STANDARD TERMS AND CONDITIONS
CUSTOMER ORDER ACCEPTANCE
All orders are subject to acceptance by Aeration Central, Inc. and are not accepted by or binding upon Aeration Central, Inc. unless a signed notice of such acceptance is forwarded to the Buyer in writing or upon fulfillment of the order by Aeration Central, Inc. The terms and conditions of sale are only those stated herein, which with the information contained in the face of the quote or acknowledgment shall constitute the complete agreement between the parties and may not be altered or modified except in writing duly executed by each party. The parties agree there are no agreements, representations or warranties between the parties, oral or written, with respect to the products sold hereunder (including any made or implied from past dealings) except as expressed herein. No terms and conditions stated in or attached to Buyer’s communications to Aeration Central, Inc., including but not limited to Buyer’s purchase orders the terms of which are hereby rejected, are applicable to these terms and conditions in any way and in no event shall such Buyer’s or any other terms and conditions be considered valid exceptions to the provisions of these terms and conditions. Trade custom, trade usage and past performance are superseded by these terms and conditions and shall not be used to interpret these terms and conditions.
GOVERNING LAW; SOLE JURISDICTION AND VENUE
These terms and conditions and any quote, order or agreement subject to these terms and conditions shall be interpreted in accordance with the commonly understood meaning of the words and phrases hereof in the United States of America. These terms and conditions and any quote, order or other agreement subject to these terms and conditions and the performance of the parties hereto, shall be construed and governed according to the laws of the State of Wisconsin, without regard to conflicts of laws principles. The parties hereby irrevocably consent to jurisdiction in, and to the service of process, pleadings and notices in accordance with, the laws of the State of Wisconsin and the federal laws of the United States of America in connection with any and all actions and processes initiated in courts situated in Marathon County, State of Wisconsin, U.S.A. Each party hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding relating to these terms and conditions and any quote, order or other agreement subject to these terms and conditions in the state or federal courts situated in Marathon County, State of Wisconsin in the United States of America, and further irrevocably waives any claim that Marathon County, State of Wisconsin in the United States of America is not a convenient forum for any such suit, action or proceeding.
LIMITATION OF LIABILITY
AERATION CENTRAL, INC. SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF AERATION CENTRAL, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WITH RESPECT TO THIS AGREEMENT OR ANY OTHER MATTER RELATING TO THE PRODUCTS OR SERVICES.
IN NO EVENT SHALL ‘AERATION CENTRAL INC.’ MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL FEES PAID BY BUYER TO AERATION CENTRAL, INC. WITH RESPECT TO THE SPECIFIC QUOTE, ORDER OR AGREEMENT TO WHICH THESE TERMS AND CONDITIONS APPLY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE OR EXTEND THE LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO BUYER.
Aeration Central, Inc. warrants that upon completion of the services or at the time of delivery, as the case may be: 1) professional services, if any, will be performed in a good and workmanlike manner in accordance with generally acceptable industry standards, and 2) products specifically manufactured by Aeration Central, Inc. shall be free from all material defects in materials and workmanship. With respect to the professional services warranty, Buyer’s sole and exclusive remedy for Aeration Central, Inc. breach of the warranty shall be for Aeration Central, Inc. to re-perform the services at Aeration Central, Inc. sole cost and expense. With respect to the Aeration Central, Inc. manufactured product warranty, if the Aeration Central, Inc. manufactured product shall prove to be defective in material or workmanship under normal intended usage and maintenance during the warranty period, upon examination by Aeration Central, Inc. then Aeration Central, Inc. shall repair or replace, at its sole option, such defective products at its own expense; provided, however, that the Purchaser shall be required to ship each such defective product, freight prepaid, to Aeration Central, Inc. designated facility. The warranty on products and/or components not manufactured by Aeration Central, Inc. is limited to the warranty, if any, provided by the original manufacturer of said product or component which can be passed onto Buyer. AERATION CENTRAL, INC. DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
This Warranty does not extend to any products that have been subjected to:
1. Damage caused by careless handling, improper repackaging, or shipping.
2. Damage due to misapplication, misuse, abuse or failure to properly operate the product.
3. Damage caused by improper installation or storage.
4. Damage due to unauthorized product modifications or repairs.
5. Damage caused by negligence, or failure to properly maintain products.
6. Accidental damage, fire, acts of God, or other circumstances outside the control of Aeration Central, Inc.
In the event Buyer desires to have Seller perform a non-warranty repair of equipment sold by Seller, Buyer shall contact Seller’s customer service representative at 715-965-9520. If Seller can perform such non-warranty repair of the equipment and Buyer decides to move forward with having Seller perform such repair, Seller will generate an RA# (return authorization number) which Buyer shall reference in its shipment to Seller of the equipment for evaluation by Seller. Buyer is solely responsible for any and all costs and expenses, customs fees, duties and taxes associated with shipping the equipment for evaluation. Buyer will be charged an up-front evaluation fee in order for Seller to assess the extent and ability of Seller to perform the necessary repairs. The evaluation fee must be paid in advance and will be credited toward the repair fee if Buyer elects to have Seller perform the repair. If Seller is capable of performing the repairs, then Seller shall provide Buyer with a quote for the cost of the repairs. Upon Buyer’s consent to move forward based upon the quote, Seller shall make the repairs outlined in the quote and return the equipment to Buyer in accordance with Seller’s Shipping Policy. If Seller does not wish to move forward with the repairs or Seller cannot otherwise perform the repairs, Buyer shall arrange for the pick-up of the equipment at Seller’s facility at Buyer’s sole cost and expense. Any equipment sent in for a repair evaluation and which is left for more than ninety (90) days after notice is given that either (i) Buyer does not wish to move forward with the repairs or (ii) Seller is unable to perform the repairs, shall be considered abandoned. Certain equipment may be subject to additional documentation or evaluation criteria at Seller’s sole discretion.
In the event a provision of these Terms and Conditions is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected.
Shipping dates are estimates only and are not guaranteed. Seller will use every effort to make shipments as scheduled and may make partial shipments. Seller shall not be liable for any loss or damage ensuing from late delivery. In the event of shipping damage, Aeration Central, Inc. must be notified, in writing, within three (3) business days of shipment receipt. Buyer must hold all products and packing materials intact, until further disposition is provided by Aeration Central, Inc. in writing.
Within three (3) business days after receipt of shipment of the product, Buyer shall inspect the shipment for obvious damage to or violation of the shipping container. Buyer shall also confirm that the type and quantity of the products received are consistent with the type and quantity specified on the related shipping documents and order. Buyer shall promptly notify Seller of any discrepancies in accordance with the terms hereof. If a notice of discrepancies is not received by Aeration Central, Inc. within three (3) days after receipt of the shipment by Buyer, the shipment shall be deemed to have been completely and correctly fulfilled, and all claims by Buyer shall be deemed waived and released, except for any Product defect that a visual inspection would not disclose.
No products may be returned without prior written approval of Seller. Orders placed with and accepted by Seller may not be cancelled except upon Seller’s written consent prior to shipment and Buyer’s acceptance of Seller’s cancellation charges which shall protect Seller against all costs and losses, but not higher than the price quoted. Seller reserves the right to cancel any sale hereunder without liability to Buyer (except for refund of monies already paid) if the manufacture or sale of the products is or becomes technically or economically impractical. A cancellation fee equal to fifty percent (50%) of the stipulated price for non-stocked or custom products which have already been manufactured will be charged for any cancellations of non-stocked or custom products that have not been shipped to the Buyer. “Non-stocked or custom products” are defined as goods that are made to order.
COLLECTION AND ATTORNEY'S FEES
In the event of any alleged dispute, breach or default of this Agreement necessitating Aeration Central, Inc. to retain an attorney to represent it, the Purchaser agrees to pay Aeration Central, Inc. costs and expenses including reasonable attorney’s fees, incurred in connection with, related to or arising out of enforcement of any term or provision of this Agreement, whether or not in connection with any legal or administrative proceedings, plus pre- and post-judgment interest and costs incurred, through appeal, and such shall be in addition to any other remedies or damages to which the Aeration Central Inc. may be entitled. Failure to pay these fees automatically voids any Warranty Provisions to which the Purchaser would otherwise be entitled.
Prices quoted, unless otherwise expressly stated in writing do not include sales, use, excise, value added or similar taxes or duties. Buyer shall pay these taxes directly if the law permits or will reimburse Seller if it is required to pay them. If required, Buyer will provide tax exemption certificates or evidence of tax payment on request. The price quoted is applicable on the date on which a contract, acceptance, confirmation, tender or quotation is issued. Accordingly, any increase in such costs after such date and prior to the fulfillment of the contract may result in a price adaptation in good faith and in proportion to the changed circumstances, and shall thus be for the account of Buyer.
Buyer acknowledges that it may gain access to or otherwise learn Confidential Information (as hereinafter defined). Buyer agrees that it will use the Confidential Information only for purposes of performing its obligations under these Terms and Conditions (the “Permitted Purpose”) and shall not transfer or otherwise disclose the Confidential Information to any third party except as expressly permitted by these Terms and Conditions. Buyer shall: (a) give access to Confidential Information solely to those of its employees and approved subcontractors with a need to know such information for the Permitted Purpose; and (b) take the same security precautions to protect against disclosure or unauthorized use of Confidential Information that Buyer takes with its own confidential information, but in no event shall Buyer apply less than a reasonable standard of care to prevent such disclosure or unauthorized use. Confidential Information means any and all information relating to Aeration Central, Inc. or its affiliates that may be accessed by or disclosed to Buyer including but not limited to quotations, price sheets, engineering and product designs, manuals, equipment and business specifications, trade secrets, reports, or other proprietary data.
INTELLECTUAL PROPERTY RIGHTS
All patents, copyrights, designs, drawings and other technical or commercial information relating to the products, including any software provided by Seller pursuant to any proposal, tender or the contract, and the intellectual property rights therein made or acquired by Seller prior to or during the preparation of the proposal or tender or in the course of work on the contract shall be and remain the exclusive property of Seller.
If a product furnished to Buyer becomes or, in Seller’s opinion, may become the subject of any claim, suit or proceeding for infringement of any intellectual property rights, Seller may at its option and expense (i) obtain for Buyer the right to use, lease or sell the product, (ii) replace the product, (iii) modify the product, or (iv) remove the product and refund the purchase price paid by Buyer less a reasonable amount for use, damage or obsolescence. Seller will not be liable for any infringement arising from the combination of products or from the use of a product in practicing a process. Seller’s total liability to Buyer will not, under any circumstances exceed the purchase price paid for the allegedly infringing product. Buyer agrees, at its expense, to protect and defend Seller against any claim of intellectual property right infringement arising from compliance with Buyer’s designs, specifications or instructions and to hold Seller harmless from damages, costs and expenses attributable to any such claim.
Buyer agrees to defend, indemnify and hold the Seller (and its agents, representatives, employees, officers, related companies, successors and assigns, and customers) harmless from all claims, demands, actions, damages and liabilities (including legal fees and consequential and incidental damages) arising out of any injury (including death) to any person or damage to any property in any way connected with any act or omission of Buyer, its agents, employees, or subcontractors.
No failure to exercise and no delay in exercising on the part of Seller any right, power or privilege hereunder will operate as a waiver thereof nor will any single or partial exercise of any right, power or privilege hereunder preclude further exercise of the same right, power or privilege.
VALIDITY OF PROVISIONS
In the event any provision or any part or portion of any provision of these Terms and Conditions shall be held to be invalid, void or otherwise unenforceable, such holding shall not affect the remaining part or portions of that provision, or any other provision hereof.
Buyer shall not be entitled to cede, transfer and/or assign any of its rights or delegate any of its obligations under this contract, without the prior written consent of Seller. Seller may cede, transfer and/or assign its rights or delegate any of its obligations under this contract without the prior approval of the Buyer.
Seller shall be entitled to terminate the quote, purchase order or other agreement to which these Terms and Conditions form a part in the event Buyer is in breach of any of its obligations hereunder and fails to remedy the breach within fifteen (15) days after receiving written notification thereof from Seller or if Buyer goes into liquidation, receivership, administration or makes any voluntary arrangement with any of its creditors. Any party may terminate the agreement with immediate effect if the other party is in material breach of the agreement. Any termination of the contract in accordance with the terms hereof shall become effective upon service of a written notice of termination on the other party. Upon termination, howsoever arising, Seller shall be entitled forthwith to suspend any further deliveries under the contract without any liability to Buyer. Within 14 days of such a notice of termination, howsoever arising, Buyer shall pay to Seller:
- the outstanding balance of the contract price for products which have been delivered and for those products which are then capable of being delivered, and
- the costs incurred or committed by Seller up to the date of notice of termination in performing work on products which are not then in a deliverable state plus a reasonable margin to be agreed between the parties which shall not be less than 15%, and
- the costs reasonably incurred by Seller as a result of the termination.
Where services are to be provided pursuant to a quote, order or other agreement, the services shall be provided by the Seller to the Buyer during the time period identified in the quote, order or other agreement.