Quotations Are Made And Orders Are Accepted By Profile Finishing Systems, Llc (“pfs”) Subject Only To These Terms And Conditions Of Services.
1. Modifications of Terms and Conditions. Any terms and conditions contained in any purchase order or other form of communication from a PFS customer (“Customer”) that is additional to or different from these Terms and Conditions of Services (“Terms and Conditions”) shall be deemed rejected by PFS unless expressly accepted in writing by PFS. No modification, amendment, waiver, or other change of any of these Terms and Conditions or of any of PFS’s rights or remedies under these Terms and Conditions shall be binding on PFS unless expressly accepted in writing by PFS’s authorized officers. No course of dealing, usage of trade, or course of performance shall be relevant to explain or supplement any of these Terms and Conditions.
2. Acceptance of Orders; Quotations. Acceptance by PFS of Customer’s purchase order(s) is expressly conditioned upon Customer’s assent to these Terms and Conditions. Notwithstanding anything in these Terms and Conditions to the contrary, Customer will be deemed to have assented to such Terms and Conditions unless PFS receives written notice of any objections within fifteen (15) days after Customer’s receipt of this form and in all events prior to any delivery or other performance by PFS of Customer’s order. Quotations (each a “Quotation”) by PFS shall be deemed to be offers by PFS to provide the services described (“Services”) subject to these Terms and Conditions, and acceptance of such offers is expressly limited to acceptance by Customer of all of these Terms and Conditions within fifteen (15) days from the date of the quotation. Customer’s acceptance of any Services provided by PFS shall constitute acceptance of these Terms and Conditions. Purchase orders submitted by Customer for the Services quoted by PFS shall be subject to and will be deemed to constitute acceptance of these Terms and Conditions. All purchase orders will be subject to approval by PFS in its sole discretion.
3. Change Orders. If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. The parties may negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing by both PFS and Customer. PFS may charge for the time it spends assessing and documenting a Change Order request from Customer on a time and materials basis.
4. Prices. In consideration of the provision of the Services by PFS and the rights granted to Customer under this Agreement, Customer shall pay the purchase prices and fees set forth in the Quotation.
5. Taxes. In addition to any fees set forth in the Quotation, Customer shall pay the amount of any present or future manufacturer’s tax, retailer’s occupation tax, use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee, or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between PFS and Customer. In the event PFS is required to pay any such tax, fee, or charge, Customer shall reimburse PFS for that tax, or, in lieu of such payment, Customer shall provide PFS at the time the order is submitted with an exemption certificate or other document acceptable to the authority imposing such tax, fee, or charge.
6. Customer Property. Customer property requiring Services from PFS (the “Customer Property”) shall remain the property of Customer at all times. Customer Property is not insured by PFS against loss or damage however caused.
7. Terms of Payment. All orders are subject to the approval of PFS. Terms of payment are cash in full no later than thirty (30) days from date of shipment, without discount. If, during the period of performance of an order, the financial condition of Customer is determined by PFS not to justify the terms of payment specified, PFS may demand full or partial payment in advance before proceeding with the Services or satisfactory security or guarantees that invoices will be promptly paid when due, or, at its option and without prejudice to other lawful remedies, may defer delivery (and hold the Customer Property until paid) or cancel the order. If delivery is deferred, the Customer Property that is the subject of the Services may be stored as provided in Section 10, and PFS may submit a new estimate of cost for completion based on prevailing conditions. To secure payment of the purchase price and all monies that may be due to PFS and the performance of all of Customer’s obligations under these Terms and Conditions, Customer hereby grants PFS a security interest in all Customer Property, and Customer acknowledges that such security interest is perfected by PFS’s possession. If Customer defaults on any payment when due, or in the event any voluntary or involuntary bankruptcy or insolvency proceedings involving Customer are initiated by or against Customer, then the entire payment shall immediately become due and payable upon demand. In addition, PFS, at its option and without prejudice to its other lawful remedies, may defer delivery or cancel the order and may charge interest on any unpaid amounts at a rate of one and one-half percent (1.5%) per month or, if lower, the maximum amount permitted by applicable law, from the date such payment was due until the date paid. Pro rata payments shall become due in accordance with these Terms and Conditions as shipments are made. If shipments are delayed by the Customer for any cause, payments shall become due according to these Terms and Conditions from the date on which PFS is prepared to make shipment. Storage for any delayed shipment shall be the Customer’s risk and expense as provided in Section 10. If the Services are delayed by the Customer for any cause, a partial payment based upon the proportion of the order completed shall become due from the date on which PFS is notified of the delay.
8. Delivery; Risk of Loss. All Services and return of all Customer Property are F.O.B. PFS’s plant or other point of shipment designated by PFS. Shipping dates are estimates only which are not guaranteed and are based upon prompt receipt from Customer of all necessary shipping and other information. PFS reserves the right to make delivery in installments. All installments will be separately invoiced and paid for by Customer when due per date of delivery of invoice, without regard to subsequent deliveries. Delivery of Customer Property to a commercial carrier at PFS’s plant or other loading point shall constitute delivery to Customer, and any risk of loss and further cost and responsibility for claims, delivery, loss or damage, including, if applicable, placement and storage, shall be borne by Customer. Claims for loss or damage to Customer Property in transit by common carrier must be made to the carrier and not to PFS. Freight and handling charges by PFS may not reflect actual freight charges prepaid to the carrier by PFS due to incentive discounts earned by PFS based upon PFS’s aggregate volume of freight tendered to a carrier or when a carrier must be used which charges a rate which is different than the rate upon which PFS’s freight and handling charges were based. When shipments are delivered in PFS’s private trucks, Customer will be charged an amount approximating the prevailing common carrier rate.
9. Excusable Delays; Force Majeure. PFS shall not be liable for any ordinary, incidental, or consequential loss or damage as a result of PFS’s delay in or failure of delivery due to (a) any cause beyond PFS’s reasonable control, (b) an act of God, act of the Customer, embargo, or other governmental act, authority, regulation, or request, fire, theft, accident, strike, slowdown or other labor disturbance, war, {W2246730.DOCX/2} 3 riot, delay in transportation, or (c) inability to obtain necessary labor, materials, components, or facilities. Should any of the events in this Section occur, PFS, at its option, may cancel Customer’s order with respect to any undelivered Services or extend the delivery date for a period equal to the time lost because of delay. In the event PFS elects to so cancel the order, PFS shall be released of and from all liability for failure to deliver the Services, including, but not limited to, any and all claims on behalf of Customer for lost profits, or any other claim of any nature which Customer might have. If shipping or progress of the work is delayed or interrupted by Customer, directly or indirectly, Customer shall pay PFS for all resulting additional charges.
10. Storage. If the Customer Property is not shipped within seven (7) days after notification has been made to Customer that Customer Property is ready for shipping, for any reason beyond PFS’s control, including Customer’s failure to give shipping instructions, PFS may store the Customer Property at Customer’s risk and expense in a warehouse or upon PFS’s premises, and Customer shall pay all handling, transportation, and storage costs at the prevailing commercial rates promptly following PFS’s submission of invoices for such costs.
11. Limited Warranties.
11.1 Services Limited Warranty. PFS warrants that the Services provided by it shall be free from material defects in workmanship and application for a period of twelve (12) months from date of shipment of the finished Customer Property. If, prior to expiration of the applicable warranty period, any Services shall be proved to be defective or non-conforming, PFS will, at its option, re-perform such defective Services, F.O.B. PFS’s plant or other destination designated by PFS, or will refund or provide Customer with a credit in the amount of the per piece purchase price paid by Customer, at PFS’s sole option. Customer’s exclusive remedy and PFS’s sole obligation under this warranty shall be limited to such re-performance, F.O.B. PFS’s plant or other destination designated by PFS, or refund or credit by PFS, and shall be conditioned upon PFS’s receiving written notice of any defect as soon as practicable after it was discovered or by reasonable care should have been discovered (but in no event later than sixty (60) days after the Services were performed and the relevant Customer Property was delivered by PFS to the outbound carrier). Customer must provide PFS the opportunity to determine root cause and mitigate expense through involvement in the remedy to correct the existing situation.
11.2 Customer Property Limited Warranty.
(a) PFS SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE TO CUSTOMER PROPERTY TENDERED, STORED, OR HANDLED HOWEVER CAUSED UNLESS SUCH LOSS OR DAMAGE RESULTED FROM THE FAILURE BY PFS TO EXERCISE SUCH CARE IN REGARD TO CUSTOMER PROPERTY AS A REASONABLY CAREFUL PERSON WOULD EXERCISE UNDER LIKE CIRCUMSTANCES, AND PFS IS NOT LIABLE FOR DAMAGES THAT COULD NOT HAVE BEEN AVOIDED BY THE EXERCISE OF SUCH CARE.
(b) CUSTOMER PROPERTY IS NOT INSURED BY PFS AGAINST LOSS OR DAMAGE HOWEVER CAUSED.
(c) Customer must give PFS written notice of any claim for loss or damage to any Customer Property as soon as practicable after such claim or loss is discovered or by reasonable care should have been discovered (but in no event later than sixty (60) days after delivery of the Customer Property by PFS to the outbound carrier or sixty (60) days after Customer is given written notice by PFS that loss or damage to the Customer Property has occurred). Each notice of claim from Customer must contain information sufficient to put PFS on notice as to the existence and nature of the claim. Customer must provide PFS the opportunity to determine root cause, and mitigate expense through involvement in the remedy to correct the existing situation.
11.3 Exclusions. The warranties contained in this Section: (a) do not cover shipping expenses to and from PFS’s plant or other destination designated by PFS for re-performance of defective Services or any tax, duty, custom, inspection, or testing fee, or any other charge of any nature, (b) do not apply and shall be void with respect to Customer Property or the products of Services which were subjected to negligence, misuse, misapplication, accident, damages by circumstances beyond PFS’s control, or to other than normal use or service, and (c) do not apply to products, components, or materials not manufactured, or provided, by PFS. With respect to products, components, or materials not manufactured by PFS, PFS’s warranty obligations shall in all respects conform and be limited to the warranty actually extended to PFS by its suppliers, but in no event shall PFS’s obligations be greater than those provided under PFS’s warranty set forth in this Section.
11.4 Disclaimer. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO EMPLOYEE, REPRESENTATIVE, OR AGENT OF PFS OTHER THAN AN OFFICER OF PFS IS AUTHORIZED TO ALTER OR MODIFY ANY PROVISION OF THIS SECTION OR TO MAKE ANY GUARANTEE, WARRANTY, OR REPRESENTATION, EXPRESS OR IMPLIED, ORALLY OR IN WRITING, WHICH IS CONTRARY TO THIS SECTION.
12. Limitations of Liability; Consequential Damages.
12.1 Services Warranty Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS AND CONDITIONS OR ANY OTHER AGREEMENT BETWEEN PFS AND CUSTOMER, PFS’S LIABILITY WITH RESPECT TO SERVICES PROVED TO BE DEFECTIVE WITHIN THE WARRANTY PERIOD AS PROVIDED IN SECTION 11.1 SHALL BE LIMITED TO RE-PERFORMANCE OR REFUND AS PROVIDED IN SECTION 11.1, AND IN NO EVENT SHALL PFS’S AGGREGATE LIABILITY EXCEED THE PER PIECE PURCHASE PRICE FOR THE SERVICES INVOLVED. PFS SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHER THEORIES OF LAW, WITH RESPECT TO SERVICES RENDERED BY PFS, OR ANY RELATED UNDERTAKINGS, ACTS, OR OMISSIONS.
12.2 Customer Property Warranty Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS AND CONDITIONS OR ANY OTHER AGREEMENT BETWEEN PFS AND CUSTOMER, PFS’S AGGREGATE LIABILITY FOR LOSS OR DAMAGE TO CUSTOMER PROPERTY PURSUANT TO SECTION 11.2 SHALL NOT EXCEED, FOR ANY ONE OCCURRENCE, THE LESSER OF: (A) THE ACTUAL MANUFACTURER’S COST TO REPLACE THE CUSTOMER PROPERTY (INCLUDING ASSOCIATED TRANSPORTATION COSTS), LESS REASONABLE SALVAGE VALUE AND OTHER INCIDENTAL SAVINGS OCCURRING AS A CONSEQUENCE OF SAID LOSS OR DAMAGE; OR (B) THE PER PIECE PURCHASE PRICE FOR THE SERVICES RELATING TO THE CUSTOMER PROPERTY.
12.3 Mysterious Disappearance. PFS shall not be liable for loss of Customer Property due to unexplained or mysterious disappearance unless Customer establishes such loss occurred because of PFS’s failure to exercise the care required of PFS under Section 11.2. Any presumption of conversion imposed by law shall not apply to such a loss and a claim by Customer of conversion must be established by affirmative evidence that PFS converted the Customer Property to PFS’s own use.
12.4 Removal of Customer Property. Where loss or damage occurs to tendered, stored, or handled Customer Property, for which PFS is not liable, Customer shall be responsible for the cost of removing and disposing of such Customer Property and the cost of any environmental clean-up and site remediation resulting from the loss or damage to the Customer Property.
12.5 Exclusive Remedies. Notwithstanding any other provision of these Terms and Conditions or any other agreement between PFS and Customer, Customer’s sole and exclusive remedies against PFS relating to the Services or for loss or damage to any Customer Property shall be as described in this Section 12. Customer, on its own behalf and on behalf of any insurer providing property insurance coverage to Customer, hereby waives all other rights and remedies which Customer or any such insurer may have against PFS to recover damages relating to the Services or due to loss or damage to any of the Customer Property, whether based upon theories of breach of contract, breach of warranty, negligence, subrogation, or otherwise.
12.6 Disclaimer. Without limiting the generality of the foregoing, PFS specifically disclaims any liability for property or personal injury damages, penalties, special or punitive damages, damages for lost profits or revenues, loss of use, cost of capital, cost of substitute products, facilities or services, downtime, shutdown, or slowdown costs, or for any other types of economic loss, and for claims of Customer’s customers for any such damages. PFS SHALL NOT BE LIABLE FOR AND HEREBY DISCLAIMS ALL CONSEQUENTIAL, INCIDENTAL, SPECIAL, AND CONTINGENT DAMAGES.
13. Indemnification by Customer. Customer shall indemnify, hold harmless, and defend PFS and PFS’s employees and agents from and against any and all damages, liability, claims, losses, and expenses (including reasonable attorneys’ fees, court costs, and out of pocket expenses) arising out of or resulting in any way from claims by customers of Customer or third parties against PFS alleging a breach of contract or warranty by PFS to the extent that such damages, liability, claims, losses, and expenses are greater than those damages, liability, claims, losses, and expenses which may be payable by PFS to Customer pursuant to, and as limited by, PFS’s warranty and damage obligations as contained in Sections 11 and 12 so as to effectively limit PFS’s obligations to customers of Customer or third parties to those set forth in Sections 11 and 12.
14. Intellectual Property; Confidentiality. All specifications, drawings, design, data, information, ideas, methods, tools, gauges, dies, fixtures, patterns, and/or inventions made, conceived, developed, or acquired by PFS in connection with procuring and/or executing Customer’s order will vest in and inure to PFS’s sole benefit notwithstanding any charges which may have been or may be imposed by PFS. All non-public, confidential or proprietary information of PFS, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by PFS to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and these Terms and Conditions is confidential, and shall not be disclosed or copied by Customer without the prior written consent of PFS. Confidential Information does not include information that is: (a) in the public domain; (b) known to Customer prior to disclosure by PFS; and (c) rightfully obtained by Customer on a non-confidential basis from a third party.
15. Return of Customer Property. All purchase orders will be subject to approval by PFS in its sole discretion. In the event PFS rejects a purchase order, Customer shall arrange for any Customer Property on PFS’s premises to be shipped within seven (7) days after notification has been made to Customer that Customer Property is ready for shipping. In the event Customer Property remain on PFS’s premises after such seven (7) day period, PFS may store the Customer Property as provided in Section 10.
16. Assignment. None of the Customer’s rights under any order shall be assigned by the Customer to any other person, whether by operation of law or otherwise, without PFS’s prior written approval.
17. Cancellation. No order submitted to PFS may be canceled by Customer without the prior written consent of PFS, which consent will at all times be conditioned on Customer’s agreement to pay PFS’s cancellation charge. For all cancellations, the cancellation charge shall amount to all costs and expenses incurred by PFS and arising out of or in connection with Customer’s order plus an amount equal to PFS’s standard profit margin.
18. General. These Terms and Conditions and any Quotations shall be governed by and construed in accordance with the internal laws of the State of Wisconsin. PFS and Customer agree that any legal action deemed necessary by either party shall be brought in the Circuit Court in and for Outagamie County, Wisconsin and both PFS and Customer consent to the personal jurisdiction of such court in any such action over the parties. The invalidity, in whole or in part, of any of the provisions of these Terms and Conditions, shall not affect the enforceability of any of the other provisions. No waiver by PFS of any of the provisions of these Terms and Conditions is effective unless explicitly set forth in writing and signed by PFS. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms and Conditions operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. The relationship between PFS and Customer is that of independent contractors. Nothing contained in these Terms and Conditions shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Provisions of these Terms and Conditions which by their nature should apply beyond termination of these Terms and Conditions will remain in force after any termination or expiration of this Agreement.
