Terms, Conditions & Privacy Policies
1. Governing Terms and Conditions: The terms and conditions set forth in this document are intended to establish standard terms and conditions of sale for all sales by Encapsys, LLC (“Seller”) to the purchaser ("Buyer") unless otherwise provided in a written agreement signed by and between Buyer and Seller. This document, together with the quotations, order acknowledgments, invoices and specifications (and all supplements and attachments thereto issued by Seller from time to time) shall constitute the entire agreement ("Agreement") between Buyer and Seller for each such sale. In the event of any inconsistency between these standard terms and conditions and the provisions on the quotation, order acknowledgment or invoice or on any supplement or attachment thereto, the provision contained on the quotation, order acknowledgment or invoice or on such supplement or attachment shall control. Additional or different terms provided in Buyer's purchase order which vary in any degree from any of the terms herein are hereby objected to and rejected. If this Agreement shall be deemed an acceptance by Seller in response to an offer by Buyer and if any terms herein are additional to or different from any terms of such offer, then the issuance of this Agreement by Seller shall constitute an acceptance expressly conditioned upon Buyer's assent to all of the terms and conditions of this Agreement. Any conduct by Buyer (including, without limitation, payment for, or use of, the goods) which recognizes the existence of a contract pertaining to the subject matter hereof shall constitute acceptance by Buyer of this Agreement and all of its terms and conditions.
2. Prices, Taxes and Permits: All prices are subject to change without notice. Seller's price shall be its price in effect at the time of shipment. In addition, sales, use, franchise, license, excise and other taxes in respect of manufacture, sale or delivery of the goods furnished hereunder, export or import duties and inspection fees, and all interest and penalties thereon, shall be paid by Buyer unless a proper exemption certificate is furnished. If Buyer shall fail to pay and discharge any such amounts when due, Seller may at its option, pay the same, in which event Buyer shall promptly reimburse Seller for such sums paid.
3. Terms of Payment: Subject to on-going credit approval by Seller, the terms of payment shall be net thirty (30) days from date of invoice, and Buyer's payment shall be cash in United States funds payable pursuant to Seller's instructions. Seller reserves the right to withhold shipment for Buyer's:
(a) late payment; (b) non-payment; and (c) failure to provide assurances of payment upon request by Seller. Seller further reserves the right to make delivery in installments, and all such installments are to be separately invoiced and paid for at the then current price when due per invoice, without regard to subsequent deliveries. Any payment that is not received by the date required herein shall accrue interest at a rate of eighteen percent (18%) of the outstanding balance per annum, or the maximum rate allowed by applicable law, whichever is lower, from the date such payment is due until the full invoiced amount and accrued interest is fully paid. In addition, Buyer shall be responsible for Seller's collection costs and attorneys' fees in collecting any past due amounts.
4. Delivery, Title & Risk of Loss: Unless otherwise agreed in writing, delivery shall be ex works, Seller's manufacturing facility, Portage, Wisconsin. Buyer assumes all responsibility for risk of loss of, or damages to or caused by, the goods furnished hereunder, upon delivery. Title to the goods shall transfer to and vest in Buyer at the same time that risk of loss transfers to Buyer, to the extent permissible by law. The term ex works shall have the meaning given to it by INCOTERMS 2020 as published by the International Chamber of Commerce or any superseding definitions of the INCOTERMS published by the International Chamber of Commerce. Buyer shall have the obligation to obtain any export license or authorization required if the goods are to be exported. Delivery dates are approximate and subject to confirmation. If Buyer delays shipment, payments are to be made as specified and the goods furnished hereunder shall be held at Buyer's risk and subject to reasonable storage charges. Buyer shall be responsible for any delays in unloading shipments and any applicable demurrage charges
5. Warranties: Seller warrants to Buyer that at the time of delivery: (a) the goods sold hereunder shall conform to Seller's then current specifications; and (b) Seller has good title to such goods; and (c) such goods are free and clear of all liens and encumbrances created by Seller. Seller makes no warranty of any results Buyer might obtain in any particular application. Buyer's sole and exclusive remedy for any breach of warranty shall be limited, in Seller's sole discretion, to replacement at Buyer's installation of any defective goods or refund of the purchase price thereof. Buyer shall not return goods unless authorized in advance in writing by Seller. Seller shall have the right to inspect the goods at Buyer's installation. Buyer's failure to give written notice that goods are non-conforming within thirty (30) days of delivery shall constitute a waiver by Buyer of all warranty claims. Notwithstanding the foregoing warranties and remedies, Seller shall have no obligation hereunder if the goods become defective as a result of improper storage, contamination, adulteration, improper use or misapplication after delivery thereof to Buyer. The above warranties extend only to Buyer. THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NOR OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY, BY SELLER. BUYER ACKNOWLEDGES THAT IT IS PURCHASING THE GOODS SOLELY ON THE BASIS OF THE COMMITMENTS OF SELLER EXPRESSLY SET FORTH HEREIN. SELLER MAKES NO WARRANTIES WHATSOEVER FOR THE USE OF GOODS PROVIDED BY SELLER IN ANY APPLICATION AND BUYER SHALL BE RESPONSIBLE FOR COMPLYING WITH ALL APPLICABLE LAWS AND REGULATIONS RELATING TO THE MANUFACTURE, SALE AND END USE PRODUCT FOR BUYER’S APPLICATIONS.
6. LIMITATION OF LIABILITY: SELLER SHALL NOT BE LIABLE TO BUYER IN ANY ACTION OR CLAIM FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY OR STATUTORY DAMAGES ARISING OUT OF OR RELATED TO THIS CONTRACT, WHETHER THE ACTION IN WHICH RECOVERY OF DAMAGES IS SOUGHT IS BASED UPON CONTRACT, TORT (INCLUDING, TO THE GREATEST EXTENT PERMITTED BY LAW, THE SOLE, CONCURRENT OR OTHER NEGLIGENCE, WHETHER ACTIVE OR PASSIVE, AND STRICT LIABILITY OF SELLER), STATUTE OR OTHERWISE EVEN IF SELLER HAS BEEN ADVISED OF SUCH POSSIBILITY OF SUCH DAMAGES. SELLER'S LIABILITY FOR ANY CLAIM OF ANY KIND, FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH OR RESULTING FROM THIS AGREEMENT, OR FROM THE PERFORMANCE OR BREACH THEREOF, SHALL IN NO CASE EXCEED (AT SELLER'S SOLE DISCRETION) THE PURCHASE PRICE ALLOCABLE TO THE GOODS HEREOF WHICH GIVES RISE TO THE CLAIM OR THE REPLACEMENT OF SUCH DEFECTIVE GOODS BY SELLER. FOR UNDELIVERED GOODS, SELLER'S LIABILITY IS LIMITED TO THE DIFFERENCE BETWEEN THE MARKET PRICE AND SELLER'S PRICE. SELLER SHALL NOT BE LIABLE FOR PENALTY CLAUSES OF ANY DESCRIPTION. ANY ACTION RESULTING FROM ANY CLAIM ARISING UNDER THIS AGREEMENT WHICH IS BROUGHT BY BUYER AGAINST SELLER MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
7. Intellectual Property. Notwithstanding anything to the contrary in this agreement, Seller (i) represents that, to the best of its knowledge, as of the date of manufacture of the goods, the goods themselves (other than Buyer’s specific combination of the goods with other substances to form a product, or in the operation of any process to make such Buyer’s product) do not infringe any copyrights, design patents, utility patents, trademarks, trade secrets or similar intellectual property rights (collectively “IP RIGHTS”) of any third party. Seller shall not be liable, and no warranty to Buyer shall apply if infringement arises from combination of the goods with any material not supplied by Seller, or arises in the operation of any process, or arises from any alteration in the goods made by Buyer, or as a direct result of Seller being required to adhere to a specification provided by Buyer.
Buyer must determine the appropriateness of the intended use both from an intellectual property and product safety standpoint. Buyer shall fully indemnify and defend Seller for any claims arising as a result of Buyer’s application, combination, use, or alteration of the goods. Buyer shall indemnify, defend and save harmless Seller where the alleged infringement is the result of the application, use or alteration to which the goods are put by Buyer or others, or if infringement is based upon the use of goods in connection with materials not manufactured by Seller or in a manner for which the goods were not designed by Seller or were modified by or for Buyer in a manner to cause them to become infringing.
Seller makes no representations and warranties concerning IP RIGHTS related to Buyer specified adders and/or Buyer-supplied materials being in the goods. Other than as set forth herein, Buyer assumes all risk of infringement, violation or misappropriation of third party IP RIGHTS and Seller makes no representations and warranties to Buyer.
8. INDEMNITY: SELLER SHALL NOT BE LIABLE TO BUYER FOR, AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER AND ITS RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS AND EMPLOYEES, AND THE SUCCESSORS AND ASSIGNS OF THE FOREGOING, FROM AND AGAINST, ALL OR ANY PART OF ANY CAUSES OF ACTION, CLAIMS, LIABILITIES, LOSSES, COSTS, DAMAGES AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND EXPENSES) (COLLECTIVELY "CLAIMS") FOR INJURY, ILLNESS OR DEATH TO PERSONS (INCLUDING, WITHOUT LIMITATION, THIRD PARTIES AND BUYER'S EMPLOYEES AND ITS AGENTS, CONTRACTORS, SUBCONTRACTORS AND CUSTOMERS, AND THEIR RESPECTIVE EMPLOYEES) AND DAMAGES TO OR LOSS OF PROPERTY (INCLUDING, WITHOUT LIMITATION, THAT OF BUYER OR THIRD PARTIES) ARISING OUT OF OR RESULTING FROM BUYER'S PURCHASE, OWNERSHIP, TRANSPORTATION, RECEIPT, HANDLING, STORAGE, PROCESSING, ALTERATION, USE, DISPOSAL OR RESALE OF THE GOODS, ALONE OR IN COMBINATION WITH OTHER SUBSTANCES OR IN THE OPERATION OF ANY PROCESS.
9. Force Majeure: Seller shall be relieved from liability hereunder for failure to perform any or all of its obligations, for the time and to the extent of such failure to perform where Seller's failure is occasioned by any cause or causes of any kind or character reasonably beyond the control of Seller (any such cause herein called "Force Majeure"), including, without limitation: Acts of God, accidents, fire, explosion, flood and hurricanes; strikes, lockouts or other industrial disturbances; riots or civil commotion; war, declared or undeclared; compliance with any laws, rules, regulations, ordinances, codes or Executive Orders of any kind and nature now or hereafter in effect promulgated by any federal, state, county or local government, or any other government (domestic or foreign) or any other governmental agency (domestic or foreign)(collectively, the "Laws") including, without limitation, priority, rationing, allocation or pre-emption orders or regulations affecting the conduct of Seller's business which Seller in its sole discretion deems it advisable to comply with as a legal or patriotic duty; cancellation of Seller's license to operate its plant; shortage or breakdown or other failure of facilities used for manufacture or transportation; shortage of labor; inability to secure, in Seller's sole discretion, all at reasonable prices or on account of shortages of, transportation, power, fuel, materials or supplies; or total or partial shutdown due to Seller's normal plant turnaround or as required by Seller's operation. If Seller is rendered unable by Force Majeure to carry out its obligations under this Agreement, Seller shall give notice to Buyer, and upon the giving of such notice the obligations Seller, so far as they are affected by such Force Majeure shall be suspended during the continuance of any inability so caused. Upon the cessation of the cause or causes for any such failure or delay, performance hereof shall be resumed, but such delay shall not, except by mutual agreement, operate to extend the term of this Agreement or obligate Seller to make up deliveries or Buyer to purchases quantities so missed. Settlement of strikes or lockouts shall be entirely within the sole discretion of Seller, and Seller shall not be required to settle strikes or lockouts by acceding to the demands of the employees involved, when such course is inadvisable in Seller's sole discretion. Seller shall not be responsible for reasonable delays in filling any order when due. "Reasonable delays" include, without limitation, delays to which Buyer, when notified, makes no objection. In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost by reason of the delay. In the event of inability, for any reason, to supply the goods to be furnished hereunder, Seller may allocate its available supply of goods or raw materials among any or all Buyers, as well as departments, divisions, subsidiaries or affiliates of Seller or among Seller's product lines on such basis as Seller may in its sole discretion deem practical without liability for any failure of performance which may result therefrom.
10. Compliance with Laws: Buyer shall comply with all Laws in any way relating to Buyer's purchase, ownership, transportation, receipt, handling, storage, processing, alteration, use, disposal or resale of the goods, alone or in combination with other substances or in the operation of any process. Buyer agrees that it will not resell, export or dispose of any goods or product obtained from Seller into any country or to any entity in violation of the US export control regulations or sanctions.
11. Responsible Practices: Buyer acknowledges that Seller has furnished product literature or information, such as a Safety Data Sheet ("SDS"), that includes warnings and safety and health information related to the goods furnished hereunder. Buyer shall: (a) familiarize itself with such information; (b) adopt and follow safe handling, storage, transportation, use, treatment and disposal practices with respect to the goods furnished hereunder, including, without limitation, special care and practices as Buyer’s use of the goods requires including, without limitation, all such practices required by applicable Laws; (c) instruct its employees, independent contractors, agents and customers of the precautions and safe use practices required in connection with the unloading, handling, storage, use, transportation and disposal of the goods furnished hereunder (including, without limitation, information contained in Seller’s most current SDS); and (d) comply with applicable safety and environmental Laws and take action necessary to avoid spills or other dangers to persons, property or the environment. Seller may suspend goods shipments and/or cancel this Agreement on fifteen (15) days notice if Buyer fails to comply with any of its commitments under this Section. Buyer shall indemnify, defend and hold Seller harmless against any and all third party causes of action, claims, liabilities, losses, costs, damages and expenses (including, without limitation, attorneys' fees and expenses) to the extent arising out of Buyer’s failure to comply with any of its commitments under this Section.
Seller and Buyer (as to information disclosed, the "Disclosing Party") may each provide the other party (as to information received, the "Receiving Party") with Confidential Information in connection with this Agreement. "Confidential Information" means (a) information that is designated in writing as "confidential" or "proprietary" by Disclosing Party at the time of written disclosure, and (b) information that is orally designated as "confidential" or "proprietary" by Disclosing Party at the time of oral or visual disclosure and is confirmed to be "confidential" or "proprietary" in writing within twenty (20) days after the oral or visual disclosure. In addition, prices for Products and Services shall be considered Seller's Confidential Information.
Receiving Party agrees: (i) to use the Confidential Information only in connection with the Agreement and use of Products and Services, (ii) to take reasonable measures to prevent disclosure of the Confidential Information to third parties, and (iii) not to disclose the Confidential Information to a competitor of Disclosing Party. Notwithstanding these restrictions, (a) Seller may disclose Confidential Information to its affiliates and subcontractors in connection with performance of the Agreement, (b) a Receiving Party may disclose Confidential Information to its auditors, (c) Buyer may disclose Confidential Information to lenders as necessary for Buyer to secure or retain financing needed to perform its obligations under the Agreement, and (d) a Receiving Party may disclose Confidential Information to any other third party with the prior written permission of Disclosing Party, and in each case, only so long as the Receiving Party obtains a non-disclosure commitment from any such subcontractors, auditors, lenders or other permitted third party that prohibits disclosure of the Confidential Information and provided further that the Receiving Party remains responsible for any unauthorized use or disclosure of the Confidential Information. Receiving Party shall upon request return to Disclosing Party or destroy all copies of Confidential Information except to the extent that a specific provision of the Agreement entitles Receiving Party to retain an item of Confidential Information. Seller may also retain one archive copy of Buyer's Confidential Information.
The obligations under this Section 12 shall not apply to any portion of the Confidential Information that: (i) is or becomes generally available to the public other than as a result of disclosure by Receiving Party, its representatives or its affiliates; (ii) is or becomes available to Receiving Party on a non-confidential basis from a source other than Disclosing Party when the source is not, to the best of Receiving Party's knowledge, subject to a confidentiality obligation to Disclosing Party; (iii) is independently developed by Receiving Party, its representatives or affiliates, without reference to the Confidential Information; (iv) is required to be disclosed by law or valid legal process provided that the Receiving Party intending to make disclosure in response to such requirements or process shall promptly notify the Disclosing Party in advance of such disclosure and reasonably cooperate in attempts to maintain the confidentiality of the Confidential Information.
Each Disclosing Party warrants that it has the right to disclose the information that it discloses. Neither Buyer nor Seller shall make any public announcement about the Agreement without prior written approval of the other party. As to any individual item of Confidential Information, the restrictions under this Section 12 shall expire five (5) years after the date of disclosure. Section12 does not supersede any separate confidentiality or nondisclosure agreement signed by the parties.
13. BUYER’s Representation. Seller’s representations, warranties and covenants to no apply to aspects of Seller’s manufacture and handling of the goods specifically disclaimed in this agreement and do not apply to what Buyer does with the goods after delivery including, but not limited to, Buyer’s transportation, storage, handling and/or use of the goods; Buyer’s transportation, storage, handling, use and/or sale of the Buyer’s products containing the goods; and /or any transportation, storage, handling, use and/or sale of the goods or Buyer’s products containing the goods by a third party.
Buyer represents to Seller that Buyer is professional and has experience with respect to the safety, use and handling of chemicals. Buyer represents, warrants and covenants that Buyer’s manufacture and handling of Buyer’s products using the goods under this agreement shall at all times be in compliance with applicable governmental, legal, regulatory and professional requirements, including without limitation all applicable laws, codes, regulation, rules, ordinances, judgements, orders and decrees, including, without limitation, those related to IP RIGHTS, fair trade and antitrust, customs, labor , employment, working conditions, worker health and safety, branding and labeling, adulteration and contamination, board of health and environmental matters (collectively “LAWS”). Buyer will, at its own expense indemnify, defend and hold harmless Seller from and against all claims that arise from Buyer’s product or arise from goods after delivery to Buyer, or that relate to Buyer’s breach of any Buyer warranty herein, or that relate to damage to property, including the environment, environmental remediation, improper disposal, or death of injury to persons.
14. Miscellaneous: All notifications, requests, demands and other communications required or permitted under this Agreement (including, without limitation, notices of breach and/or termination of this Agreement) shall be in writing and addressed and delivered to the recipient at the address, facsimile number or email specified by a party pursuant to this provision. Notice shall be deemed given: (a) on delivery, when delivered in person or by courier during a business day, otherwise on the next business day after delivery; (b) the same day, when sent by facsimile or email during a business day, otherwise on the next business day after transmission or sending, provided that the sender has a transmission report confirming transmission of the correct number of pages to the other party's facsimile number or proof that the email has been sent to a proper email address, or (c) five (5) business days after deposit in the government mail service to be sent by certified mail, return receipt requested. This Agreement may only be modified or amended in a writing signed by both parties. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed and enforced as so limited. However, Seller shall have the right to terminate this Agreement if any provision related to price is invalid or unenforceable. Seller's failure to exercise any rights under this Agreement in a particular instance shall not operate as a waiver of any right to exercise the same or different rights in any subsequent instance. Seller's waiver of any breach of this Agreement by Buyer in a particular instance shall not operate as a waiver of subsequent breaches of a same or different kind. Any waiver must be in writing and signed by Seller. Seller may assign its rights and delegate its obligations under this Agreement. Buyer's rights and obligations under this Agreement are personal in nature and shall not be transferable by assignment, delegation, operation of law, subcontract or otherwise without Seller's prior written consent and any attempt to do so shall be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. The rights and remedies of Seller in this Agreement are cumulative and not exclusive. Seller's rights and remedies and Buyer's obligations and responsibilities which have accrued before, or by their nature would extend beyond, the expiration, termination or other cancellation of this Agreement, shall survive such expiration, termination or other cancellation and continue to bind the parties and their permitted successors and assigns indefinitely until fulfilled or waived (including, without limitation, Sections 3, 5, 6, 7, 8, 11, 13 and 14). This Agreement shall be governed by the laws of the state of Wisconsin without regard to principles of conflict of laws. Both parties hereby irrevocably consent and submit to the exclusive jurisdiction of the state courts of Wisconsin, USA and of the United States District Courts located in the state of Wisconsin, USA in connection with any litigation arising out of the Agreement, and both parties hereby expressly waive any objection they have or may have as to the venue of any such courts. The rights and obligations of the parties under this Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
Seller and Buyer agree that their transactions may be evidenced and conducted by the electronic (including facsimile) transmission of communications without the necessity of a “hard copy.” Electronic documents shall be deemed “signed” by the insertion of a typed (in lieu of a handwritten) signature, or by other circumstances if it reasonably appears that the author or sender intended that the electronic communication be given legal effect.
The parties are and shall remain independent contractors with respect to each other, and nothing in this Agreement shall be construed to place the parties in the relationship of partners, joint ventures, fiduciaries or agents. Neither party is granted any right or authority to assume or to create an obligation or responsibility, express or implied, on behalf of or in the name of the other of bind the other in any manner whatsoever.
In the event that legal action is necessary in order to resolve any dispute relating to transactions subject to these terms and conditions, including an action by Seller to recover sums due on the sale of products, the Seller shall be entitled to recover its actual reasonable attorney fees, court costs and other expenses of enforcement, incurred in connection therewith.
If any portion of these terms and conditions are determined by a court or government agency having competent jurisdiction to be invalid or unenforceable, the remainder of said terms and conditions shall remain in full force and effect.
BUYER HEREBY ACKNOWLEDGES THAT SELLER HAS SUFFICIENTLY CALLED TO BUYER’S ATTENTION THE UNDERLINED AND BOLDFACED PROVISIONS OF THESE TERMS AND CONDITIONS.
1. CONTRACT — No agreement to modify this contract shall be binding upon Encapsys, LLC (hereinafter "Buyer") unless agreed to in writing by Buyer's authorized representative, and any and all previous agreements inconsistent with the terms and conditions herein are hereby cancelled to the extent of such inconsistency. This contract shall in all respects be construed and governed by the internal laws of the state wherein Buyer's office issuing this order is located. The invalidity in whole or in part of any provision hereof shall not affect the validity of any other provision. The term "product" shall mean the subject of this agreement. The term "item" shall mean one of the products.
2. CHANGES — Buyer reserves the right at any time to make changes in the specifications or other description to which the product is to conform. In such event, any claim for an adjustment in price or delivery schedule shall be deemed waived unless notice thereof is made in writing within thirty (30) days following Seller's receipt of such changes. Price increases or extensions of time shall not be binding upon Buyer unless evidenced by a purchase order change issued by Buyer.
3. SPECIFICATIONS AND INSPECTIONS — All products ordered to Buyer's specifications or in reliance upon data or advertising submitted to or received by Buyer in connection with the products shall comply with such specifications, data and advertising current as of the date of this order unless otherwise authorized by Buyer. The product and items shall be subject to inspection and testing by Buyer at all places and times, including the period of manufacture, the period of development and the period of performance of services. If any inspection or test is made on Seller's premises, Seller shall without additional charge provide all reasonable facilities and assistance for the safety and convenience of Buyer's inspectors. Buyer reserves the right to reject items which do not conform to the specifications, drawings, other data or advertising, or which do not comply with the warranties hereinafter stated. Items rejected after delivery shall be returned to Seller at Seller's risk and expense. Payment for any product or item shall not be deemed acceptance thereof.
4. PRICE — Buyer shall not be billed at a price higher than the price last charged or quoted by Seller for the same product or item unless authorized by this order or by a purchase order change. Seller represents that the price charged for the product(s) or item(s) covered by this order is the lowest price charged by Seller to purchasers of a class similar to Buyer purchasing in quantities and under circumstances substantially comparable in all material respects to those specified in this order. Any price reduction affecting purchasers of a class similar to Buyer, made by Seller with respect to products or items covered by this order subsequent to the date hereof and prior to Buyer's receipt of said items, shall apply to this order. Seller warrants that the prices charged hereunder are and shall be in compliance with any governmental program of price restraint or control now in effect or hereafter adopted and hereby agrees to make appropriate refunds to Buyer if and to the extent necessary for Seller to be in compliance therewith.
5. EXTRA CHARGES AND PACKAGING — No charges shall be allowed for taxes, import duties, transportation, packaging, packing, returnable containers, documentation, media or otherwise unless agreed to by Buyer. All sales, use, excise or similar taxes to be paid by Buyer must be itemized separately hereon and on invoices. Shipments shall be packaged according to specifications or, if not covered in specifications, so as to permit efficient handling, provide adequate protection, and comply with requirements of the carrier. Damage resulting from improper packaging will be charged to Seller.
6. WARRANTY — Seller warrants for a period of one (1) year after date of receipt, that the products and items to be furnished hereunder shall conform in all respects to the specifications, drawings, and other data or advertising submitted to or received by Buyer, or with Seller's samples, and that same shall be merchantable, of good material and workmanship, free from defects, and fit for the use intended by Buyer. Such warranties shall be in addition to any other warranties, given to Buyer and shall survive inspection test, acceptance and payment. Buyer may, at its option, either return for full credit or require prompt correction or replacement of defective or nonconforming products, items, or parts thereof, which right shall be in addition to such other legal or equitable rights possessed by Buyer, including without limitation, the right to recover damages from Seller in connection with any loss, including incidental and consequential losses. The return to Seller of any defective or nonconforming products, items or parts shall be at Seller's expense, and no replacements of defective or nonconforming products, items or parts shall be made unless specified or agreed to by Buyer. Items required to be corrected or replaced shall be subject to this warranty and to the clause above entitled "Specifications and Inspections" to the same extent as products or items originally delivered under this order. Upon written request by Buyer therefor, Seller shall provide properly executed releases of liens by, or satisfactory evidence of full payment to Seller's subcontractors, if any, and suppliers, and if Seller refuses or neglects to furnish such releases or other evidence of payment, then, and in any event, Buyer shall have the right to withhold from sums otherwise due Seller amounts reasonably necessary to protect Buyer against loss due to actual or threatened claims by such subcontractors or suppliers and, at Buyer's option, to pay said sums, or a portion thereof, to such subcontractors or suppliers on behalf of Seller or Buyer and without any obligation to account to Seller therefor.
7. DELIVERY — If delivery of times or other performance required hereunder is not accomplished at the time or times indicated in this order or promised by Seller, whichever is earlier, Buyer reserves the right without liability, in addition to its other rights and remedies, to terminate this order by notice, effective immediately upon receipt by the Seller and at its option to arrange for completion of performance by itself or others and charge Seller with any loss incurred. No provision of this order for the delivery of items in installments shall be construed as making the Seller's obligations severable. Shipments sent C.O.D. without Buyer's written consent will not be accepted and will be at Seller's risk. Notwithstanding the foregoing, neither party shall be liable for damages for any delay arising out of causes beyond their reasonable control and without their fault or negligence, including but not limited to acts of God, acts of the other party, acts of civil or military authority, labor disputes, fire, or shortage of power. If any delay is caused by delay of subcontractor and is beyond the control and without the fault or negligence of Seller, Seller shall incur no liability for such delay unless the goods or services to be furnished by such subcontractor were obtainable from other sources in sufficient time to meet the required delivery hereunder, but in no event, shall Buyer be obligated to pay or reimburse Seller for any extra costs incurred by Seller in connection with securing substitute performance. Seller shall notify Buyer forthwith upon learning of any event which may result in any delay.
8. BUYER'S PROPERTY — Unless otherwise agreed in writing, everything furnished to the Seller by Buyer for use in the performance of this contract shall be and remain Buyer's property, and shall be subject to repossession or removal by Buyer, or pursuant to Buyer's instructions, used only in the performance of this or similar contracts, held at Seller's risk, returned in the same condition as when delivered, ordinary wear and tear excepted and kept insured by Seller at Seller's expense while in its custody and control in an amount equal to the replacement cost thereof, with loss payable to Buyer. Seller shall at Buyer's expense unless otherwise agreed, execute all documents and do all acts reasonably required by Buyer to record or otherwise give legal public notice of Buyer's interest in such property.
9. CONFIDENTIALITY — Except as otherwise specifically agreed, all information disclosed by Buyer to Seller shall be held in confidence by Seller and Seller's agents, employees, representatives, subcontractors and suppliers. Seller shall take all reasonable precautions to prevent any such information from being divulged to third persons not employed by or associated with Seller, including having recipients acknowledge the confidential status of such information and agree to like restrictions on divulging such information. This obligation of confidence shall continue for a period of five years after completion of this order unless otherwise agreed in writing. Information presently in the public domain or which becomes so except as a result of the fault of Seller shall not be considered confidential.
10. RIGHTS IN DEVELOPMENT AND COPYRIGHT — This paragraph shall apply if the product is services or if the product is to be designed or developed and such design or development is paid for by Buyer. Seller shall disclose and assign on demand, and it does hereby assign, to Buyer, any and all inventions, improvements, copyrights or developments, each whether patentable or not, which it may make or assist in making in the course of such designing or development. Seller assigns, and agrees hereafter on demand to assign to Buyer all copyrights, patents and applications for patents in connection with any such invention, improvement, design or development and shall do all acts and execute all instruments which Buyer may request in connection therewith. Seller shall cause every appropriate person employed by or associated with it to enter into an agreement under which each such person shall disclose and assign to Seller or Buyer all inventions and execute all papers and do all acts deemed necessary by Seller or Buyer relative to assignment and patent protection of such inventions. Seller shall furnish Buyer with originals or duplicate originals of such agreements. All information, ideas, results and data developed by Seller as a result of developmental work contemplated by this section shall be transmitted by Seller only to and become the exclusive property of Buyer and likewise be regarded by Seller as confidential for the same period(s) and subject to the same exceptions as are provided in Section 9, hereof. If the product is services, or is to be designed or developed, and results in a copyrightable work, then the product is agreed to be deemed a work made for hire and the copyright shall be owned by Buyer. Seller warrants that it is free to enter into this Agreement and has no obligations or requirements under any other agreement contrary to any of the terms and conditions contained herein.
11. INDEMNIFICATION — Seller agrees that upon being notified promptly and given authority information and offered assistance, it shall promptly investigate and defend at its own expense all claims, suits, or proceedings in which Buyer or its subsidiaries, or its or their respective successors, assigns, distributors, dealers, customers, or users of Buyer's products, supplies or services are made defendants or claimed potential defendants for any infringements, claimed infringement, or alleged inducement of infringement, or unauthorized or unlawful use of any patent, copyright, or trademark, wherever registered or issued, or trade secret, or proprietary data, or other information resulting from the manufacture, sale, use of lease or other disposition of any product item, or any part thereof furnished pursuant to this contract. Seller further agrees to pay and discharge any and all judgments, settlements or decrees which may be rendered or awarded in any such suits or proceedings against any such defendants. Seller shall have the right, with the approval of Buyer, which shall not be unreasonably withheld, to settle any such suits or proceedings on terms and conditions of Seller's own selection, provided they are not in conflict with the terms and conditions provided herein. In the event Seller fails to promptly investigate and defend or settle as provided hereinabove, then Buyer shall, following notification to Seller, have the right from that time forward to have sole control of the defense of any said claim, suit, or proceeding and all negotiations for its settlement or compromise in which event Seller further agrees to pay as they become due all of the costs, expenses, and attorneys’ fees incurred by Buyer, and/or judgments or decrees which may be entered. This indemnity does not extend to any suit or proceeding which is based upon a patent claim covering a combination in which any product, item, or part furnished under this contract is merely an element of the claim combined with other devices or elements not furnished hereunder unless Seller is a contributory infringer, and except in the event such other device or element is merely an immaterial part of the combinations, nor does this indemnity extend to any product whose infringement is a direct result of Seller being required to adhere to a specific design provided to Seller by Buyer.
12. INDEMNIFICATION — Seller, to the extent of Seller’s negligence, shall defend, indemnify and hold harmless Buyer against all claims and demands for loss of life, personal injury or property damage arising out of Seller's performance hereunder, or the products provided by Seller hereunder, including claims by Seller's employees and agents for injuries occurring on Buyer's premises. Buyer shall have the right to withhold from any sums otherwise due Seller hereunder, amounts reasonably necessary to protect Buyer against loss on account of such claims or demands. Seller shall, upon request from Buyer, furnish evidence of insurance with limits as follows: worker's compensation insurance as required by law, bodily injury and property damage public liability insurance of not less than $500,000 per occurrence, including contractual liability and automobile bodily injury and property damage liability insurance of not less than $500,000 per accident.
13. ASSIGNMENT AND SUBCONTRACTS — Seller shall not assign this order or any of the Seller's rights hereunder, whether by direct assignment, amalgamation, merger or the sale of all or substantially of its capital stock, assets or properties, including its right to receive any money due or to become due hereunder, nor shall Seller enter into a subcontract with any other party for the furnishing of items or services without Buyer's prior written consent.
14. COMPLIANCE WITH LAWS — Seller shall, in the performance of this contract, comply with all applicable federal, state and local laws, regulations, guidelines, standards (including OSHA standards) and orders (collectively "lawn) now in effect. Any provision certification or agreement required to be a part of this contract by virtue of any such law, is hereby incorporated herein by reference. Seller shall prepare and execute all documents and do all things or, as the case may be, refrain from any prohibited activities in order that Buyer shall not be deemed in default of its obligations under any contract with the federal or any state or local government or any supplier thereto. Seller's obligations hereunder may include, but shall not be limited to (a) refraining from discriminating against any employee or applicant because of race, color, religion, national origin, sex, age, handicap, veteran's status, or any other protected category, (b) establishing or maintaining affirmative action plans as required by law or by the terms of any of Buyer's or Buyer's customer's contracts with any governmental entity, (c) providing certifications of compliance with various laws, and obtaining similar certifications from its suppliers and subcontractors, (d) complying with various pollution control requirements, (e) contracting with minority business concerns, small business concerns, and firms in certain designated areas, and (f) filing various reports or providing information. This contract may, at Buyer's option, be deemed a subcontract to Buyer's federal supply schedule.
15. RESERVATION OF RIGHTS — No failure by either party to insist upon strict compliance by the other party with any of the terms of this contract shall be construed as a waiver of such party's rights to insist upon strict compliance therewith in the future.
16. DUTY DRAWBACK RIGHTS — This order includes all related customs duty and import drawback rights, if any, (including rights developed by substitution and rights which may be acquired from Seller's suppliers) which Seller can transfer to Buyer. Seller agrees to inform Buyer of the existence of any such rights and upon request to supply such documents as may be required to obtain such drawback.
17. TERMINATION FOR CONVENIENCE OF BUYER — Buyer may for Buyer's convenience, terminate this contract in whole or in part at any time upon written notification to Seller. In such event, the extent of Buyer's total liability shall be as follows. If the product is services, to pay the portion of the contract price as the work completed bears to the whole, or, if the product is goods to pay the price of the existing finished goods inventory at the time of termination, but no more than required to fulfill the next delivery scheduled within the thirty (30) days immediately following the date of termination plus Seller's cost of its then existing work-in-process inventories, required to fulfill an additional thirty (30) days of deliveries; provided however, that there shall be no liability for inventories in either category which are readily usable or re-saleable. Seller shall use reasonable efforts to mitigate the extent of its losses resulting from such termination, and in no event, shall the amount of Seller's recovery hereunder result in Seller realizing a profit greater than originally and reasonably anticipated by Seller.
18. TERMINATION FOR CAUSE — Buyer may also terminate this contract in whole or in part for cause which may include, but not be limited to (a) Seller's failure to comply with any of the terms and conditions of this contract, (b) Seller's failure to provide Buyer, upon request, with reasonable assurances of future performance, (c) Seller's commencement of or becoming the subject of any proceedings providing for relief of debtors, or (d) Seller's becoming insolvent or bankrupt. In any such events, Buyer shall not be liable to Seller for any amount, and Seller shall be liable to Buyer for any and all damages sustained by reason of the default which gave rise to the termination. In the event of termination for the reasons herein specified or for any other reason, all right, title, and interest in and to all or any portion of materials acquired by Seller for the performance of this contract, work-in-process, or completed items specified in such notice, shall, at Buyer's option, pass immediately to Buyer upon payment of any sums due Seller hereunder, and Buyer shall have the right either to demand and receive such materials, work or items from Seller or to enter, upon 48 hours prior notice, the premises where such property may be located and take possession thereof without any liability to Seller on account of such retaking.
19. MUTUAL: WAIVE OF CONSEQUENTIAL DAMAGES — Notwithstanding any other clause in the Agreement, neither Party shall be liable to the other, or shall make any claim, for any incidental, indirect or consequential damages arising out of, or connected in any way to work in this Agreement. This mutual waiver includes, but is not limited to, damages related to loss of use, loss of profits, loss of income, loss of reputation, unrealized savings or diminution of property value and shall apply to any cause of action inducing, without limitation, negligence, strict liability, breach of contract, statutory and breach of warranty.
- What data do we collect?
- What are cookies?
- What types of cookies do we use?
- How to manage your cookies
- How will we use the information about you?
- Do we share your personal data?
- What are your data protection rights?
- Data security
- Choices for limiting the use and disclosure of personal data
- Information storage and international transfers
- Visiting the Encapsys website
- Privacy policies of other websites
- How to contact us
- If we are not able to address your concern, how to contact the appropriate authorities
What data do we collect?
If a user (“you”) sends a request through our website or through third party software, you will know what information you provide because you will actively submit it to us. If, for example, you request on a “Contact Page” to receive commercial information from Encapsys or submit personal information via an Encapsys website or through third party software, to enable the fulfillment of a request you will provide personal information that uniquely identifies you, such as your name, title, company, address, country, phone, fax, and/or e-mail.
As you navigate through our website, Encapsys may passively collect certain information from your computer or mobile device, including but not limited to the activities you perform on our sites, or the activities you perform through third parties’ facilitated software, the type of hardware and software you are using (for example, your operating system or browser), information stored in cookies, IP address, access times, the web pages from which you came, the regions from which you navigate the web page, and the web page(s) you access (as applicable). Encapsys may use various technologies and means to perform analytics on collected data to improve our marketing.
How will we use the information about you?
Encapsys collects personal data through our website in order to customize and improve the functionality of the site, fulfill sample requests or contractual obligations, improve marketing and research, and communicate with you via phone, fax, standard mail, and/or e-mail. By providing this information, you consent to such collection and use of the provided data.
Do we share your personal data?
Encapsys may share your personal data:
- with your consent;
- to comply with relevant laws, regulatory requirements and to respond to lawful requests, court order and legal process;
- in an emergency, including to protect the safety of our employees or any person;
- in connection with investigating and preventing fraud
- for purposes of a business deal involving sale or transfer of all or part of our business or assets (e.g. merger, financing, acquisition, bankruptcy transaction or proceeding).
- Encapsys also shares your personal data with our affiliates, agents, contractors, and service providers in order to assist us in conducting our business.
- Encapsys may also share your personal data in an anonymous manner with third party analytic services for market research purposes.
Encapsys would like to send you information about products and services of ours that we think you might like, as well as those of our partner companies.
If you have agreed to receive marketing, you may always opt out at a later date. You have the right at any time to stop Encapsys from contacting you for marketing purposes or giving your data to our partner companies. If you no longer wish to be contacted for marketing purposes, please indicate such preference by clicking your response in an applicable dialogue box when asked, or contact us.
What are your data protection rights?
Encapsys would like to make sure you are fully aware of all of your data protection rights. Every user is entitled to the following:
- The right to access - You have the right to request Encapsys to provide copies of your personal data. We may charge you a small fee for this service.
- The right to rectification - You have the right to request that Encapsys correct any information you believe is inaccurate. You also have the right to request Encapsys to complete information you believe is incomplete.
- The right to erasure — You have the right to request that Encapsys erase your personal data, under certain conditions.
- The right to restrict processing - You have the right to request that Encapsys restrict the processing of your personal data, under certain conditions.
- The right to object to processing - You have the right to object to Encapsys' processing of your personal data, under certain conditions.
- The right to data portability - You have the right to request that Encapsys transfer the data that we have collected to another organization, or directly to you, under certain conditions.
If you make a request, we have one month to respond to you. If you would like to exercise any of these rights, please contact us.
Email us at: [email protected]
Write to us at: Encapsys, LLC., 2515 Eisenhower Drive, Appleton, WI 54915
Or call us at: 920-273-2028
No communication over the internet or any wireless network can be guaranteed to be 100 percent secure. As a result, while Encapsys strives to protect your personal data through implementation of security measures, Encapsys cannot warrant the security of any information you send to Encapsys.
Choices for limiting the use and disclosure of personal data
Encapsys will strive to provide the opportunity for you to opt out from: (a) the disclosure or your Personal data to a non-agent third party; and (b) the disclosure of your Personal Data for purposes(s) that are materially different from the purpose for which the Personal Data was originally collected or subsequently authorized by you. The Company will provide individuals with opportunity to make clear choices to opt out regarding personal data should such circumstances arise. Individuals who wish to limit the use or disclosure of their personal data as described in this policy can also submit their requests to [email protected].
Information storage and international transfers
Encapsys and service providers process and securely store your personal information on servers around the world, including in the United States and Malaysia. Data transfers may occur from time to time and may involve different countries where service providers are located. We have agreements with service providers to provide safeguards and to anonymize information transfers, such as when performing analytic services.
Our Company may keep your contact information that you choose to submit consistent with email or record retention policies of the Company. Contact information may be purged when the information is believed no longer current or relevant, or upon request of the submitter. However, the Company may nonetheless retain computer files stored securely that are created during an automatic computer system backup indefinitely, or until overwritten, or until such systems or software are replaced.
Visiting the Encapsys Website
Visiting our website is voluntary. If you do not want us to collect and process your personal data, you are advised not to visit our site. If you choose to do so, you should not provide any confidential information to Encapsys through this site, as Encapsys shall take no responsibility whatsoever as to possible damages users might suffer in that respect.
Privacy policies of other websites
How to contact us
Encapsys is the controller responsible for the personal information we collect and process.
If you have any questions or concerns regarding the way in which your persona data has been used, please contact Encapsys
Email us at: [email protected]
Or write to us at: Encapsys, LLC., 2515 Eisenhower Drive, Appleton, WI 54915.
Our data protection officer can be contacted at: [email protected]. Please include: Attn: Data Protection Officer at the beginning of the email.
Or write to us at: Attn: Data Protection Officer, Encapsys, LLC., 2515 Eisenhower Drive, Appleton, WI 54915.
If we are not able to address your concern, how to contact the appropriate authorities
Encapsys is committed to working with you to obtain a fair resolution of any complaint or concern about privacy. If, however, you believe that we have not been able to assist with your complaint or concern, you may have the right to make a complaint to the data protection authority of your country of residence.
Notice applicable to ALL regions:
ENCAPSYS.COM is a top level domain website hosted in the United States. Encapsys, LLC has its principal offices and facilities in the United States of America.
By using our website, you agree that use of our website, and any rights and obligations arising therefrom shall at all times be interpreted, governed and construed in accordance with the laws of the State of Wisconsin or the federal laws of the United States of America as applicable, without regard to its conflicts of laws provisions. Do not use our website if you do not consent to such governing law or jurisdiction, or if you do not consent to our use of your data as described in this policy.
Additional Notices applicable to specific regions:
For residents of the EU:
NOTE: Encapsys, LLC is located in North America outside of the European Union (“EU”), and its service providers, and data processing servers are located outside of the European Union. By submitting information on our website, you are transferring information outside of the EU as described in this policy. By submitting information, you are agreeing that your information may be transferred and used as described in this policy.
For residents of the US and North America:
Encapsys, LLC uses servers both within the United States and outside of the U.S. By submitting information on our website, you are agreeing that your information may be transferred and used as described in this policy.
- What are cookies?
- What types of cookies do we use?
- How to manage your cookies
What are cookies?
When you visit our websites, we may collect information from you automatically through cookies or similar technology. Cookies are text files downloaded to your device to collect standard Internet log information and visitor behavior information. Cookies are sent back to our website to allow us to recognize your device.
Cookies are used to:
- Understand which parts of our website you are visiting
- Help us maintain our website by understanding the technologies that are being used when customers access our site.
- Help us understand what information users are accessing when visiting our site so that we may provide the most useful information
- Understand and monitor how our site is performing
- Advertising cookies may be sued in some cases to make advertising more relevant.
- Cookies may be used to provide personal browsing configurations after user logins.
What types of cookies do we use?
There are a number of different types of cookies, however, our website uses:
- Functionality - Encapsys uses these cookies so that we recognize you on our website and remember your previously selected preferences. These could include what language you prefer and location you are in. A mix of first-party and third-party cookies are used.
- Advertising - Encapsys uses these cookies to collect information about your visit to our website, the content you viewed, the links you followed and information about your browser, device, and your IP address. Encapsys sometimes shares some limited aspects of this data with third parties for advertising purposes and analytic purposes. We may also share online data collected through cookies with our advertising partners and analytics partners. This means that when you visit another website, you may be shown advertising based on your browsing patterns on our website Analytics partners who are third party service providers at other locations, also use various algorithms and analysis tools to help us improve our site, our marketing and to help us understand our web traffic.
How to manage your cookies?
You can set your browser not to accept cookies, and each available browser offers tools for browser-based cookie management. For more information on browser usage, please refer to the documentation supplied by the supplier of the browser(s) you use. Browser privacy choices, in some cases, alter some our website features which may not function as a result.