This agreement is in effect as of Oct 16, 2012.

We reserve the right to change this User Agreement from time to time without notice. You acknowledge and agree that it is your responsibility to review this User Agreement periodically to familiarize yourself with any modifications. Your continued use of this site after such modifications will constitute acknowledgment and agreement of the modified terms and conditions.

SECTION I.

Terms & Conditions for www.kossindustrial.com

Introduction

Welcome to www.kossindustrial.com. This website is owned and operated by Koss Industrial, Inc.. By visiting our website and accessing the information, resources, services, products, and tools we provide, you understand and agree to accept and adhere to the following terms and conditions as stated in this policy (hereafter referred to as 'User Agreement'). IF YOU DO NOT AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS OF USE, PLEASE EXIT THIS WEBSITE.

Responsible Use and Conduct

By visiting our website and accessing the information, resources, services, products, and tools we provide for you, either directly or indirectly (hereafter referred to as 'Resources'), you agree to use these Resources only for the purposes intended as permitted by (a) the terms of this User Agreement, and (b) applicable laws, regulations and generally accepted online practices or guidelines. 

Wherein, you understand that: 

a. In order to access our Resources, you may be required to provide certain information about yourself (such as identification, contact details, etc.) as part of the registration process, or as part of your ability to use the Resources. You agree that any information you provide will always be accurate, correct, and up to date. 

b. You are responsible for maintaining the confidentiality of any login information associated with any account you use to access our Resources. Accordingly, you are responsible for all activities that occur under your account/s. 

c. Accessing (or attempting to access) any of our Resources by any means other than through the means we provide, is strictly prohibited. You specifically agree not to access (or attempt to access) any of our Resources through any automated, unethical or unconventional means. 

d. Engaging in any activity that disrupts or interferes with our Resources, including the servers and/or networks to which our Resources are located or connected, is strictly prohibited. 

e. Attempting to copy, duplicate, reproduce, sell, trade, or resell our Resources is strictly prohibited. 

f. You are solely responsible any consequences, losses, or damages that we may directly or indirectly incur or suffer due to any unauthorized activities conducted by you, as explained above, and may incur criminal or civil liability. 

g. We may provide various open communication tools on our website, such as blog comments, blog posts, public chat, forums, message boards, newsgroups, product ratings and reviews, various social media services, etc. You understand that generally we do not pre-screen or monitor the content posted by users of these various communication tools, which means that if you choose to use these tools to submit any type of content to our website, then it is your personal responsibility to use these tools in a responsible and ethical manner. By posting information or otherwise using any open communication tools as mentioned, you agree that you will not upload, post, share, or otherwise distribute any content that: 

i. Is illegal, threatening, defamatory, abusive, harassing, degrading, intimidating, fraudulent, deceptive, invasive, racist, or contains any type of suggestive, inappropriate, or explicit language;

ii. Infringes on any trademark, patent, trade secret, copyright, or other proprietary right of any party;

iii. Contains any type of unauthorized or unsolicited advertising;

iiii. Impersonates any person or entity, including any www.kossindustrial.com employees or representatives.

We have the right at our sole discretion to remove any content that, we feel in our judgment does not comply with this User Agreement, along with any content that we feel is otherwise offensive, harmful, objectionable, inaccurate, or violates any 3rd party copyrights or trademarks. We are not responsible for any delay or failure in removing such content. If you post content that we choose to remove, you hereby consent to such removal, and consent to waive any claim against us. 

h. We do not assume any liability for any content posted by you or any other 3rd party users of our website. However, any content posted by you using any open communication tools on our website, provided that it doesn't violate or infringe on any 3rd party copyrights or trademarks, becomes the property of Koss Industrial, Inc., and as such, gives us a perpetual, irrevocable, worldwide, royalty-free, exclusive license to reproduce, modify, adapt, translate, publish, publicly display and/or distribute as we see fit. This only refers and applies to content posted via open communication tools as described, and does not refer to information that is provided as part of the registration process, necessary in order to use our Resources. 

i. You agree to indemnify and hold harmless Koss Industrial, Inc. and its parent company and affiliates, and their directors, officers, managers, employees, donors, agents, and licensors, from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of this User Agreement or the failure to fulfill any obligations relating to your account incurred by you or any other person using your account.

We reserve the right to take over the exclusive defense of any claim for which we are entitled to indemnification under this User Agreement. In such event, you shall provide us with such cooperation as is reasonably requested by us.

Limitation of Warranties

By using our website, you understand and agree that all Resources we provide are "as is" and "as available". This means that we do not represent or warrant to you that:

i) the use of our Resources will meet your needs or requirements.

ii) the use of our Resources will be uninterrupted, timely, secure or free from errors.

iii) the information obtained by using our Resources will be accurate or reliable, and

iv) any defects in the operation or functionality of any Resources we provide will be repaired or corrected.

Furthermore, you understand and agree that:

v) any content downloaded or otherwise obtained through the use of our Resources is done at your own discretion and risk, and that you are solely responsible for any damage to your computer or other devices for any loss of data that may result from the download of such content.

vi) no information or advice, whether expressed, implied, oral or written, obtained by you from Koss Industrial, Inc. or through any Resources we provide shall create any warranty, guarantee, or conditions of any kind, except for those expressly outlined in this User Agreement.

Limitation of Liability

In conjunction with the Limitation of Warranties as explained above, you expressly understand and agree that any claim against us shall be limited to the amount you paid, if any, for use of products and/or services. Koss Industrial, Inc. will not be liable for any direct, indirect, incidental, consequential or exemplary loss or damages which may be incurred by you as a result of using our Resources, or as a result of any changes, data loss or corruption, cancellation, loss of access, or downtime to the full extent that applicable limitation of liability laws apply. 

Copyrights/Trademarks

All content and materials available on www.kossindustrial.com, including but not limited to text, graphics, website name, code, images and logos are the intellectual property of Koss Industrial, Inc. (and/or the manufacturer), and are protected by applicable copyright and trademark law. Any inappropriate use, including but not limited to the reproduction, distribution, display or transmission of any content on this site is strictly prohibited, unless specifically authorized by Koss Industrial, Inc.. 

Some parts of the web site contain images and materials that are subject to the copyright rights of their providers and are used by Koss Industrial, Inc. with permission. Use by you of such materials other than in accordance with these Terms and Conditions may infringe the rights of such other parties.

The ALFA LAVAL Company and group name, logotype and the same of its subsidiaries and affiliates, as well as the brand names, product names and the trademarks of ALFA LAVAL, its subsidiaries and affiliates are property of ALFA LAVAL and/or its subsidiaries and affiliates.

Termination of Use

You agree that we may, at our sole discretion, suspend or terminate your access to all or part of our website and Resources with or without notice and for any reason, including, without limitation, breach of this User Agreement. Any suspected illegal, fraudulent or abusive activity may be grounds for terminating your relationship and may be referred to appropriate law enforcement authorities. Upon suspension or termination, your right to use the Resources we provide will immediately cease, and we reserve the right to remove or delete any information that you may have on file with us, including any account or login information. 

Governing Law

This website is controlled by Koss Industrial, Inc. from our offices located in the state of WI, USA. It can be accessed by most countries around the world. As each country has laws that may differ from those of WI, by accessing our website, you agree that the statutes and laws of WI, without regard to the conflict of laws and the United Nations Convention on the International Sales of Goods, will apply to all matters relating to the use of this website and the purchase of any products or services through this site. 

Furthermore, any action to enforce this User Agreement shall be brought in the federal or state courts located in USA, WI You hereby agree to personal jurisdiction by such courts, and waive any jurisdictional, venue, or inconvenient forum objections to such courts.

Guarantee

UNLESS OTHERWISE EXPRESSED, KOSS INDUSTRIAL, INC. EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

Contact Information

If you have any questions or comments about these our Terms of Service as outlined above, you can contact us at:

WebSales@kossindustrial.com

 

Koss Industrial, Inc.
1943 Commercial Way
Green Bay, WI 54311
USA

 

SECTION II.

Terms & Conditions for Koss Industrial, Inc.

BUYER:  By visiting our website and accessing the information, resources, services, products, and tools we provide, you understand and agree to accept and adhere to the following terms and conditions as stated in this policy (hereafter referred to as the "Agreement"). IF YOU DO NOT AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS OF USE, PLEASE EXIT THIS WEBSITE. 

SELLER:  Koss Industrial, Inc. - 1943 Commercial Way - Green Bay, WI 54311 - USA

The “Agreement” consists of the Quote provided by Seller and the Terms and Conditions set forth herein.

 

1. MODIFICATION OF TERMS:  THE TERMS AND CONDITIONS IN THIS AGREEMENT SUPERSEDE ANY AND ALL TERMS INCLUDED IN BUYER’S FORMS, INCLUDING WITHOUT LIMITATION BUYER’S PURCHASE ORDER OR ACKNOWLEDGMENTS. THE TERMS AND CONDITIONS HEREIN SET FORTH SHALL NOT BE ALTERED, MODIFIED OR WAIVED EXCEPT BY A WRITTEN DOCUMENT SIGNED BY BOTH PARTIES.   ANY REFERENCE MADE IN THIS AGREEMENT TO ANY DOCUMENT OF BUYER SHALL NOT BE CONSTRUED AS INCORPORATING ANY TERMS CONTAINED IN SUCH DOCUMENT.  SELLER HEREBY REJECTS ANY DIFFERENT OR ADDITIONAL TERMS PROPOSED BY BUYER, WHETHER PRIOR TO OR AFTER THE DATE OF THIS AGREEMENT.

 

2. PRICE: 

(a) Estimates.  Certain prices in Seller’s quote are only estimates of the costs likely to be incurred by Seller, and such estimates are subject to change without notice based on the actual time and costs incurred by Seller in performing the Work.  Estimated costs are identified by use of the terms “Budgetary Only,” “Estimate” or the like.

(b) Not to Exceed.  If Seller has indicated a price is a “Not to exceed” amount, Buyer will be billed the actual time and material costs incurred by Seller in performing the Work, not to exceed the identified amount, except that the Not to Exceed price may be increased by Seller in the event of changes in the scope of the work, materials used, conditions, and other factors that would justify an additive change order.

(c) Other costs.  Where indicated, travel expenses, such as food, lodging, mileage, etc., are not included in the contract price and will be billed separately as the expenses are incurred.

 

3. TITLE: RISK OF LOSS: The risk of loss, destruction of or damage to the equipment covered by this Agreement shall be on Buyer while the equipment is in transit to Buyer, and from and after the time possession of the equipment is taken by the Buyer.  Buyer agrees that until all amounts due and owing under the contract have been paid in full, Seller shall retain title to the materials and equipment provided under this Agreement, and further, hereby grants to Seller a security interest in such materials and equipment for that duration.  Seller shall have the right to file a financing statement or other document as necessary to create and perfect an enforceable security interest in said property.

 

4. DEFAULT: In the event of Buyer’s material default of the Agreement, which Buyer has not cured or taken reasonable steps to begin to cure within ten (10) days after receipt of notice of default, Seller may declare Buyer in default of this Agreement.  In the event of Buyer’s default, Seller shall be entitled to payment for all Work performed, including materials or parts ordered but not yet received or incorporated into the Work, along with a reasonable amount for anticipated profit on the Work not yet performed.  Seller shall be entitled to retain all sums paid by Buyer as payment toward Seller’s damages, and in addition, Seller shall have any other remedies allowed by law or in equity.

 

5.  TERMS OF PAYMENT: Unless otherwise specified, payment in full of the invoiced price is due thirty (30) days after the date of invoice, subject to credit approval.  Invoices not paid by the due date are subject to an interest charge of one and one half percent (1.5%) per month on the unpaid balance.  Buyer’s decision to delay shipping dates does not delay the date payments are due.  Seller reserves the right to invoice for partial shipments and/or for finished goods being stored at Seller’s facility due to Buyer’s delay in authorizing shipping, and to charge a reasonable storage fee if such goods are held more than fifteen (15) days after the original shipping date.

 

6. PERFORMANCE: When performance of parts and/or our equipment is based on data furnished by Buyer, Buyer  understands that Seller’s performance figures are estimates only, based on the best reliable engineering practice, and Seller makes no representations that such figures are accurate or achievable.  The actual performance obtained by Buyer may be influenced by a number of factors including without limitation, user methods and changes in conditions prevailing in Buyer’s plant. 

 

Any performance tests required by this Agreement shall be conducted by the Buyer within ninety (90) days of the date of initial operation of equipment or six (6) months of shipment, whichever is earlier.  In the event any required tests are not conducted, and results provided to Seller, by that deadline, through no fault of Seller, the equipment shall be deemed accepted by the Buyer and in compliance with all contractual requirements.

 

All costs of testing shall be at the Buyer’s expense.  All materials necessary for testing and adjusting of the equipment are excluded from the price of the equipment and Buyer shall be responsible for delivering such materials to the test site, at its sole expense. Seller reserves the right to invoice Buyer for any material and labor costs incurred by Seller relating to the performance testing.

 

Performance tests shall be conducted in accordance with Seller’s standard procedures, or such other basis as is mutually agreed in writing.

 

7. TAXES: Seller’s quote does not include sales tax.  In the event sales tax is due on the labor or materials provided by Seller, Buyer shall pay any and all taxes and assessments which may be levied or assessed on such items.  In states where Seller is authorized to remit taxes, Seller shall invoice Buyer for taxes due and such taxes shall be promptly paid to Seller.  In all other states, Buyer shall be responsible for paying all taxes directly to the taxing authority.

 

8. CHANGE ORDERS: Seller reserves the right not to perform any changes to the Work or to provide additional work without Buyer’s signature on a written Change Order, on Seller’s standard form, setting forth any additional time and cost associated with the change or addition.

 

9. DELIVERY: DATE/SHIPMENT CHARGES: The suggested shipping date specified in the Quote is to be considered a reasonable estimate as to the probable delivery of the equipment, based upon conditions existing at the time this agreement is made.  Seller will not be liable for any damages due to delay in the performance of this Agreement, or in the delivery or shipment of equipment, when such delay is, directly or indirectly, caused by, or in any manner arises from, fires, floods, accidents, civil unrest, acts of God, war, governmental interference or embargoes, strikes, labor difficulties, shortages of labor, fuel, power, materials, supplies, transportation delays, or any other cause or causes, (whether or not similar in nature to any of these hereinabove specified) beyond its reasonable control.

 

All equipment covered by this agreement will be shipped FOB Seller’s factory, Green Bay, Wisconsin.  All freight and insurance charges shall be paid by Buyer. Buyer shall also be responsible for paying any freight charges (and a reasonable administration charge) incurred by Seller for equipment or parts (related to the Work) which were shipped to Seller or Buyer from other sources. 

 

10A. LIMITED WARRANTY: The equipment being sold pursuant to this Agreement (other than that which is “used equipment or parts” or “sold as is”) is warranted to be free from defects from material and workmanship:

 

(a) for a period of twelve (12) months from equipment start-up, or fifteen (15) months from date of shipment from Seller’s factory (or date of completion of the equipment, if shipment was delayed at Buyer’s request), whichever is less (hereinafter, the “Warranty Period”), and

(b) when owned by original Buyer, and

(c) only under use within design limitations for which it was intended, and

(d) only if the equipment has been properly operated by competent operating personnel using materials of quality equal to the original samples submitted by Buyer.

 

Seller’s obligation under this warranty is limited to repairing or replacing, at Seller’s option, any part found to be defective provided that such defect is reported to Seller within the Warranty Period, and such part is, upon request, returned to Seller’s factory at Seller’s expense.  This warranty does not cover parts damaged by decomposition from chemical action or wear caused by abrasive materials nor does it cover damage resulting from misuse, accident or neglect or from improper operation, maintenance, installation, modification, or adjustment.  This warranty does not cover equipment repaired or modified by Buyer or its agents, subcontractors, or employees, or equipment repaired outside Seller’s factory, in such a way as to adversely affect the performance thereof.

 

Parts incorporated into Seller’s equipment, but not manufactured by Seller, are not warranted by Seller and are only covered by any manufacturer’s warranty that may have been provided on the parts.

 

In the event that Buyer alleges that equipment does not operate satisfactorily, it shall with reasonable promptness and in full detail notify Seller; and Seller shall be allowed a period of sixty (60) days from the receipt of notice in which to conduct any such test as may be required to demonstrate satisfactory performance or make such changes or corrections, at Seller’s expense. As Seller deems necessary, Seller at its option and expense may remove the equipment from Buyer’s plant for the foregoing purpose.  Seller does not make, and disclaims, any warranty with respect to speed, capacity, or other like performance characteristics of the equipment being sold hereunder; however, in the event that notwithstanding the terms of this Agreement, a court of competent jurisdiction determines that a warranty, express or implied, has been given by Seller to Buyer with respect to speed, capacity, or other like performance characteristics of said equipment, and further finds a breach of said warranty, then Seller’s liability for such breach shall be limited to accepting return of such equipment FOB, Seller’s factory, refunding any amount paid by Buyer for that equipment (less depreciation at the rate of 20% per year), and canceling any balance then owing on said equipment.

 

THE WARRANTY PROVIDED IN THIS ARTICLE AND THE OBLIGATIONS AND LIABILITES OF SELLER THEREUNDER ARE EXCLUSIVE AND IN LIEU OF ANY OTHER REMEDIES, AND BUYER HEREBY WAIVES ALL OTHER REMEDIES, WARRANTIES, GUARANTEES, OR LIABILITIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE (INCLUDING WITHOUT LIMITATION ANY OBLIGATION OF SELLER WITH RESPECT TO FITNESS, MERCHANTIBILITY, AND CONSEQUENTIAL DAMAGES) OR WHETHER OR NOT OCCASIONED BY SELLER’S NEGLIGENCE.  THIS WARRANTY SHALL NOT BE EXTENDED, ALTERED, OR VARIED, EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY SELLER AND BUYER.

 

10B. NO WARRANTY/”AS IS” SALE:  AS TO ANY EQUIPMENT OR PARTS WHICH ARE “USED,” OR SOLD “AS IS,” THE SELLER GIVES NO WARRANTY, EXPRESSED OR IMPLIED, AS TO DESCRIPTION, QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, PRODUCTIVENESS, OR ANY OTHER MATTER.  THE SELLER SHALL IN NO WAY BE RESPONSIBLE FOR THEIR PROPER USE AND SERVICE, AND THE BUYER HEREBY WAIVES ALL RIGHTS OF REFUSAL AND RETURN OF USED EQUIPMENT OR PARTS.

 

THE USED GOODS COVERED BY THIS CONTRACT ARE PURCHASED BY THE BUYER “AS IS” AND “WITH ALL FAULTS”.

 

10C. RECONDITIONED WARRANTY: AS TO ANY EQUIPMENT OR PARTS WHICH ARE “RECONDITIONED,” THE SELLER WARRANTS SUCH EQUIPMENT AND PARTS FOR A PERIOD OF SIX (6) MONTHS FROM THE DATE OF SHIPMENT FROM THE SELLER’S FACTORY.  RECONDITIONED EQUIPMENT AND PARTS ARE SUBJECT TO THE REMAINDER OF THE CONDITIONS SET FORTH IN SECTION 10A ABOVE EXCEPT FOR THE WARRANTY PERIOD.

 

10D. IN NO EVENT SHALL SELLER BE LIABLE FOR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH (A) DELAYS IN DELIVERY, (B) SELLER’S PERFORMANCE, NON-PERFORMANCE OR BREACH OF THIS CONTRACT, (C) DEFECTS IN THE EQUIPMENT, FAILURE OF THE EQUIPMENT TO PERFORM PROPERLY OR NON-CONFORMANCE OF THE EQUIPMENT WITH THE SPECIFICATIONS OR, (D) THE OPERATION, USE, INSTALLATION, REPAIR, OR REPLACEMENT OF THE EQUIPMENT.  CONSEQUENTIAL DAMAGES FOR THE PURPOSE HEREOF SHALL INCLUDE, WITHOUT LIMITATION, LOSS OF USE, INCOME OR PROFIT, OR LOSSES SUSTAINED AS THE RESULT OF INJURY (INCLUDING DEATH)  TO ANY PERSON OR LOSS OF OR DAMAGE TO PROPERTY (INCLUDING, WITHOUT LIMITATION, MATERIALS MANUFACTURED, PROCESSED, OR TRANSPORTED BY THE USE OF THIS EQUIPMENT).  THE REMEDIES PROVIDED UNDER SECTIONS 10A THROUGH 10C SHALL BE BUYER’S EXCLUSIVE REMEDIES.  UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO BUYER IN ANY AMOUNT IN EXCESS OF  THE PURCHASE PRICE OF THE SPECIFIC EQUIPMENT IN QUESTION.

10E. BUYER AGREES TO INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ALL CLAIMS, LOSSES, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS FEES) (collectively, “CLAIMS”)  WHICH SELLER BECOMES LEGALLY OBLIGATED TO PAY BECAUSE OF BODILY INJURY OR PROPERTY DAMAGE CAUSED BY OR RELATED TO THE INSTALLATION, MAINTENANCE, USE OR MISUSE OF THE EQUIPMENT, EXCEPT TO THE EXTENT SUCH CLAIMS ARE THE RESULT OF SELLER’S NEGLIGENCE. 

 

11. GUARDS/SAFETY DEVICES:  The parties each acknowledge that the use of all guards, interlocks, lockouts, electrical devices, and other safety devices and operation of the equipment in accordance with instructions provided in the manual are essential to the safe operation of the equipment.  Buyer agrees to maintain all safety devices that are a part of the equipment and will not modify or add any devices that may make the equipment, or any part of the equipment, unsafe.

 

12. SERVICE WORK:  Service work will be available and charged at the prevailing hourly rate for a standard working day, plus traveling and living expenses at cost, at such time as requested service work is provided.  A detailed schedule of service charges is available upon request. 

 

13. PATENTS:  Seller assures Buyer that all reasonable efforts have been made to avoid patent infringement, based on such equipment as it stands unmodified and uncombined, and if Buyer with reasonable promptness notifies Seller of such suit, Seller will at Seller’s option proceed according to one or more of the following alternatives:

 

(a) defend such suit at Seller’s expense,

(b) obtain at Seller’s expense a license for the Buyer to continue use of the equipment,

(c) modify or replace the equipment so as to make it substantially equal, in all respects, but non-infringing, or

(d) refund the purchase price, less depreciation (20% per year) and remove the equipment.

 

The foregoing sets forth Seller’s entire liability to Buyer for patent infringement based on the possession and use of such equipment, it being understood and agreed that such obligations of Seller do not extend to, and are not applicable in the case of, any patent infringement claims directed to a method or process used by Buyer and not contemplated by the nature of the equipment.

 

Purchase of said equipment does not entitle Buyer to employ the same with any patented process owned by the Seller or others, except where Buyer is authorized to use such process.

 

Seller does not assume any liability whatever to patent infringement on any equipment, apparatus, or component or part thereof manufactured by Seller in accordance with Buyer’s design.

 

14. RESTOCKING CHARGES:  Buyer shall be assessed a twenty (20) percent restocking fee on any returned equipment/parts, plus any additional charges or fees imposed by manufacturers of said equipment/parts.  No returns will be accepted by Seller without a Return Material Authorization Number provided by Seller.  No credits or refunds will be given for the return of custom equipment/parts.

 

15. CANCELLATION:  Buyer shall have the right to cancel this Agreement only in the event that Seller has materially breached the Agreement and failed to cure (or take reasonable steps to begin to cure) such breach within thirty (30) days after receiving notice of default from Buyer, and in such cases Buyer’s termination shall be effective upon written notice to Seller.  In the event of Buyer’s termination of the Agreement because of a failure of the equipment to perform as required by the Agreement, Seller shall remove any equipment previously installed and shall refund to Buyer any amount previously paid by Buyer pursuant to this Agreement.  Except in the event of Seller’s material breach which was not timely cured, no cancellation of this Agreement for any reason can be effected without Seller’s written consent and then only upon terms that will compensate Seller for its costs, including lost profit, reasonably related to this Agreement. Seller will not consider any request for cancellation received within the forty-five (45) days preceding the estimated delivery date in this Agreement. 

 

16. LIMITATIONS:  Seller’s liability under this agreement is limited to the Buyer of the equipment; it being understood and agreed that Seller has no liability whatsoever to any subsequent purchaser of the equipment from the Buyer.  Any attempted assignment by Buyer of its rights hereunder without Seller’s consent shall be null and void.  Buyer intends that Seller manufacture the equipment purchased hereunder and therefore any attempt by Seller to assign its duties and obligations, other than through necessary subcontracting arrangements, hereunder shall be null and void.

 

17. CONFIDENTIALITY:  The calculations, specifications, and ideas submitted herein are the exclusive property of Seller and are disclosed in confidence solely for the purpose of this agreement.  As such, they are not to be used or disclosed to any third party without the prior written permission of Seller.

 

18. DUPLICATION:  Buyer agrees not to duplicate the equipment in whole or in part, nor permit others to do so, without the express written consent of Seller.

 

19. DISPUTE RESOLUTION:  Buyer agrees that prior to commencing any legal action against Seller, Buyer shall give written notice to Seller of its intention to do so, and within thirty (30) days from the date Seller receives such notice, management representatives of both companies shall meet to attempt to resolve the issues in dispute. 

 

20. CHOICE OF LAW; JURISDICTION:  This agreement, and any claim arising under it, or related to the transaction evidenced by it, shall be governed by the laws of the State of Wisconsin.  Any claim relating to or arising from the equipment or this Agreement, shall be brought in the Circuit Court in Brown County, Wisconsin, and both parties hereby submit to the jurisdiction of such court. 

 

21. BINDING EFFECT:  This agreement shall bind and inure to the benefit of the parties, and their respective heirs, successors, personal representatives, beneficiaries and assigns.

 

22. MANUALS:  Seller may, at its option, furnish applicable installation, operation, and maintenance manuals as part of this Agreement.  Additional manuals requested by Buyer will be furnished at a nominal charge.  Copyright and ownership in all designs, drawings and other information prepared or provided by Seller under this agreement remains with the Seller; content not originated by Seller is subject to the copyright rights of the provider.

 

The ALFA LAVAL Company and group name, logotype and the same of its subsidiaries and affiliates, as well as the brand names, product names and the trademarks of ALFA LAVAL, its subsidiaries and affiliates are property of ALFA LAVAL and/or its subsidiaries and affiliates. 

 

23. ATTORNEY FEES:  In the event that legal action is taken by either party upon any claim arising from this agreement or in any way related to the transaction that is evidenced by this Agreement, Seller shall, if it prevails, be entitled to recover from Buyer, all of Seller’s reasonable attorney fees incurred in connection therewith.

 

24. SUSPENSION OF PRODUCTS AND/OR SERVICES:  Seller may, at its option, suspend all work under this Agreement, including without limitation providing products and/or services hereunder, in the event that the Buyer is delinquent on payment of ANY outstanding invoices.

 

25. BUYER FINANCING:  At the reasonable request of the Seller, which can be made prior to commencing the Work or thereafter, the Buyer shall provide the Seller with evidence that the Buyer has sufficient funds to fulfill its obligations under the Agreement.  If the Buyer fails to provide such information after Seller’s request, Seller shall have the right to suspend performance of the Work until such information is provided. 

 

26. APPROVALS:  Buyer shall be solely responsible for obtaining, at its sole cost, all permits, approvals, licenses, and bonds required for installation or use of the equipment that is the subject of this Agreement. 

 

27. NO WAIVER:  No waiver of any breach of any provision of this Agreement shall constitute a waiver of any other breach of this Agreement.

 

28. COMPLETE AGREEMENT:  The contract is expressly limited to the terms and conditions in this Agreement.  The terms and conditions set forth herein, together with any other documents incorporated herein by reference constitute the sole and entire agreement between Seller and Buyer with respect to the parties’ relationship, and supersede completely any and all prior oral or written communications.  No additions to or variations from such terms and conditions whether contained in Buyer’s purchase order, shipping release or elsewhere shall be binding upon Seller unless expressly agreed to in writing by seller.

 

29.  AUTHORITY:  The person signing below on Buyer’s behalf represents that he or she has the authority to bind Buyer to the terms and obligations in this Agreement.  Only the directors and officers of Seller have the authority to bind Seller to this Agreement and Buyer understands that the Agreement is not valid and binding until it is signed by one of Seller’s officers or directors.

 

30. SEVERABILITY.  All of the paragraphs included in this Agreement are severable.  If any paragraph is rendered invalid or unenforceable by federal, state, or local law, or declared null and void by any court of competent jurisdiction, the remaining paragraphs will carry through in full force and effect.