reasonable control, or due to any priorities or allocations necessitated by governmental orders or regulations, or due to any causes specified in the following sentence, shall extend the term of delivery by a period equal to the length of such delay. In the event of delay in delivery requested by Buyer or caused by Buyer’s (a) failure to supply adequate instructions; (b) failure to arrange for pickup; (c) failure to supply or approve necessary data in a timely manner; (d) requested changes; or (e) failure to provide documents required for Seller to effect delivery, Seller will store all Products at Buyer’s risk and expense. Buyer shall pay all storage costs and expenses upon Seller’s demand.

        • (d) Claims. Claims for shortages or other errors must be made in writing to Seller within five days after Seller’s delivery. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer. Buyer shall, promptly upon delivery, open, inspect and test all Products and report any discrepancy in writing to Seller.

    • 5. PRICES; TAXES. Unless prices are stated in Seller’s Commercial Document, prices shall be the higher of Seller’s most recent quote to Buyer, prevailing market price, Seller’s list price, or the last price charged by Seller to Buyer for the Products. Prices are subject to change without notice. All purchase orders submitted by Buyer shall reference Seller’s quotation number, and, without limiting the generality of the preceding sentence, Buyer’s failure to include such reference may result in a price adjustment or refusal of acceptance. Unless otherwise stated in Seller’s Commercial Document, prices are in U.S. Dollars, as delivered at the Facility. Buyer shall pay or reimburse Seller for any tax (including sales tax but not including taxes on Seller’s income), duty, 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.

    • 6. TERMS OF PAYMENT. Unless otherwise stated in Seller’s Commercial Document, payment terms are net 30 days from Seller’s invoice date for those customers with approved credit terms. Credit terms are subject to the approval Seller’s credit department and may be changed at any time and from time to time by Seller in its sole discretion. Buyer agrees to provide credit references upon request before orders are accepted by Seller. Any errors contained in Seller’s invoice must be brought to the attention of Seller within five days of receiving an invoice. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer.

    • 7. SECURITY.
        • (a) Generally. If, during performance of this Agreement, Seller determines in its sole discretion that Buyer’s financial condition does not justify the terms of payment specified, Seller may (a) demand, before proceeding with delivery of Products, full or partial payment in advance, satisfactory security or guaranties that invoices will be promptly paid when due or (b) at its option and without prejudice to other remedies, defer delivery of the Products or cancel this Agreement. Buyer agrees to reimburse Seller for all costs and fees including, (but not limited to) attorneys’ fees and repossession fees, incurred by Seller in collecting any sums owed by Buyer to Seller. Buyer agrees to pay a late payment charge of 1-1/2% per month (or, if less, the maximum amount allowable by law) on all amounts not paid in full when due, payable on Seller’s demand. Buyer shall not set off amounts due to Seller against claims or other amounts.

        • (b) Security Interest. In partial consideration for Seller’s sale of Products to Buyer, Buyer hereby grants to Seller and Seller hereby retains a security interest in all Products sold to Buyer and documents relating to such Products now or hereafter in the possession of or under the control of Buyer, title to which might at any time be determined to have passed to Buyer, including, without limitation, all inventories of the Products (or any other product bearing any trademark or trade name of Seller or its affiliates or suppliers), returns or repossessions and the proceeds, including insurance proceeds and proceeds from products in which the Products were an input, of all of the foregoing, together with the additions and accessions thereof, to secure all of Buyer’s obligations to Seller under this Agreement and all other obligations of Buyer to Seller. Buyer agrees to execute financing statements, continuation statements and other documents evidencing the security interest in the Products, and to take such actions as may be required by Seller to evidence or perfect the security interest granted herein. With respect to such statements and documents, Seller is authorized in Buyer’s name or otherwise to take such actions as permitted under this Agreement or applicable law, including, without limitation, signing Buyer’s name, and Buyer hereby appoints Seller as its attorney-in-fact for such purpose.

    • 8. LIMITED WARRANTIES AND REMEDY; DISCLAIMER OF OTHER WARRANTIES AND LIMITATION OF DAMAGES; BUYER’S OBLIGATIONS.
        • (a) Products or Parts not Manufactured by Seller. SELLER IS NOT THE MANUFACTURER OF ANY PRODUCTS OR COMPONENT PARTS PURCHASED HEREUNDER. THE ONLY WARRANTY AVAILABLE TO BUYER AS TO THE PRODUCTS OR COMPONENT PARTS SHALL BE ANY MANUFACTURER’S WARRANTY WHICH MAY APPLY AND SELLER MAKES NO INDEPENDENT WARRANTIES, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). Seller does not adopt, guarantee or represent that the manufacturer will comply with any of the terms of the warranty of such manufacturer. Buyer assumes all liability with respect to the Product, its transport, use, misuse, storage and disposal.

        • (b) Assembled Products.
            • (i) Assembled Products. If Buyer is purchasing Products or component parts which are unpackaged and assembled by Seller, causing the original manufacturer’s seal to be broken, Seller warrants to the original user only that the Products will be free from material defects in workmanship attributable solely to the unpackaging and assembly process under normal use and service as of the date of Seller’s delivery of such Product hereunder. Seller is not the manufacturer of such Products or component parts, and Buyer assumes all liability with respect to the Products or component parts, any defects therein, and their transport, use, misuse, storage and disposal.

            • (ii) Limitations and Remedies. There is NO WARRANTY in cases of damage in transit, negligence, abuse, abnormal usage, misuse, accidents, normal wear and tear, damage due to environmental or natural elements, failure to follow Seller’s instructions or improper installation, storage or maintenance. Seller makes NO WARRANTY regarding Product compliance with Buyer’s needs, specifications, instructions or requirements. Buyer must inspect the Product and make claims for defects in writing within twenty-four (24) hours after the date of Seller’s delivery of such Product hereunder. Buyer’s failure to make such claim within twenty-four (24) hours after the date of delivery shall constitute Buyer’s irrevocable acceptance of the Products and Buyer’s acknowledgement that the Products fully comply with the terms and conditions of this Agreement. Seller may require Buyer to return to Seller all Products subject to the claim. Seller shall repair or replace, at its expense, any covered Products proved to Seller’s reasonable satisfaction to be defective at the time of delivery. Such warranty satisfaction shall be available only if: (i) Seller is notified in within twenty-four (24) hours after the date of delivery of an alleged defect; and (ii) the defect has not been caused by Buyer’s misuse, neglect or alteration or by physical environment. SELLER’S SOLE OBLIGATION AND BUYER’S EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO REFUND OF THE PURCHASE PRICE RECEIVED BY SELLER OR REPAIR OR REPLACEMENT OF DEFECTIVE PRODUCTS DETERMINED BY SELLER IN ITS REASONABLE DISCRETION TO BE COVERED BY THIS LIMITED WARRANTY. Any assistance Seller provides to or procures for Buyer outside the terms, limitations or exclusions of this warranty will not constitute a waiver of the terms, limitations or exclusions of this limited warranty, nor will such assistance extend or revive the warranty. Seller will not reimburse Buyer for any expenses incurred by Buyer in repairing, correcting or replacing any defective Products, except for those incurred with Seller’s prior written permission.

        • (c) NO LIABILITY FOR OTHER OBLIGATIONS OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. SELLER SHALL NOT BE LIABLE TO BUYER, OR TO ANYONE CLAIMING UNDER BUYER, FOR ANY OTHER OBLIGATIONS OR LIABILITIES, INCLUDING, BUT NOT LIMITED TO, OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORT OR STATUTE OR ANY THEORY OF STRICT LIABILITY, WITH RESPECT TO THE PRODUCTS OR THEIR USE (WHETHER THE PRODUCTS ARE IN ORIGINAL PACKAGING OR HAVE BEEN ASSEMBLED OR MANUFACTURED BY SELLER) OR SELLER’S UNDERTAKINGS, ACTS OR OMISSIONS. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR LOST PROFITS (WHETHER DIRECTLY OR INDIRECTLY INCURRED) EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF THE LIMITED REMEDY OR ANY OTHER REMEDY IN THIS AGREEMENT. SELLER’S AGGREGATE LIABILITY WITH RESPECT TO A DEFECTIVE PRODUCT AND THIS AGREEMENT SHALL BE LIMITED TO THE MONIES PAID TO SELLER FOR THE RELEVANT PRODUCT(S), EXCEPT WITH RESPECT TO LIABILITY RESULTING FROM SELLER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

        • (d) Buyer’s Obligations. Prior to using or permitting use of the Products, Buyer shall determine the suitability of the Products for the intended use and under Buyer’s operating conditions, and Buyer shall assume all risk and liability whatsoever in connection therewith. Buyer agrees to test and evaluate samples/prototypes to ensure compliance with all specifications, quality requirements and other requirements of Buyer’s application. Seller does not guaranty the accuracy of information given and recommendations made as to suitability of Products for Buyer’s application or operating conditions. Nothing shall be construed to imply the nonexistence of any relevant patents or to constitute a permission, inducement or recommendation to practice any invention covered by any patent without authority from the patent owner. Buyer agrees to familiarize itself with and comply with all laws and regulations now or hereafter in effect and applicable to the purchase, transport, installation, use, safety, storage, and/or disposal of the Products (“Laws”). Buyer assumes all risk with respect to Product compliance with applicable Laws (including without limitation all applicable health and safety Laws). Buyer further assumes all risk with respect to any improper use or application of the Products, and any failure to install, or to request the installation of, proper safety devices for the Products.

        • (e) Patent Infringement and Defects in Buyer’s Specifications. Orders manufactured to specifications, drawings, designs or descriptions provided by or for Buyer are executed only with the understanding that Buyer hereby agrees to indemnify and hold harmless Seller from any and all Damages (as defined in section 11) sustained by Seller resulting from any action or threatened action against Seller for (a) infringement of the patents or proprietary right of any other person, or (b) injury to person or property, including death, relating to defects in specifications, drawings, designs or descriptions provided by or for Buyer.

    • 9. DISCLAIMER OR LIMITATION OF OTHER WARRANTIES. SELLER AND BUYER AGREE THAT THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. Any oral or written description of the Products is for the sole purpose of identifying the Products and shall not be construed as an express warranty.

    • 10. CONFIDENTIAL INFORMATION; TRADEMARKS.
        • (a) Confidential Information. Buyer acknowledges that all trade secrets and Confidential Information (as defined below) which may be disclosed to it by Seller or its affiliates shall at all times, both during and after expiration or termination of this Agreement for any reason, remain the exclusive property of Seller or its affiliates and that Buyer shall not acquire any proprietary interest whatsoever therein. “Confidential Information” means all knowledge and information disclosed by Seller or its affiliates to Buyer orally or in writing, or acquired by Buyer through observation, regarding Seller’s or its affiliates’ or suppliers’ products, technology, inventions, improvements, formulas, know-how, services, forecasts, sales methods, customer lists, customer usages and requirements, financial information, business plans, strategies and future business relationships, engineering data, design information, and engineering and shop drawings, with the exception of such information which Buyer can demonstrate by competent written evidence: (i) was already part of the public domain at the time of the disclosure by Seller or its affiliates; (ii) becomes part of the public domain through no fault of Buyer (but only after and only to the extent that it is published or otherwise becomes part of the public domain); or (iii) is received (after the disclosure by Seller or its affiliates) by Buyer from a third party who did not require Buyer to hold it in confidence and did not acquire it directly or indirectly from Seller or its affiliates under a continuing obligation of confidence. Except as necessary to perform its duties under this Agreement, Buyer shall not use or disclose any of such Confidential Information or any of Seller’s or its affiliates’ trade secrets, but shall care for such confidential information and trade secrets using at least the same degree of care given its own confidential information or trade secrets, respectively (but in no event less than a reasonable degree of care). Upon expiration or termination of this Agreement for any reason, Buyer shall, within 15 days, surrender to Seller all plans, drawings, specifications, sketches, pictures, films, tapes, computer disks, literature, samples, documents, other tangible and intangible objects and all copies thereof relating to trade secrets and other Confidential Information and all of Seller’s or its affiliates’ or suppliers’ property. Buyer shall be permitted to destroy rather than return all analyses, extracts, and summaries prepared by Buyer which contain Confidential Information, and such destruction shall be certified in writing to Seller by an authorized officer of Buyer who has supervised such destruction. Nothing in this Agreement shall be construed to limit or negate the common or statutory law of torts or trade secrets where it provides Seller with broader protection than that provided herein.

        • (b) Engineering Data. All engineering data, design information and engineering and shop drawings used in the completion of this order are and shall remain Seller’s property. Buyer shall not copy, reproduce, distribute, publish or communicate to any third party such data without the prior, written permission of a properly authorized representative of Seller. Seller hereby gives its permission to the Buyer to distribute nonconfidential product data or operation and maintenance information to the end user.

        • (c) Trademarks. Any use of Seller’s or its affiliates’ or suppliers’ trademarks or other intellectual property shall be subject to Seller’s prior written approval in each instance and such restrictions as Seller may, in its sole discretion, impose from time to time. Buyer agrees that neither it nor its affiliates will seek to register any trademark, service mark, or trade dress owned by Seller or its affiliates or suppliers, and if Buyer or any of its affiliates does obtain such a registration, Buyer or its affiliate shall immediately assign and do hereby assign the same to Seller or its designee. Buyer acknowledges and agrees that Seller or its affiliates or suppliers own all right, title, and interest in and to its trademarks. Except as otherwise agreed by Seller, Products shall bear Seller’s or its affiliate’s or supplier’s trademark, and Buyer shall not remove or efface such trademark. Buyer will not repackage the Products or resell Products without Seller’s prior written consent, which consent may be withheld by Seller in its sole discretion. Any use of Seller’s or its affiliates’ or suppliers’ trademarks in advertisements or promotion must be preapproved in writing by Seller. Buyer and its affiliates agree to take all steps which Seller may from time to time consider to be necessary to perfect or protect Seller’s or its affiliates’ or suppliers’ rights in its trademarks including, without limitation, executing all necessary assignments, declarations, and other documents requested by Seller from time to time. Upon expiration or termination of this Agreement for any reason, Buyer and its affiliates shall take such steps and execute such documents as Seller requests to cause Seller or its affiliates or suppliers to own all rights in its trademarks and to terminate any rights Buyer may have to use such trademarks. Buyer shall inform Seller promptly of any potential or actual infringement of any of Seller’s or its affiliates’ or suppliers’ trademarks and shall provide all assistance and information required by Seller, at Seller’s expense, in connection with any such infringement.

        • (d) Intellectual Property Ownership. Buyer acknowledges and agrees that all Intellectual Property developed exclusively by Seller or in conjunction with Buyer, whether or not the Intellectual Property incorporates Intellectual Property provided by Buyer or the development of the Intellectual Property was paid for by Buyer (referred to as “Seller Intellectual Property”) shall be exclusively owned by Seller. To the extent that Buyer or any of Buyer’s employees are inventors or co-authors of any Seller Intellectual Property, Buyer and its affiliates agree to assign and hereby assign all right, title, and interest in the Seller Intellectual Property to Seller. Buyer agrees that neither it nor its affiliates will seek to register any Seller Intellectual Property, and if Buyer or any of its affiliates does obtain such a registration, Buyer or its affiliate shall immediately assign and do hereby assign the same to Seller. Buyer and its affiliates agree to assist Seller, at Seller’s expense, to execute all documents necessary to apply for and obtain registration of any Seller Intellectual Property. To the extent that the transfer of rights in this document is not effective, Buyer and its affiliates agree, at Seller’s expense, to execute or assist in obtaining execution of all documents necessary to transfer title of any Seller Intellectual Property to Seller. Buyer agrees that Seller shall have the exclusive right and option to pursue protection of any Seller Intellectual Property. Buyer agrees that Seller shall have the exclusive right and option to enforce the rights afforded by any Seller Intellectual Property against any third party. Buyer agrees not to pursue any action to invalidate any Seller Intellectual Property. Buyer shall inform Seller promptly of any potential or actual infringement of any of Seller Intellectual Property and shall provide all assistance and information required by Seller, at Seller’s expense, in connection with any such infringement. Nothing in this subsection (d) shall eliminate any rights afforded Seller in sections 10(a)-(c).

        • (e) Definition of Intellectual Property. For purposes hereof, “Intellectual Property” means, throughout the world, (i) inventions (whether patentable or unpatentable and whether or not reduced to practice), patents, patent applications (including provisional patents), and patent disclosures, together with all reissuances, divisionals, continuations, continuations-in-part, revisions, extensions, registrations and reexaminations thereof, (ii) trademarks, service marks, trade dress, logos, slogans, trade names, and corporate names, together with the goodwill associated therewith, and applications, registrations, and renewals in connection therewith, (iii) Internet domain name registrations, (iv) copyrightable works, copyrights, and applications, registrations, and renewals in connection therewith, (v) all mask works and all applications, registrations, and renewals in connections therewith, (vi) all trade secrets and confidential information, (vii) all ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, pricing and cost information, and business and marketing plans and proposals (whether or not they qualify as trade secrets or confidential business information), and (vii) all computer software (including source code, executable code, data and related documentation).

    • 11. INDEMNIFICATION. Buyer hereby releases and agrees to indemnify, defend and hold harmless Seller, its shareholders, members, directors, managers, officers, agents, employees, affiliates, successors, assigns and third-party suppliers (“Seller’s Indemnified Parties”) from and against any and all direct and indirect claims, debts, actions, causes of action, liabilities, loss, suits, demands, fines, penalties, judgments, omissions, damages or expenses whatsoever, including, without limitation, attorneys’ fees and costs of proceedings (“Damages”) incurred by or against Seller or any of Seller’s Indemnified Parties due to or arising out of, in connection with, resulting from or relating to (i) misrepresentations, breach of the warranties, representations, covenants or agreements contained in this Agreement or any law by Buyer or any of Buyer’s shareholders, members, directors, managers, officers, employees, affiliates, representatives, agents, successors or assigns (“Buyer’s Parties”), or (ii) any damage to or destruction of property, or injury to or death of persons caused, or alleged to have been caused, in whole or in part, by any intentional, reckless, negligent or other act (or failure to act) of Buyer or any of Buyer’s Parties, or (iii) losses, damages or injuries caused by Buyer’s products, Buyer’s specifications, designs, approvals or instructions provided to Seller, or by Buyer’s infringement of the patents or proprietary right of any other individual or entity, or due to improper application or use of the Products, failure to install appropriate safety devices, or otherwise. Prior to settling any claim, Buyer will give Seller an opportunity to participate in the defense and/or settlement of such claim. Buyer shall not settle any claim without Seller’s written consent.

    • 12. ADDITIONAL PROVISIONS.
        • (a) General Provisions. Seller reserves the right to correct clerical or similar errors relating to price or any other term shown in this Agreement. The failure of Seller to insist, in any one or more instances, upon performance of any of the terms, covenants and conditions of this Agreement shall not be construed as a waiver or relinquishment of any rights granted hereunder or the future performance of any such term, covenant or condition. The invalidity of any provision or clause of this Agreement shall not affect the validity of any other provision or clause hereof. Buyer is an independent contractor and neither Buyer nor any of its employees or agents shall be considered an employee or agent of Seller. Neither Buyer nor any of its employees or agents is authorized to incur any obligations or make any promises or representations on Seller’s behalf. The provisions found in sections 3(b), 4(d), 6, 7, 8(d), 10, 11 and 12 and the warranty and damage limitations in sections 8 and 9, and any other provision the performance or effectiveness of which naturally survives, shall survive expiration or termination of the parties’ agreement for any reason. All remedies herein are cumulative and not exclusive of any other remedies available at law, by contract or in equity.

        • (b) Entire Agreement. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF. ANY NEGOTIATIONS OR UNDERSTANDINGS BETWEEN SELLER AND BUYER WHICH ARE NOT CONTAINED IN THIS AGREEMENT (INCLUDING WITHOUT LIMITATION, PURCHASE ORDERS, CORRESPONDENCE OR STATEMENTS THAT CONFLICT WITH, DIFFER FROM OR MODIFY THIS AGREEMENT) SHALL HAVE NO FORCE OF EFFECT, UNLESS IN WRITING AND SIGNED BY AUTHORIZED OFFICERS OF SELLER AND BUYER. SELLER’S SALES REPRESENTATIVES ARE WITHOUT AUTHORITY TO CHANGE THE TERMS OF THIS AGREEMENT.

        • (c) Assignment. Neither party may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other party; provided, however, Seller may assign, without Buyer’s consent, this Agreement or its interest herein to any affiliate or to any entity succeeding to Seller’s business. Seller reserves the right to use subcontractors. Subject to the foregoing, this Agreement shall bind and inure to the benefit of Seller and Buyer and their successors and assigns.

        • (d) Governing Law; Dispute Resolution. The internal laws of the State of Wisconsin shall govern the rights and obligations of Seller and Buyer under this Agreement and any disputes hereunder. Neither this Agreement nor sales hereunder shall be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. Any cause of action, claim, suit or demand by Buyer allegedly arising from or related to the terms of this Agreement or the relationship of the parties shall be brought exclusively in a Court situated in the State of Wisconsin. Both parties hereby irrevocably admit themselves to and consent to the jurisdiction of said Court. Upon termination of this Agreement for any reason, Seller shall have all of the rights and remedies provided by law, including, without limitation, the rights of a secured party under Chapter 409, Wisconsin Statutes or any successor statute or similar statute in the jurisdiction where Buyer is located or stores the Products. Seller shall be entitled to temporary and/or permanent injunctive relief and/or other equitable remedies to protect its (or its affiliates’ or suppliers’) Confidential Information or Intellectual Property.

        • (e) Force Majeure. Seller shall not be responsible for delay in delivery or failure to fill orders or other default or damage where such has been caused by an act of God, war, major disaster, terrorism, third-party criminal acts, insurrection, riot, flood, earthquake, fire, strike, lockout or other labor disturbance, delay by carriers, shortage of fuel, power, materials or supplies, operation of statutes, laws, rules or rulings of any court or government, demand for goods exceeding Seller’s available supply or any other cause beyond Seller’s control. In the event of any delay in delivery, failure to fill orders or other default or damage caused by any of the foregoing, Seller may, at its option and without liability, prorate its deliveries, cancel all or any portion of the Agreement and/or extend any date upon which performance is due hereunder.

        • (f) Termination. In addition to any remedies that may be provided herein, Seller may terminate this Agreement with immediate effect upon written notice to Buyer if Buyer (i) fails to pay any amount when due hereunder, (ii) has not otherwise performed or complied with this Agreement in whole or in part, or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

        • (g) No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, except as may be set forth in section 11 with respect to Seller’s Indemnified Parties.