Terms and Conditions of Sale
The Vollrath Company, L.L.C.
Terms and Conditions of Quotation and Sale
Effective as of June 1, 2021
All sales of products (Products) by the Vollrath Company, L.L.C. or its subsidiary ACS Fab L.L.C. (Vollrath) to the customer named in the quotation, purchase order, or purchase order acknowledgement (Purchaser) are subject to these Terms and Conditions of Quotation and Sale (the Terms or Agreement).
1. Exclusive Terms.
VOLLRATH HAS MADE A PROPOSAL TO SELL PRODUCTS TO PURCHASER. THESE TERMS, ANY VOLLRATH QUOTATION AND ANY VOLLRATH ORDER ACKNOWLEDGMENT CONSTITUTE THE COMPLETE AND EXCLUSIVE AGREEMENT BETWEEN VOLLRATH AND PURCHASER PERTAINING TO THE PRODUCTS IDENTIFIED IN ANY PURCHASE ORDER WHEREBY PURCHASER ACCEPTS VOLLRATH’S PROPOSAL TO SELL. PURCHASER’S ACCEPTANCE OF VOLLRATH’S PROPOSAL IS LIMITED TO THESE TERMS AND EXCLUDES ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS SUPPLIED BY PURCHASER. VOLLRATH HEREBY OBJECTS TO AND REJECTS ANY SUCH ADDITIONAL OR DIFFERENT TERMS. SHOULD PURCHASER USE ITS REGULAR PURCHASE ORDER FORMS IN ACCEPTING THIS PROPOSAL OR IN ORDERING PRODUCTS COVERED BY THIS PROPOSAL, VOLLRATH’S ACCEPTANCE OF THE ORDER IS EXPRESSLY CONDITIONED UPON PURCHASER’S ASSENT TO THESE TERMS. THIS AGREEMENT PREVAILS OVER ANY OF PURCHASER’S GENERAL TERMS AND CONDITIONS OF PURCHASE, REGARDLESS OF WHETHER OR WHEN PURCHASER HAS SUBMITTED ITS PURCHASE ORDER. VOLLRATH’S FULFILLMENT OF PURCHASER’S ORDER DOES NOT CONSTITUTE VOLLRATH’S ACCEPTANCE OF ANY OF PURCHASER’S TERMS AND CONDITIONS AND DOES NOT SERVE TO MODIFY OR AMEND THIS AGREEMENT. Additional or different terms applicable to a particular sale of Products must be expressly set forth in a written agreement between the parties which is executed by an authorized officer of Vollrath. In the event of a conflict between any such written agreement and these Terms, the written agreement will take precedence over these Terms if that intention is set forth in the written agreement.
2. Purchase Orders; Quotations; Errors.
All orders, whether or not submitted pursuant to a quotation, are subject to acceptance by Vollrath. Vollrath reserves the right to accept or reject all orders including, but not limited to, purchase orders entered pursuant to an expired quotation. Unless stated otherwise in a quotation, prices quoted are valid for a period of 30 calendar days after which Vollrath has the right to adjust quoted prices upon written notice to Purchaser. Further, Vollrath may, upon written notice to Purchaser, assess a surcharge on any Products and/or without prior notice, choose to pass along any price increase in Vollrath’s cost of the subject Products and/or any service or surcharge imposed on Vollrath by its suppliers. Any outstanding quotation may be amended or terminated by written notice from Vollrath to Purchaser. Any typographical or clerical errors or discrepancies in a quotation or marketing information such as catalogs, brochures, websites, and drawings available to Purchaser are subject to correction in Vollrath’s sole discretion. Any quotation prepared for Purchaser is based on various business factors and considerations and, without Vollrath’s prior written consent, is not valid for any party other than Purchaser.
3. Prices; Payment Terms.
(a) Prices. Prices are in U.S. dollars and are subject to change without prior notice for any reason. All orders are accepted subject to Vollrath’s price in effect at the time of shipment.
(b) Payment Terms. Subject to Vollrath’s written approval of Purchaser’s credit, payment terms for standard stock Products are 1% cash discount, 10 days, net 30 days DOI. Unless otherwise expressly agreed to in writing by the parties, payment terms for custom products, including
fabrications, are net 30 days. Vollrath may, at its sole discretion, issue progress billings and require progress payments for custom products and fabrications, in which case the terms are net 30 days from each progress billing. Cash discount is computed from the date of Vollrath’s invoice and not Purchaser’s receipt of Products. Cash discount will not be applied to credit card transactions. If Products are delivered in installments, Purchaser must pay separately for each installment. Purchaser’s right to inspect Products does not affect the payment terms. Under no circumstances does Purchaser have a right to set-off any amounts owed to Vollrath against any amount owed to Purchaser by Vollrath. Purchaser shall pay interest on all late payments, calculated daily and compounded monthly at a rate which is the greater of 1.5% per month or the highest rate permitted under applicable law. In the event of Purchaser’s failure to timely pay or Vollrath’s reasonable doubt as to Purchaser’s ability to pay, Vollrath may require advance payment or collateral and may refuse fulfillment of further shipments until its demand is fulfilled. In addition to all other remedies available under these Terms or at law (which Vollrath does not waive by the exercise of any rights under these Terms), if Purchaser fails to pay any amounts when due as required by these Terms, Vollrath may suspend the delivery of any Products, cancel any or all accepted purchase orders and declare all unpaid amounts for Products previously delivered immediately due and payable, all without liability to Vollrath. If production or shipment of Products, or other performance by Vollrath, is delayed by any action or inaction of Purchaser, Vollrath may immediately invoice and Purchaser shall pay the percentage of the purchase price corresponding to the percentage of completion. In addition, Purchaser shall compensate Vollrath for storage of Products and work in process during any such delay at current market rates for preparation and storage for the materials as determined by Vollrath. This applies whether storage is at Vollrath’s facility or a third-party storage facility.
If Purchaser fails to make any payment as required or otherwise breaches these Terms, Purchaser shall indemnify Vollrath against all associated costs incurred by Vollrath, including reasonable attorneys’ fees and court costs incurred by Vollrath in enforcing these Terms or any order hereunder or defending against any claim for breach thereof.
4. Credit Approval.
All shipments are subject to Vollrath’s prior written approval of Purchaser’s credit. Where Vollrath has extended credit to Purchaser, Vollrath reserves the right, at any time, to modify the amount of credit or terms of payment or to revoke Purchaser’s credit.
5. Security Interest.
To secure Purchaser’s obligations to pay for any Product, Purchaser hereby grants to Vollrath a security interest in the Product(s), 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 applicable Uniform Commercial Code. Purchaser authorizes Vollrath to file such financing statements relating to Vollrath’s security interest in the Product as Vollrath deems appropriate. Purchaser agrees to take any action reasonably requested by Vollrath in connection with the granting of the security interest.
6. Insecurity and Adequate Assurance.
Purchaser represents to Vollrath that Purchaser is solvent and capable of timely fulfilling its payment and other obligations. If, in Vollrath’s sole judgment, the financial responsibility of Purchaser is or becomes unsatisfactory, Vollrath may demand in writing that Purchaser provide Vollrath with adequate assurance of due performance under any agreements to purchase Products from Vollrath, including these Terms (Outstanding Contracts). Purchaser’s failure to provide Vollrath with adequate assurance of due performance within 10 days of receipt of Vollrath’s demand is a repudiation by Purchaser of all Outstanding Contracts. “Adequate assurance of due performance” includes providing a letter of credit or
comparable security for all obligations of Purchaser that then exist or that will arise in the future under all Outstanding Contract.
7. Taxes and Other Charges.
Unless otherwise agreed in writing, prices do not include any sales, use, value-added or other taxes, import duties, license fees or like charges (Taxes). Purchaser is responsible for all such Taxes and shall indemnify Vollrath from any such Taxes together with any interest, fines or penalties thereon. When required to comply with any law or regulation, Vollrath will add such Taxes to the sales price when invoicing Purchaser and Purchaser shall pay the same unless Purchaser has provided Vollrath with a valid tax exemption certificate or similar document satisfactory in form to Vollrath.
Vollrath may cancel any purchase order or terminate any agreement relating to the purchase of Products upon reasonable prior written notice to Purchaser. Once Vollrath has acknowledged acceptance of a purchase order or has begun taking actions with respect to a purchase order, Purchaser does not have the right to cancel that purchase order. If, however, Vollrath agrees in writing to permit a requested cancellation, Purchaser shall immediately pay to Vollrath a cancellation charge in an amount equal to all costs incurred and committed to by Vollrath for the order or in connection with the cancellation or modification, together with a reasonable allowance for Vollrath’s prorated expenses and anticipated profits.
9. Shipping and Delivery.
(a) Domestic Shipping of Standard Stock Products. Shipments of standard stock Products to destinations within the United States are FOB Vollrath’s location. Vollrath anticipates use of common carriers for shipment of Products. Except as provided below in this Section 9, orders for $3,000.00 NET or more which ship to one location within the 48 contiguous United States will be shipped with shipping prepaid by Vollrath. Shipping charges on orders of less than $3,000 NET will be collected from Purchaser or, upon Purchaser’s request and with Vollrath’s written consent, prepaid and invoiced to Purchaser. Orders for $3,700 NET or more which ship to one location in Alaska or Hawaii will be shipped with shipping prepaid by Vollrath, with the exception of 4 and 6 Series serving systems which do not qualify for prepaid freight to Alaska or Hawaii. Shipping charges on orders of less than $3,700 NET shipping to one location in Alaska or Hawaii will be collected from Purchaser or, upon Purchaser’s request and with Vollrath’s consent, prepaid and invoiced to Purchaser.
(b) International Shipping of Standard Stock Products. For shipments of standard stock Products to ultimate destinations outside of the U.S., all orders under $3,000.00 NET will be FCA (as defined in Incoterms 2010) Vollrath’s loading dock. Orders over $3,000.00 NET will be FCA, point of export, with all inland transport charges prepaid by Purchaser.
(c) Custom Equipment and Fabrications. Quoted prices for custom equipment and fabrications DO NOT include freight or crating charges. Vollrath determines freight arrangements but will, in its discretion, consider Purchaser’s written request for special freight arrangements and will advise Purchase if the special arrangements will be allowed. All freight and crating charges will be added to the invoices and are Purchaser’s responsibility. Custom equipment and fabrications will be shipped domestically Ex Works (as defined in Incoterms 2010) Vollrath’s loading dock. Shipments of custom products to ultimate destinations outside of the U.S. will be shipped FCA, point of export.
If Purchaser specifies that Vollrath must use any equipment not manufactured by Vollrath in a fabrication, Purchaser is responsible for ordering and paying for such equipment. Purchaser is also responsible for making arrangements to ship such equipment to Vollrath with delivery to
occur on a schedule agreed upon in writing by the parties. Purchaser shall bear all risk of loss of such equipment in shipment and while held at Vollrath’s location. Purchaser shall compensate Vollrath at the rate of $25 per day for equipment delivered 10 days or more prior to the agreed upon delivery date.
(d) Custom Smallwares. Custom Smallwares orders are completed with over/under shipments, not to exceed plus or minus 10% of the original order quantity.
(e) Minimum Order Amount and Drop Ship Orders. A $15.00 minimum order charge applies to orders of less than $100.00 NET. Vollrath reserves the right to refuse requests to drop ship orders for the same Products to one or multiple locations.
(f) Case Lot. Products purchased in full case lots will expedite shipments. Prices quoted are for full case lot quantities. A $5.00 net fee will be charged for each line on any purchase order that is not for full case quantities. The $5.00 broken case upcharge will appear as a separate line/charge directly after the line that has the broken case quantity. Cases will not be broken for any Products noted with a pound sign (#) after the case lot.
All shipping and delivery dates are approximate and are based upon prompt receipt of all necessary information from Purchaser. Delay in delivery of any shipment does not relieve Purchaser of its obligation to accept remaining shipments. If Lift-gate equipment is required for proper delivery, the same must be requested on the purchase order. If so requested, Lift-gate charges are Purchaser’s responsibility. Such charges will be based on the charges quoted by the carrier and will be added to the invoice.
10. Title and Risk of Loss.
Title and risk of loss pass to Purchaser upon Vollrath’s delivery of Product in accordance with the applicable delivery terms. Purchaser shall fully insure the Products against all risks from the time of such delivery. Purchaser is responsible for filing any claims for loss or damage with the carrier.
11. Inspection/Non-Conforming Shipments.
Purchaser shall inspect Products within five business days after delivery (Inspection Period). Purchaser must notify Vollrath in writing within the Inspection Period of any shortages, or other errors in the order, including any non-conforming Products and afford Vollrath a reasonable opportunity to inspect such Products and cure any noncomformity. Purchaser’s failure to provide the required written notice to Vollrath within the Inspection Period constitutes Purchaser’s unqualified acceptance of the Products and is a waiver of all claims. Products may only be returned in accordance with Section 23 of these Terms.
12. Force Majeure.
Vollrath is not liable for any loss, damage or expense of any nature incurred by Purchaser as a result of any delay or failure to manufacture, ship, or deliver any Products to Purchaser if the delay or failure is caused, in whole or in part, by the occurrence of any contingency beyond the reasonable control of Vollrath or its suppliers. Such events may include floods, storms or other acts of God, acts of Purchaser, acts of any governmental authority or agent, fire, accident, strike, slowdown, war, act of terrorism, riot, epidemic, pandemic, quarantine, outbreaks of infectious disease or other public health crises, inability to obtain raw materials at a reasonable cost, failure or delay in transportation, shortage of labor, fuel, materials or manufacturing facilities or any other cause or circumstance that is beyond the reasonable control of Vollrath. In the event of any such delay, the time for performance will extend for such time as reasonably necessary to enable Vollrath to perform.
13. Other Changes.
(a) By Vollrath. Unless otherwise agreed in writing by the parties, Vollrath may, at any time and without notice to Purchaser, make changes in design and construction of Products, components
or parts if the changes are deemed appropriate by Vollrath and if the changes substantially conform to Purchaser’s specifications. Vollrath may furnish suitable substitutes for materials which cannot, for any reason, be reasonably obtained.
(b) By Purchaser. Any changes or modifications requested by Purchaser after Vollrath’s acknowledgement of Purchaser’s purchase order must be expressly agreed to in writing by Vollrath. Vollrath reserves the right, in its sole discretion, to adjust the time for performance and Purchaser is responsible for all charges and expenses reasonably incurred with respect to such change.
14. Limited Warranty and Warranty Period.
VOLLRATH WARRANTS THAT THE PRODUCTS WILL BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP AND WILL MATERIALLY CONFORM TO ANY SPECIFICATIONS OR DESCRIPTIONS THAT ARE MUTUALLY AGREED UPON IN WRITING. THE WARRANTY PERIOD FOR ALL PRODUCTS LISTED ON THE TABLE LOCATED AT https://www.vollrathfoodservice.com/vollrath-resources/warranty-info IS THE PERIOD SHOWN IN THE TABLE FOR EACH PRODUCT. THE TABLE IS INCORPORATED HEREIN AND CONSTITUTES PART OF THE AGREEMENT. THE WARRANTY PERIOD FOR ALL OTHER PRODUCTS IS ONE YEAR. IN ALL CASES, THE WARRANTY PERIOD BEGINS ON THE DATE OF PURCHASE AS SHOWN IN THE SALE DOCUMENTATION. TO BE VALID, A WARRANTY CLAIM MUST BE ASSERTED DURING THE APPLICABLE WARRANTY PERIOD. VOLLRATH’S LIMITED WARRANTY APPLIES ONLY TO THE ORIGINAL COMMERCIAL END USER LOCATED IN THE UNITED STATES OR CANADA AND IS NOT TRANSFERABLE WITHOUT VOLLRATH’S WRITTEN CONSENT.
15. No Other Warranties.
THE LIMITED WARRANTY SET FORTH ABOVE IS EXCLUSIVE. VOLLRATH PROVIDES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO MODIFICATION OR WAIVER OF THESE WARRANTIES IS BINDING ON VOLLRATH UNLESS CONTAINED IN A WRITING SIGNED BY AN OFFICER OF VOLLRATH. THE WARRANTY AND WARRANTY PERIOD SET FORTH ABOVE ARE NOT, IN ANY WAY, ENLARGED, DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY RESULTS FROM VOLLRATH RENDERING TECHNICAL ADVICE OR SERVICE TO PURCHASER IN CONNECTION WITH PURCHASER’S ORDER OF PRODUCTS.
16. Limited Warranty Exclusions.
SPECIFICALLY EXCLUDED FROM THE LIMITED WARRANTY SET FORTH IN SECTION 14 ABOVE ARE THE FOLLOWING FOR WHICH VOLLRATH HAS NO LIABILITY WHATSOEVER: (a) Products purchased for any use other than standard commercial foodservice; (b) damage resulting from: (i) shipping, accident, neglect, or improper installation, setup or use; (ii) failure to follow operating instructions and/or scheduled maintenance procedures; (iii) modification of Products in any manner from original model, (iv) substitution of parts other than factory authorized parts, (v) unauthorized removal or unauthorized addition of any parts; or (vi) normal wear and tear; and (c) naturally occurring cosmetic variations in materials such as stone and wood used in the fabrication of custom equipment.
17. Exclusive Remedy.
If Vollrath determines in good faith that the Product is non-conforming or defective and if Purchaser has timely filed a warranty claim as provided in Section 14, Vollrath’s sole obligation to Purchaser and Purchaser’s SOLE AND EXCLUSIVE REMEDY is for Vollrath to repair or replace the Product. Repair or replacement is F.O.B. Purchaser’s original destination or, for any Purchaser outside of the U.S., Ex Works (as defined in Incoterms 2000) Vollrath’s loading dock. Vollrath may condition repair, replacement or
credit upon Purchaser’s return of the Products to Vollrath, F.O.B. Vollrath’s loading dock or, for any Purchaser outside of the U.S., DDP (as defined in Incoterms 2000) Vollrath’s loading dock. Vollrath will pay the cost of shipping the repaired or replaced Product. Failure to promptly return the Product will result in Purchaser being charged for it. Any Product repaired or replaced under Vollrath’s limited warranty is warranted only for the balance of the warranty period on the part that was repaired or replaced.
18. Limitation of Liability.
UNDER NO CIRCUMSTANCES WILL VOLLRATH BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, DIMINUTION IN VALUE, LOSS OF USE, OR LABOR COSTS, ARISING OUT OF THE SALE, USE OR INSTALLATION OF THE PRODUCTS, OR FROM ANY OTHER CAUSE WHATSOEVER. THIS LIMITATION APPLIES REGARDLESS OF (a) ANY ADVICE OR REPRESENTATIONS NOT IN WRITING THAT MAY HAVE BEEN RENDERED BY VOLLRATH CONCERNING THE SALE, USE OR INSTALLATION OF THE PRODUCTS, (b) WHETHER SUCH DAMAGES WERE FORESEEABLE, (c) WHETHER OR NOT VOLLRATH WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (d) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL VOLLRATH’S LIABILITY ARISING OUT OF OR RELATED TO ANY PRODUCT(S) SOLD UNDER THIS AGREEMENT EXCEED THE COST OF THE PRICE OF THE PRODUCT(S) GIVING RISE TO THE CLAIM.
19. Product Use.
Purchaser is solely responsible for determining if a Product is fit for a particular purpose and suitable for Purchaser's method of application. Accordingly, and due to the nature and manner of use of Vollrath's Products, Vollrath is not responsible for the results or consequences of use, misuse or application of its Products. All physical properties, statements and recommendations are either based on the tests or experience that Vollrath believes to be reliable, but they are not guaranteed. Purchaser agrees to not use the Products as a finished medical device without Vollrath’s prior written approval signed by an authorized representative. Purchaser expressly warrants that it will not introduce the Products in clinical trials or similar testing without Vollrath’s prior written approval, signed by an authorized representative.
Purchaser shall indemnify, defend, and hold harmless Vollrath and its affiliates, and its officers, directors, employees, members, affiliates, agents, successors and permitted assigns and customers, against any and all claims, liability, damages, lawsuits, and costs (including reasonable costs and attorneys’ fees), whether for personal injury, property damage or other, brought by or incurred by Purchaser, Purchaser's employees, or any other person, arising out of (i) improper selection, improper application or other use or misuse of Products purchased by Purchaser from Vollrath, (ii) the design, manufacture, integration or usage of a Product which alone or as a component in an assembly, is alleged or proved to have caused injury or damage, (iii) Purchaser's failure to comply with all applicable foreign, U.S. federal, state or local laws, ordinances, rules, orders and regulations, including without limitation U.S. export control laws and any regulations and/or orders thereof or failure to provide Vollrath adequate information related thereto, (iv) the acts or omissions of Purchaser, its agents and employees and others under its direction or control, and (v) any other breach of Purchaser's obligations hereunder. These indemnity obligations apply except to the extent such liabilities are attributable solely to the willful or reckless conduct of Vollrath.
21. Obtaining Warranty Service.
To obtain warranty service, Purchaser must follow the procedure set forth at https://www.vollrathfoodservice.com/vollrathresources/warranty-info which is incorporated herein and constitutes part of this Agreement.
22. Out of Warranty Repairs.
Out of warranty repair services provided by Vollrath will be performed in a manner consistent with customary practice in Vollrath’s industry. If, within thirty 30 calendar days after completion of any repair services, a failure to conform to this standard is established to Vollrath’s good faith satisfaction, Vollrath, if promptly notified in writing, will, in its discretion, either perform the repair services again without charge, or refund the price charged for the repair services. Vollrath’s re-performance or refund is Purchaser’s exclusive remedy and Vollrath’s sole liability with respect to any claimed deficiency in out of warranty repair services. Vollrath provides no warranty on any repair services performed by unauthorized personnel or unauthorized service agencies.
Products may not be returned except with Vollrath’s prior written return authorization which may be requested by contacting Vollrath at (800) 628-0830. Products returned without prior written authorization WILL BE REFUSED. Requests for returns of Product (other than Product that does not conform with Vollrath’s warranty) must be made within 90 DAYS of VOLLRATH’S INVOICE DATE. WHEN REQUESTING A RETURN AUTHORIZATION, PURCHASER MUST PROVIDE PURCHASE ORDER NUMBER or VOLLRATH INVOICE NUMBER. NO RETURN AUTHORIZATION WILL BE ISSUED UNLESS PURCHASE ORDER NUMBER OR VOLLRATH INVOICE NUMBER IS PROVIDED.
(a) Restocking charges as follows will apply:
i. Product less than $100 value - $25 restocking charge.
ii. Product more than $100 value - 25% restocking charge.
(b) Return shipment must be shipped prepaid to Vollrath.
(c) Return Authorization Number must be marked on all returned cartons.
(d) Returns will be accepted only on current merchandise found in original carton and in new and saleable condition. Merchandise returned that is in partial case lots, used, obsolete or shelf-worn will be disposed of and credit WILL NOT be issued.
(e) No returns will be accepted on the following items: (i) Personalized/Imprinted Racks, (ii) SIGNATURE SERVER® products, (iii) Product purchased in broken case quantities, (iv) custom plate covers, (v) Affordable Portable™ products, (vi) ServeWell® products, (vii) Modular Drop-ins, (viii) breath guards, (ix) Cayenne® Heat Strips and Light Strips, (x) Custom Graphic Food/Soup Merchandisers, (xi) custom countertop equipment, (xii) other custom equipment (including Food Courts, Bars, Merchandised Carts and Kiosks), (xiii) Custom Smallware, (xiv) lithium batteries and power packs.
All material, equipment, facilities and special tooling (including tools, jigs, dies, fixtures, molds, patterns, special taps, special gauges, special test equipment and manufacturing aids and replacements thereof) manufactured or purchased by Vollrath which is used in the manufacture of Products will be Vollrath’s property. Any material, tooling or equipment funded by Purchaser and furnished to Vollrath for Purchaser will be held by Vollrath at Purchaser’s sole risk and expense and will remain the property of Purchaser with title to and right of possession remaining in Purchaser.
25. Intellectual Property.
All sketches, models, drawings, renderings, virtual or augmented reality files, samples, know-how, designs, specifications, inventions, devices, developments, processes, copyrights and other such
information or intellectual property disclosed or otherwise provided to Purchaser by Vollrath and all rights therein (Intellectual Property) are the property of Vollrath and shall be kept confidential by Purchaser in accordance with these Terms. Purchaser has no claim to, nor ownership interest in, any Intellectual Property, and such information, in whatever form and any copies thereof, must be promptly returned to Vollrath upon Vollrath’s request. Purchaser acknowledges that no license or rights of any sort are granted to Purchaser hereunder in respect of any Intellectual Property, other than the limited right to use Products purchased from Vollrath.
26. Use of Trademarks and Trade Names.
Purchaser shall not use, directly or indirectly, in whole or in part, Vollrath’s name, or any other trademark or trade name that is now or may hereafter be owned by Vollrath (collectively, the Trademarks), as part of Purchaser’s corporate or business name, or in any way in connection with Purchaser’s business, except in a manner and to the extent authorized herein or otherwise approved by Vollrath in writing. Purchaser is entitled to use the Trademarks only in connection with the promotion or sale of the Products pursuant to the terms of the Agreement. Purchaser shall reproduce the Trademarks exactly as specified by Vollrath. Purchaser may not use the Trademarks in combination with any other trademarks or names. Purchaser agrees that it will not register or attempt to register any Trademark or any colorable imitation thereof (including any non-English language variation thereof), or use the Trademarks for any products or for any purposes other than those set forth in the Agreement. Purchaser shall not, at any time during or after termination of the Agreement, use in its business any other trademark that is similar to or in any way resembles the Trademarks so as to be likely to cause deception or confusion with the Trademarks. Purchaser shall provide reasonable cooperation to Vollrath with respect to any efforts of Vollrath to protect, defend, or enforce its rights to the Trademarks.
Vollrath, at its own expense, will defend and hold Purchaser harmless from and against all damages, costs and expenses arising from any valid claim of infringement of any patent, trademark, registered design or other intellectual property rights caused by the Products originally manufactured by Vollrath, provided Purchaser (a) has not modified such Products, (b) gives Vollrath immediate notice in writing of a claim or institution or threat of suit, and (c) permits Vollrath to defend or settle the same, and gives all information, assistance and authority to enable Vollrath to do so.
28. Confidential Information.
All information, including Intellectual Property, furnished by Vollrath or any other person acting on behalf of Vollrath and all information learned about Vollrath or its operations through performance of any order or the Terms is confidential and Purchaser shall not, without Vollrath’s express written consent, disclose any such information to any other person, or use such information for any purpose other than performing any order or the Terms. This Section 28 does not apply to information that is (a) in the public domain; (b) known to Purchaser at the time of disclosure; or (c) legally made available to Purchaser by or through a third party having no direct or indirect confidentiality obligation to Vollrath with respect to such information.
29. Occupational Safety and Health Act (OSHA)
Vollrath’s Products are designed to meet existing specifications and are provided with standard guards and safety features in line with sound design practice. Due to differing local interpretation and enforcement of OSHA and the standards issued thereunder, it is impossible for Vollrath to certify that Products will comply with all applicable provisions. It is Purchaser’s responsibility to request an inspection of the Product prior to shipping. Upon receipt of an inspection request, Vollrath will make all necessary arrangements for same. If, after Purchaser’s inspection and prior to delivery of Product manufactured by Vollrath, Purchaser’s safety department determines additional guards or safety devices are required,
Purchaser shall provide information to Vollrath regarding Purchaser’s needs. Vollrath will then provide Purchaser with a quotation reflecting the cost of any additional work desired by Purchaser.
Purchaser agrees to comply with all federal, state, local and foreign rules, regulations, ordinances and laws applicable to the purchase and Purchaser’s use of the Products. In no event will Purchaser use, transfer, release, import, export or re-export Products in violation of such laws or regulations.
(a) Assignment; Binding Effect. Purchaser may not assign any rights or interest or delegate any obligations under the Agreement or any purchase order without Vollrath’s prior written consent. Any attempted assignment will be void. Vollrath may assign the Agreement or otherwise transfer its rights and/or obligations under the Agreement. The Agreement will inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns.
(b) Relationship of the Parties. The relationship between the parties is that of independent contractors. This Agreement does not create any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party has authority to contract for or bind the other party in any manner whatsoever.
(c) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns. Nothing in these Terms, express or implied, confers 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.
(d) Vollrath’s Rights. Vollrath has all rights and remedies that applicable law gives to sellers. Vollrath’s rights and remedies are cumulative and Vollrath may exercise them from time to time. No waiver is effective unless it is in writing. The failure of Vollrath to require performance under any provision of these Terms in no way affects Vollrath’s right to require full performance at any subsequent time, nor does Vollrath’s waiver of a breach of anything required by these Terms on one occasion constitute a waiver of any other breach of the same or any term.
(e) Time for Bringing Action. Any action arising out of or relating to these Terms or any order of Products, whether alleging breach of warranty or other breach or default, must be brought by Purchaser within one year after the cause of action accrues. Purchaser shall pay costs and expenses incurred by Vollrath in enforcing any provision of these Terms, including Vollrath’s reasonable attorneys’ fees.
(f) Governing Law; Submission to Jurisdiction. All matters arising out of or relating to this Agreement are 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 (whether of the State of Wisconsin or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Wisconsin. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America for the Eastern District of Wisconsin located in the City of Green Bay, Wisconsin or the courts of the State of Wisconsin located in the City of Sheboygan and County of Sheboygan, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
(g) Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a Notice) must be in writing and addressed to the parties at the addresses set forth on the face of the sales confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). A Notice is effective only (i) upon receipt of the receiving party, and (ii) if the party giving the Notice has complied with the requirements of this section.