1. ACCEPTANCE. Purchaser’s purchase order referred to on the face hereof is accepted subject to the terms and conditions hereof. No effect shall be given to any term, conditions, understandings, agreements or representations, verbal or otherwise, not contained in this acknowledgment. If any of the terms hereof are not acceptable to the Purchaser, the Purchaser shall notify McNally Industries, LLC, Northern Pump Division (hereafter referred to as MI/NPD) in writing within five (5) days after receipt as to any unacceptable term. Failure to so advise shall constitute acceptance of MI/NPD’s terms and conditions. This acknowledgment shall constitute the contract (the “Contract”) between Purchaser and MI/NPD relating to the sale and purchase of the Items, material, equipment, and services described on the face hereof (the Notwithstanding anything herein to the contrary, Purchaser’s acceptance, use or re-sale of the Products shall constitute its express agreement to the terms and conditions set forth herein unless otherwise agreed to in writing by MI/NPD.
2. DELIVERY. Any delivery date set forth in this acknowledgment is approximate. MI/NPD recognized the desirability of making delivery promptly. However, MI/NPD shall not be responsible for any loss or damage resulting from any delay in delivering or failure to deliver the Products where such delay or failure is caused by fire, flood, natural causes, labor trouble (including strikes, slowdowns, and lockouts), war, Government regulations, riots civil disorders, interruption of or delay in transportation, power failure, inability to obtain materials and supplies, accidents, acts of God, or any other cause beyond MI/NPD’s control. Default by MI/NPD in the making of any shipment hereunder of the Products shall not affect any prior shipments of Products or entitle Purchaser to reject any subsequent shipments hereunder of Products. MI/NPD shall not be liable for any penalty or liquidated damages relating to failure or inability to ship the Products within a specified time and no clause in any document relating hereto that provides for such penalty or liquidated damages shall be given any effect.
3. DISCLAIMER OF CONSEQUENTIAL DAMAGES. MI/NPD shall not be liable for consequential damages arising out of or in connection with this Contract, including consequential damages arising out of , connected with, or resulting from: (i) delays in delivery; (ii) MI/NPD’s performance, nonperformance, or breach of this Contract; (iii) defects in the Products, failure of the Products to perform properly, (iv) MI/NPD’s negligence; or (v) strict liability in tort, notwithstanding anything herein to the contrary. Consequential damages for purposes hereof shall include loss of use, loss of income or profit, loss of revenue, increase in costs and other business losses, losses sustained as the result of injury (including death) to any person; and loss of or damage to property (including but not limited to materials manufactured, processed, or transported by the use of the Products).
4. INSPECTION. Purchaser shall inspect the Products within ten (10) days after receipt thereof. Unless Purchaser, within said period of time, gives written notice to MI/NPD specifying any proper objection to the Products, it shall be conclusively presumed that Purchaser has fully inspected and acknowledged that the Products conform to the Contract and that Purchaser is satisfied with and has accepted the Products.
5. PRICE. Price(s) set forth on the face of this acknowledgment does not include charges for: (i) additional work and delays caused by defective material (including material with voids, inclusions, hard spots, etc.) furnished by Purchaser; (ii) additional machining to remove from Purchaser-furnished material excess stock over normal or specified machining allowances; or (iii) extra setups or other additional effort incurred because of untimely delivery of Purchaser-furnished material. Purchaser shall pay the price(s) set forth on the face of this acknowledgment, together with any additions thereto based on the foregoing, and any agreed upon change in said price(s) within thirty (30) days after date of
6. WARRANTY. The Products manufactured by MI/NPD specified in this acknowledgment are warranted to be free from defects in material and workmanship under normal use and service; MI/NPD’s obligation under this warranty being limited to repairing or replacing, at its option, any part of any of the Products which, within one (1) year from date of shipment, is found to be defective, provided that such defect is reported to MI/NPD within such one (1) year period and such part is, upon request, returned to MI/NPD’s factory from which it was shipped, transportation prepaid. This warranty does not cover: (i) any part damaged by decomposition from chemical action or wear caused by abrasive materials; (ii) damage resulting from misuse, accident, or neglect, or from improper operation, maintenance, installation, modification, or adjustment; or (iii) Products disassembled or repaired outside of MI/NPD’s factory in such a manner as to adversely affect performance or prevent adequate inspection and test to verify any warranty claim. MI/NPD makes no warranty as to any equipment, electrical apparatus, or other material not of its manufacture, since the same are usually covered by warranties of the respective manufacturers thereof. Furthermore, MI/NPD does not warrant or represent that the goods supplied hereunder comply with the provisions of any law, including but not limited to the Occupations Safety and Health Act of 1970 and any standards or regulations issued pursuant thereto, provided however, MI/NPD does represent that the Products furnished hereunder which were or will be produced by MI/NPD, were or will be produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended. Any claim for breach of this warranty shall be waived unless it is delivered to MI/NPD in writing within thirty (30) days after the earlier of the day the defect was discovered or should have been discovered by reasonable inspection. THIS WARRANTY IS EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. CANCELLATION. Purchaser may not terminate the Contract without MI/NPD’s prior written consent signed by an authorized representative of MI/NPD. If Purchaser shall attempt to terminate without MI/NPD’s properly authorized consent or shall otherwise repudiate the Contract, Purchaser shall be liable to MI/NPD for all of MI/NPD’s costs and other commitments incurred to date of such attempted termination, plus MI/NPD’s incidental damages, plus the profit MI/NPD would have made from full performance of the Contract.
8. COMPLIANCE WITH LAWS. Purchaser shall be solely responsible for securing any necessary permits under and for compliance with all safety, health and sanitation laws, ordinances, and regulations in connection with the installation and operation of the Products.
9. INDEMNIFICATION. It is understood that MI/NPD has relied upon data furnished by and on behalf of Purchaser with respect to the safety aspects of the Products and that it is Purchaser’s responsibility to ensure that the Products will, when installed and put in use, be in compliance with safety requirements fixed by law and otherwise legally adequate to safeguard against injuries to persons or property. Purchaser hereby agrees to defend, indemnify, and hold harmless MI/NPD, its agents and employees, against any and all losses, costs, damages, claims, liabilities, and expenses of whatever nature (including attorneys’ fees) for death, bodily injury, property damage, or loss of use of property sustained by or claimed to be sustained by Purchaser, its agents or employees, by third parties, or by employees of MI/NPD, arising out of or in any way connected with work performed on or installation, use, operation, repair, modification, or maintenance of the Products or the inadequacy in the Products of safety features, devices, or characteristics as specified herein, except claims for repair or replacement of defective parts as provided in section 6 hereof or claims for defective workmanship as provided in section 15 hereof.
10. PATENTS AND COPYRIGHTS. The Purchaser agrees to defend, hold harmless and indemnify MI/NPD against any claims, costs (including attorneys’ fees), or liabilities for, or by reason of, an alleged patent or copyright infringement arising from: (i) the manufacture or sale or any of the Products which are manufactured in accordance with the specifications furnished by Purchaser, or (ii) the use of materials, tools, equipment, or other articles furnished by Purchaser under this Contract. MI/NPD at its own expense, shall defend any suit brought against Purchaser on the ground that the use of the Products (other than us, manufacture, or sale for which Purchaser agrees to indemnify MI/NPD as provided in the immediately preceding paragraph of this section 10), when used by Purchaser for the purpose for which manufactured and sold, infringe any United States Letters Patent or copyright, and pay the amount of any judgment that may be awarded against Purchaser in any such suit, provided and upon the condition that Purchaser shall have made all payments due for such Products and shall: (i) promptly deliver to MI/NPD all infringement notices and other papers received by or served upon Purchaser, (ii) permit MI/NPD to take complete charge of the defense of any such suit (and to settle the same if this be deemed advisable by MI/NPD), and (iii) assist in every reasonable way in the conduct of such defense. In the event that Purchaser shall be enjoined by any court of competent jurisdiction from using Products manufactured to MI/NPD’s design for the intended purpose or if it is at any time established to MI/NPD’s satisfaction, upon due investigation, that such Products infringe an existing United States Patent or copyright, MI/NPD, at it’s option, may either; (i) procure for Purchaser a license to continue using such Products, (ii) modify such Products so as to make them noninfringing without seriously impairing their performance, (iii) replace such Products with equipment substantially equal but noninfringing, or (iv) remove such Products from place of installation, in which event, MI/NPD shall refund to Purchaser or owner the purchase price less depreciation at the rate of 20 percent per year. The foregoing sets forth MI/NPD’s entire liability to Purchaser for patent and copyright infringement based on the possession and use of such Products; it being understood and agreed that the aforesaid obligations of MI/NPD do not extend to, and are not applicable in case of, any patent or copyright infringement claims directed to a method or process.
11. ADDITIONAL CHARGES. The terms and conditions of this Contract shall apply to sales of substitutes for, additions to, or repair parts for the Products in the event separate terms and conditions are not agreed upon between the parties therefor.
12. RETURNED PRODUCTS. Products returned by Purchaser will not be accepted by MI/NPD without MI/NPD’s prior written consent. A service charge to cover the expense of restocking and handling Products accepted for credit will be made. All returned Products must be shipped to MI/NPD transportation prepaid.
13. NOTICES. Any notices required or permitted hereunder shall be deemed to have been given when deposited as certified mail in a United States Post Office or receptacle maintained by the United States Government for posting of mail.
14. TITLE. Title to the Products and to any and all additions and accessories thereto and substitutions therefor shall remain in MI/NPD until the purchase price is paid in full.
15. PURCHASER-FURNISHED PROPERTY. When material and/or equipment is supplied by the Purchaser and accepted by MI/NPD for performance of labor or services by MI/NPD on such material and/or equipment, or for any other reason, whether or not such material and/or equipment is listed as part of this acknowledgment, the following additional terms and conditions shall apply and shall supersede the foregoing terms and conditions in section 6 concerning warranty of material and workmanship to the extent they conflict with such terms and conditions. Under no circumstances shall MI/NPD be liable for direct or consequential damages resulting from any of the acts performed by MI/NPD or which MI/NPD fails to perform with respect to material and/or equipment furnished by the Purchaser, nor for loss of or damage to such material and/or equipment while in MI/NPD’s possession, or in transit to or from MI/NPD resulting from MI/NPD’s handling or processing or negligence or from any other cause. MI/NPD shall not be entitled to compensation for processing Purchaser-furnished material which becomes defective by reason of MI/NPD negligence in such processing. If the processing results in defective parts because of defective material or erroneous drawings or instructions furnished to MI/NPD, MI/NPD shall be entitled to full payment of its charges in connections with such material. If defective workmanship can be repaired, no allowance or payment will be made for labor, repairs, or alterations performed by the Purchaser without MI/NPD’s properly authorized written consent. In no case shall MI/NPD be liable for more than the price charged for such MI/NPD work as may not be in accordance with the specifications. MI/NPD shall be obligated to return to the Purchaser, at Purchaser’s expense, all material furnished by Purchaser which is found to be defective.
16. RISK OF LOSS. Notwithstanding the place designated in the Contract as the f.o.b. point or the designation herein by MI/NPD of the carrier or section 14 hereof and subject to the provision of section 15 above, risk of loss shall pass to the Purchaser upon delivery of the Products to a carrier.
17. TAXES. All Federal, State, or Municipal sales, use, excise, or other taxes applicable to the sale of the Products shall be paid by Purchaser or, in lieu thereof, Purchaser shall furnish MI/NPD with tax-exemption certificates acceptable to said taxing authorities.
18. SELLER’S REMEDIES. Purchaser shall indemnify MI/NPD for all costs and expenses (including attorneys’ fees) reasonably incurred in enforcing MI/NPD’s rights under the Contract. In addition to any other remedy provided by law, MI/NPD shall have the right to repossess any of the Products delivered by MI/NPD but not paid for by Purchaser.
19. SEVERABILITY. If any phrase, clause, sentence, or paragraph, or combination of same contravenes the applicable laws of the United States or of any state or jurisdiction, such phrase, clause, sentence, or paragraph shall be inoperative in such jurisdiction and the remainder of the Contract shall remain binding on the parties hereto.
20. LIMITATION OF ACTIONS. Any cause of action for breach of the Contract shall be brought within one (1) year from the date it accrued.
21. LAW GOVERNING. This contract shall be construed in accordance with and be governed by the law of the State of Wisconsin, United States of America.
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