Terms & Conditions of Sale
- GENERAL. A. This document is an offer or counter-offer by Sani-Matic, Inc. (“Sani-Matic”) to sell the goods and/or services described in it in accordance with these terms and conditions to you (“Purchaser”), is not an acceptance of any offer made by Purchaser, and is expressly conditioned upon Purchaser’s assent to these Terms and Conditions of Sale. Sani-Matic objects to any additional or different terms contained in any purchase order or other communication previously or hereafter provided by Purchaser to Sani-Matic. No such additional or different terms or conditions will be of any force or effect. The terms contained in or incorporated into this document will be the entire agreement between Sani-Matic and Purchaser on the subject of the transaction described herein; and there are no conditions to that agreement that are not so contained or incorporated. “Contract” means the agreement between Buyer and Seller governing the sale of Equipment by Sani-Matic to Purchaser. These Terms and Conditions of Sale, the quotation (if one is issued by Sani-Matic), any purchase order acknowledgement (if one is issued by Sani-Matic), and Purchaser’s purchase order (except to the extent that it conflicts with these Terms and Conditions of Sale, the quotation, and/or the order acknowledgement) constitute the Contract. If Purchaser subscribes to the SaniTrend™ Cloud, the Contract shall not modify or amend the parties’ agreement related to the purchase of the SaniTrend™ Cloud Subscription.
B. THIS OFFER AND THAT AGREEMENT, AND ALL DISPUTES ARISING OUT OF THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT OF THAT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE SUBSTANTIVE AND PROCEDURAL LAWS OF THE STATE OF DELAWARE AND THE U.S. (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS), AND WILL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
C. No changes to this document will be binding unless set forth in writing and manually signed by Sani-Matic. This offer may be revoked by Sani-Matic at any time before it is accepted by Purchaser, and shall automatically expire 30 calendar days after its date if Purchaser has not accepted it before then. Neither Purchaser’s acceptance of this offer nor any conduct by Sani-Matic (including but not limited to shipment of goods) shall oblige Sani-Matic to sell to Purchaser any quantity of goods in excess of the quantity that Purchaser has committed to purchase from Sani-Matic at the time of such acceptance or conduct.
- CANCELLATION. No accepted offer may be cancelled by Purchaser without Sani-Matic’s written approval. Any request for cancellation must be submitted in writing to Sani-Matic. Upon receipt of such a request, Sani-Matic will suspend all work related to the Contract and notify Purchaser of Sani-Matic’s conditions for approval of the request. At a minimum, Sani-Matic will require payment of a cancellation fee equal to 25% of the Contract price. If, at the time of the request for cancellation, costs have been incurred by Sani-Matic related to the Contract, Sani-Matic may require the Purchaser to reimburse Sani-Matic for all such costs, plus a reasonable profit for work performed to the date of cancellation. Sani-Matic will deliver all work-in-process to Purchaser upon payment of the cancellation fee.
- PRICES. Unless otherwise specified in the Contract, quoted prices are F.O.B. Sani-Matic’s loading dock in Sun Prairie, Wisconsin or, for international sales, Ex Works Sani-Matic’s loading dock in Sun Prairie, Wisconsin as that term is defined in Incoterms 2010, and are firm for thirty (30) days from the date of quotation. They are based upon all specifications and qualifications made by Sani-Matic and these Terms and Conditions of Sale. Unless
otherwise specified in the Contract, prices do not include shipping, transport insurance, or export packing. Should it become necessary to meet standards, codes, designs or other requirements not specified in the quotation, the additional costs thereby incurred will be charged to Purchaser.
- PAYMENT. Prices are quoted and payable in U.S. Dollars. All payment terms set forth in this document are subject to Sani-Matic’s approval of Purchaser’s credit, in Sani-Matic’s discretion; and if such approval is withheld, payment shall be due in advance of Sani-Matic’s performance. Payment shall be made in the manner and at the times specified in the quotation and/or the Contract. Should Purchaser delay in fulfilling any of its payment obligations, Sani-Matic may postpone without penalty the fulfillment of its own obligations by the equivalent amount of time and any extra costs incurred by Sani-Matic due to Purchaser’s delay will be charged to Purchaser. Purchaser further agrees to pay interest of one and one-half (1 1/2%) percent per month or at the legal maximum, whichever is less, on all overdue invoices. If production or shipment of completed goods, or other Sani-Matic performance is delayed by Purchaser, Sani-Matic may immediately invoice, and Purchaser shall pay the percentage of the purchase price corresponding to the percentage of completion; in addition, Purchaser shall compensate Sani-Matic for storage of completed goods or work in process during such delay, whether stored at Sani-Matic’s facility or an independent storage company’s facilities.
- WARRANTY.A. Sani-Matic warrants the equipment sold by Sani-Matic (“Equipment”) to be free from defects in materials and workmanship under normal use and proper maintenance for a period of one (1) year from the date of installation or fifteen (15) months from the date of delivery, whichever is first to occur. If within such period any such Equipment shall be proved to Sani-Matic’s satisfaction to be defective, the affected part will be repaired or replaced free of charge, F.O.B. Sani-Matic’s loading dock. This warranty does not apply to: fragile parts and components where a shorter life is normally expected; items which are part of normal maintenance; or items Sani-Matic receives from outside vendors (motors and controls as an example), the warranty with respect to which shall be limited to that which is actually received by Sani-Matic from such vendors. This warranty extends only to original end users of Equipment.
B. Sani-Matic’s obligation (and Purchaser’s right or recourse) under the foregoing warranty and under any other Contract warranty or performance guarantee, if any, shall be limited to the repair or replacement (at Sani-Matic’s option) of the Equipment in question or parts thereof, and does not include shipping costs or the cost of field labor for removing or reinstalling such parts or Equipment. No such repair or replacement shall extend the original warranty period. Such repair or replacement (whichever Sani-Matic determines, in its discretion, to provide) shall be Sani-Matic’s sole obligation and Purchaser’s exclusive remedy for any deficiency in goods furnished hereunder, and shall be conditioned upon Purchaser’s return of such goods to Sani-Matic, F.O.B. Sani-Matic’s loading dock or, for international sales, DDP Sani-Matic’s loading dock, as that term is defined in Incoterms 2010 (as though Purchaser were the “seller” and Sani-Matic the “buyer”).
C. THE WARRANTY IN SUBDIVISION A ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES (WHETHER WRITTEN, ORAL OR IMPLIED) AND SANI-MATIC EXPRESSLY DISCLAIMS AND EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR ANY PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. ADDITIONALLY, NO WARRANTY IS MADE REGARDING THE EFFICACY OF ANY CLEANING AGENT OR OTHER CHEMICAL USED IN CONNECTION WITH THE EQUIPMENT. Sani-Matic’s liability shall not be extended because of any advice or
assistance given by Sani-Matic in connection with the design, sale, installation, use, performance, repair or replacement of any product or service not sold by Sani-Matic.
D. If any performance guarantees on equipment are expressly given, such guarantees will be deemed to have been fully satisfied when, during installation and/or commissioning, Sani-Matic causes the equipment to have the capacity to achieve such performance, or is excused from so doing by any act or omission of Purchaser or other cause beyond Sani-Matic’s control.
E. If the Equipment is being sold to Purchaser for resale or lease to others, Purchaser shall make the foregoing warranty an integral part of all such resales or leases and shall not in any way vary the terms or conditions of such warranty. In the event of such resale or lease Purchaser shall indemnify and save Sani-Matic harmless from and against all claims, suits, liability and expenses (including attorney’s fees) based upon any actual or alleged act or omission of Purchaser and/or those acting on its behalf, including without limitation improper installation and/or unauthorized alteration of the Equipment and unauthorized variation from Sani-Matic’s standard warrant.
- CONSEQUENTIAL DAMAGES AND OTHER LIABILITY. Sani-Matic’s liability with respect to the goods or services sold hereunder shall be limited to the warranty provided in section 5 and Sani-Matic’s obligations under section 11 of these Terms and Conditions of Sale and, with respect to any other breaches of its Contract with Purchaser, shall be limited to the Contract price. SANI-MATIC SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR UNDER OTHER THEORIES OF LAW OR EQUITY, WITH RESPECT TO GOODS OR SERVICES SOLD BY SANI-MATIC, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. Without limiting the generality of the foregoing, Sani-Matic specifically disclaims any liability for property damages, penalties, special or punitive damages, damages for lost profits or revenues, down-time, lost good will, cost of capital, cost of substitute goods or services, or for any other types of economic loss, or for claims of Purchaser’s customers or any third party for any such damages, costs or losses. UNDER NO CIRCUMSTANCES SHALL SANI-MATIC BE LIABLE UNDER ANY LEGAL THEORY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL OR OTHER DAMAGE OF ANY KIND IN CONNECTION WITH THE DESIGN, SALE, INSTALLATION, COMMISSIONING, USE, PERFORMANCE, REPAIR OR REPLACEMENT OF THE EQUIPMENT EXCEPT AS HEREIN SET FORTH. SANI-MATIC’S LIABILITY SHALL IN NO EVENT BE GREATER THAN THE SELLING PRICE OF THE AFFECTED PARTS OR EQUIPMENT. Purchaser shall indemnify and hold harmless Sani-Matic from and against any and all losses, liabilities, damages and expenses (including but not limited to attorneys’ fees and other costs of defense) that Sani-Matic may incur as a result of any claim by Purchaser or by Purchaser’s customers or by any third party arising out of or in connection with the goods or services sold hereunder, including but not limited to any such claim based upon the negligence of Sani-Matic in designing, manufacturing, performing and/or selling such goods or services, unless such losses, liabilities, damages or expenses are ultimately determined to be attributable solely to the willful misconduct of Sani-Matic.
- OWNERSHIP AND RISK OF LOSS. Risk of loss shall pass to the Purchaser upon surrender of the Equipment to a carrier for delivery to Purchaser or, for delivery in Sani-Matic’s own truck, upon receipt by Purchaser. Title shall pass to Purchaser upon payment in full for the item in question.
- TAXES AND FEES. Unless otherwise specified in the Contract, all taxes, duties, permits, licenses, license fees, and inspections will be paid by Purchaser. These include, but are not limited to: manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, value added tax, duty, custom, inspection or testing fee, or any other tax, fee, interest or charge of any nature whatsoever imposed by any governmental authority on or measured by the transaction between Sani-Matic and Purchaser, import duties and surcharges, building and operating permits, and registration and inspections fees. In the event Sani-Matic is required to pay any such taxes or other charges, Purchaser shall reimburse Sani-Matic therefor on demand.
- OWNERSHIP OF INTELLECTUAL PROPERTY & SPECIFICATIONS. The specifications, prices and performance data included in correspondence, brochures, drawings and other materials are an approximate guide and are binding only to the extent that they are by reference expressly included in the Contract. All drawings, know-how, designs, specifications, inventions, devices, developments, processes, software, copyrights, trademarks, patents and applications therefore, and other information or intellectual property used, made, conceived, developed or acquired by Sani-Matic in connection with the Terms and Conditions of Sale (whether or not disclosed or otherwise provided to Purchaser by Sani-Matic) and all rights therein (collectively, “Sani-Matic Intellectual Property”) will remain the property of Sani-Matic and will vest in and inure to Sani-Matic’s sole benefit and will be kept confidential by Purchaser in accordance with these Terms and Conditions of Sale. Sani-Matic Intellectual Property may not be copied, transmitted or communicated to any third party except as provided herein. Sani-Matic reserves ownership of all Sani-Matic Intellectual Property, and grants Purchaser no license or other rights to use such Sani-Matic Intellectual Property for any purpose other than (a) the software license in Section 10 and (b) to operate and maintain the proprietary Equipment sold by Sani-Matic to Purchaser hereunder. Unless specifically provided for in the Contract and itemized for payment as agreed to by Sani-Matic, the sale of Equipment by Sani-Matic to Purchaser does not include delivery of any design, development or related services associated with Sani-Matic Intellectual Property. Sani-Matic retains all rights, title and interest in drawings, engineering instructions, specifications, and all other written data, if any, furnished with the Equipment. Purchaser will review and promptly approve in writing all Equipment and site preparation drawings and other specifications, which may be provided by Sani-Matic for approval purposes. Purchaser will be responsible for costs and all delays in fabrication, shipping, installation or commissioning which result from any approval delays or requested changes by Purchaser.
- SOFTWARE. A. Notwithstanding any other provision herein to the contrary, Sani-Matic shall retain all rights of ownership and title in its respective software and Firmware included with the Equipment, including all worldwide intellectual property and proprietary rights. “Firmware” means permanent software included in the Equipment that enables the Equipment to function. Sani-Matic grants Purchaser a limited, nonexclusive, non-sublicensable, non-transferable (except as stated herein), royalty-free, limited license to use the Firmware solely for its own internal business purposes and solely in conjunction with (i) the operation of the Equipment purchased and sold under these Terms and Conditions of Sale; and (ii) any other purpose agreed upon in a written and signed agreement between Purchaser and Sani-Matic. Purchaser shall only have those rights to Firmware explicitly granted herein, and any and all other rights are retained by Sani-Matic or its licensors.
B. Purchaser may transfer possession of Firmware to another party only in conjunction with the transfer of the Equipment on which the Firmware is loaded and only upon agreement of the other party to these Terms and Conditions of Sale. All licenses and grants pursuant to these Terms and Conditions of Sale shall immediately terminate once Purchaser no longer
rightfully owns or possesses the Equipment. Purchaser shall provide Sani-Matic with written notice of any such transfer providing the name, address, and contact information of the subsequent Purchaser within fifteen (15) days of such transfer.
C. Purchaser shall not (i) copy, display, transfer, adapt, modify, or distribute in any form the Firmware except as set forth herein or in Sani-Matic documentation provided by Sani-Matic to Purchaser with the Firmware; (ii) reverse engineer, disassemble, decompile, or otherwise translate the Firmware’s object code, unless expressly permitted by applicable law without the possibility of contractual waiver; or (iii) sublicense or lease the Firmware or any copy thereof except with the transfer of the Equipment on which the Firmware is loaded. Purchaser shall not, directly or indirectly, export or reexport, or knowingly permit the export or re-export of, the Equipment, or any technical information about the Equipment, to any country for which the United States Export Administration Act, any regulation thereunder, or any similar United States law or regulation, requires an export license or other United States Government approval, unless Purchaser obtains the appropriate export license and obtains written approval from Sani-Matic. Notwithstanding anything to the contrary in these Terms and Conditions of Sale, Purchaser shall not separate any Firmware sold with any Equipment from such Equipment or sell, license or distribute such Firmware on a standalone basis, or remove, translate or modify the contents or documentation of or related to such Firmware.
- PATENT INFRINGEMENT. Sani-Matic represents that the Equipment does not infringe any valid U.S. patent. This does not apply to: (a) any uses of Equipment not specified by Sani-Matic in the Contract, (b) any use of the Equipment in a process, method or system not designed by Sani-Matic, or (c) any Equipment manufactured according to Purchaser’s specification or design. In the event of such covered infringement Sani-Matic shall either obtain for Purchaser the right to use the infringing Equipment or shall repurchase same less depreciation. This paragraph states Sani-Matic’s sole liability for such infringement. To the extent that any goods or services that Sani-Matic furnishes to Purchaser are manufactured in accordance with drawings, designs or specifications proposed or furnished by Purchaser, Sani-Matic shall not be liable, and Purchaser shall indemnify and hold harmless Sani-Matic from and against any and all losses, liabilities, damages, claims and expenses (including but not limited to Sani-Matic’s reasonable attorneys’ fees and other costs of defense) incurred by Sani-Matic as a result of any claim of patent, trademark, copyright or trade secret infringement, or infringement or any other proprietary rights of third parties.
- DELIVERY AND FORCE MAJEURE. Sani-Matic reserves the right to make delivery in installments, unless otherwise expressly stipulated herein; all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve buyer of its obligations to accept remaining deliveries. Claims for shortages or other errors in delivery must be made in writing to Sani-Matic within 10 calendar days after receipt of shipment; and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Purchaser. Claims for loss of or damage to goods in transit must be made to the carrier, and not to Sani-Matic. All delivery dates are approximate. Sani-Matic shall not be liable for any losses or damages as a result of any delay or failure to deliver due to any cause beyond Sani-Matic’s reasonable control, including but not limited to any act of God, act of Purchaser, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, riot, delay in transportation, inability to obtain necessary labor, materials or manufacturing facilities, casualty, terrorist act, police action, currency restrictions, shortage of transport, import or export restrictions, failure or delay of vendors, restrictions in the use of power, or any other cause beyond Sani-Matic’s reasonable control, even if foreseeable or anticipated. In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost because of the delay. Purchaser’s exclusive remedy for other
delays and for Sani-Matic’s inability to deliver for any reason shall be rescission of its agreement to purchase.
- TOOLS. Any dies, jigs or tools that Sani-Matic manufactures or acquires in connection with its performance hereunder shall remain the property of Sani-Matic, notwithstanding any charges to Purchaser therefor. Any such charges convey to Purchaser the right to have the tools, dies or jigs used by Sani-Matic for performance hereunder, but do not convey title or right of possession or any other right.
- CHANGES. Sani-Matic may at any time make such changes in design and construction of products, components or parts as Sani-Matic deems appropriate, without notice to Purchaser. Sani-Matic may furnish suitable substances for materials unobtainable because of priorities or regulations established by governmental authority or non-availability of materials from suppliers.
- OTHER PROVISIONS. In the event of insolvency, bankruptcy, or similar proceeding brought by or against Purchaser, Sani-Matic may suspend all further performance under the Contract until all remaining sums to be paid under the Contract have been fully paid in advance. The