These Terms and Conditions of Sale ("Terms and Conditions") set forth the terms and conditions pursuant to which the purchaser ("Purchaser") will purchase and SUS America, Inc. ("SUS") will sell its products ("Products").
2. Purchase Orders
All purchase orders of Purchaser shall, unless otherwise agreed in writing by SUS, be in writing and set forth the quantity of the Products desired, the specifications therefore, the desired delivery date, the price of each Product, and all other relevant information necessary to effectuate shipment of the Products by SUS. Such purchase orders shall be limited and subject to acceptance of these Terms and Conditions and no additional, inconsistent or contrary terms shall become part of this agreement or any sale of Products to Purchaser unless specifically accepted in writing by SUS.
All orders for Products shall be subject to acceptance by SUS at 1822 Brummel Avenue, Elk Grove Village, IL 60007 USA. Purchaser shall not return any Products actually delivered to Purchaser without the written consent of, and upon terms agreed to, by SUS.
Prices shall be those in effect at the time of order entry. Prices are subject to change by SUS without notice. All packaging and labeling shall be paid by Purchaser. SUS's prices do not include sales, use, excise or similar taxes. Consequently, the Purchaser shall pay the amount of any present or future sales, use or other similar tax applicable to the sale or use of the Products, unless Purchaser can prove a valid exemption, by a certificate or other documentation, acceptable in the applicable jurisdiction.
5. Delivery and Freight Charges
All delivery dates are approximate and based upon the prompt receipt of all necessary information from Purchaser. Unless otherwise instructed, SUS will ship Products to Purchaser via regular United Parcel Service (UPS) delivery or similar carrier, F.O.B. SUS's facility. Risk of loss shall pass to Purchaser at the F.O.B. point. Notwithstanding the provisions contained in these Terms and Conditions to the contrary, SUS shall not be responsible or liable for any loss or damage whatsoever, including loss of income and/or profits, incidental, special or consequential damages resulting from SUS's delayed performance in shipment or delivery of the Products for any reason whatsoever. All freight charges are stated on SUS's invoices and are part of SUS's payment terms.
SUS warrants that the Products sold hereunder will be free from defects in material and workmanship for a period of thirty (30) days from the date of shipment from SUS's facility. SUS'S WARRANTY HEREIN IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES OF SUS AND THE MANUFACTURER OF THE PRODUCTS (COLLECTIVELY, "Manufacturing and Selling Parties"), WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE CREATED UNDER APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY AND ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR USE. IN NO EVENT SHALL SUS OR THE MANUFACTURING AND SELLING PARTIES BE LIABLE (AND PURCHASER SHALL NOT ASSERT ANY CLAIM) FOR SPECIAL, INCIDENTAL, COMPENSATORY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS. PURCHASER'S SOLE AND EXCLUSIVE REMEDIES UNDER THIS WARRANTY SHALL BE LIMITED, AT SUS'S EXCLUSIVE DISCRETION, TO: (1) REPLACEMENT OF ANY DEFECTIVE PRODUCTS OR PART THEREOF; OR (2) REPAIR OF ANY DEFECTIVE PRODUCTS OR PART THEREOF; OR (3) RETURN OF THE PURCHASE PRICE FOR ANY DEFECTIVE PRODUCT OR PART THEREOF. The warranty and remedy set forth above are conditioned upon the proper storage, use and maintenance of the Products and conformance with all applicable recommendations of the Manufacturing and Selling Parties with respect to the Products. No agent, employee or representative of SUS (or any distributor, dealer or sales representative of SUS) has the authority to bind SUS to any affirmation, representation or warranty concerning the Products sold hereunder, and unless such affirmation, representation or warranty is specifically included in these Terms and Conditions, it will not form a part of the basis of these Terms and Conditions and shall in no way be binding upon SUS or enforceable by Purchaser.
7. Patent Infringement
SUS's liability for patent infringement (and the liability of the Manufacturing and Selling Parties) is limited to SUS's defense of any suit or proceeding brought against Purchaser based on a claim that the Products sold hereunder, when employed in the manner intended by SUS, constitutes an infringement of any patent of the United States. If Purchaser's use of the Products in the manner intended by SUS is finally enjoined, SUS shall, at its option, procure for Purchaser the right to continue using the Products, replace the same with non-infringing Products, modify the Products so that they become non-infringing, but equivalent to the Products sold hereunder, or refund the purchase price (less allowance for use, damage or obsolescence). SUS makes no warranty against patent infringement resulting from portions of the Products made to Purchaser's specifications or the use of Products in combination with any other Products or in the practice of any process and if a claim, suit or action against the Manufacturing or Selling Parties is based thereon, Purchaser shall defend, indemnify and save SUS and the Manufacturing and Selling Parties harmless from and against any and all claims, losses or damages arising therefrom.
8. Security Interest
To secure any indebtedness due and owing from Purchaser from time to time, Purchaser hereby grants to SUS, and SUS hereby reserves unto itself, a continuing purchase money security interest in any and all Products and all other Products heretofore or hereafter sold or delivered to Purchaser by SUS, and all related parts, components and accessories therefor, and all proceeds arising from the sale or other disposition of the foregoing, including, but not limited to, cash, accounts, contract rights, accounts receivable, instruments and chattel paper. Purchaser shall at no time grant any security interest in conflict with that granted to SUS herein. Purchaser shall cooperate in the preparation, signing and filing of financing statements necessary to evidence and perfect SUS's security interest as described above.
(a) Except as provided in subparagraph (b) hereof, the parties agree that all disputes arising out of this Agreement, the purchase or sale of Products and/or the relationship of the parties shall be settled by submission for arbitration to the American Arbitration Association ("AAA") at Chicago, Illinois under the Commercial Rules of Arbitration of the AAA. The parties agree to select a panel of three (3) arbitrators. Any judgment upon any award rendered by the arbitrators may be entered in any court having appropriate jurisdiction. Except as provided in subparagraph (b) hereof, if any suit or proceeding is filed in any court, the court shall, on application of one of the parties, stay the action until such arbitration has been had in accordance with these Terms and Conditions.
(b) The provisions of subparagraph (a) hereof to the contrary notwithstanding, SUS reserves the right to bring an action for equitable relief or replevin in an appropriate case, and the parties' agreement to arbitrate hereunder shall not stay or otherwise affect SUS's right to petition a court of competent jurisdiction for equitable relief in appropriate circumstances, or for the purpose of repossessing or replevinig Products, provided, however, that all claims for money or money damages related thereto shall be referred to arbitration as aforesaid.
10. Force Majeure
SUS's obligations hereunder are subject to, and SUS shall not be held responsible for, any delay or failure to make delivery of all or any part of the Products due to acts or circumstances beyond the control of SUS, including, but not limited to, labor difficulties, fires, casualties, accidents, acts of God, transportation difficulties, inability to obtain Products, materials or components or qualified labor sufficient to timely perform part or all of any obligation, or governmental regulations or actions. In the event of the occurrence of any of the foregoing, at the option of SUS, SUS shall be excused from the performance hereunder or the performance of SUS shall be correspondingly extended.
11. Miscellaneous Provisions
(a) These Terms and Conditions, together with any written distributor agreement between the parties, constitute the entire agreement between SUS and Purchaser as it relates to the purchase and sale of Products to Purchaser by SUS and the liability of the Manufacturing and Selling parties, and supersede any and all prior agreements, correspondence, quotations or understandings heretofore enforced between the parties relating to the subject matter hereof.
(b) If any term or condition or part of these Terms and Conditions is held invalid, the remaining terms and conditions hereof shall not be affected thereby.
(c) These Terms and Conditions may be modified, canceled or rescinded only by a written agreement by both parties executed by their duly authorized agents.
(d) All rights available to SUS under the Uniform Commercial Code except as specifically limited or excluded herein (even though not specifically enumerated), are reserved to SUS as remedies available in the event of default or breach by Purchaser.
(e) This agreement and any sale of Products to Purchaser shall be deemed to have been made in and governed by the substantive laws of the State of Illinois, without regard to choice-of-law provisions.
(f) Any failure by either party to enforce at any time any term or condition hereof shall not be considered a waiver of such party's right thereafter to enforce the same or any other term or condition hereof.
(g) These Terms and Conditions shall be binding upon the successors and legal representatives of Purchaser and SUS.