These standard terms and conditions (these “Terms and Conditions”) govern the sale of goods and/or
materials and/or the provision of any services (“Goods and/or Services”) by Sioux Rubber & Urethane
(“Seller”) to the person or business entity buying such Goods and/or Services (“Buyer”). These Terms
and Conditions are incorporated into each and every Quote provided to Buyer. In the event of any
conflicting provisions in any Quote or any other document, these Terms and Conditions shall control and
Seller shall proceed with the sale under the assumption that these Terms and Conditions are the sole
terms and conditions binding on the parties. Buyer and Seller expressly agree that Seller may modify
these Terms and Conditions from time to time without notice, and such modifications shall be binding
upon Buyer. Accordingly, each request for quote, order, acceptance of Goods and/or Services and/or
payment to Seller by Buyer shall be deemed an acknowledgment and acceptance by Buyer of these
Terms and Conditions as then in effect. These Terms and Conditions, as may be subsequently modified
by Seller from time to time without notice, are incorporated into all documents issued by Seller to Buyer
in connection with the sale and/or provision of Goods and/or Services; provided, however, that these
Terms and Conditions shall only apply to the sale of Goods and/or Services by Seller in or to locations
within the United States.
1. NO MODIFICATIONS/ ENTIRE AGREEMENT.
Seller’s provision of credit to Buyer, if any, acceptance of any purchase order and/or sale or provision of
any Goods and/or Services to Buyer are all expressly conditioned upon Buyer’s acceptance of these
Terms and Conditions as then in effect. SELLER HEREBY REJECTS ANY TERMS OR CONDITIONS WHICH
ATTEMPT TO ALTER, MODIFY OR CHANGE IN ANY WAY ANY PROVISION HEREOF, OR OTHERWISE
ATTEMPT TO SUSPEND, CONTRADICT OR ADD TO ANY TERM OR CONDITION CONTAINED HEREIN, AND
BUYER HEREBY WAIVES ALL SUCH TERMS OR CONDITIONS; THUS, SUCH SHALL NOT BE BINDING ON
SELLER UNLESS EXPRESSLY AGREED TO IN A SEPARATE WRITTEN INSTRUMENT SIGNED BY SELLER’S
AUTHORIZED REPRESENTATIVE. SELLER OBJECTS TO ANY DIFFERENT, INCONSISTENT, CONFLICTING,
SUPPLEMENTAL OR ADDITIONAL TERMS OR CONDITIONS AND HEREBY REJECTS SUCH, WHETHER
CONTAINED IN PREVIOUS OR SUBSEQUENT PROPOSALS OR COMMUNICATIONS (WHETHER ORAL OR
WRITTEN) FROM OR WITH BUYER OR IMPLIED BY TRADE, CUSTOM, PRACTICE, COURSE OF DEALING OR
USAGE IN THE TRADE. BUYER AND SELLER AGREE THAT THESE TERMS AND CONDITIONS, AS MAY BE
SUBSEQUENTLY MODIFIED BY SELLER FROM TIME TO TIME, ARE ACCEPTED IN GOOD FAITH BY BOTH
PARTIES AS THE COMPLETE AND FINAL EXPRESSION OF THE TERMS AND CONDITIONS GOVERNING
TRANSACTIONS BETWEEN THEM, AND FURTHER AGREE THAT THERE SHALL BE NO “BATTLE OF THE
FORMS” AS DESCRIBED IN SECTION 2‐207 OF THE UNIFORM COMMERCIAL CODE.
2. ORDERS.
Buyer may not cancel or modify an order in whole or in part without Seller’s prior written consent, to be
given or denied in Seller’s sole and absolute discretion, and which Seller may condition upon an
adjustment of price and/or other terms and Buyer’s reimbursement to Seller of its costs and damages in
connection with the order and its cancellation. Orders by telephone are accepted at the risk of Buyer,
and shipments made before receipt of written confirmation are for the convenience of Buyer. To avoid
the possibility of duplication, Buyer’s confirming order must be clearly marked “Confirmation.”
Confirmation orders not so marked may, at Seller’s election, be treated as original open orders.
3. PRICE.
The purchase price of any Goods and/or Services sold and/or provided shall be as stated on the
applicable Quote, Seller order acknowledgment, or accepted purchase order; provided, however, that
Seller may upon prior notice to Buyer assess a surcharge on the sale of any Goods and/or Services
and/or without prior notice choose to pass along any price increase in Seller’s cost of the subject Goods
and/or Services or surcharge imposed on Seller by its supplier(s), including, but not limited to, any such
surcharge predicated upon an increase in the cost of raw materials or energy, all after the date of the
applicable Seller order acknowledgment or accepted purchase order. Such a surcharge by Seller or by
Seller’s supplier(s), as well as any price increase, which is passed along will result, respectively, in an
increase in price effective for any Goods and/or Services scheduled for shipment beginning immediately
on either the date established by Seller as the effective date of such surcharge as noted in the notice
provided or on the date such increase in Seller’s cost of the subject Goods and/or Services or surcharge
is imposed on Seller by its supplier(s). Any price change resulting from a pass along of a surcharge or an
increase of Seller’s cost may, as previously noted in this Section 3, be made effective by Seller without
prior notice to Buyer and may be further adjusted by Seller periodically to reflect additional changes in
costs to Seller. In any case, Seller shall be bound as to purchase price only upon shipment and/or
acceptance by Buyer of all or any part of the Goods and/or Services ordered.
4. DELIVERY AND PERFORMANCE.
Unless specifically agreed to by Seller in a separate signed writing, Seller does not guarantee any certain
date of delivery and Seller shall not be liable to Buyer for any losses, costs, damages, charges or
expenses incurred by Buyer or any other person or entity arising directly or indirectly out of a failure to
deliver on any particular date, nor will any delay entitle Buyer to terminate or rescind its purchase
unless such delay exceeds sixty (60) days. Seller reserves the right to defer delivery, to cancel the order
or reduce the volume of Goods and/or Services delivered, all without liability of any kind whatsoever to
Buyer, if Seller is prevented from or delayed in the carrying on of its business due to causes beyond
Seller’s control, including, without limitation, strikes, lockouts or other labor difficulties, floods, fires,
earthquakes, hurricanes or other unusually severe weather conditions, embargoes, war or other
outbreak of hostilities, acts of terrorism, acts of God, acts of Buyer, market shortages, unavailability of
Goods and/or Services or necessary materials, supplies or transportation services, any shift in raw
material costs that prohibit or materially reduce the supply of Goods and/or Services or necessary
materials or supplies from Seller’s suppliers, inability to obtain shipping space, machinery breakdowns,
delays of carriers or suppliers, governmental acts and regulations or other contingency the non‐occurrence of which was a basic assumption on which the purchase order was accepted. In such a case,
Seller shall have no obligation to purchase substitute goods or make other substitute arrangements in
order to complete delivery to Buyer or to ship substitute goods from any other facility.
Buyer’s right, under the Uniform Commercial Code (the “UCC”), to reject due to delay in delivery is
waived unless notice thereof is presented to Seller in writing within five (5) days after delivery.
5. INSTALLMENTS.
Unless otherwise expressly agreed with Buyer by Seller in a separate written document, Seller shall have
the right to make delivery in installments. All installments shall be separately invoiced and paid as billed
without regard to subsequent deliveries. Failure of Buyer to pay for any installment when due shall
excuse Seller from making further deliveries. Delay in delivery of any installment shall not relieve Buyer
of its obligation to accept and pay for remaining installments.
6. VARIATIONS IN SIZE AND LENGTH.
Goods and/or Services are subject to the following variations in size and length: Seller’s standard
tolerances as listed on the written Quote or standard product listing. Buyer agrees to accept, without
objection, any Goods and/or Services which are within the aforementioned standards.
7. WARRANTY; DISCLAIMER.
Seller will furnish Goods and/or Services of the quality specified; provided, however, that Seller’s
affirmative statements, if any, with regard to the character of Goods and/or Services in product
information, including, but not limited to, Seller’s written Quote and standard product list, on its
website, in price lists or other information, shall not be binding. If Goods and/or Services are defective
or are not in substantial conformity with the specifications, subject to the tolerances and variations
consistent with usual trade practices, Seller will replace such with conforming Goods and/or Services at
Seller’s facility where such Goods and/or Services are delivered for inspection in accordance with this
Section 7 (or if Seller and Buyer agree that such Goods and/or Services are not available for delivery to
Seller for such an inspection, after inspection and confirmation by Seller of a defect or nonconformity
originating with Seller, at the point of initial delivery) or will, at Seller’s election, allow Buyer a credit or
refund for the purchase price, provided that (i) Buyer has notified Seller of the defect or nonconformity
within ten (10) days after the delivery of the Goods and/or Services (failure to give such notice
constitutes acceptance and an irrevocable waiver of all claims); (ii) the Goods and/or Services have been
properly worked or used by Buyer; and (iii) Seller has been given a reasonable opportunity to inspect the
Goods and/or Services. Buyer may not return, repair or dispose of any allegedly defective or
nonconforming Goods and/or Services without Seller’s consent. Upon receipt of consent from Seller to
return allegedly defective or nonconforming Goods and/or Services, and shipping instructions, Buyer
shall return to Seller’s destination, all such Goods and/or Services allegedly not conforming to
specifications, or otherwise allegedly defective. Buyer shall be responsible for the cost of freight and
insuring the Goods during shipment back to Seller. Goods and/or Services returned must be returned in the same condition as when received by Buyer. Goods and/or Services found by Seller to be defective or
not to conform to specifications shall, upon return, be replaced or repaired by Seller without any
additional charge, or, at Seller’s option, Seller may credit the purchase price of such Goods and/or
Services to Buyer by issuing Buyer a credit memo or good funds or by setting off the purchase price of
such Goods and/or Services against monies owed to Seller by Buyer. Seller will also credit Buyer for
reasonable transportation charges on returned defective or nonconforming Goods and/or Services.
Returned Goods and/or Services which are found by Seller to be free from defect and to conform to
specifications or otherwise not suffer from a defect or nonconformity which originated with Seller shall
be held at Seller’s facility for Buyer’s disposition. Should no such disposition instructions be received
from Buyer within thirty (30) days of notice of Seller’s finding, Seller may do with the Goods and/or
Services as it wishes, including, but not limited to, selling such for its scrap value; provided that Buyer is
given a credit toward the amount owing to Seller for such Goods and/or Services in the amount of such
scrap value.
Buyer agrees that no oral or written representation, guaranty or warranty made by Seller, its employees,
agents or representatives, other than as expressly set out in these Terms and Conditions, shall be
binding on Seller.
The warranty in this Section 7 is expressly in lieu of all other warranties, expressed or implied, and of all
other obligations or liabilities on Seller’s part.
SELLER EXPRESSLY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. BUYER ACKNOWLEDGES AND AGREES THAT BUYER TAKES SOLE RESPONSIBILITY
FOR THE SELECTION OF AND SPECIFICATIONS FOR THE GOODS AND/OR SERVICES AND THEIR FITNESS
FOR ANY PURPOSES INTENDED BY BUYER OR BUYER’S CUSTOMER(S).
8. LIMITATION OF SELLER’S LIABILITY.
IN NO EVENT SHALL SELLER’S LIABILITY, REGARDLESS OF THE CAUSE THEREOF, EXTEND BEYOND
REPLACEMENT OR REPAIR OF GOODS AND/OR SERVICES OR GIVING BUYER CREDIT FOR THE PURCHASE
PRICE OF GOODS AND/OR SERVICES SOLD OR PROVIDED, EITHER AT SELLER’S ELECTION, NOR SHALL
SELLER HAVE ANY LIABILITY FOR LOSS OF TIME, COST OF LABOR EXPENDED, OR FOR ANY SEPARATE,
SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION,
CONSEQUENTIAL DAMAGES RESULTING FROM REJECTION OF FINISHED PARTS BY BUYER OR BUYER’S
CUSTOMER(S).
9. INDEMNITY.
To the fullest extent permitted by law, Buyer shall, at Buyer’s sole cost and expense, indemnify, defend,
release and hold harmless Seller, its officers, directors, agents and employees, from and against any and
all claims, demands, lawsuits or proceedings of any kind brought or threatened against Seller and/or its
officers, directors, agents and employees based on any claim, in whole or in part, that the Goods and/or
Services as fabricated or manufactured by Seller in accordance with drawings, specifications or other
information provided by Buyer fail to (i) be adequate for a particular purpose, (ii) comply with any
product liability law, rule or regulation pertaining thereto and/or (iii) be adequate for any use to which
the Goods and/or Services are put after shipment by Seller to Buyer, and Buyer shall pay all costs,
expenses, damages, liabilities and losses incurred by Seller, its officers, directors, agents and/or
employees, as a result of any such actual or threatened claim, demand, lawsuit or proceeding, including,
but not limited to, reasonable attorney’s fees.
10. PATENT INFRINGEMENT OR TRADE SECRET VIOLATION CLAIMS.
Buyer expressly warrants to Seller that Goods and/or Services fabricated, manufactured or sold by Seller
to Buyer in accordance with drawings, specifications or other information provided by Buyer shall not
infringe upon any valid United States patent, copyright, or trademark, or knowingly violate any trade
secret or other proprietary right of any third party. To the fullest extent permitted by law, Buyer shall, at
Buyer’s sole cost and expense, indemnify, defend, release and hold harmless Seller, its officers,
directors, agents and employees, from and against any and all claims, demands, lawsuits or proceedings
of any kind brought or threatened against Seller and/or its officers, directors, agents and employees
based on any claim, in whole or part, that the Goods and/or Services as fabricated or manufactured by
Seller in accordance with drawings, specifications or other information provided by Buyer or the sale
thereof infringes any patent, copyright or trademark or knowingly violates any trade secret or other
proprietary right of any third party, and Buyer shall pay all costs, expenses, damages, liabilities and
losses incurred by Seller, its officers, directors, agents and/or employees, as a result of any such actual
or threatened claim, demand, lawsuit or proceeding, including, but not limited to, reasonable attorney’s
fees.
11. SECURING LOADS.
Buyer is responsible for the securing of all loads of Goods transported from Seller’s facility in Buyer’s
vehicle, as well as for flagging or otherwise marking such for transport. If a third party freight carrier
transports Goods purchased by Buyer from Seller’s facility, such freight carrier shall be responsible for
securing the load and flagging or otherwise marking the Goods for transport. In no event, shall Seller
have any liability to Buyer or any third party for any (i) damage to, or loss of, any vehicle used to carry
Goods purchased by Buyer from Seller, whether such vehicle belongs to Buyer or a third party, or to any
other vehicle belonging to a third party; (ii) damage to, or loss of, the Goods purchased by Buyer from
Seller or to a third party’s property (real or personal); (iii) injury to any person (whether the driver of the
vehicle carrying the Goods or an unassociated third person); or (iv) any other loss of any kind, resulting
from a failure by Buyer or a freight carrier to properly secure a load of Goods or flag or otherwise mark
for transportation such Goods purchased from Seller and transported from Seller’s facility in Buyer’s
vehicle or on a vehicle belonging to a freight carrier. To the fullest extent permitted by law, Buyer shall, at Buyer’s sole cost and expense, indemnify, defend, release and hold harmless Seller, and its officers,
directors, agents and/or employees, from and against any and all claims, demands, lawsuits or
proceedings of any kind brought or threatened against Seller and/or its officers, directors, agents and
employees resulting, in whole or in part, from any failure by Buyer or a third party freight carrier to
properly secure a load of Goods or flag or otherwise mark for transportation such Goods purchased
from Seller and transported from Seller’s facility in Buyer’s vehicle or on a vehicle belonging to a freight
carrier , and Buyer shall pay all costs, expenses, damages, liabilities and losses incurred by Seller, its
officers, directors, agents and/or employees, as a result of any such actual or threatened claim, demand,
lawsuit or proceeding, including, but not limited to, reasonable attorney’s fees.
12. CLAIMS AGAINST COMMON CARRIERS.
Delivery of Goods to a common carrier shall constitute delivery to Buyer and upon such delivery to a
common carrier, all risk of damage shall be borne by Buyer, and Buyer shall be responsible for obtaining
insurance, if desired, on the Goods while in transport. If Buyer discovers a shortage in Goods delivered
or if the Goods have been damaged in transit, Buyer must make a note to that effect upon the receipt
Buyer gives the carrier or his, her or its agent. Also, Buyer must request that a similar notation be made
on the freight bill. Damaged Goods must not be unloaded until inspected and such damage noted in
writing. If there is justification for a claim, Buyer will file such promptly with the carrier. If the Goods
were shipped with title not transferring until the carrier has arrived at Buyers designated destination, an
arrangement that must be agreed to in writing by an authorized agent of seller, Buyer must take the
above steps, notify Seller immediately, and Seller will file a claim with the carrier. Failure to comply with
this Section 12 shall be deemed an express acceptance of the Goods and/or Services by Buyer in an “AS
IS” condition with no right to credit, refund or any other remedy.
13. LITIGATION AND COLLECTION.
Venue in any legal action brought by either Buyer or Seller in connection herewith or with Goods and/or
Services shall be held and determined by a state or federal court located in Woodbury County, Iowa,
which shall be the exclusive venue of any such action or proceeding. Each party waives any objection
which party may now or hereafter have to the venue of any such action or proceeding, and irrevocably
consents and submits to the jurisdiction of such court (and the appropriate appellate courts) in any such
action or proceeding.
If any default is made in payment of amounts due for the sale of Goods and/or Services or upon any
other breach of these Terms and Conditions, as such may be subsequently modified by Seller from time
to time without notice, Buyer agrees to pay Seller’s reasonable costs of collection and/or compliance,
including, but not limited to, reasonable attorneys’ fees and costs, not to exceed the amount allowed by
any applicable statute.
14. FREIGHT CHARGES.
If the agreed purchase price for Goods and/or Services was based on freight being allowed to
destination (whether such freight charges were agreed to be included in the purchase price or to be
charged as a separate line item), any change in applicable freight rates, including, but not limited to, any
applicable fuel surcharges assessed by a third party carrier, between the date of quotation and/or
acceptance of purchase order and the time of shipment will result in a corresponding change in price. If
the agreed purchase price was based on there being sufficient Goods and/or Services for a carload or
truckload shipment and Buyer has ordered shipments to be made in less than carload or truckload
amounts, then Buyer must pay the difference between carload/truckload and less than carload or
truckload freight.
Except as otherwise provided herein, Seller shall not be responsible for freight, transportation,
insurance, shipping, storage, handling, demurrage or similar charges. If such charges are by the terms of
sale included (whether in the price itself or as a separate line item), any increase in rates, including, but
not limited to, any increase in applicable fuel surcharges, whether assessed by Seller or passed along by
Seller to Buyer from a third party carrier, becoming effective prior to the shipment date of the Goods
and/or Services ordered, shall be the responsibility of Buyer.
15. TAXES, DUTIES, BROKERAGE AND OTHER FEES.
In addition to the agreed purchase price for Goods and/or Services, Buyer shall pay to Seller any and all
applicable taxes imposed by any present or future law on the sale, manufacture, delivery, use and/or
other handling of Goods and/or Services, whether such taxes are characterized as goods and services
tax, sales tax, use tax, excise tax, value added tax, business transfer tax or otherwise (collectively,
“Taxes”), but excluding income taxes normally paid by Seller, and all other reasonable charges for
ancillary services and costs such as forming, machining, and other services, including, but not limited to,
special packaging and the cost of performing any tests or inspections required by Buyer which are not
regularly performed by Seller. Also, when shipping is ExWorks or F.O.B. shipping point (as defined by
Incoterms 2000) via ocean‐going vessel or inland waterway to a non‐United States’ locale, the price
quoted shall not include any applicable duties or brokerage fees. In such a case, Buyer shall pay to
Seller’s designated customs broker or Buyer’s own custom broker, as applicable, any and all such
brokerage fees, surcharges, customs, duties and Taxes (collectively, “Brokerage Fees”), and, to the
fullest extent permitted by law, Buyer agrees, at Buyer’s sole cost and expense, to indemnify, defend,
release and hold harmless Seller, its officers, directors, agents and employees, from and against any and
all claims, demands, lawsuits or proceedings of any kind brought or threatened against Seller and/or its
officers, directors, agents and employees for any such unpaid Brokerage Fees, and Buyer shall pay all
costs, expenses, damages, liabilities and losses incurred by Seller, its officers, directors, agents and/or
employees, as a result of any such actual or threatened claim, demand, lawsuit or proceeding, including,
but not limited to, reasonable attorney’s fees.
16. FINANCIAL RESPONSIBILITY.
Reasonable doubt on the part of Seller concerning the financial responsibility of Buyer (including, but
not limited to, Buyer’s failure to pay on the net due date for Goods and/or Services) shall entitle Seller to
stop operation/production, decline shipment, or stop any Goods and/or Services in transit without any
liability whatsoever to Buyer, until such time as the Goods and/or Services have been paid for or until
Seller is furnished reasonably satisfactory proof of Buyer’s financial responsibility, as determined in
Seller’s sole and absolute discretion. If Seller suspends performance and later proceeds with fulfillment
of such order, Seller shall be entitled to such extension of time for performance as is necessitated by the
suspension. If Seller has agreed with Buyer to accept payment for any shipment by credit card, such
credit card shall be charged at the time of sale upon Buyer’s confirmation that such shipment is to be
paid for in such manner.
17. TITLE.
Notwithstanding delivery and passing of risk, Goods and/or Services sold by Seller to Buyer shall remain
the property of Seller until Buyer has paid to Seller the agreed purchase price therefor (together with
any accrued interest and any additional fees incurred pursuant to this agreement) and no other sums
whatsoever are due from Buyer to Seller therefor. Until title to the Goods and/or Services passes to
Buyer in accordance with this Section 17, Buyer shall: (i) hold the Goods and/or Services on a fiduciary
basis and shall not part with possession; (ii) take proper care of the Goods and/or Services; (iii) take all
reasonable steps to prevent damage to or deterioration of the Goods and/or Services; and (iv) keep the
Goods and/or Services free from any charge, lien or other encumbrance. From delivery until title to the
Goods and/or Services passes to Buyer, Buyer shall insure the Goods and/or Services for their full value
with a reputable insurer, and on request, Buyer shall produce the policy or policies of insurance to
Seller. Further, until title to the Goods and/or Services passes to Buyer, Buyer shall hold the proceeds of
any claim under any such insurance policy or policies in trust for Seller and shall immediately account to
Seller with the proceeds.
18. PURCHASE MONEY SECURITY INTEREST (“PMSI”).
In accordance with the UCC, Buyer hereby grants, and Seller hereby retains, a PMSI in all Goods and/or
Services sold by Seller to Buyer, along with any products into which such Goods and/or Services are
converted or included by Buyer and the proceeds of sale or other transfer by Buyer of any and all said
products or of the Goods and/or Services themselves, until such time as Seller is fully paid all amounts
owing by Buyer for such Goods and/or Services, at which time said PMSI shall be immediately released.
In the event Seller is not timely paid for any Goods and/or Services, in addition to any other rights to
which Seller may be entitled hereunder or at law or equity, Seller shall have all rights granted under the
UCC in regard to enforcement of its PMSI. Seller reserves the right to, and Buyer acknowledges and
agrees that Seller may, notify any of Buyer’s secured creditors of Seller’s PMSI. Buyer also authorizes
Seller to file with appropriate authorities financing statement(s) and/or other documents deemed
necessary by Seller to give notice of Seller’s PMSI. Buyer shall take all reasonable steps and cooperate
with Seller in perfecting Seller’s PMSI.
19. TERMINATION.
If, at any time, (i) Buyer fails to pay to Seller any amount in full when due, or otherwise fails to perform
any other obligation owed to Seller; (ii) Buyer becomes insolvent or makes an assignment for the benefit
of creditors or is adjudged bankrupt or a receiver or trustee of Buyer’s property is appointed; or (iii) a
levy, execution or attachment is made of any material portion of Buyer’s property, Seller may, in its sole
and absolute discretion, terminate the contract with Buyer for the purchase and sale of Goods and/or
Services as created hereby and refuse to make further deliveries and/or repossess any Goods and/or
Services for which Seller has not been paid in full (in cash or cleared funds) or continue to perform but
refuse to make any shipments except upon the receipt of payment in full (in cash or cleared funds) prior
to shipment. All amounts payable to Seller are due immediately upon termination pursuant to this
Section 19 despite any other provision to the contrary herein.
20. CONTROLLING LAW.
These Terms and Conditions and the contract by and between Buyer and Seller for the purchase and
sale of Goods and/or Services created hereunder is deemed made in Iowa and shall be governed as to
validity, interpretation, construction, effect, and in all other respects, by the laws of the State of Iowa,
without giving effect to the conflict of laws principles thereof. The provisions of the United Nations
Convention on Contracts for the International Sale of Goods shall not apply to these Terms and
Conditions or the sale of goods or services from Seller to Buyer.
21. WAIVER.
Neither any failure nor any delay on the part of Seller in exercising any rights hereunder shall operate as
a waiver of any of Seller’s rights. Any waiver by Seller of any breach of, or any default under, any
provision of these Terms and Conditions by Buyer will not be deemed a waiver of any subsequent
breach or default. All rights and remedies granted herein are in addition to all remedies available at law
or in equity.
22. EQUAL OPPORTUNITY AND AFFIRMATIVE ACTION.
Seller agrees that it: (a) Will not discriminate against any employee or applicant for employment
because of race, color, religion, sex or national origin. Seller will take affirmative action to ensure that
applicants are employed, and that employees are treated during employment, without regard to their
race, color, religion, sex or national origin. In furtherance of this goal, Seller will comply with Executive
Order 11246, as amended, and its implementing regulations, along with Department of Labor
regulations. Seller incorporates by reference herein the equal opportunity clause contained in 41 C.F.R.
§ 60‐1.4(a).
(b) Will not discriminate against any employee or applicant for employment because he or she is a
special disabled veteran (as the term is defined in 41 C.F.R. § 60‐250.2(n)(1)), disabled veteran (as the term is defined in 41 C.F.R. § 60‐300.2(n)), veteran of the Vietnam era (as the term is defined in 41 C.F.R.
§ 60‐250.2(p)), recently separated veteran (as the term is defined in 41 C.F.R. §§ 60‐250.2(r) and 60‐
300.2(q)), other protected veteran (as the term is defined in 41 C.F.R. §§ 60‐250.2(q) and 60‐300.2(p)) or
Armed Forces service medal veteran (as the term is defined in 41 C.F.R. § 60‐300.2(r)) in regard to any
position for which the employee or applicant for employment is qualified. Seller agrees to take
affirmative action to employ, advance in employment and otherwise treat qualified disabled individuals
without discrimination based on their status as a special disabled veteran, disabled veteran, veteran of
the Vietnam era, recently separated veteran, other protected veteran or Armed Forces service medal
veteran in all employment practices. In furtherance of this goal, Seller will comply with Section 402 of
the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, and its implementing
regulations, along with Department of Labor regulations. Seller incorporates by reference herein the
equal opportunity clauses contained in 41 C.F.R. §§ 60‐250.5(a) and 60‐300.5(a).
(c) Will not discriminate against any employee or applicant for employment because they are an
individual with a disability (as the term is defined in 41 C.F.R. § 60‐741.2(n)(1)) in regard to any position
for which the employee or applicant for employment is qualified. Seller agrees to take affirmative action
to employ, advance in employment and otherwise treat qualified individuals with disabilities without
discrimination based on their physical or mental disability in all employment practices. In furtherance of
this goal, Seller will comply with Section 503 of the Rehabilitation Act of 1973, as amended, and its
implementing regulations, along with Department of Labor regulations. Seller incorporates by reference
herein the equal opportunity clause contained in 41 C.F.R. § 60‐741.5(a).
23. PAYMENT TERMS AND DISCOUNT.
Unless otherwise provided herein, payment in full is due at time of delivery. Issuance of credit to Buyer
by Seller shall be in Seller’s sole and absolute discretion. If credit is extended to Buyer, standard
payment terms shall be net thirty (30) days, unless otherwise stated in a separate writing signed by an
authorized agent of Seller. Time shall be of the essence in payment. No payment shall be deemed to
have been received until Seller has received cleared funds. No discount is allowed unless agreed to in
writing by Seller prior to delivery of the Goods and/or Services. Freight charges, surcharges and other
special charges of any nature are not subject to a discount.
In the event Buyer fails to make payment to Seller of any amounts due and owing (including any
applicable surcharge or freight charge) by the net due date, Seller may charge interest on the
outstanding balance at an annual rate of 18% or the highest rate allowed by law (whichever is less) until
paid in full. Payments after accrual of such interest charges shall be applied first against such interest
charges and secondly against past due invoices. In the event of any such failure to make timely payment,
Seller reserves the right to revoke credit terms, if any, extended to Buyer. Buyer’s account shall also be
charged with any fees associated with insufficient funds.
Buyer shall make all payments due to Seller for Goods and/or Services sold without any deduction
whether by way of set‐off, counterclaim, abatement or otherwise, unless Buyer has a valid court order
requiring an amount equal to such deduction to be paid by Seller to Buyer.
In no event shall Seller be responsible for any costs associated with the processing of invoices to Buyer
with a third party or otherwise at Buyer’s request and any such costs shall be separately paid or handled
by Buyer at its sole cost and expense.
24. EXPORT.
If Buyer exports the Goods and/or Services outside of the United States, Buyer agrees to comply with all
relevant laws and regulations, including, but not limited to, those of the United States Department of
Commerce and the United States Export Administration Act, so as to insure that the Goods and/or
Services are not exported in violation of any applicable law or regulation and shall indemnify and hold
Seller harmless for the same, including attorney fees, if applicable.
25. ASSIGNMENT.
Buyer may not assign its rights or obligations hereunder (whether voluntarily, involuntarily, by operation
of law, transfer of majority or controlling interest or otherwise) without the prior written consent of
Seller. These Terms and Conditions shall be binding upon Buyer and its successors and permitted
assigns.
26. SEVERABILITY.
If any provision of these Terms and Conditions shall be unlawful, void or for any reason unenforceable,
then that provision shall be deemed severable from these Terms and Conditions, and the remaining
Sections shall continue in full force and effect.
27. EXCLUSIVE AGREEMENT.
The contract by and between Buyer and Seller for the purchase and sale of Goods and/or Services
created hereby constitutes the entire agreement by and between Buyer and Seller with regard to the
subject matter hereof and shall exclusively determine the rights and obligations of Buyer and Seller with
regard to the purchase and sale of Goods and/or Services, any prior course of dealing, custom or usage
of trade or course of performance notwithstanding, and may not be modified by Buyer except in
separate writing signed by an authorized agent of Seller.
28. FOREIGN CORRUPT PRACTICES ACT.
Seller, in connection with the sale of Goods and/or Services to Buyer hereunder, and Buyer, while
acknowledging that it is an independent contractor from Seller, in connection with any purchase order,
the purchase of Goods and/or Services hereunder and the resale of such, agree to comply with the
United States’ Foreign Corrupt Practices Act, as amended from time to time (the “FCPA”), by not paying,
offering or agreeing to pay, authorizing the giving of, or causing to be paid, directly or indirectly, any
money or other thing of value to any foreign official (as defined in the FCPA) to obtain or retain business
or influence such foreign official in the performance of his or her duties.
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