General Terms and Conditions of Sales and Services
- Offer and Acceptance. This proposal and any accompanying sales order are accepted on and subject to the following terms (“Terms”) and are the only terms which govern the sale of goods (“Goods”) and related services (“Services”) by Lemke Industrial Machine, LLC (“Lemke”) to the Customer (“Customer”) named in the proposal or sales order. All quotations are made and all orders are accepted by Lemke subject only to these terms and conditions. Any terms contained in Customer’s purchase order or any other form or communication received from Customer which are in addition to or different from the terms and conditions contained herein are expressly objected to and shall be deemed rejected by Lemke. If these Terms and Conditions of Sale are issued by Lemke subsequent to the issuance of and in response to or in acknowledgment of a purchase order by Customer, acceptance by Lemke of such purchase order is expressly conditional on assent by Customer to all of the additional and different terms and conditions contained herein. If Customer accepts any performance by Lemke hereunder, including, but not limited to, any delivery of goods or services, Customer shall be deemed to have waived any express condition in Customer’s purchase order that acceptance of such purchase order was limited to the terms and conditions contained therein. 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.
- Delivery. Lemke shall use reasonable efforts to deliver the Goods and perform the Services in material compliance with the dates set forth in Customer’s purchase order, if stated, or within a reasonable time after receipt of Customer’s purchase order. Unless otherwise agreed in writing by the parties, Lemke shall deliver the Goods F.O.B. point of manufacturer (“Delivery Point), using Lemke’s standard methods for packaging and shipping such Goods. Title and risk of loss passes to Customer upon delivery of the Goods at the Delivery Point. Lemke shall not be liable for any delays, loss, or damage in transit. Customer shall (i) cooperate with Lemke in all matters relating to the Services and provide such access to Customer’s premises and jobsite as may reasonably be requested by Lemke for the purposes of performing the Services; (ii) respond promptly to any Lemke information request; and (iii) obtain and maintain all necessary licenses and consents in relation to the Services before the date on which the Services are to start. Any inspections requested by or performed by Customer, regardless of outcome, shall be at Customer’s cost.
- Customer’s Acts or Omissions. If Lemke’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, employees, or third-party suppliers (collectively, “Customer Parties”), Lemke 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 Customer and Lemke shall be entitled to an equitable adjustment to the Price, including, but not limited to the right to rebid for any goods sourced from third parties and include any price increases resulting from such rebidding in the Price.
- Price and Taxes. Customer shall purchase the Goods and Services from Lemke at the price (“Price”) set forth in Lemke’s Proposal or customer Purchase Order, as may be modified from time to time by written change order executed by both parties. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties, tariffs and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs, and taxes; provided that Customer shall not be responsible for any taxes imposed on, or with respect to, Lemke’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
- Payment. Unless otherwise agreed to in writing, Customer shall pay all invoiced amounts prior to shipment of Goods. Customer shall make all payments in U.S. dollars. Customer shall pay interest on all late payments at the lesser of the rate of one and one-half percent (1.5%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall not have any right of set-off against Lemke. Lemke has the right to access Customer’s creditworthiness and Customer authorizes Lemke to perfect a security interest on any financed or tiered payment purchase. Lemke’s proposal may offer opportunities for discounted costs as a result of accelerated payments, and customer may choose to select that option. Any deviation from the agreed-upon terms of payment will result in a loss of any early payment discount.
- Termination. Either party may terminate this Agreement immediately upon written notice if the other party fails to pay any amount when due under this Agreement or becomes insolvent, or commences or has commenced against it proceedings relating to bankruptcy or similar matters. If Customer terminates this Agreement, Customer’ cancellation will be subject to a charge for (a) those costs actually incurred by Lemke prior to receipt of notice from Customer, (b) cancellation charges for items purchased by Lemke at any time prior to Lemke’s receipt of notice from Customer, and (c) markup of fifteen percent (15%) on those costs.
- Limited Warranty. For Lemke manufactured Goods, Lemke expressly warrants for the eighteen (18) month period after the date of which the Goods are Delivered or the twelve (12) month period following installation, whichever occurs first, (“Warranty Period”), to Customer that (i) the Goods conform to the specifications set forth in the proposal or Sales Order to which these Terms are attached and (ii) the Services were performed in a professional and workmanlike manner and consistent with industry standards. Lemke does not supplant or add to other manufacturers’ warranties which also apply to this agreement. The respective manufacturer’s warranty is the sole and entire warranty pertaining to that portion of Goods purchased by Customer and supersedes any other warranties expressed or implied whatsoever. Except for the warranties set forth in this Section 7, Lemke makes no warranty whatsoever with respect to the Goods or Services, including any (a) warranty of merchantability; (b) warranty of fitness for a particular purpose; or (c) 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 warranties contained in this Section 7, apply to new equipment only and do not apply to Goods which have been subjected (by persons other than Lemke) to prior use, negligence, misapplication, accident, damages by circumstances beyond Lemke’s control, or improper assembly or storage.
- Remedies. With respect to any warranty claim under Section 7, Lemke shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) free of charge to Customer, or (ii) credit or refund the price of such Goods or Services at a pro rata contract rate. Customer shall, at its expense and as a condition of warranty coverage, be responsible for all shipping or transportation costs related to a warranty claim and to return any defective replaced part of Good to Lemke. The remedies set forth in this Section 8 shall be the Customer’s sole and exclusive remedy and Lemke’s entire liability for any breach of the limited warranties set forth in Section 7. All claims shall be made in writing within thirty (30) days after Customer knows or should have known of the facts upon which such claims are based. All claims not made in such time period shall be deemed waived.
- Limitation of Liability. In no event shall either party be liable for any incidental, consequential, indirect, punitive, special, or exemplary losses, damages, or expenses arising out of or relating to any breach of this agreement, breach of warranty, or otherwise, including, but not limited to, damages for delay in performance, loss of revenue or profits, or any other type of economic loss. In no event shall Lemke’s aggregate liability arising out of or related to this agreement, exceed the total of the amounts paid to Lemke for the goods and services sold hereunder.
- Insurance. Each of the parties shall, at its own expense, maintain and carry insurance which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1 million with reputable insurers licensed in the state where Lemke and Customer are located, respectively.
- Compliance with Law. Both parties shall comply with all applicable laws, regulations, and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Unless otherwise specified in this Agreement, no local area requirements are considered or included in the specifications listed in this Agreement.
- Intellectual Property Rights. Customer shall own all data, drawings, designs, reports, information, manuals, computer programs or other written, recorded, photographic or visual materials, or other deliverables produced specifically for the performance of this Contract. Lemke shall retain rights to general calculation packages, drawings, designs, reports, information, manuals, computer programs or other written, recorded, photographic or visual materials for use in evolutionary or revised versions of similar designs to be used for other Lemke projects.
- All inventions, improvements, and discoveries made by the Lemke relating to the Goods and Services are and will remain the sole property of Lemke. As between the parties, each party retains the sole and exclusive rights in all of its intellectual property, including, without limitation, the U.S. or foreign patents, trademarks, trade names, trade dress, copyrights, trade secrets, know-how, technology, Materials, and confidential information owned by it or licensed to it by a third-party (collectively, “Intellectual Property”). Lemke shall not be deemed to have granted any right or license to its Intellectual Property.
- Confidential Information. All non-public, confidential, or proprietary information of Lemke disclosed by Lemke to Customer in any manner is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Lemke in writing. Confidential information does not include information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; (c) is independently arrived at without reference to the Confidential Information; or (d) rightfully obtained by Customer on a non-confidential basis from a third party. Lemke shall be entitled to injunctive relief for any violation of this Section.
- Force Majeure. Lemke shall not be liable or responsible to Customer, nor be deemed to have breached this Agreement, for any failure or delay in performing any term of this Agreement when and to the extent such failure or delay is caused by or results from circumstances beyond the reasonable control of Lemke including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, pandemic, war, invasion or hostilities, terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, lockouts, strikes or other labor disputes, or restraints or delays affecting carriers or inability or delay in obtaining adequate or suitable materials, telecommunication breakdown, or power outage.
- Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Lemke, including assignments resulting from the sale of substantially all of Customer’s stock or assets. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
- Independent Contractors. The relationship between the parties is that of independent contractors and neither party has authority to bind the other party. This Agreement is for the sole benefit of the parties and their permitted successors and assigns.
- Governing Law and Jurisdiction. Both parties agree that any legal action arising out of this Agreement shall be brought in the federal courts of the United States of America located in the Western District of Wisconsin or the courts of the State of Wisconsin located in Marathon County, and consent to the personal jurisdiction of such court in any such action. The laws of the State of Wisconsin govern this Agreement without giving effect to any choice or conflict of law rules.
- 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.
- Waiver. No waiver by Lemke of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Lemke. 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.
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715.842.3221
ADDRESS
143454 County Hwy NN
Marathon, WI 54448
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