CENTRAL STATES DIESEL GENERATORS, LLC
STANDARD TERMS AND CONDITIONS OF SALE
1. Applicability. These terms and conditions of sale (“Terms”) and the
accompanying sales quote, proposal, confirmation, acknowledgement, or
invoice (collectively with the Terms, the “Agreement”) are the only terms
which govern the sale of the equipment (“Equipment”) by Central States
Diesel Generators, LLC (“Seller”) to the buyer (“Buyer”). The Agreement
comprises the entire agreement between the parties, and supersedes all
prior or contemporaneous understandings, agreements, and
communications, both written and oral, with respect to the subject matter
hereof. These Terms prevail over any of Buyer’s terms and conditions of
purchase, regardless whether or when Buyer has submitted its purchase
order or such terms. Fulfillment of Buyer’s order does not constitute
acceptance of any of Buyer’s terms and conditions and does not serve to
modify or amend this Agreement.
2. Delivery. The Equipment will be delivered when and as provided in
the Agreement. Unless otherwise agreed in writing, Seller shall deliver the
Equipment to Seller’s shipping dock (“Delivery Point”). Delivery shall be
made FOB Delivery Point, or as otherwise expressly provided in the
Agreement. All freight, insurance, and other shipping expenses shall be
borne by Buyer. Seller is not liable for damage or losses incurred by Buyer
as a result of freight damage or delays.
3. Title and Risk of Loss. Title and risk of loss passes to Buyer upon
delivery of the Equipment at the Delivery Point. Until full payment of all
invoiced amounts due Seller and as collateral security for the payment of
all such amounts, Buyer hereby grants to Seller a lien on and security
interest in and to all of the rights, title, and interest of Buyer in, to, and
under the Equipment, wherever located, and whether now existing or
hereafter arising or acquired from time to time, and in all accessions thereto
and replacements or modifications thereof, as well as all proceeds
(including insurance proceeds) of the foregoing. The security interest
granted under this provision constitutes a purchase money security interest
under the Wisconsin Uniform Commercial Code.
4. Inspection and Rejection of Nonconforming Equipment. Buyer
shall inspect the Equipment within forty-eight (48) hours of Buyer’s receipt
of the Equipment (“Inspection Period”). Buyer will be deemed to have
accepted the Equipment unless it notifies Seller in writing of any
Nonconforming Equipment during the Inspection Period and furnishes such
written evidence or other documentation as required by Seller.
“Nonconforming Equipment” means only that the product shipped is
different than identified in Buyer’s purchase order or is damaged. If Buyer
timely notifies Seller of any Nonconforming Equipment, Seller shall, in its
sole discretion, (i) have the right to inspect any Nonconforming
Equipment; (ii) repair the Nonconforming Equipment at the location of
such Nonconforming Equipment; (iii) replace such Nonconforming
Equipment with conforming Equipment; or (iv) credit or refund the Price
for such Nonconforming Equipment. Buyer shall ship, at its expense and
risk of loss, the Nonconforming Equipment to Seller as directed by Seller.
If Seller exercises its option to replace Nonconforming Equipment, Seller
shall, after receiving Buyer’s shipment of Nonconforming Equipment,
deliver the replaced Equipment to Buyer at the Delivery Point. Buyer
acknowledges and agrees that the remedies set forth in this Section are
Buyer’s exclusive remedies for the delivery of Nonconforming Equipment.
5. Price. Buyer shall purchase the Equipment from Seller at the price set
forth in the Agreement (“Price”). All Prices are exclusive of all sales, use,
and excise taxes, and any other similar taxes, duties, and charges of any
kind imposed by any Governmental Authority on any amounts payable by
Buyer. Buyer shall be responsible for all such charges, costs, and taxes;
provided, that, Buyer shall not be responsible for any taxes imposed on, or
with respect to, Seller’s income, revenues, gross receipts, personnel, or real
or personal property or other assets.
6. Payment Terms. Buyer shall pay all invoiced amounts due to Seller
within thirty (30) days from the date of Seller’s invoice. Buyer shall pay
interest on all late payments at the lesser of the rate of 1.5% per month or
the highest rate permissible under applicable law, calculated daily and
compounded monthly. Buyer shall reimburse Seller for all costs incurred in
collecting any late payments, including, without limitation, attorneys’ fees.
In addition to all other remedies available under these Terms or at law
(which Seller does not waive by the exercise of any rights hereunder),
Seller shall be entitled to suspend delivery of any Equipment if Buyer fails
to pay any amounts when due and such failure continues for ten (10) days
following written notice thereof. Buyer shall not withhold payment of any
amounts due and payable by reason of any set-off of any claim or dispute
with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.
7. No Warranty. ALL EQUIPMENT IS PURCHASED “AS-IS” BY
BUYER WITH ALL FAULTS. SELLER MAKES NO
REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT, OR ANY OTHER MATTER WITH RESPECT
TO THE EQUIPMENT, WHETHER EXPRESS OR IMPLIED BY LAW,
COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF
TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY
DISCLAIMED. The employees or representatives of Seller are not
authorized to make any statement or representation as to the quality,
character, size, condition, quantity, etc. regarding the Equipment
inconsistent with this Agreement. Any such statement made will not be
binding on Seller or be grounds for any claim.
8. Limitation of Liability. IN NO EVENT SHALL SELLER BE
LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF
USE, REVENUE, SALES, PROFIT, REPUTATION OR GOODWILL,
DIMINUTION OR DEPRECIATION IN VALUE, DELAY OR IDLE
TIME FOR LABOR AND EQUIPMENT, 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 A PARTY 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
SELLER’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 AMOUNT
BUYER PAID TO SELLER FOR THE EQUIPMENT.
Buyer understands that the Equipment is used and has been used by
persons other than Seller. Buyer acknowledges that the Equipment may
contain hazardous chemicals or other hazardous materials which may be or
may become, by chemical reaction or otherwise, directly or indirectly
hazardous to life, health, or property (by reason of toxicity, flammability,
explosiveness or otherwise during use, handling, cleaning, reconditioning,
disposal, or at any other time). Buyer fully and finally release and
discharges from any and all liability directly or indirectly resulting from the
presence of the aforesaid chemicals or materials.
Buyer acknowledges that the Equipment may be dangerous if improperly
used, and that it must contact the original manufacturer to obtain up-to-date
installation and operation manuals and other information to ensure the safe
operation of the Equipment. Seller is not responsible for any loss or injury
resulting from defects or alleged defects in the Equipment sold or from any
use of the Equipment.
9. Termination. Following acceptance by Seller, orders are not subject
to cancellation or change without Seller’s prior written consent. In addition
to any remedies that may be provided under these Terms, Seller may
terminate this Agreement with immediate effect upon written notice to
Buyer if Buyer: (i) fails to pay any amount when due under this Agreement
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and such failure continues for ten (10) business days after Buyer’s receipt
of written notice of nonpayment; (ii) has not otherwise performed or
complied with any of these Terms, in whole or in part; or (iii) becomes
insolvent, files a petition for bankruptcy or commences or has commenced
against it proceedings relating to bankruptcy, receivership, reorganization
or assignment for the benefit of creditors.
10. Waiver. No waiver by Seller of any of the provisions of this
Agreement is effective unless explicitly set forth in writing and signed by
Seller. No failure to exercise, or delay in exercising, any right, remedy,
power or privilege arising from this Agreement 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.
11. Confidential Information. All confidential or proprietary
information of Seller, including, but not limited to, specifications, samples,
designs, plans, drawings, documents, data, business operations, pricing,
discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally
or in written, electronic or other form or media, and whether or not marked,
designated or otherwise identified as “confidential”, is and shall be treated
as confidential, may only be used in connection with performing this
Agreement, and may not be disclosed or copied unless authorized in
advance by Seller in writing. Upon Seller’s request, Buyer shall promptly
return all documents and other materials received from Seller. Seller shall
be entitled to injunctive relief for any violation of this Section.
12. Force Majeure. Seller 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 Seller 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, 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.
13. Assignment. Buyer shall not assign any of its rights or delegate any of
its obligations under this Agreement without the prior written consent of
Seller. Any purported assignment or delegation in violation of this Section
is null and void. No assignment or delegation relieves Buyer of any of its
obligations under this Agreement. Seller expressly reserves the right to
subcontract the performance of all or part of this Agreement without the
consent of Seller.
14. Relationship of the Parties. The relationship between the parties is
that of independent contractors. Nothing contained in this Agreement 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.
15. No Third-Party Beneficiaries. This Agreement is for the sole benefit
of the parties hereto and their respective successors and permitted assigns
and nothing herein, express or implied, is intended to or shall confer upon
any other person or entity any legal or equitable right, benefit or remedy of
any nature whatsoever under or by reason of these Terms.
16. Amendment and Modification. These Terms may only be amended
or modified in a writing which specifically states that it amends these
Terms and is signed by an authorized representative of each party.
17. Governing Law. All matters arising out of or relating to this
Agreement is governed by and construed in accordance with the internal
laws of the State of Wisconsin without giving effect to any choice or
conflict of law provision or rule that would cause the application of the
laws of any jurisdiction other than those of the State of Wisconsin.
18. Arbitration. Any dispute, controversy, or claim arising out of or
relating to this Agreement shall be settled by arbitration administered by
the American Arbitration Association. Any such arbitration shall be
resolved within one hundred eighty (180) days of filing of the arbitration
demand. The parties agree that the exclusive venue for any arbitration or
litigation relating to this Agreement shall be in Waukesha County,
Wisconsin. The parties waive any rights to object to venue as set forth
herein, including any argument of inconvenience for any reason. The
arbitrator’s decision shall be final and non-appealable. The prevailing
party shall be entitled to recover its legal and other professional fees and
costs incurred in connection with such arbitration proceeding and any
necessary court action.
19. Severability. If any term or provision of this Agreement is invalid,
illegal or unenforceable in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other term or provision of this
Agreement or invalidate or render unenforceable such term or provision in
any other jurisdiction.

1998 SPECTRUM 50GS60