These Terms and Conditions of Sale (“Terms”) govern unless otherwise agreed in writing in the accompanying materials or by separate written instrument. Any terms or conditions provided by Buyer, including but not limited to any purchase order terms, shall be deemed null and void, and are hereby rejected by Seller. Buyer’s submission and/or confirmation of an order and/or receipt of goods constitutes acceptance of these Terms.   

QUOTES. Prices are effective for the duration stated in the quotation or, if no time period is stated, 30 days.                                                          

PURCHASE ORDERS. All purchase orders are subject to acceptance by Seller.                           

PRICE. Prices may be adjusted by Seller, upon notice to Buyer, at any time prior to delivery to reflect any increase in Seller’s cost of raw materials, components, shipping, and/or logistics, changes in law, labor, taxes, duties, tariffs, or quotas, acts of Government, any similar charges, or to cover any extra, unforeseen, and unusual cost elements. Kohler Co. will perform a review of each customer order every six (6) months of production for potential price increases. Seller may correct any quotation, acceptance, or invoice due to typographical or mathematical error.                                                   

PAYMENT TERMS. Payment is due net thirty (30) from the date of invoice.  Late payments shall incur a rate of interest at the greater of 1.5% per month or the amount permitted by law. Interest shall be paid with Buyer’s next remittance. In addition to late payment charges, Buyer shall pay all collection costs, including reasonable attorney fees, incurred by Seller in collecting unpaid amounts. Payment for tooling procured by Kohler Co., to be paid for by the customer upon receipt of tooling from tooling vendor unless otherwise agreed upon in writing prior to acceptance of order by Kohler Co.

TAXES. Buyer shall pay all sales, use, customs, excise, or other taxes presently or hereafter payable, and shall reimburse Seller for any such taxes or charges paid by Seller. Where taxes do not apply upon sale or resale, Buyer shall provide Seller with appropriate exemption certificates.

CHANGE REQUEST. Seller, in its sole discretion, may grant or deny the request to change a purchase order.  

CANCELLATION OR RETURN.  Orders accepted by Seller may not be cancelled except with Seller’s written consent prior to shipment and Buyer’s acceptance of Seller’s cancellation charges, which shall protect Seller against all costs and losses. Seller reserves the right to cancel any sale hereunder prior to delivery in Seller’s sole discretion without liability to Buyer (except for refund of monies already paid). No Products may be returned without prior written approval of Seller. Return shipment is at Buyer’s risk and cost.                                                                 

DELIVERY AND SHIPMENT. All castings, unless otherwise expressly stipulated, are sold as raw castings, FOB Kohler, and include preparation for shipment in accordance with Seller's standard practice. The delivery date provided by Seller is an estimate only. Seller will not be liable for any delays, loss, or damage in transit, and failure to deliver within the time estimated will not be a material breach of contract. Seller will use commercially reasonable efforts to make shipments as scheduled. Unless otherwise agreed, Seller will deliver EXW (Incoterms® 2020) Seller’s plant or factory using Seller’s standard methods for packaging. Buyer will be responsible for shipping, handling, insurance, and other similar costs. If a specific mode of transportation is desired, please notify the Seller’s Logistics Department at least 20 days prior to shipment. Seller shall not be liable for negligence or otherwise in the selection of the mode of transportation. Under no circumstances shall Seller’s liability exceed Seller’s invoice price. Any insurance desired is the responsibility of the Buyer. Delivery of the goods to the carrier will constitute delivery to Buyer and Buyer will bear all risk of loss or damage in transit. Seller's responsibility ceases upon delivery of property to the carrier. Buyer, by accepting delivery, waives all rights to claims for error in weight or number unless such claim be made in writing within (10) days after the receipt of castings. Unless otherwise stipulated, the customer shall accept an overrun of ten (10%) percent above quantities specified on order. However, the Seller is to make every reasonable effort to furnish as near the exact quantity specified as operating conditions will permit.                                                                                                                                                

TERMINATION. Seller may terminate any quote or order, without cause, by giving written notice to Buyer. If Seller terminates for convenience, Seller will refund any undisputed amounts paid in advance.

CONFIDENTIAL INFORMATION. Buyer will treat all proprietary and non-public information and materials provided by Seller as confidential information. Buyer will not use any confidential information for any purpose, except as reasonably necessary to fulfill its obligations under these Terms and will not disclose any confidential information to any third-party, except as previously agreed to in writing by Seller. Buyer will, at the request of Seller, return all confidential information to Seller and any copies thereof in the possession or control of Supplier. Any consent, if granted, will immediately cease upon expiration of this Contract.

DATA AND SECURITY. Buyer acknowledges and agrees to the collection, processing and international transfer of personal data and information related to the business relationship between Buyer and Seller for its general business purposes, including but not limited to providing Buyer with service/product recommendations, maintenance and support, and marketing to Buyer.  Buyer further acknowledges that Buyer has read and understood the Seller’s Privacy Notice at: www.kohler.com/privacy.  Where required under law, and to the extent required, Buyer provides consent to the processing and transfer according to the Seller’s Privacy Notice, and further confirms that it has obtained consent from relevant data subjects, including Buyer employees, where required.

OWNERSHIP. Any ideas, know-how, inventions, patents, and other intellectual property owned by a party will remain such party’s property. Any custom work performed by Seller will also be the property of Seller even after delivery to Buyer. All goodwill generated from Seller’s name, logos, or trademarks will inure to the sole benefit of Seller.

NO CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BUYER AGREES THAT SELLER SHALL NOT BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER UNDER CONTRACT OR TORT FOR ANY INDIRECT, CONSEQUENCIAL, INCIDENTAL, OR OTHER SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFIT OR LOSS OF REVENUE IN CONNECTION WITH USE OF THE PRODUCTS.                                                                                                                                                             

GOVERNING LAW. The validity, interpretation, and enforcement of these Terms and Conditions of sale will be governed and construed according to the provisions of the Uniform Commercial Code or the laws of Seller’s principal place of business without variation, exclusion or limitation as effective and in force on the contract date. The United Nations Convention on Contracts for the International Sales of Goods (“CISG”) shall not apply. Seller hereby elects to opt out of the CISG. The exclusive venue for any judicial action for any dispute arising out of or relating to these Terms will be the courts of Seller’s principal place of business. Buyer waives any challenged to venue or personal jurisdiction.

EXPORT COMPLIANCE.  Each party will at all times and at its own expense: (i) strictly comply with all applicable laws, rules, regulations, ordinances and governmental orders, now or hereafter in effect, relating to its performance under these Terms, including, without limitation, export and import laws and regulations; (ii) pay all fees and other charges required by such laws, rules, regulations and orders; and (iii) maintain in full force and effect all licenses, permits, authorizations, registrations and qualifications from all applicable governmental departments and agencies to the extent necessary to perform its obligations hereunder. If requested by Seller, Buyer will sign written assurances and other export or import related documents, as may be required under applicable export or import laws and regulations.    

ANTI-CORRUPTION COMPLIANCE. Each party shall comply with and take all reasonable measures to ensure that its subcontractors, agents or other third parties, subject to its control or determining influence, comply with all applicable laws, statutes, directives and/or regulations relating to anti-bribery and anti-corruption, including but not limited to the US Foreign Corrupt Practices Act and other applicable laws.       

FORCE MAJEURE. Delays resulting from any cause outside the reasonable control of either party, including without limitation acts of God, acts or requests of government or governmental agencies in their non-commercial capacity, riot or civil commotion, sabotage, accidents, fire, flood, explosion damage to plants or facilities, epidemics, typhoons, quarantine restrictions, or absence of normal means of communication or transportation will extend the time of performance for the affected Party. Neither party will be liable for any loss, damage, detention, or delay resulting from such delay. Seller may terminate any quote or order for delays continuing beyond thirty (30) days.

MISCELLANEOUS. The parties are independent contractors. This Contract does not create any relationship of employment, agency, partnership, joint venture, or license or any fiduciary duty, liability, or similar obligation between the parties. Buyer may not assign a quote or order to any third party without the prior written consent of Seller. These Terms may not be modified or amended, except in writing and signed by both parties. No waiver by either party will be effective, unless explicitly set forth in writing and signed by the party so waiving. Sections of these Terms that by nature are intended to survive will survive the termination of the applicable quote or order.    

"PATTERNS and RELATED EQUIPMENT - Seller is not responsible for loss or damage to patterns due to causes beyond its control. Customers must supply pattern and core box equipment in condition to produce economically the quality and quantity of castings required.  Seller is not responsible for variations existing between 3D Model /CAD Dwgs and pattern and core box equipment supplied by customer. All patterns, core boxes, and loose pieces thereof should be marked properly for identification. Follow boards, core dryers, and similar devices, when required, are to be furnished by customer. Any repairs and changes to patterns by customer's orders will be made at expense of customer.

Ownership and possession of all tooling will remain in Seller’s possession until the tooling and all castings made from such tooling have been fully paid.

Buyer to supply pattern equipment, including coreboxes for every core, in good condition, to reproduce economically the quality and quantity of castings required. Seller is not responsible for variations existing between drawings and pattern or other equipment supplied by the Buyer."                                  

a. Repairs and changes to patterns at Buyer’s request will be made at expense of Buyer.                                                         

b. Seller is not responsible for ordinary wear and/or damage resulting from use, or for loss of damage to patterns and other equipment belonging to the Buyer by fire or other casualties beyond Seller’s control.                                        

c. Seller’s insurance does not cover Buyer’s patterns, which are held at Buyer’s risk.                    

d. All packing, crating and transportations charges on patterns, to and from seller, shall be paid by the Buyer.                                          

e. ACTIVE PATTERNS: Pattern storage facilities are provided by the Seller for active patterns only. Patterns are received by Seller and will be stored for Buyer in Seller’s pattern storage area, subject to Buyer’s order, without charge (but without fire or other insurance coverage).  

f. INACTIVE PATTERNS & EQUIPMENT: Patterns not in use for a period of six (6) months will be subject to a minimum annual order requirement, returned to the owner or will be subject to storage charges of $500 per quarter. If Buyer does not respond to minimums or storage fees, patterns will be considered obsolete and of no value to the Buyer, and will be scrapped by Seller after thirty days’ written notice to Buyer to remove the same from Seller’s premises, and Buyer’s failure to do so will constitute Buyer’s consent to such disposal.                     

WARRANTY, LIMITATION of REMEDIES and DAMAGES. Seller will replace FOB Kohler, Kohler, Wisconsin, castings properly rejected due to foundry defects provided such castings are reported and returned to the foundry within  (30) days after their receipt by the Buyer. Kohler is only responsible for Warranty claims after the first 2% of rejected parts shipped against the total shipped within a months time.  No castings may be returned or reworked at Kohler’s expense without prior written authorization from Kohler Co. and must be within 30 days of ship date. No parts will be returnable after sixty days from date of invoice. Seller is not responsible for any damages or delays resulting from 1) Defective materials, 2) Buyer's failure to provide accurate and complete information, or 3) Buyer's failure to execute Seller's engineering department recommendations. Nor is the Seller responsible for machine work, welding, labor charges, or the other losses or damages caused by defective castings. Except to the extent prohibited by applicable law, ANY IMPLIED WARRANTEES INCLUDING WITHOUT LIMITATION MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXCLUDED FROM THIS CONTRACT AND SELLER DISCLAIMS ALL LIABILITY FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES.                                                            

NO CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BUYER AGREES THAT SELLER SHALL NOT BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER UNDER CONTRACT OR TORT FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR OTHER SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFIT OR LOSS OF REVENUE IN CONNECTION WITH USE OF THE PRODUCTS.                                                                   

INVENTORY. Product or Parts held in Seller’s inventory beyond the scheduled delivery date as a result of Buyer’s failure or refusal to accept delivery are subject to a storage charge.    

MONTHLY SURCHARGE. Buyer accepts and enters into the Kohler Industrial Castings material surcharge program once PO is received by Seller.  Seller has the right to charge a lump sum invoice on a monthly basis pertaining to commodity and energy fluctuations dependent on KIC's perceived time period.  Seller will communicate the change in pricing on a monthly basis for the following months price adjustment.  At the end of each month/start of new month, Buyer will be invoiced for the total amount of surcharge based on material/energy pricing and weight specified in all PO's shipped within the financial month.   

ELECTRONIC DATA INTERCHANGE (EDI). Except as otherwise agreed to between Buyer and Seller, the terms and conditions of sale for transactions conducted by EDI shall be the same as set forth herein. Each party, at its own expense, shall provide and maintain the equipment, software, services and testing necessary to effectively and reliably transmit and receive documents. A functional acknowledgement shall constitute conclusively a document has been properly received, and no document shall give rise to any obligation, until accessible to the receiving party at such party’s receipt computer.

"CREDIT APPROVAL. Shipments, deliveries, and performance of work shall at all times be subject to the approval of the Seller’s Credit Department, Kohler, Wisconsin. Seller may at any time decline to make any shipment or delivery or perform any work except up receipt of payment or security or upon terms and conditions satisfactory to such Department. Seller reserves the right to ship C.O.D."