1. Applicability. These Terms and Conditions of Sale (these “Terms”) are the only terms which govern the sale of any goods, materials or products (“Products“) and the sale of any services (“Services“) by TBC Metalworks, LLC, a Wisconsin limited liability company (the “Company”), to the buyer of such Products and/or Services (the “Buyer”). Except to the extent otherwise expressly agreed in writing signed by an authorized officer of Company, these Terms and the order, quotation, invoice, proposal, or confirmation of sale in which these Terms are referenced or to which these Terms are attached (the “Order”, and together with these Terms, this “Agreement”) constitute the entire agreement between Buyer and Company regarding the Order, and this Agreement supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, whether written or oral, between the parties regarding the Order. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. COMPANY HEREBY EXPRESSLY OBJECTS TO, AND IS NOT BOUND BY, ANY OTHER TERMS OR CONDITIONS ON BUYER’S PURCHASE ORDER, CONFIRMATION OR OTHER DOCUMENTS, WHICH ATTEMPT TO IMPOSE UPON COMPANY TERMS AND CONDITIONS WHICH DIFFER FROM COMPANY’S TERMS SET FORTH HEREIN; AND COMPANY’S PERFORMANCE OR FAILURE TO OBJECT TO PROVISIONS CONTAINED IN ANY BUYER COMMUNICATION SHALL NOT BE DEEMED TO WAIVE, MODIFY, OR AMEND ANY PROVISION HEREIN, OR CONSTITUTE ASSENT TO ANY SUCH ADDITIONAL, DIFFERENT AND/OR INCONSISTENT TERMS. These Terms apply in lieu of any course of dealing between the parties or usage of trade in the industry.
2. Prices. Prices and discounts quoted by Company in writing are subject to change based on material pricing fluctuations of more than 10% than the price quoted. Any changes in specifications and/or design requested by Buyer are subject to additional charges at Company’s discretion.
3. Taxes and Fees. Prices stated in the Order do not include any taxes, charges, assessments or duties. The amount of any such taxes, charges, assessments or duties which Company is required to pay or collect shall be invoiced to and payable by Buyer.
4. Payment Terms. Unless otherwise expressly set forth on the face of the applicable Order, all amounts payable by Buyer are due no later than thirty (30) days following the date of Company’s invoice. Outstanding balances not paid when due shall bear interest accruing from the date of Company’s invoice at a rate of the lower of eighteen percent (18%) per annum or the maximum rate allowed under applicable state law. Payment shall be made in U.S. Dollars ($), unless otherwise agreed by Buyer and Company. Buyer will reimburse Company for all costs incurred for collection of late payments, including reasonable attorneys’ fees incurred by Company in collecting payment of the purchase price and any other amounts for which Buyer is liable under this Agreement. In addition to all other remedies under these Terms or at law (which Company does not waive by exercise of any rights hereunder), Company may require prepayment, cash on delivery, or suspend the delivery of any Products if Buyer fails to pay any amounts when due hereunder or under any other Order placed with the Company. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Company, whether relating to Company’s breach, bankruptcy or otherwise.
5. Credit Approval. Shipments, deliveries and performances of work shall at all times be subject to the approval of Company’s credit department. Company may at any time decline to make any shipment or delivery of Products or perform any Services except upon receipt of payment in advance or upon such other payment terms as are acceptable to Company’s credit department.
6. Delivery. Unless otherwise expressly set forth on the face of the applicable Order, delivery of the Products shall be made FOB Company’s facility located at 1011 Ashwaubenon St, Green Bay, WI 54304 (the “Facility”). Title and risk of loss to the Products shall transfer to Buyer upon tender of delivery at the Facility and Buyer shall be solely responsible for all costs (including insurance) relating to the carriage of Products from such delivery point; provided, however, that title to any Company Intellectual Property (as defined below) associated with the Products shall remain with the Company or the Company’s licensors (as applicable). Company’s acknowledged shipping dates are approximate and are contingent on Buyer providing Company with all necessary information, cooperation, and approvals.
7. Quantity. If Company delivers to Buyer a quantity of Products of up to ten percent (10%) more or less than the quantity set forth in the Order, Buyer shall not be entitled to object to or reject the Products or any portion of them by reason of the surplus or shortfall and shall pay for such Products the price set forth in the Order adjusted pro rata.
8. Specifications. Company shall provide the Products in strict compliance with all specifications, characteristics, designs, drawings, dimensions, measurements, standards, methods and processes (collectively, “Specifications”): (a) set forth in the applicable Order and any related request for proposal or request for a quote; (b) provided to the Company by or on behalf of the Buyer; and (c) developed or created by Company and incorporated by the Company into any proposal, quotation, acknowledgment or acceptance relating to the Order or otherwise approved by Buyer. Company shall not modify or alter the Specifications, except as expressly authorized in writing signed by an authorized officer of Buyer.
9. Services. Company shall use reasonable efforts to meet any performance dates to render the Services specified in the Order, and any such dates shall be estimates only. With respect to the Services, Buyer shall (a) cooperate with Company in all matters relating to the Services; (b) respond promptly to any Company request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Company to perform Services in accordance with the requirements of this Agreement; (c) provide such materials or information as Company may request to carry out the Services in a timely manner and ensure that such materials or information are complete and accurate in all material respects; and (d) obtain and maintain all necessary licenses and consents and comply with all applicable Laws (as defined below) in relation to the Services before the date on which the Services are to start.
10. Buyer’s Acts or Omissions. If Company’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, then Company shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
11. Acceptance; Returns.
- Buyer shall have the right to inspect the Products upon delivery. Notwithstanding anything contained herein to the contrary, any damage to the Products, alleged by Buyer to have been caused while in the possession of the shipper, shall be noted, in writing, on the shipper’s Bill of Lading. The failure to note any such shipping related damage in writing on the shipper’s Bill of Lading shall render any claim of Buyer as to damage or destruction of the Products during shipping null and void. Buyer will have ten (10) days after delivery of the Products (the “Inspection Period”) to inspect the Products and to provide written notice to Company of any defect, damage, nonconformity, shortage, or error with respect to such Products (“Nonconforming Products”). If Buyer fails to notify Company of any Nonconforming Products during the Inspection Period, then the Products shall be deemed to have been irrevocably accepted by Buyer, and Buyer shall be deemed to have waived all claims based on any defect, damage, nonconformity, shortage or error that was or would have been discovered upon reasonable inspection during such Inspection Period. Any use of any Products for any purpose after delivery thereof shall also constitute irrevocable acceptance of the Products by Buyer. Any claims for damage, non-conformity, shortages or errors must be made in writing promptly following discovery thereof (in any event prior to the expiration of the Inspection Period), specifying the non-conformity in reasonably detail.
- If Buyer timely notifies Company of any Nonconforming Products, then Company shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the purchase price for such Nonconforming Products (excluding shipping and handling expenses incurred by Buyer in connection therewith). If Company exercises its option to replace Nonconforming Products, Company shall ship to Buyer, at Company’s expense and risk of loss, the replaced Products to the location that the Nonconforming Products were previously shipped. If the Company requests that Buyer return the Nonconforming Products, then the Buyer shall ship, at Company’s expense and risk of loss, the Nonconforming Products to the Facility and the Company may withhold the remedies provided under clauses (i) and (ii), above, until the Nonconforming Products are received by the Company. Nonconforming Products shall not be returned to Company without the Company’s prior written request or authorization. Buyer acknowledges and agrees that the remedies set forth in this Section 11(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided under this Section 11(b), all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under this Agreement to
12. Compliance with Law. Buyer shall at all times comply with all Laws (as defined below) applicable to this Agreement, Buyer’s performance of its obligations under this Agreement, and Buyer’s use or sale of the Products. Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase, sale or use of the Products; (b) at its own expense, ensure that the Products are compliant with the requirements of Proposition 65 (as defined below) and provide any warnings or disclosures required under Proposition for Products that exceed the exposure limit for any listed chemical, including but not limited to the lead-limits, present in any Product, in each case, to the extent that Proposition 65 is applicable; and (c) not engage in any activity or transaction involving the Products, by way of shipment, use or otherwise, that violates any Law. Company shall use commercially reasonable efforts to provide Buyer with any information requested in writing by the Buyer regarding the Products, including, without limitation, the chemical composition of the Products; provided that such information is available to or known by the Company and that such information is reasonably necessary for Buyer’s compliance with applicable Law. The term “Law” or “Laws” shall mean all applicable federal, state, and local laws, codes, statutes, ordinances, rules, regulations, and requirements of any applicable jurisdiction, and orders of any governmental or regulatory authority, including but not limited to: the California Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65”); the Consumer Product Safety Act of 1972 (as amended by the Consumer Product Safety Improvement Act of 2008); the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act; the Fair Packaging and Labeling Act; the Federal Food, Drug, and Cosmetic Act; the Federal Hazardous Substances Act; the Energy Policy and Conservation Act; all applicable amendments to any of the foregoing; all applicable rules and regulations promulgated pursuant to any of the foregoing; all applicable rules and regulations regarding maximum volatile organic compound content and associated markings; all applicable rules and regulations of the Federal Trade Commission and the U.S. Food and Drug Administration, and all applicable rules and regulations of any other federal, state, or local agency.
13. Trade Compliance Laws. Buyer shall comply with all applicable import and export control Laws relating to the sale of the Products under this Agreement or any resale of the Products by Buyer (“Trade Compliance Laws”), including, without limitation, compliance with (a) Trade Compliance Laws that prohibit the export, re-export or disclosure of certain Products, parts or technical data to any person or destination, and (b) embargoes, economic sanctions, anti-boycott Laws, and anti-money laundering Laws enforced by any governmental authority (including, without limitation, the U.S. Treasury Department’s Office of Foreign Assets Control, the United Nations, and the European Union). Buyer assumes all responsibility for shipments of Products requiring any government import clearance. Buyer agrees that it shall not permit any Products, parts or technical data that is subject to Trade Compliance Laws of the United States to be used, downloaded, exported, or re-exported in violation of such Trade Compliance Laws (specifically including those Laws relating to export administration and export control), and shall not permit them to be used by a citizen or resident of any country on which the United States has placed an embargo or by any disqualified party named on a list maintained by the United States government.
14. Instruction Manuals, Disclosures and Product Warnings. Buyer shall be solely responsible for any instructions (including, without limitation, any instruction manuals), disclosures, and warnings in connection with the Products, including, without limitation, any disclosures and warnings that may be required under Proposition 65 or other applicable Law.
15. Limited Warranty.
- Company warrants to Buyer that for a period of one hundred twenty (120) days from the date of shipment of the Products (“Warranty Period”), that such Products will materially conform to the Specifications and will be free from material defects in material and workmanship.
- Company warrants to Buyer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
- EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 15(a) AND 15(b), NEITHER COMPANY NOR ANY PERSON ON COMPANY’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR PERFORMANCE OF GOODS OR PRODUCTS TO STANDARDS SPECIFIC TO THE COUNTRY OF IMPORT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY COMPANY, OR ANY OTHER PERSON ON COMPANY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTIONS 15(a) AND 15(b), ABOVE.
- Products manufactured by a third party (“Third Party Product“) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Products. Third Party Products are not covered by the warranty in Section 15(a). For the avoidance of doubt, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
- The Company shall not be liable for a breach of the warranties set forth in Section 15(a) and/or Section 15(b) unless: (i) Buyer gives written notice of the defective Products or Services, as the case may be, reasonably described, to Company within thirty (30) days of the time when Buyer discovers or ought to have discovered the defect; (ii) if applicable, Company is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 15(a) to examine such Products and Buyer (if requested to do so by Company) returns such Products to Company’s place of business at Company’s cost for the examination to take place there; and (iii) Company reasonably verifies Buyer’s claim that the Products or Services are defective.
- The Company shall not be liable for a breach of the warranty set forth in Section 15(a) or Section 15(b) if: (i) Buyer makes any further use of such Products after giving notice under Section 15(e); (ii) the applicable Product has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, temperatures in excess of those recommended by Company (whether written or oral), abnormal environmental conditions, or use contrary to any instructions issued by Company (whether written or oral); (iii) the applicable Product has been reconstructed, repaired or altered by persons other than Company or its authorized representatives; or (iv) the applicable Product has been used with any third-party products, hardware, or product that has not been previously approved in writing by Company.
- Subject to Section 15(e) and Section 15(f) above, with respect to any such Products during the Warranty Period, Company shall, in its sole discretion, either: (i) repair or replace such Products (or the defective part) or (ii) credit or refund the price of such Products at the pro rata contract rate provided that, if Company so requests, Buyer shall, at Company’s expense, return such Products to Company.
- Subject to Section 15(e) and Section 15(f) above, with respect to any Services subject to a claim under the warranty set forth in Section 15(b), Company shall, in its sole discretion, (i) repair or re-perform the applicable Services or (ii) credit or refund the price of such Services at the pro rata contract rate.
- THE REMEDIES SET FORTH IN SECTIONS 15(g) AND 15(h) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND COMPANY’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTIONS 15(a) AND 15(b), RESPECTIVELY.
- If Company determines that any Products sold to Buyer may be defective, at Company’s request, Buyer shall withdraw all similar Products from sale and, at Company’s option, either return such Products to Company (pursuant to the terms of Section 15(g)) or destroy the Products and provide Company with written certification of such destruction. Notwithstanding the limitations of Section 15(i), if Buyer returns all withdrawn Products or destroys all withdrawn Products and provides Company with written certification of such destruction within thirty (30) days following Company’s withdrawal request, in either case consistent with Company’s instructions, unless any such defect has not been caused or contributed to by any of the factors described under Section 15(f), Company shall (i) repair or replace all such returned Products or (ii) replace such destroyed Products, in either case pursuant to the terms of Section 15(g). THIS SECTION 15(j) SETS FORTH BUYER’S SOLE REMEDY AND COMPANY’S ENTIRE LIABILITY FOR ANY PRODUCTS THAT ARE WITHDRAWN PURSUANT TO THIS SECTION 15(j).
16. Limitation of Liability.
- IN NO EVENT SHALL COMPANY BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO COMPANY FOR THE PRODUCTS AND SERVICES SOLD HEREUNDER.
- IF, FOR ANY REASON, THE LIMITATIONS set forth in this Section 18 ARE FOUND BY A COURT OR ARBITRATION PANEL TO BE INVALID OR INAPPLICABLE UNDER ANY APPLICABLE STATE OR FEDERAL LAW, then BUYER AGREES THAT COMPANY’S TOTAL LIABILITY FOR ALL LOSSES (AS DEFINED BELOW) OF ANY KIND OR NATURE SHALL BE LIMITED TO ACTUAL DAMAGES WITHOUT REGARD TO ANY PUNITIVE OR EXEMPLARY DAMAGES PROVIDED BY ANY APPLICABLE LAW.
- The limitation of liability set forth in Section 16(b) shall not apply to liability resulting from Company’s recklessness or willful misconduct.
- WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCTS IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY COMPANY, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE PRODUCTS.
17. Indemnification. Buyer agrees to indemnity, defend and hold harmless Company, its Representatives (as defined below), and their respective successors and assigns (collectively, the “Company Parties” and each individually, a “Company Party”) from any claim, demand, action, cause of action, judgement, damages, loss, liability, penalty, fine, cost or expense (including, without limitation, reasonably attorney’s fees) (collectively, “Losses”) that any Company Party may incur (or be obligated to pay) to the extent arising out of or resulting from: (a) the breach or non-fulfilment by Buyer of any its representations, warranties, covenants or agreements set forth in this Agreement; (b) the negligence, recklessness or willful misconduct of Buyer or its Representatives; (c) the violation of, or failure to comply with, any applicable Laws by Buyer or its Representatives; (d) any defect in the Specifications; (e) any actual or alleged infringement, inducement to infringe, or misappropriation of any Intellectual Property (as defined below) or other proprietary right by reason of the manufacture, use or sale of any Products; (f) any error, omission or deficiency in any instructions, disclosures, or warnings in connection with any Products; (g) any modification to or alteration of any Products by Buyer or its Representatives; and/or (h) any third party claim or recall relating to any Products; provided, however, that Buyer shall not be liable for any such Losses resulting from the recklessness or willful misconduct of Company. This indemnity shall apply without regard to whether the Losses are based on breach of contract, breach of warranty, negligence, strict liability or other tort. Company’s remedies under these terms and conditions are cumulative and in addition to any other remedies available to Company at law, in equity, by contract or otherwise. The term “Representatives” shall mean, with respect to an entity, such entity’s affiliates and the shareholders, members, directors, officers, managers, employees, agents and representatives of such entity and those of its affiliates.
18. Insurance. Commencing on the date of the Order and continuing for a period of four (4) years thereafter, Buyer shall, at its sole cost and expense, maintain and carry insurance in full force and effect, with one or more financially sound and reputable insurers reasonably satisfactory to Company, covering such risks as are customarily carried by companies engaged in similar businesses as the Buyer, which shall include, without limitation, commercial general liability insurance (including product liability) with aggregate policy limits sufficient to provide adequate protection, in Company’s reasonable judgment, against losses relating to the Products, but in no event shall the policy limits of such commercial general liability insurance be less than the Minimum Policy Limits (as defined below). The term “Minimum Policy Limits” shall mean $1,000,000 per occurrence and $2,000,000 general aggregate unless other policy limits are set forth in the Order, in which case the policy limits set forth in the Order shall be the Minimum Policy Limits. The above insurance coverages may be obtained through any combination of primary and excess or umbrella liability insurance. Upon Company’s request, Buyer shall provide Company with a certificate of insurance from Buyer’s insurer(s) evidencing the insurance coverage specified in these Terms. The commercial general liability policy required by these Terms shall name the Company as an additional insured on a primary and non-contributory basis and shall provide coverage on a worldwide basis, for both occurrences and suits. Buyer shall provide Company with thirty (30) days’ advance written notice in the event of a cancellation or material change in the policies of insurance required by these Terms. Except where prohibited by law, Buyer shall require its insurer(s) to waive all rights of subrogation against Company and Company’s insurers. Buyer’s liability to Company under the terms of this Agreement shall not be limited by the amount or terms of such insurance.
19. Proprietary Rights.
(a) Definitions.
(i) The term “Intellectual Property” shall mean any and all worldwide right, title and interest, whether or not filed, perfected, registered or recorded and whether now or hereafter existing, filed, issued or acquired, in or relating to: (A) patents and patent applications, including any and all reissues, reexaminations, post grant proceedings and amendments made during the same and extensions thereof, (B) works of authorship, whether or not published, including but not limited to copyrights and copyright applications and registrations, (C) trade secrets and confidential information, (D) industrial design, shop and mask rights, (E) trademarks, service marks, trade names, trade dress, logos, corporate names, brand names and other source indicators, (F) software, domain names and registrations therefor, and all website content, including text, graphics, images, audio, video and data, (G) any rights analogous to those set forth in the preceding clauses and any other proprietary rights, and (H) all translations, adaptations, derivations, and combinations of any of the foregoing and all related goodwill.
(ii) The term “Buyer Intellectual Property” shall mean any Intellectual Property that is: (A) owned or licensed by Buyer prior to the date of the Order; and/or (B) developed, licensed or acquired by Buyer separate from this Agreement, without use of any of the Company Intellectual Property. The term “Company Intellectual Property” shall mean any Intellectual Property that is: (A) owned or licensed by Company prior to the date of the Order; and/or (B) developed, licensed or acquired by Company separate from this Agreement, without use of the Buyer Intellectual Property.
(iii) The term “Developed Intellectual Property” means any Intellectual Property (excluding the Company Intellectual Property and any Intellectual Property containing, embodying, or derived from the Company Intellectual Property): (a) developed by Company or its Representatives, alone or jointly with Buyer, in connection with Company providing Services and/or Products hereunder, or (b) containing, embodying, or derived from Buyer Intellectual Property.
(b) The parties acknowledge and confirm that, as to any Developed Intellectual Property that constitutes “works of authorship,” Company’s contributions to such Developed Intellectual Property were prepared for Buyer and at all times were and shall be regarded as “works made for hire” (as those terms are used in the U.S. Copyright Act, 17 U.S.C. §§ 101, 102(a)) by Company for Buyer, and all copyright rights in such Developed Intellectual Property are owned solely, completely, and exclusively by Buyer, free and clear from all claims of any nature relating to Company’s contributions or other efforts, and Buyer has the right to register its claim of copyright in such Developed Intellectual Property in the name of Buyer as author. Without limiting the foregoing, Company shall and does hereby irrevocably assign, grant and transfer to Buyer all present and future title, right, and interest in and to any and all Developed Intellectual Property, and Company shall and does hereby waive in favor of Buyer any moral rights or retained interest that Company might possess in any Developed Intellectual Property. Company shall execute (or cause its employees and agents to execute) any application, assignments, or other instruments reasonably necessary or useful to enable Buyer, as Buyer deems appropriate, to effect assignment and apply for and obtain protection in the United States and all foreign countries for the Developed Intellectual Property. Buyer shall be responsible for all costs and expenses related to applying for and obtaining such protections and registrations for the Developed Intellectual Property.
(c) Buyer hereby grants Company (and its Representatives) a nonexclusive, worldwide, non-transferable, non-sublicensable, fully paid up, royalty-free license and/or sublicense to use the Buyer Intellectual Property and Developed Intellectual Property for the purpose of providing Services and/or Products hereunder. Except as expressly permitted by these Terms or the Order, Company agrees that it will not: (i) lease, loan, sell, assign, transfer, sublicense, or otherwise distribute the Buyer Intellectual Property or Developed Intellectual Property to third parties; (ii) create derivative works from the Buyer Intellectual Property or Developed Intellectual Property or remove or obliterate any patent, trademark, copyright, or other notices; or (iii) reverse engineer, disassemble, or decompile the Buyer Intellectual Property.
(d) Company hereby grants Buyer a nonexclusive, worldwide, transferable, non-sublicensable, fully paid up, royalty-free license and/or sublicense to use the Company Intellectual Property incorporated into Services and/or Products for the purpose of using, operating and reselling the Products. Except as expressly permitted by these Terms or the Order, Buyer agrees that it will not: (i) lease, loan, resell, sublicense, or otherwise distribute the Company Intellectual Property to third parties (including, without limitation, affiliates of Buyer); (ii) create derivative works from the Company Intellectual Property or remove or obliterate any patent, trademark, copyright, confidentiality, proprietary or other notices; (iii) reverse engineer, disassemble, or decompile the Company Intellectual Property; (iv) take any action that may interfere with any of Company’s rights in or to the Company Intellectual Property, including Company’s ownership thereof or the exercise of its rights thereunder; (v) challenge any right, title or interest of Company in or to the Company Intellectual Property; (vi) make any claim or take any action adverse to Company’s ownership of the Company Intellectual Property; or (vii) register or apply for registrations, anywhere in the world, for any of the Company Intellectual Property or any other Intellectual Property that incorporates or is derived from any Company Intellectual Property.
20. Confidentiality. All non-public, confidential or proprietary information of Company, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Company to Buyer, 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 this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Company in writing. Upon Company’s request, Buyer shall promptly return all documents and other materials received from Company. Company shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
21. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, that Buyer shall not assign its rights or obligations under this Agreement without Company’s prior written consent. Any attempted assignment by Buyer in violation of this Section shall be void and have no force and effect. Company may subcontract the performance of any of its duties or obligations hereunder to any third party.
22. Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of Wisconsin, without giving effect to its conflicts of laws provisions. Any litigation or proceeding arising out of this Agreement shall be brought exclusively in the courts of the State of Wisconsin located in Brown County, or the courts of the United States located in the Eastern District of Wisconsin – Green Bay Division. Buyer and Company hereby knowingly, voluntarily and irrevocably consent the personal jurisdiction of such courts and waive any objection as to venue or forum non conveniens. Each of the parties hereby waives the right to a trial by jury in connection with any such litigation or proceeding.
23. Force Majeure. The Company shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Company, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage. In the event of such delay, the date of delivery or performance shall be extended for a period equal to the time lost by reason of such delay.
24. Miscellaneous. This Agreement (including these Terms and the Order) constitutes and represents the complete and entire agreement between Company and Buyer with respect to the subject matter of the Order, and supersedes all other understandings, communications, representations, proposals and agreements, either written or verbal, with respect to the subject matter of the Order. No modification of these terms and conditions shall be binding on the parties unless made in writing and signed by an authorized representative of each party. The waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement or of any future breach of the provision so waived. If any provision, clause or part, or the application thereof is held invalid, the remainder of this Agreement or the application of such provision, clause or part under other circumstances shall not be affected thereby.
Updated 03/05/2024