SOHN MANUFACTURING INCORPORATED TERMS AND CONDITIONS OF

 

SALES ALL QUOTATIONS ARE MADE AND ALL ORDERS ARE ACCEPTED BY

 

SOHN MANUFACTURING INCORPORATED SUBJECT ONLY TO THESE TERMS

 

AND CONDITIONS.  THROUGHOUT THIS DOCUMENT, SOHN

 

MANUFACTURING INCORPORATED SHALL BE REFERRED TO AS SELLER.

 

1.)  MODIFICATIONS OF SALES TERMS:  Any Terms and Conditions contained in

 

any purchase order or other form of communication from Seller's customers which are

 

additional to or different from these Terms and Conditions shall be deemed rejected by

 

Seller unless expressly accepted in writing by Seller.  In general, no modification,

 

amendment, waiver or other charge of any of these Terms and Conditions and those

 

contained on the reverse side hereof and/or in attachments hereto ("Terms and

 

Conditions"), or any of Seller's rights or remedies thereunder shall be binding on Seller

 

unless expressly accepted in writing by Seller's authorized officers.  No course of

 

dealing, usage of trade or course of performance shall be relevant to explain or

 

supplement any of these Terms and Conditions printed on this page and those

 

contained on the face side or in attachments hereto, the latter shall control.  If any

 

document issued by any party hereto is sent by facsimile or another form of electronic

 

document transmission, the parties hereto agree that (a) the copy of any such

 

document printed on the facsimile machine or printer of the recipient thereof is a

 

counterpart original copy thereof and is a "writing". (b) delivery of any such document

 

transmission is authorized by the recipient thereof and is legally sufficient for all

 

purposes as if delivered by United States mail. (c) the typewritten name of an

 

authorized agent of the party sending such document on any such document is

 

sufficient as a signature thereon on behalf of such part and the intent of such signature

 

is to authenticate the writing, and, (d) an electronically stored and reproduced copy of

 

any such document shall be deemed to be legally sufficient evidence of the terms of

 

such document for all purposes.

 

2.  ACCEPTANCE OF ORDERS:  Acceptance by Seller of Buyer's purchase order(s) is

 

expressly conditioned upon Buyer's assent to these Terms and Conditions.  Buyer will

 

be deemed to have assented to such Terms and Conditions unless Seller receives

 

written notice of any objections within fifteen (15) days after Buyer's receipt of this term

 

and in all events prior to any delivery or other performance by Seller of Buyer's order.

 

3.  QUOTATIONS:  Quotations by Seller shall be deemed to be offers by Seller to sell

 

the equipment described therein subject to these Terms and Conditions, and

 

acceptance of such offers is expressly limited to acceptance by Buyer of all of these

 

Terms and Conditions within thirty (30) days from the date of the quotation.  Purchase

 

order submitted by Buyer for the equipment quoted by Seller shall be subject to and will

 

be deemed to constitute acceptance of these Terms and Conditions.  All purchase

 

orders will be subject to approval by Seller.

 

4.  PRICES; PRICE CHANGES:  All prices are net F.O.B. shipping point and are

 

subject to change without notice.  In the event of a change in Seller's prices, the price

 

for equipment unshipped will be the price in effect on the date of shipment.

           

            If Seller's quoted price was based upon delivery to and acceptance by Buyer of a

 

specified quantity of equipment, such price shall be subject to adjustment if Buyer does

 

not accept the quantity at the times specified in Seller's quotation, and Buyer will be

 

invoiced at Seller's standard price without quantity discounts, if any, for the quantity of

 

equipment actually accepted by Buyer.

 

5.  TAXES:  In addition to any prices, Buyer shall pay the amount of any present or

 

future manufacturer's tax, retailer's occupation tax, use tax, sales tax, excise tax, duty,

 

custom, inspection or testing fee, or any other tax, fee or charge of any nature

 

whatsoever imposed by any governmental authority, on or measured by the transaction

 

between Seller and Buyer.  In the event Seller is required to pay any such tax, fee or

 

charge.  Buyer shall reimburse Seller therefor; or, in lieu of such payment, Buyer shall

 

provide seller at the time the order is submitted with an exemption certificate or other

 

document acceptable to the authority imposing such tax, fee or charge.

 

6.  TERMS OF PAYMENT:  All orders are subject to the approval of Seller.  Terms of

 

payment are cash in full prior to shipment.  Seller may demand full or partial payment in

 

advance before proceeding with the work.  At its option without prejudice to other

 

lawful remedies, Seller may defer delivery or cancel this contract.  If delivery is

 

deferred, the equipment may be stored as provided in Section 9 hereof and Seller may

 

submit a new estimate of cost for completion based on prevailing conditions.  If Buyer

 

defaults in any payment when due, or in the event any voluntary or involuntary

 

bankruptcy or insolvency proceedings involving the Buyer are initiated by or against

 

Buyer, then the whole contract price shall immediately become due and payable upon

 

demand, or Seller, at its option without prejudice to its other lawful remedies, may defer

 

delivery or cancel this contract.

 

            If shipments are delayed by the Buyer for any cause, payments shall become

 

due from the date on which Seller is prepared to make shipment and storage shall be

 

the Buyer's risk and expense as provided in Section 9 hereof.  If manufacture is

 

delayed by the Buyer for any cause, a partial payment based upon the proportion of the

 

order completed shall become due from the date on which Seller is notified of the delay.

 

7.  DELIVERY; RISK OF LOSS:  All sales are F.O.B. Seller's plant or other point of

 

shipment designated by Seller.  Shipping dates are estimates only which are not

 

guaranteed and are based upon prompt receipt from Buyer of all necessary shipping

 

and other information.  Seller reserves the right to make delivery in installments, all

 

installments to be separately invoiced and paid for by Buyer when due per invoice,

 

without regard to subsequent deliveries.

 

            Delivery of equipment to a commercial carrier at Seller's plant or other loading

 

point shall constitute delivery to Buyer, and any risk of loss and further cost and

 

responsibility thereafter for claims, delivery, loss or damage, including, if applicable,

 

placement and storage, shall be borne by Buyer.  When equipment is delivered by

 

Seller's truck, unloading at Buyer's dock shall constitute delivery to Buyer.  Claims for

 

shortages or other errors in delivery must be made in writing to Seller within ten (10)

 

days after receipt of shipment and failure to give such notice shall constitute unqualified

 

acceptance and a waiver of all such claims by Buyer.  Claims for loss or damage to

 

equipment in transit by common carrier must be made to the carrier and not to Seller.

           

            Freight and handling charges by Seller may not reflect actual freight charges

 

prepaid to the carrier by Seller due to incentive discounts earned by Seller based upon

 

Seller's aggregate volume of freight tendered to a carrier or when a carrier must be

 

used which charges a rate which is different than the rate upon which Seller's freight

 

and handling charges were based.    When shipments are delivered in Seller's private

 

trucks Buyer will be charged an amount approximating the prevailing common carrier

 

rate.

 

8.  EXCUSABLE DELAYS; FORCE MAJEURE:  Seller shall not be liable for any

 

ordinary, incidental, or consequential loss or damage as a result of Seller's delay in or

 

failure of delivery or installation due to (i) any cause beyond Seller's reasonable control,

 

(ii) an act of God, act of the Buyer, embargo or other government act, authority,

 

regulation or request, fire, theft, accident, strike, slowdown or other labor disturbance,

 

war, riot, delay in transportation, or (iii) inability to obtain necessary labor, materials,

 

components, or facilities.

 

            Should any of the aforementioned events of force majeure occur, Seller, at its

 

option, may cancel Buyer's order with respect to any undelivered equipment or extend

 

the delivery date for a period equal to the time lost because of delay.  Notice of such

 

election shall be given promptly to Buyer.  In the event Seller elects to so cancel the

 

order.  Seller shall be released of and from all liability for failure to deliver the

 

equipment, including, but not limited to, any and all claims on behalf of Buyer for lost

 

profits, or any other claim of any nature which Buyer might have.

 

            If shipping or progress of the work is delayed or interrupted by Buyer, directly or

 

indirectly.  Buyer shall pay Seller for all additional charges resulting therefrom.

 

9.  STORAGE:  If the equipment is not shipped within thirty (30) days after notification

 

has been made to Buyer that it is ready for shipping, for any reason beyond Seller's

 

control, including Buyer's failure to give shipping instructions, Seller may store the

 

equipment at Buyer's risk and expense in a warehouse or on Seller's premises, and

 

Buyer shall pay all handling, transportation and storage costs at the prevailing

 

commercial rates promptly following Seller's submission of invoice for such costs.

 

10.  LIMITED WARRANTIES

 

The Seller warrants the equipment (except for expendable parts and normal wear of

 

components and parts) sold to the original Buyer to be free from defects in materials

 

and workmanship.  This warranty shall be effective for a period of one (1) year from the

 

date of purchase of the equipment.  This one (1) year Manufacturer's warranty covers

 

only those components manufactured by the Seller.  All other components may be

 

covered under the Manufacturer's vendor warranty, if any.  Seller's warranty, in

 

Manufacturer's sole discretion, shall be limited to the repair or replacement of materials

 

determined by Seller to be defective or non-conforming.  Seller

 

assumes no responsibility for reimbursing any repair or replacement costs incurred

 

without the express written consent of Seller.  Defective parts must be returned,

 

shipping charges prepaid to Seller, after authorization by Seller to make

 

such a return; replacement parts will be shipped to Buyer by surface transportation; air

 

or priority shipping costs will be at the Buyer's expense.  The above warranty is

 

effective only if all conditions of payment have been met and if the equipment has not

 

been misused, or negligently or improperly used by the Buyer.

 

THE ABOVE WARRANTY BY SELLER IS MADE IN LIEU OF ALL OTHER

 

WARRANTIES, EXPRESSED OR IMPLIED AND THE IMPLIED WARRANTIES OF

 

MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE

 

EXPRESSLY EXCLUDED AS TO ANY PRODUCT MANUFACTURED OR

 

ASSEMBLED BY SELLER AND SOLD BY ANYONE.

 

 

The foregoing express warranty is in lieu of all other warranties expressed or implied,

 

and of all obligations or liabilities on the part of Seller for damages, including, but not

 

limited to, consequential and/or incidental damages, arising out of or in connection with

 

the use or operation of the equipment sold, or for any loss profits or consequential

 

damages arising from the breach of any warranty, or from any delays in delivery, repair

 

or replacement.  The Seller shall not be liable for any injury, loss or damage, direct or

 

consequential, arising out of the use or inability to use a Sohn product.  In no event

 

shall Seller be liable for damages of any kind or nature including incidental or

 

consequential damages if such damages arose out of bodily injury resulting from

 

improper or negligent use or operation of the equipment sold, or in the event that the

 

said equipment has been altered or improperly repaired. 

 

THIS MACHINE IS FOR INDUSTRIAL USE ONLY IN AN INDUSTRIAL

 

ENVIRONMENT.

 

Sohn has supplied guarding to its best ability on all electrical components, shafts,

 

power drives, pulleys, belts and on objects that are designed to be objects in motion or

 

considered by Sohn to be obvious operator danger points.  However, due to the

 

variances in OSHA Codes, which allows OSHA Inspectors to determine OSHA

 

violations in accordance to their interpretation of OSHA Codes.  Sohn does not warrant

 

the machine to meet all OSHA requirements, which can vary in accordance to the

 

location and OSHA Inspectors.  It is agreed that in accepting this warranty, the meeting

 

of final OSHA requirements for operation in their facility is the responsibility of the

 

Buyer.

 

The foregoing warranty and disclaimers may not be altered or modified unless such

 

alterations or modifications are reduced to writing and are signed by an officer of

 

Seller.

 

Any description of the equipment, whether in writing or made orally by the Seller or

 

Seller's agents, specifications, samples, models, bulletins, drawings, diagrams,

 

engineering sheets or similar materials used in connection with Buyer's order are for

 

the sole purpose of identifying the equipment and shall not be construed as an express

 

warranty unless confirmed to be such in writing by Seller's authorized officer.

 

11.  LIMITATIONS OF LIABILITY; CONSEQUENTIAL DAMAGES:

 

            Consequential Damage Disclaimer - Seller's liability with respect to equipment

 

proved to its satisfaction to be defective within the warranty period shall be limited to

 

repair, replacement or refund as provided in Section 10 hereof, and in no event shall

 

Seller's liability exceed the purchase price of the equipment involved.  Seller shall not

 

be subject to any obligations or liabilities, whether arising out of breach of contract,

 

warranty, tort (including negligence) or other theories of law, with respect to equipment

 

sold or services rendered by Seller, or any undertakings, acts or omissions relating

 

thereto.  Without limiting the generality of the foregoing, Seller specifically disclaims

 

any liability for property or personal injury damages, penalties, special or punitive

 

damages, damages for lost profits or revenues, loss of use of equipment or any associated

 

equipment, cost of capital, cost of substitute products, facilities or services, downtime,

 

shutdown, or slowdown costs, or for any other types of economic loss, and for claims of

 

Buyer's customers for any such damages.

 

                        SELLER SHALL NOT BE LIABLE FOR AND DISCLAIMS ALL

 

CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES

 

WHATSOEVER, EVEN IF THE REPAIR OR REPLACEMENT REMEDY SHALL BE

 

DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE UNDER SECTION 2-

 

719 OF THE UNIFORM COMMERCIAL CODE, SELLER SHALL HAVE NO

 

LIABILITY TO BUYER FOR CONSEQUENTIAL DAMAGES, SUCH AS LOST

 

PROFITS, LOST REVENUE, DAMAGE TO OTHER EQUIPMENT OR LIABILITY

 

OR INJURY TO A THIRD PARTY.

 

12.  INDEMNIFICATION BY BUYER: Buyer shall indemnify, hold harmless, and

 

defend Seller and Seller's employees and agents from and against any and all damages,

 

liability, claims, losses, and expenses (including reasonable attorneys', fees, court

 

costs, and out-of-pocket expenses) arising out of or resulting in any way from claims by

 

customers of Buyer or third-parties against Seller alleging a breach of contract or

 

warranty by Seller to the extent that such damages, liability, claims, losses, and

 

expenses which may be payable by Seller to Buyer pursuant to and as limited by

 

Seller's warranty and damage obligations as contained in Sections 10 and 11 hereof so

 

as to effectively limit Seller's obligations to customers of Buyer or third parties to those

 

set forth and Sections 10 and 11 hereof.

 

13.  PATENT INDEMNIFICATION:  Seller will, at its own expense, defend or settle any

 

suits that may be instituted against Buyer for alleged infringement by the equipment of

 

any patent, provided that:  (a) such alleged infringements consist of the use of the

 

equipment for any of the purposes for which such equipment was sold; (b) Buyer shall

 

have made all payments for such equipment then due hereunder; (c) Buyer shall give

 

Seller immediate notice in writing of any such suit and transmit to Seller immediately

 

upon receipt of all processes and papers served upon Buyer; and (d) Buyer shall permit

 

Seller through its counsel, either in the name of Buyer or in the name of Seller, to

 

defend such suit(s) and give all needed information, assistance and authority to enable

 

Seller to do so.

 

            In case of a final award or damages in any such suit, Seller will pay such award

 

but will not be responsible for any compromise or settlement made without its written

 

consent.  In case the equipment itself is in such suit held to infringe any valid patent

 

issued and its use enjoined, or in the event of a settlement or compromise approved by

 

Seller which shall preclude future use of the equipment sold to Buyer hereunder, Seller

 

shall, at its own expense and at its sole option, either: (a) procure rights to continue

 

using such equipment; (b) modify the equipment to render it non infringing; (c) replace

 

the equipment with non infringing equipment; or (d) refund the purchase price paid by

 

Buyer for the equipment after return of the equipment to Seller.  Notwithstanding the

 

foregoing, Seller shall not be held responsible for infringements of combination or

 

process patents covering the use of equipment in combination with other goods or

 

materials not furnished by Seller.

 

            The foregoing states the entire liability of Seller for patent infringement, and IN

 

NO EVENT SHALL SELLER BE LIABLE FOR CONSEQUENTIAL OR

 

INCIDENTAL DAMAGES ATTRIBUTABLE TO AN INFRINGEMENT nor for

 

infringement based on the use of the equipment for a purpose other than that for which

 

sold by Seller.  As to any equipment furnished by Seller to Buyer manufactured in

 

accordance with designs proposed or furnished by Buyer or any claim of contributory

 

infringement resulting from the use or resale by Buyer of equipment sold hereunder,

 

Buyer shall indemnify Seller for any award made against Seller or settlement by Seller

 

for any patent, trademark or copyright infringements including attorneys' fees and

 

defense costs.

 

14.  SECURITY AGREEMENT AND FINANCING STATEMENTS:  To secure

 

payment of the purchase price and of all monies which may be due hereunder, and

 

performance of all of Buyer's obligations hereunder, Buyer hereby grants to Seller's

 

security interest in all equipment sold by Seller and agrees to execute such other Security

 

Agreements and Financing Statements as Seller may reasonably request.

 

15.  INSURANCE:  Until payment in full of the purchase price, Buyer shall maintain

 

insurance covering all equipment sold by Seller to Buyer in such amounts and against

 

such risks as is customary by companies engaged in the same or similar business and

 

similarly located, and shall, upon Seller's request, furnish evidence of such insurance

 

satisfactory to Seller.

 

16.  DRAWINGS; OTHER DESIGN DATA:  All specifications, drawings, designs, data,

 

information, ideas, methods, tools, gages, dies, fixtures, patterns and/or inventions

 

made, conceived, developed or acquired by Seller in connection with procuring and/or

 

executing Buyer's order will vest in and inure to Seller's sole benefit notwithstanding

 

any changes therefor which may have been or may be imposed by Seller.

 

            Buyer shall not give, loan, exhibit, sell or transfer to any person not then

 

employed by Buyer and authorized to receive such information, or to any organization

 

or entity, any drawing, photograph, or specification furnished by Seller or reproduction

 

thereof which may enable such person, organization or entity to furnish similar goods or

 

parts therefor.

 

17.  RETURN OF EQUIPMENT:  No equipment or part shall be returned to Seller

 

without written authorization and shipping instructions first having been obtained from

 

Seller.

 

18.  ASSIGNMENT AND SUBCONTRACTING:  None of the Buyer's rights under any

 

order shall be assigned by the Buyer to any other person, whether by operation of law

 

or otherwise, without Seller's prior written approval.  Seller may, without the necessity of

 

obtaining Buyer's prior written consent, subcontract the production of all or any portion

 

of the equipment.

 

19.  CANCELLATION:  No order submitted to Seller may be canceled by Buyer without

 

the prior written consent of Seller, which consent will at all times be conditioned on

 

Buyer's agreement to pay Seller's cancellation charge.  For finished equipment which in

 

Seller's judgment is readily resalable to others, the cancellation charge shall be 15% of

 

the invoice price of the equipment.  For all other cancellations, the cancellation charge

 

shall amount to all costs and expenses incurred by Seller and arising out of or in

 

connection with Buyer's order, net of recoverability, but in no event less than 10% of the

 

invoice price of the equipment or more than the invoice price.

 

20.  GENERAL:

            Governing law - These Terms and Conditions, and the contract of sale between

 

Seller and Buyer, shall be governed by and construed in accordance with the laws of

 

the State of Wisconsin.  Seller and Buyer hereby agree that any legal action deemed

 

necessary by either party hereto shall be brought in the Circuit Court in and for Seller

 

County, Wisconsin and hereby consent to the personal jurisdiction of such court in any

 

such action over the parties hereto.  The rights and obligations of Seller and Buyer

 

shall not be governed by the provisions of the United Nations convention on Contracts

 

for the Internal Sale of Goods.

 

            Attorneys' Fees - Buyer agrees to pay all of Seller's costs and expenses of

 

collection and related litigation, including but not limited to attorneys' fees and costs.

 

            Salvatory Clause - The Invalidity, in whole or in part, of any of the provisions of

 

these Terms and Conditions, shall not affect the enforceability of any of the other

 

provisions thereof.

 

            Applicability - The Terms and Conditions as stated herein are applicable as of

 

the date of this printing and until such time as changed by Seller.