These General Terms and Conditions of Sale (“General Terms”) are subject to additional terms and conditions contained in supplemental riders (individually, a “Rider”) applicable to products sold by each Magnetek Business, which Riders are attached to these General Terms and incorporated herein. Any terms and conditions contained in an applicable Rider, which are contrary to or different from these General Terms, shall govern.
These General Terms apply to all quotations made by Magnetek, Inc (“Seller”) to the customer to whom the order was quoted (“Buyer”), and to all offers to purchase placed with Seller by Buyer via purchase order or otherwise, which are accepted by Seller, and are expressly incorporated therein. These General Terms are an integral part of the sales contract formed between Seller and Buyer, whether formed as a result of Seller’s acceptance of Buyer’s offer to purchase, Buyer’s acceptance of Seller’s quotation, or otherwise. Whenever these General Terms conflict with or are expanded or added to by any terms and conditions contained in Buyer’s offer to purchase: (i) these General Terms shall govern and supersede over any conflicting or additional terms and conditions of Buyer’s offer to purchase; (ii) any additional or different terms, conditions or provisions which may appear in any purchase order or other communication from Buyer are expressly rejected and shall not be effective or binding, unless specifically agreed to in writing by Seller; and (iii) no such additional or different terms, conditions or provisions in any document submitted to Seller by Buyer shall become a part of the sales contract between Buyer and Seller, unless Seller specifically recognizes and assents in writing to their inclusion. Seller’s failure to object to terms, conditions, or provisions contained in any communication from Buyer made subsequent to Seller’s acceptance of Buyer’s offer to purchase shall not be deemed a waiver of these General Terms. Any changes in these General Terms must be specifically agreed to in writing and signed by an authorized officer of Seller before becoming binding on Seller. No course of prior dealings, no usage of the trade and no course of performance shall be used to modify, negate or supplement any terms hereof.
Unless Seller otherwise expressly agrees in writing, applicable prices are those specified in Seller’s quotation or, if the quotation has expired, those specified in Seller’s order confirmation or Seller’s current price list. Seller reserves the right to change list prices or discounts without notice. Quoted prices will be honored for a period of thirty (30) days from the date of the written quotation unless otherwise stated. Prices are subject to revision by Seller: (i) should Buyer at any time request changes to an order (which are acceptable to Seller), and/or (ii) in the event of a Force Majeure Event (as defined in Section 12, below) after the date of quotation, confirmation, or acceptance of Buyer’s offer to purchase. Prices are F.O.B. point of shipment(s). All prices listed are for shipments from North American locations. Unless otherwise specified in writing by Seller, all prices are in U.S. dollars, and are exclusive of sales taxes, value added taxes, withholding taxes, custom duties or similar charges of any kind.
Title and Delivery
All sales are F.O.B. point of shipment(s) unless otherwise specified in writing by Seller. All shipping terms are as defined in the Wisconsin Uniform Commercial Code. Title and risk of loss pass to Buyer upon delivery of products to carrier at shipping point, which delivery shall constitute delivery to Buyer for all purposes; provided, however, that Seller hereby retains a purchase money security interest in all products delivered in accordance with the provisions of this Section 4 until such time as Seller has been paid the full contract price for such products. Unless otherwise specified by Seller, the point of shipment shall be Seller’s plant. All orders are shipped surface collect unless otherwise instructed. Urgent orders may be shipped via air express or air freight upon request at Buyer’s expense. Insurance will be provided only at Buyer’s request and expense. If products are received damaged or lost in transit, Buyer shall be responsible for filing a claim with the carrier. Unless otherwise specified in writing, scheduled shipping dates are estimates only and subject to such lead time, if any, as specified in the applicable Rider. Scheduled shipping dates also are subject to timely receipt by Seller of all information necessary for completion of the products, as well as any delays resulting from Force Majeure Events. Seller will not be liable for delays in delivery or other default by reason of any Force Majeure Event, nor shall Seller be liable for any special, incidental or consequential damages, including lost profits or revenues, caused by delay in delivery or failure to manufacture or deliver.
Unless otherwise specified in writing, payment terms are full purchase price due net thirty (30) days from date of Seller’s invoice. Any amounts not paid when due shall bear interest from the date of invoice until paid at the rate of 1.0% per month, or the maximum allowable legal rate, whichever is lower. Buyer also shall pay all of Seller’s costs incurred to collect payment of invoices, including Seller’s reasonable attorneys’ fees. Payment terms are subject to the Seller’s review and approval of Buyer’s application for credit. Seller reserves the right, at its discretion, to establish credit limits at any time. All prices and payments are and shall be made in U.S. dollars, unless otherwise specified in writing by Seller.
If Buyer fails to accept delivery of finished products within fourteen (14) days of the scheduled shipment date, Buyer will be responsible for Seller’s standard monthly warehousing charges, which will be added to Seller’s invoice for such products. After six (6) months from the date of Seller’s invoice, Seller may, upon written notice to Buyer, dispose of unshipped products in any commercially reasonable manner, and Buyer will be responsible for Seller’s disposal costs.
Buyer's Duty to Inspect
Buyer must promptly inspect all products for shortages, conformity with order specifications, and defects. If products appear not to conform to the sales contract specifications between Buyer and Seller, Buyer shall discontinue their use and immediately notify Seller of such condition and afford Seller a reasonable opportunity to inspect the same. Failure to notify Seller of an alleged product non-conformity in writing within ten (10) days of receipt shall constitute a waiver of any discoverable defects in products and an unqualified acceptance of the products. Claims for shortages or deductions for erroneous charges must also be presented within ten (10) days after receipt of the products or such claims will not be allowed.
All products require a Return Material Authorization (RMA) number prior to return shipment. Buyer should contact Seller for details and authorization. All returns are subject to Seller’s prior written approval. If approved by Seller, returns of any products ordered by Buyer are subject to a minimum 20% restocking charge. Except pursuant to valid warranty claims, non-standard, custom designed or engineered, used or modified products cannot be returned for credit.
Limited Warranty/Limitation of Liability
Seller warrants that, for the warranty period set forth in the applicable Rider, the products will conform to the sales contract specifications and be free of any defects in materials (unless materials are provided by Buyer) and workmanship. Seller’s warranty does not apply where: the products are not installed, maintained or used in accordance with Seller’s installation, maintenance and operating procedures provided to Buyer; the products are damaged, misused, or abused; the products are altered without Seller’s written approval; or repairs are needed due to normal wear and tear. Any repairs or other corrective maintenance attempted by anyone other than Seller during the warranty period shall void the warranty. Notwithstanding the preceding, Seller does not warrant products or accessories manufactured by third parties (and Seller hereby disclaims any and all representations and warranties, express or implied, applicable to such products or accessories); such products and accessories are subject to the product warranty, if any, provided by the third party manufacturer.
Intellectual Property Infringement
Seller will defend Buyer against any claim or suit alleging infringement of any U.S. patent or other U.S. intellectual property right based on Buyer’s possession, use or resale of unaltered products, and shall pay any judgment resulting from such suit, provided Buyer: (i) gives Seller prompt written notice of the claim or suit; (ii) gives Seller full control and sole discretion of the defense (including settlement authority); and (iii) fully cooperates and provides information for the defense as required. Seller’s agreements in the preceding sentence do not apply to: (i) products made to order of or with Buyer’s design, specifications, processes, tooling, samples, or labeling or use requirements (“Buyer Designed Products”); and (ii) circumstances where Seller’s product is incorporated into, or is otherwise used in conjunction with, a third party product or system, including Buyer’s product or system (collectively, a “Third Party System”) and the claimed infringement arises as a result of the incorporation of Seller’s product into, or the use of Seller’s product in conjunction with, the Third Party System. For Buyer Designed Products, Buyer warrants there is no trademark, patent or copyright covering such products, or Buyer has the right to have such products made, which extends to Seller’s manufacture of such products. Buyer agrees to defend and indemnify Seller (subject to the same three provisos in the first sentence of this Section 10) against any and all claims asserted against Seller alleging infringement or violation of any patent or other intellectual property right and any related claims, arising out of or otherwise related to Buyer Designed Products and/or circumstances where Seller’s product is incorporated into, or is otherwise used in conjunction with, a Third Party System and the claimed infringement or violation arises as a result of the incorporation of Seller’s product into, or the use of Seller’s product in conjunction with, the Third Party System. In case of such claim or suit, Seller may at any time elect not to manufacture the subject products, with no liability to Buyer. Seller’s agreements in the first sentence of this Section 10 also do not apply to products or accessories manufactured by third parties.
Buyer acknowledges that the products offered hereunder include or may include embedded computer software (“Software”) and related technology which Seller, its affiliates or suppliers owns or licenses. Buyer is granted a non-transferable, royalty-free license to use the Software in object form only. The foregoing license is limited to the use of any product containing the Software only in the manner authorized by Seller. Buyer may not sublicense the Software to any other entity nor assign its license rights. Nothing contained herein shall cause Buyer to acquire any right, title or interest in the Software anywhere in the world, except as authorized herein. Notwithstanding the above, in the event Buyer transfers title to the product containing the software, this license shall transfer to Buyer’s transferee. This license shall continue until the license is terminated in accordance with these General Terms, or for the useful life of the product in which the Software is embedded or of which the Software is an integral part, or the useful life of the Software, whichever is shorter. Removal of the Software, service by any unauthorized person, use of the Software on any product other than that for which it was obtained or authorized, or any breach of this license by Buyer shall automatically terminate this license. Buyer shall not directly or indirectly attempt to modify, adapt, translate, reverse engineer, decompile, or disassemble any Software or computer code supplied with the product, or otherwise attempt to discover the source code of any Software supplied with the product.
Seller shall not be liable for any delay or failure to perform its obligations under any order or sales contract arising out of causes beyond its reasonable control (a “Force Majeure Event”), including, but not limited to, acts of God or public enemy, acts of other parties, acts of civil and military authority, epidemics, unusually severe weather, shortage of power or fuel, strikes, lockouts, boycotts, or other labor troubles, government regulations, or delays of Seller’s subcontractors or suppliers in furnishing materials, components, tools or supplies due to any one or more of the foregoing causes. In no event shall Seller be liable for any damages to Buyer caused thereby whether direct, indirect, special, incidental or consequential.
Seller's Right of Possession
Seller shall have the right, in addition to all other rights it may possess under applicable law, at any time, for credit reasons or because of Buyer’s default or defaults, or anticipatory repudiation of any obligation of Buyer under any sales contract, to withhold shipments, in whole or in part, and to recall products in transit, retake same, and repossess all products which may be stored with Seller for Buyer’s account, without the necessity of taking any other proceedings, and Buyer consents that all products so recalled, retaken, or repossessed shall become Seller’s absolute property, provided that Buyer is given full credit therefor. The foregoing shall not be construed as limiting, in any manner, any of the rights or remedies available to Seller under any sales contract or at law.
Design, Dimensions and Weight
Unless Buyer provides or specifies the product design, Seller reserves the right to change designs without notice to Buyer, unless otherwise agreed upon. Seller will incorporate in products such reasonable engineering changes to continuously improve products or processes. Seller will notify Buyer of any engineering changes affecting form, fit or function of the products. Weights and dimensions published are approximate and sufficiently accurate for most uses. If the approximate weights and dimensions are insufficient for Buyer’s purposes, Buyer should submit a written request to Seller for certified prints where exact weights and dimensions are critical.
The sales contract or order of which these General Terms are made a part shall be deemed made in, and shall be governed by the laws of, the State of Wisconsin, exclusive of its conflicts of laws principles, and excluding the United Nations Convention on Contracts for the International Sale of Goods.
Jurisdiction and Venue
To the fullest extent they may legally do so, Buyer and Seller irrevocably and unconditionally: (i) submit to the exclusive jurisdiction of any Wisconsin State court or federal court of the United States sitting in the Eastern District of Wisconsin, and any appellate court from any thereof, in any action or proceeding arising out of or relating to any sales contract or order of which these General Terms are made a part, or for recognition or enforcement of any judgment; and (ii) waive any objection that they may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to any sales contract or order of which these General Terms are made a part in any Wisconsin State or federal court, and/or the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. Buyer and Seller agree that the final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other matter provided by law.
Cancellation/Changes to Orders
Seller reserves the right to change or cancel any order whenever circumstances require allocation of production or delivery or Seller deems change or cancellation to be necessary to comply with applicable laws, ordinances, regulations, directives or administrative actions. Seller reserves the right to make changes in materials or design that it determines appropriate for the goods. Buyer shall not change or cancel any order without Seller’s prior written approval. Any cancellations by Buyer approved by Seller shall be subject to Seller’s return and order cancellation policy in effect at such time, including applicable restocking and handling charges and other conditions of return.
Neither party may assign the sales contract of which these General Terms are made a part without the written consent of the other party, except that Seller’s rights under such contract will automatically be assigned to any successor to Seller by reason of merger, consolidation, or sale of substantially all of its assets.
The invalidity, in whole or in part, of any provision of these General Terms shall not affect the validity or enforceability of any other provision herein.
The sales contract and all attachments and documents incorporated by reference therein, constitutes the complete and entire agreement and understanding between Seller and Buyer, and supersedes all prior and/or contemporaneous agreements, representations and or communications, either oral or written, between Buyer and Seller or any representative of such parties, with respect to the subject matter thereof.
No change to the sales contract of which these General Terms are made a part will be binding on Seller unless made in writing and signed by an authorized officer of Seller. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of such contract shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy shall be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. No field representative or anyone other than an authorized officer of Seller has authority to sign such a writing.
The headings in these General Terms are included for convenience only and shall neither affect the construction or interpretation of any provision in these General Terms nor affect any of the rights or obligations of the parties to any sales contract of which these General Terms are made a part.
Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting any sales contract of which these General Terms are made a part.
Riders to General Terms and Conditions of Sale