VOLM COMPANIES, INCORPORATED
TERMS AND CONDITIONS OF SALE
1. Contract Formation. ANY TERMS CONTAINED IN BUYER’S REQUEST FOR PROPOSAL, PURCHASE ORDER, OR ANY OTHER FORM OR COMMUNICATION RECEIVED FROM THE BUYER TO INCLUDE INFORMATION CONTAINED IN BUYER’S PURCHASE ORDER WHICH ARE IN ADDITION TO OR DIFFERENT FROM THE TERMS AND CONDITIONS CONTAINED HEREIN ARE EXPRESSLY OBJECTED TO AND SHALL BE DEEMED REJECTED BY SELLER AS THE TERM WAS NOT NEGOTIATED OR ACCEPTED. THE ONLY EXCEPTION TO THIS CLAUSE IS IF SELLER EXPRESSLY ACCEPTS IN WRITING ANY CHANGE MADE BY BUYER.
Further, Seller does not accept the limited terms and conditions listed in Sellers Purchase Order. Specifically, if (a) Buyer’s Purchase Order effectively states that acceptance by Seller of such Purchase Order is expressly limited to the terms and conditions contained therein, then, (b) Seller does NOT affirmatively assent in writing to such terms and conditions, and (c) Buyer acceptance of Seller’s performance hereunder, constitutes waiver by Buyer of the express condition that acceptance by Seller of such Buyer Purchase Order be limited to the terms and conditions contained therein.
2. Cancellation by Customer. BUYER SHALL NOT HAVE THE RIGHT TO CANCEL OR SUSPEND ALL OR ANY UNDELIVERED OR UNEXECUTED PORTION OF THE GOODS AND SERVICES TO BE PROVIDED UNDER THIS AGREEMENT. IF, CONTRARY TO THE PROHIBITIONS OF THIS PARAGRAPH 2, BUYER EXPRESSLY OR, BY BUYER’S ACTIONS OR OMISSIONS, IMPLIEDLY CANCELS OR SUSPENDS ALL OR ANY SUCH UNDELIVERED OR UNEXECUTED PORTION OF THE GOODS AND SERVICES TO BE PROVIDED UNDER THIS AGREEMENT, BUYER SHALL PAY SELLER ALL COSTS AND EXPENSES WHICH HAVE BEEN PAID OR INCURRED, DUE AND PAYABLE BY SELLER PRIOR TO OR AS A RESULT OF SUCH CANCELLATION. SUCH COSTS SHALL INCLUDE OVERHEAD, TRANSPORTATION COSTS, THE COST OF ANY MATERIALS INCORPORATED IN THE EQUIPMENT AND THE COST OF MATERIALS PURCHASED AND COMPONENTS APPLICABLE TO THE PERFORMANCE OF SELLER'S OBLIGATIONS HEREUNDER, INCLUDING ANY CANCELLATION CHARGES IMPOSED ON SELLER BY ITS SUPPLIERS AND SUBCONTRACTORS. IN ADDITION TO SUCH COSTS, BUYER SHALL PAY SELLER A REASONABLE CHARGE FOR PROFIT, WHICH SHALL BE PROPORTIONATE TO SUCH COSTS. ANY ADVANCED PAYMENTS OR PROGRESS PAYMENTS MADE BY BUYER PURSUANT TO THE AGREEDTO PAYMENT TERMS P RIOR TO BUYER'S WRITTEN CANCELLATION NOTICE SHALL BE CREDITED TO THE FOREGOING COSTS AND PROFIT. IN ADDITION, IN THE EVENT THE COSTS AND EXPENSES OF SELLER ARE LESS THAN THE ADVANCED PAYMENTS AND PROGRESS PAYMENTS MADE BY BUYER, SELLER MAY KEEP ALL ADVANCED PAYMENTS AND PROGRESS PAYMENTS MADE BY BUYER AS LIQUIDATED DAMAGES.
3. Delivery. Unless and only to the extent otherwise agreed by Seller, Seller shall deliver the goods to Buyer or Buyer’s agent free on board (F.O.B.) at Seller’s plant or other point of shipment designated by Seller on the date of the availability of the goods for shipment, which date shall be determined in Seller’s sole discretion, or, if applicable, at such other time and/or place as shall be specified pursuant to Buyer’s written instructions which are agreed to in writing by Seller. Regardless of whether Buyer or Seller is to pay shipment charges, Buyer hereby authorizes any truck, rail, or other carrier to whom delivery of goods is made hereunder to act as Buyer’s agent for the purposes of acceptance of possession of such goods, allocation of risk of loss, and transfer of title. SELLER MAY, FROM TIME TO TIME, MAKE PARTIAL DELIVERIES OR CHANGE OR TEMPORARILY SUSPEND DELIVERY SCHEDULES. ESTIMATED DELIVERY DATES ARE APPROXIMATE AND ARE DEPENDENT UPON MANY FACTORS INCLUDING, BUT NOT LIMITED TO, SELLER’S ABILITY TO OBTAIN THE NECESSARY RAW MATERIALS, SELLER’S SUBCONTRACTORS MEETING SCHEDULED DELIVERY DATES, AND SELLER’S PROMPT RECEIPT OF ALL INFORMATION NECESSARY TO PERMIT SELLER TO PROCEED WITH WORK IMMEDIATELY AND WITHOUT INTERRUPTION. BUYER AND SELLER AGREE THAT FACTORS OUTSIDE OF SELLERS CONTROL CAN REASONABLY DELAY DELIVERY. ACCORDINGLY, SELLER SHALL HAVE NO LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES DUE TO DELAYS IN DELIVERY. Claims for shortages or other errors in delivery must be made in writing to Seller within: (i) twenty-one (21) days after receipt of each shipment; or (ii) in the event Volm is installing the goods which have been delivered, within five (5) days after a technician from Volm arrives for such installation. Failure to give such notice shall constitute acceptance of each such shipment and a waiver of all such claims by Buyer. Claims for loss or damage to goods in transit by common carrier must be made to such carrier and not to Seller.
4. Risk of Loss and Title. Risk of loss to goods will be borne by and title to goods will pass to Buyer from the point and at the time of delivery specified in paragraph 3 above.
5. Force Majeure. In the event of the existence, happening, or continuance, whether or not foreseeable, of any contingency preventing, curtailing or substantially interrupting or interfering with the ability of Seller or suppliers to Seller to supply the goods or perform the services required under this Agreement including, but not limited to, fire, theft, accident, war, insurrection, act, order, authority, regulation, directive, recommendation or request of or threat thereof by any federal, state, local or foreign unit of government or department or agency thereof, state of emergency, judicial action, industrial disturbance, shortage of labor or impairment of obtaining workers, work stoppages, the shortage of fuel, power, components, facilities or raw materials, embargos, delay of suppliers, act of or omission to act by Buyer, restriction or lack of transportation facilities, failure or delay in transportation, breakage or accident to machinery or equipment, involuntary or requested shutdown of Seller's production facilities, act of God or nature, disease, illness, virus, bacterium, epidemic or pandemic, whether or not related to any type of coronavirus or COVID-19 occurrence, or any other cause, whether similar or dissimilar to any of the foregoing, then, independent of and in addition to any right of Seller under law or equity excusing Seller’s performance in any manner, Seller shall not be under any obligation during the period of such prevention, curtailment, interruption, or interference to continue production or make delivery of any goods described herein. If any period of such prevention, interruption, or curtailment to continue production or make delivery of any goods described herein is caused, in whole or in part, directly or indirectly, by an act of or omission to act by Buyer, Buyer shall pay to Seller all additional charges resulting therefrom. Seller will be entitled to an extension of time for performance of its obligations equal to the period of such prevention, curtailment, interruption, or interference. Upon the occurrence of any such contingency, Seller may, but is under no obligation to, allocate production and delivery among Seller's customers. If Seller, in Seller's sole discretion, determines that Seller's performance hereunder would result in a loss to Seller on this sale, as computed under Seller's normal accounting procedures, because of any cause enumerated above, then Seller may terminate this Agreement, in whole or in part, without liability for loss or damage of any nature whatsoever including, but not limited to, incidental and consequential damages for any delay in the delivery of or failure to deliver the goods otherwise to be sold to Buyer hereunder.
6. Pricing. Unless and only to the extent otherwise agreed by Seller and documented in writing, all prices for goods are exclusive of any charges for packaging, shipping, technical advice, or other necessary services incidental to Seller’s performance hereunder. All such charges will be made in accordance with rates established by Seller on or prior to the date on which the services to which they apply are rendered and are subject to change without notice at any time prior to such date. All prices for goods are subject to change without notice at any time prior to the date of the availability of the goods for shipment or, if applicable, such other time as shall be specified pursuant to Buyer’s written instructions that are agreed to in writing by Seller, to prices prevailing on such date. If Seller’s price for the goods described herein is based upon delivery to and acceptance by Buyer of a specified quantity of goods, such price shall be subject to adjustment if Buyer does not accept the applicable quantities of goods at the times specified herein and Buyer will be invoiced at Seller’s price for such goods prevailing on the date of the availability of such goods for shipment without quantity discounts, if any, for the quantity of goods actually accepted by Buyer.
7. Change Orders. Seller shall not be required by Buyer to provide any goods or services other than that described in this Agreement. Any Change Order shall comply with the below requirements.
a. Documentation. All change orders (1) shall be documented in writing, (2) shall be signed by Customer and Seller before any work affected by the change order has been performed, and (3) shall document (x) the nature of the change in the work, (y) the amount of the adjustment in the payments due to Seller hereunder, if any, and (z) the extent of the adjustment in the time for performance of the work by Seller hereunder, if any.
b. Adjustments in Payments. Adjustments in the payments due to Seller because of a properly documented change order shall be based on (1) mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation or (2) if such a lump sum amount cannot be agreed upon by Customer and Seller, unit prices or hourly rates as set forth in the Agreement or otherwise established by Seller or subsequently agreed upon.
c. Final Settlement. Agreement on any change order shall constitute a final settlement of all matters relating to the change in the work which is the subject of the change order, including, but not limited to, all direct and indirect costs associated with such change and any and all adjustments to the schedule of any work affected thereby.
8. Taxes. All prices are exclusive of any applicable present or future domestic or foreign federal, state, or local manufacturer’s, retailer’s, occupation, sales, use, excise, goods and services or other similar taxes, duty, custom, inspection, or testing fees, or any other taxes, fees, or charges of any nature whatsoever which may be imposed by any governmental authority on, or which are measured by this transaction between Buyer and Seller. All such taxes shall be borne by Buyer and will be paid by Buyer to Seller upon submission of Seller’s invoices. In the event Seller is required to pay any such taxes, fees, or charges, Buyer shall promptly reimburse Seller therefor upon submission of Seller’s invoices or, in lieu of such payment, Buyer shall provide to Seller at or prior to the time of contract formation an exemption certificate or other similar document acceptable to the governmental authority imposing such tax, fee, or charge the effect of which is to exempt Seller from the duty to remit such taxes, fees, or charges to such governmental authority. If any such exemption certificate or similar document is rejected by the appropriate governmental agency, then Buyer shall be immediately responsible to reimburse Seller for any tax or similar due and be liable for same.
9. Credit. All sales are subject to the approval of Seller’s credit department. Seller may, at any time and from time to time and without prejudice to Seller’s other legal and equitable remedies, suspend or terminate performance or delivery hereunder or require full or partial payment in cash or by letter of credit prior to delivery, security, guarantees, or other adequate assurance satisfactory to Seller when, in Seller’s opinion, the financial condition of Buyer or other grounds for insecurity warrant such action. In the event of Buyer (a) becoming insolvent, (b) being unable, or admitting in writing its inability, to pay its debts as they mature, (c) failing to promptly lift any execution, garnishment, or attachment of such consequence as will, in the judgment of Seller, impair the ability of Buyer to carry on its business operations, (d) making a general assignment for the benefit of creditors or to an agent authorized to liquidate any amount of its property, (e) entering into an agreement of composition with its creditors, (f) becoming the subject of an “order for relief” within the meaning of the U.S. Bankruptcy Code, (g) filing a petition in bankruptcy or for reorganization or to effect a plan or other arrangement with creditors under the provisions of the Bankruptcy Reform Act of 1978, as amended, or under any similar act in any domestic or foreign jurisdiction which may now be in effect or hereafter enacted, (h) filing an answer to a creditor’s petition (admitting the material allegations thereof) for reorganization or to effect a plan or other arrangement with creditors, (i) applying to a court for the appointment of a receiver for any of its assets; (j) having a receiver appointed for any of its assets (with or without the consent of Buyer) and such receiver not being discharged within sixty (60) days after his/her appointment, or (k) failing to make any payment hereunder when due, then the entire contract price hereunder, including, but not limited to, any and all charges for packing, shipping, and interest, shall immediately become due and payable without notice to Buyer.
10. Express and Implied Warranties.
a. Express Warranties. Seller expressly warrants to Buyer that all goods to be provided by Seller under this Agreement will be free from all material defects in materials and workmanship and that all services to be performed by Seller under this Agreement will be performed in a good and workmanlike manner. All claims under the foregoing warranty must be made in writing to Seller within a period of six (6) months after completion of the installation (if installed by Seller) or within six (6) months of receipt of the goods to be provided and services to be performed under this Agreement if not installed by the Seller.
b. Disclaimer of Implied Warranties. SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS, IMPLIED (EXCEPT TITLE), STATUTORY, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE GOODS SOLD AND SERVICES, IF ANY, PROVIDED HEREUNDER. BUYER ACKNOWLEDGES THAT IT ALONE HAS DETERMINED THAT THE GOODS AND SERVICES PURCHASED HEREUNDER WILL SUITABLY MEET THE REQUIREMENTS OF THEIR INTENDED USE. NO EMPLOYEE, REPRESENTATIVE, OR AGENT OF SELLER IS AUTHORIZED TO ALTER OR MODIFY ANY PROVISION OF THIS PARAGRAPH 10 OR TO MAKE ANY GUARANTEE, WARRANTY, OR REPRESENTATION, EXPRESS OR IMPLIED, ORALLY OR IN WRITING, WHICH IS CONTRARY TO THE FOREGOING.
c. Exclusions. This warranty does not (i) apply and shall be void with respect to Equipment operated in excess of rated capacity or otherwise not in accordance with installation, maintenance, or operating instructions or requirements, to Equipment repaired or altered by others than Seller or Seller’s authorized service agencies, or to Equipment which was subjected to negligence, misuse, misapplication, accident, power spikes/surges, damages by circumstances beyond Seller’s control, to improper installation (if by others than Seller), operation, maintenance or storage, or to other than normal use or service, (ii) apply to items which are normally consumed during normal operation (such as lights, fuses, cylinders, belts, cutters, suction cups, filters, and similar wear items), and (iii) apply to equipment or components not manufactured by or for Seller.
d. No Other Warranties. Any description of the Equipment, whether in writing or made orally by Seller or Seller’s agents, specifications, samples, models, bulletins, drawings, diagrams, engineering sheets, or similar materials used in connection with Buyer’s order are for the sole purpose of identifying the Equipment and shall not be construed as an express warranty. Any suggestions by Seller or Seller’s agents regarding use, application, or suitability of the Equipment shall not be construed as an express warranty unless confirmed to be such in writing by Seller’s authorized officer.
11. Return of Goods. Buyer shall not have the right to return goods to Seller without Seller’s written authorization and shipping instructions. Unless otherwise agreed by Seller, any such return of goods to Seller shall be at Buyer’s expense. Seller’s physical possession of such goods pursuant to an authorized return shall not alter the allocation of risk of loss or passage of title to the goods specified in this Agreement. The return policy as applies to consumable goods also known as packaging supplies (for examples, bags, labels, closures, etc.,) is that returns will not be accepted more than twelve (12) months after the invoice date. Any returned packaging supplies must be clean and in original condition at the sole determination of Seller. If the packaging includes artwork, or any other type of specialization, such artwork or specialization must be current. All returns are subject to a ten percent (10%) restocking fee. Buyer understands and agrees to the this return policy and further understands that Seller will not make any exceptions to the return policy.
12. Technical Advice. Seller shall not be liable for any ordinary, proximate, incidental, or consequential damages arising directly or indirectly from any technical advice furnished or suggestions or recommendations made by Seller concerning the installation, maintenance, repair, replacement, adjustment, use, suitability, or application of any goods furnished under this Agreement, regardless of whether such technical advice is given or recommendations are made prior to or after substantial completion, final inspection, or initial use of such goods. The limitation of liability contained in this Agreement shall survive the completion of the work to be performed by Seller under this Agreement and shall apply to all technical advice given and recommendations made by Seller thereafter with regard to the goods furnished under this Agreement.
13. Limitation of Seller’s Liability. SELLER’S LIABILITY FOR ANY LEGAL CLAIM, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE AND STRICT LIABILITY, WHETHER SOLE OR CONCURRENT) OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR, REPLACEMENT, OR USE OF THE GOODS SOLD OR SERVICES PERFORMED BY SELLER HEREUNDER SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF SUCH GOODS OR SERVICES AND ALSO SHALL BE LIMITED TO, AT SELLER’S OPTION, REPLACING OR REPAIRING OR ISSUING A CREDIT OR REFUND FOR THAT PART OF THE PURCHASE PRICE OF SUCH GOODS OR SERVICES WHICH IS ALLOCABLE TO THE PART OR PARTS OF THE GOODS OR ANY SERVICES RELATED THERETO WHICH GIVE RISE TO SUCH CLAIM. BUYER SHALL INSPECT AND PERFORM ANY NECESSARY TESTS OF GOODS SOLD HEREUNDER PRIOR TO ANY USE THEREOF BY BUYER OR BUYER’S CUSTOMERS OR USERS OF BUYER’S PRODUCTS AND, IF SUCH GOODS ARE CLAIMED BY BUYER TO BE DEFECTIVE, SHALL GIVE WRITTEN NOTICE OF SUCH CLAIMED DEFECT TO SELLER WITHIN: (I) twenty-one (21) days after DELIVERY OF SUCH GOODS TO BUYER, OR (II) in the event Volm is installing the goods which have been delivered, within five (5) days after a technician from Volm arrives for such installation. ANY DEFECTIVE GOODS MAY, AT SELLER’S OPTION, BE RETURNED BY BUYER, AT SELLER’S EXPENSE FREIGHT COLLECT, TO SELLER’S FACTORY FOR INSPECTION. SELLER MAY, AT SELLER’S OPTION, DELIVER REPAIRED OR REPLACEMENT GOODS TO BUYER, AT SELLER’S EXPENSE FREIGHT PREPAID, TO THE ORIGINAL DESTINATION OF THE ORIGINAL GOODS. SELLER SHALL HAVE NO LIABILITY FOR ANY COSTS OR EXPENSES OF DISASSEMBLY, REMOVAL, REASSEMBLY, OR REINSTALLATION OF ANY DEFECTIVE, REPAIRED, OR REPLACEMENT GOODS OR OF FINISHING THE REINSTALLATION THEREOF. GOODS RETURNED TO SELLER FOR WHICH SELLER ELECTS TO PROVIDE REPAIRED OR REPLACEMENT GOODS UNDER THIS PARAGRAPH SHALL BECOME THE PROPERTY OF SELLER.
14. Incidental and Consequential Damages. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY PENALTIES, SPECIAL, CONTINGENT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL LOSSES, DAMAGES, OR EXPENSES DUE TO BREACH OF WARRANTY, BREACH OF CONTRACT, OR OTHERWISE INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR DESTRUCTION OF OR LOSS TO PROPERTY, PERSONAL INJURY, LOSS OF USE OF THE GOODS OR ANY ASSOCIATED EQUIPMENT, LOSS OF PRODUCTION, REVENUE, OR PROFITS, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES, OR SERVICES, OR FOR ANY OTHER TYPES OF ECONOMIC LOSS, OR FOR CLAIMS OF CUSTOMERS OF BUYER OR USERS OF BUYER’S PRODUCTS FOR ANY SUCH DAMAGES.
15. Security Agreement and Financing Statements. To secure payment of the purchase price and of all monies which may be due hereunder, and performance of all of Buyer’s obligations hereunder, Buyer hereby grants to Seller a security interest in all Equipment sold by Seller and agrees to execute such other Security Agreements and Financing Statements as Seller may reasonably request.
16. Insurance. Until payment in full of the purchase price, Buyer shall maintain insurance covering all equipment sold by Seller to Buyer in such amounts and against such risks as is customary by companies engaged in the same or similar business and similarly located, and shall, upon Seller’s request, furnish evidence of such insurance satisfactory to Seller.
17. Ownership of Photographs, Videos and Drawings. Buyer hereby acknowledges and agrees that all photographs and videos taken or produced by or on behalf of Seller at Buyer’s facility and all drawings made or produced by or on behalf of Seller of the goods purchased hereunder and Seller’s facility shall be the property of Seller and Seller shall have the right to use such photographs, videos, and drawings at its sole discretion.
18. Notices. All written notices, requests, demands, consents, certificates, or other communications required or permitted to be given hereunder shall be sufficiently given when mailed by certified mail, return receipt requested, postage prepaid, addressed to Seller at 1804 Edison Street, P.O. Box 400, Antigo, Wisconsin 54409-0400 and to Buyer at the most current address for Buyer in Seller’s possession. Either party may by like notice at any time and from time to time designate a different address to which notices shall be sent.
19. Subcontracting. Seller may, without the necessity of obtaining Buyer’s prior written consent, subcontract the production of all or any portion of the goods or services covered by this Agreement.
20. Waiver. No waiver shall be implied by Seller’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege granted to Seller hereby. No express waiver by Seller shall be construed as waiving any breach hereunder or the performance of any of the terms or conditions hereof not specified in the express waiver, and then only for the time and to the extent stated therein. One or more waivers of any covenant, term, or condition hereof shall not be construed as a waiver of a subsequent breach of the same covenant, term, or condition.
21. Severability. If any covenant, term, or condition hereof or the application thereof to any circumstance or person shall, to any extent, be held invalid or unenforceable by any court of competent jurisdiction, the remaining valid and enforceable covenants, terms, and conditions hereof and the application of such invalid or unenforceable covenant, term, or condition to circumstances or persons other than those as to which it has been held invalid or unenforceable shall not be affected thereby and each remaining valid and enforceable covenant, term, and condition shall be valid and enforceable to the fullest extent permitted by law.
22. Statute of Limitations. ANY ACTION, WHETHER BASED UPON THEORIES OF BREACH OF WARRANTY, BRE ACH OF CONTRACT, NEGLIGENCE, OR OTHERWISE, WITH REGARD TO THE GOODS OR SERVICES DELIVERED HEREUNDER MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
23. Governing Law. This agreement shall be governed and construed according to the internal laws of the State of Wisconsin without regard to conflicts of laws principles. The rights and obligations of Seller and Buyer shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. The terms and conditions contained herein shall be applicable to sales of goods only, to mixed sales of goods and services (regardless of which factor predominates), and to sales of services only and, in either of the latter two cases, the term “goods” as used herein shall be construed as including all services rendered hereunder, unless the context clearly indicates otherwise.
24. Dispute Resolution. The first step in resolving any dispute between the parties is a discussion between the Parties to see if the dispute can be resolved without third-party assistance.
If a discussion does not resolve the issues, then the parties agree to engage in the second step which is non-binding mediation. Before either party may initiate arbitration, the Parties shall attempt to resolve the dispute through mediation in accordance with the following terms and conditions:
A Party shall submit a dispute to mediation by written notice to the other Party. The mediation shall be conducted by a single mediator selected by the Parties. If the parties cannot agree on a mediator within fifteen (15) calendar days of delivery of written notice, the parties will promptly select a mutually acceptable mediation provider entity, which entity shall, as soon as practicable following such entity’s selection, designate a mediator, who is a licensed attorney with general knowledge of contract law, has no ongoing business relationship with either party. Any mediator must confirm in writing that he or she is not, and will not become during the term of the mediation, an employee, partner, executive officer, director, or security holder of either Party. If such confirmation is not provided by the appointed mediator, then a replacement mediator shall be appointed. The mediator shall conduct the mediation in accordance with the rules and procedures that he or she determines following consultation with the Parties. The Parties shall discuss the dispute in good faith and attempt, with the mediator’s assistance, to reach an amicable resolution of the dispute. The mediation shall be treated as a settlement discussion and shall therefore be confidential and may not be used against either party in any later proceeding relating to the dispute, including arbitration. The mediator may not testify for either party in any later proceeding relating to the dispute. Each party shall bear its own costs in the mediation. The parties shall share equally the fees and expenses of the mediator. Each party shall treat information received from the other party pursuant to the mediation that is appropriately marked as confidential information of such other party.
If the parties have engaged in good faith participation in the mediation but have not resolved the dispute for any reason, then any dispute with respect to this Agreement shall be submitted to binding arbitration in Antigo, Wisconsin which shall be the third and final step for dispute resolution. Such arbitration shall be conducted under the commercial rules then prevailing of the American Arbitration Association. As stated above, Wisconsin law shall govern any dispute resolution under this Agreement.
25. Venue. While the Parties agree that any dispute arising out of this Agreement shall be resolved by binding arbitration, if, for any reason, any aspect of this agreement is resolved in a state or federal court, then, each party hereby consents to the jurisdiction of the state and federal courts located in the State of Wisconsin, specifically, in the state and federal courts located in or nearest to Antigo (Langlade County), Wisconsin. If Buyer commences any legal action involving this Agreement or the goods provided hereunder in any manner or any forum other than those specified and agreed above, Seller shall be entitled to the dismissal of such action based on the negotiated terms of this agreement. This paragraph DOES NOT alter that the Parties agreement to resolve all disputes through binding arbitration.
26. Entire Agreement. The terms and conditions contained in this Agreement, together with all additional terms and conditions contained on all attachments hereto and all amendments hereof, shall constitute the complete and exclusive statement of the terms and conditions of the contract between Buyer and Seller for the purchase and sale of the goods and services to be purchased and sold hereunder and may hereafter be modified, amended, or changed only by written instrument or change order executed by the duly authorized representatives of both Buyer and Seller under the procedure discussed in this Agreement. No statements, representations, writing, understandings, or agreements by either party or any representative of either party in negotiations leading to this Agreement shall be binding or of any force or effect. No course of performance, course of dealing, or usage of trade shall be relevant to explain or supplement this Agreement.