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General Terms and Conditions

Schwanog LLC

 

GENERAL TERMS AND CONDITIONS


1. GENERAL. The terms and conditions set forth herein (the "Terms and Conditions") shall apply to the sale of goods and services and providing of services by Schwanog LLC or any of its affiliates ("Seller"). These Terms and Conditions merge and supersede all prior negotiations or agreements of the parties, either written or oral. These Terms and Conditions cannot be modified or amended except by a subsequent written instrument executed by the parties which expressly supersedes the provisions contained herein. Any additional or different terms provided by the purchaser of the goods and services ("Buyer") in subsequent purchase orders or other documents shall not be binding..

2. CONCLUSION OF CONTRACT. All offers and prices by Seller are subject to change without notice. Buyer is bound to its offer to Seller for a period of four (4) weeks. An agreement (the "Order") between the parties is deemed to be concluded when Seller accepts the confirmed offer in writing or by fax, performs the delivery within such four (4) week period. Orders may only be reduced or cancelled by mutual consent of the Parties and are subject to a penalty in the amount of 20% of the original value of the Order.

3. PRICES AND PAYMENT. All prices are ex works Seller and do not include discounts, packaging, loading, transport, unloading, insurance, and/or other services and value added tax. Prices only apply to a specific Order, including the Order's specific quantities. Seller reserves the right to increase prices if the information by Buyer necessary to fulfil the Order (such as drawings, samples, adjustment pieces or templates) are incorrect, incomplete or differ from such information previously provided by Buyer to Seller. Unless agreed otherwise between the parties in writing, all payments hereunder are due within thirty (30) days of Buyer's receipt of an invoice.

4. TAXES. All payments under the Order are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Buyer regardless of which party such taxes are imposed upon (with the exception of any taxes computed with regard to Seller's income). In the event Buyer is required by law to withhold taxes, Buyer agrees to furnish Seller all required receipts and documentation substantiating such payment. If Seller is required by law to remit any tax or governmental charge on behalf of or for the account of Buyer, Buyer agrees to reimburse Seller within thirty (30) days after Seller notifies Buyer in writing of such remittance. Buyer agrees to provide Seller with valid tax exemption certificates in advance of any remittance otherwise required to be made by Seller on behalf of or for the account of Buyer, where such certificates are applicable.

5. CREDIT. Seller may recover for each shipment hereunder as a separate transaction, without reference to any other shipment. If Buyer fails to pay any invoice in accordance with these Terms and Conditions or is past due in payment of any other amount owing to Seller, Seller may, at its option (and without liability and without prejudice to any other remedies) defer further shipments until all payments owing to Seller by Buyer have been made, stop any Order in transit, and/or decline further performance of an Order. If at any time in the judgment of Seller, the financial responsibility of Buyer is impaired, Seller may change the terms of payment and may require advance payment as a condition of shipment or cancel the Order entirely.

6. TRANSPORTATION. Seller may, at its option, deliver from points other than that specified (but shall not be obligated to do so) provided that such delivery shall not result in a higher delivered cost to Buyer. Unless agreed between the Parties, Seller shall have the right to select the means of transportation. If Buyer requires a means of transportation other than that selected by Seller, any extra cost incurred by reason of using such other means shall be paid by Buyer. If freight or other transportation costs are increased, Seller may add any such increase to the Order price without prior notice thereof to Buyer. The weights, tares and tests fixed by Seller's invoice shall govern unless proven to be incorrect. Buyer shall be responsible for asserting claims for losses or damages in transit directly against the carrier.

7. DELIVERIES. Buyer shall give Seller reasonable prior notice of the desired timing of deliveries. Delivery dates set forth in the Order, if any, shall mean the date on which Seller shall hold the Products ready for pickup or shipment. All quantities are subject to Seller's reasonable production capabilities. Seller reserves quantity deviations of up to ten percent (10%) per delivery.

8. BUYER'S HANDLING OF PRODUCT. Buyer assumes all risks and liability, and Seller assumes no risk and no liability, with respect to loading, unloading and discharge of the Product (including failure of discharge or unloading implements or material used by Buyer, whether or not supplied by Seller), storage, handling, sales and use of the product, and the compliance or noncompliance with all federal and local laws and regulations with respect thereto.

9. TITLE. All sales are F.O.B./F.C.A. Seller's facility. Title to and risk of loss of all products sold hereunder ("Products") shall pass to Buyer upon Seller's delivery to carrier at point of shipment whether or not Seller pays all of or of any part of the freight, and notwithstanding any designation in the Order of any other F.O.B./F.C.A. point. Seller shall retain a first priority security interest in and a lien on such Product until payment by Buyer of all amounts due Seller from Buyer with respect to such Product. Title to tools used, manufactured or acquired by Seller for fulfilling the Order will remain with Seller; this also applies if Buyer bears part of the costs for the acquisition or manufacturing of such tools. Seller will retain title and copyrights to design drawings and other documents prepared in connection with the Order.

10. NOTICE OF CLAIMS. All claims must be received by Seller in writing within thirty (30) days after Buyer's receipt of the any Products. With respect to any defects incapable of discovery by Buyer (with the exercise of reasonable diligence) until in use or in processing in the manufacture of other Products, all claims must be received by Seller in writing within fifteen (15) days after Buyer learns (or, with the exercise of reasonable diligence, could have learned) of the alleged defect. All claims must be received by Seller at the address specified in the Order. All claims not made in writing as specified above and received by Seller within the time periods specified above shall be deemed waived. Upon receipt of Buyer's notification, Seller shall have the option of making inspection, analyses and tests of the Product at Buyer's premises or of requiring Buyer to send the Product or adequate samples thereof, at Buyer's expense, to Seller or to a person designated by Seller for inspection, analyses and tests. No Product or sample shall be returned to Seller without prior written authorization from Seller. No inspection or any other actions by third parties are authorized or will be paid for by Seller, without Seller's prior consent in writing.

11. WARRANTIES; LIMITATION OF LIABILITY; REMEDIES; DAMAGES. Seller warrants to Buyer that (a) the Product is of the quality set forth in Seller's published specifications, if any, or, as may be otherwise stated in writing in these Terms and Conditions or the Order, and (b) the title conveyed is good and the Product is free from any security interest, lien or encumbrance (other than in favor of Seller for the unpaid balance of all amounts due Seller from Buyer with respect to the Product). Such warranties extend only to Buyer. EXCEPT AS EXPRESSLY SET FORTH IN THE FOREGOING SENTENCE, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY THAT THE PRODUCT SOLD HEREUDER IS NON-INFRINGING, IS OF MERCHANTABLE QUALITY, OR THAT THE PRODUCT SHALL BE FIT FOR ANY PARTICULAR PURPOSE. THERE ARE NO OTHER WARRANTIES EXPRESSED OR IMPLIED BY OPERATION OF LAW OR OTHERWISE.
SELLER SHALL NOT BE LIABLE TO BUYER OR ANYONE ELSE FOR ANY SPECIAL, INDIRECT, ECONOMIC, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT, THESE TERMS AND CONDITIONS, THE ORDER OR ANY BREACH OF THE ORDER OR THESE TERMS AND CONDITIONS INCLUDING, BUT NOT LIMITED TO, ANY LOSS OR DAMAGE RESULTING FROM THE USE OF THE PRODUCT IN BUYER'S MANUFACTURING PROCESSES OR IN COMBINATION WITH OTHER SUBSTANCES.
IF THE PRODUCT DOES NOT CONFORM TO THE WARRANTIES SET FORTH IN THIS SECTION, OR IF BUYER MAKES ANY OTHER CLAIM OF ANY SORT WHATSOEVER, INCLUDING THE CLAIMS SET FORTH ABOVE, AGAINST SELLER, BUYER'S EXCLUSIVE REMEDY SHALL BE LIMITED TO REPLACEMENT OF THE PRODUCT, OR, AT SELLER'S OPTION, REPAYMENT OF THE PURCHASE PRICE PAID BY BUYER. Any Product supplied by Seller hereunder to replace Product shall be deemed supplied to Buyer subject to all of these Terms and Conditions, including, without limitation, those concerning warranties, limitation of liability, remedies and damages, to the same extent as the Product. In the event Seller agrees to replace any Product or agrees to repay to Buyer the purchase price of any Product supplied by Seller to Buyer under any Order pursuant to these Terms and Conditions, Buyer agrees that it shall take reasonable steps, at Seller's written request, to return to Seller (at Seller's expense) the product for which replacement or repayment is sought.
SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR ADEQUACY OF INFORMATION FURNISHED TO BUYER CONCERNING THE PHYSICAL CHARACTERISTICS AND INGREDIENTS OF, AND PROTECTIVE MEASURES TO BE TAKEN REGARDING THE PRODUCT. SELLER SHALL NOT BE LIABLE FOR ANY ERROR OR OMISSION IN THE PREPARATION OF SUCH INFORMATION. SELLER SHALL NOT BE LIABLE TO BUYER, BUYER'S EMPLOYEES OR ANYONE IN CONNECTION WITH THE ACCURACY, ADEQUACY OR FURNISHING OF SUCH INFORMATION.

12. LIMITATION OF ACTIONS. Any action for Seller's breach of these Terms and Conditions or the Order (including breach of warranties) must be commenced by Buyer within one (1) year after the cause of action accrues, and no such action may be maintained which is not commenced within such period.

13. INFRINGEMENT. Buyer assumes all risk of patent infringement by reason of any use Buyer makes of the Product in combination with other material or in the operation of any process.

14. INDEMNITY. Buyer shall defend (including attorneys' fees), indemnify and hold Seller harmless from and against all damages, causes of action, claims, liabilities, penalties, personal injuries (including death), environmental damages and tangible property damage caused by Buyer's negligence, strict liability, breach of warranty, breach of these Terms and Conditions and the Order, fault, omissions and willful or wanton conduct arising, without limitation, from the handling, transportation, blending, modification, processing, storage and use of the goods, products or services provided hereunder.

15. FORCE MAJEURE. Neither party shall be liable for its failure to perform hereunder if due to any event beyond the reasonable control of the party affected, including but not limited to acts of God, war, fire, bad weather, flood, accident, labor trouble or shortage, terrorism, civil disturbance, plant shutdown, equipment failure, voluntary or involuntary compliance with any applicable governmental regulation or order, or shortage or inability to obtain (on terms deemed reasonable by the party affected) any raw material (including energy), equipment or transportation, which materially impairs such party's ability to so perform. Any quantities not delivered or accepted because of any such event shall be eliminated from the Order without liability. Seller shall not be obligated to deliver the Product from other than the production or shipping points designated herein and shall not be obligated to rebuild or repair any damage or destruction to such production or shipping points in order to fulfill the Order. Seller shall also not be obligated to obtain any raw materials or Product from sources other than its usual sources. During any period when Seller is unable to supply the Order quantity of the Product, whether caused by the circumstances above or otherwise, Seller may allocate any available Product, among its customers, including its own subsidiaries, divisions and departments, on such basis as Seller deems fair and reasonable, and its failure, partial or otherwise, to make deliveries to Buyer shall not be a breach of the Order.

16. ASSIGNMENT. The Order and the rights and obligations of Buyer thereunder shall not be assignable by Buyer, either by act of Buyer or by operation of law without the prior written consent of Seller, and shall not be deemed an asset of Buyer in, and at the option of Seller shall terminate in the event of, the commencement of any case or proceeding in respect of Buyer under any bankruptcy, insolvency or similar law or any assignment for the benefit of creditors. At the option of Seller, the Order shall terminate in the event of the insolvency of Buyer. Any purported assignment of the Order without the prior consent of Seller shall be void.

17. GOVERNING LAW AND FORUM SELECTION. The Order and these Terms and Conditions are made under and shall be governed by, construed in conformance with, and all disputes shall be governed by the internal laws (exclusive of the conflicts of law principles) of the State of Illinois. The United Nations Convention on Contracts for the International Sale of Goods (CIGS) shall not apply. All disputes, claims demands, liabilities and causes of action related to an Order shall be exclusively resolved by arbitration which shall be commenced by filing a Notice of Arbitration under the then current Commercial Rules of the CPR International Institute for Conflict Prevention and Resolution Rules for Non-Administered Arbitrations ("CPR Rules"). The entire dispute and all related disputes that the parties may have or possess shall be arbitrated in accordance with the CPR Rules in effect, by a sole arbitrator. The arbitrator shall determine the rights and obligations of the parties according to applicable substantive laws and the express terms of these Terms and Conditions and the Order. The arbitrator shall not be empowered to grant any damages in excess of those permitted or limited under the express terms of the Order and these Terms and Conditions. The selection of the arbitrator shall be made by agreement of the parties. In the event the parties cannot agree upon the selection of an independent arbitrator, the arbitrator shall be appointed pursuant to CPR Rules. The party prevailing on substantially all of its claims in arbitration shall be entitled to recovers its costs, including reasonable attorney fees, on a full indemnity basis, for the arbitration proceeding, as well as any ancillary proceedings, to request interim measures, or to confirm or set aside an award. The arbitration shall be governed by the rules of CPR, and judgment upon the award rendered by the arbitrator may be entered by any court having competent jurisdiction. The place of the arbitrations shall be Chicago, Illinois. The parties may however, seek solely injunctive or equitable relief in a court of competent jurisdiction.

18. SEVERABILITY. If any provision of these Terms and Conditions shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Order. The entire Order shall be construed as if not containing the particular invalid or unenforceable provision and the rights and obligations of each party shall be construed and enforced accordingly.

19. BUYER'S BREACH OF CONTRACT. If Buyer fails to perform any of the terms of these Terms and Conditions or the Order, Seller may at its option defer shipments until the default is remedied and/or treat such default as a breach of the entire Order.

20. NON-WAIVER. Seller's waiver of any breach or failure to enforce any of the terms or conditions of these Terms and Conditions or the Order at any time shall not in any way affect, limit or waive its right thereafter to enforce strict compliance with every term and condition hereof.

02/2024

Schwanog LLC

1301 Bowes Road, Suite A,

Elgin, IL 60123

Phone: 847-289-1055

Fax: 847-289-1056

info.usa@schwanog.com