NeoCoil, LLC
General Terms and Conditions of Sale

  1. Applicability.
    1. These terms and conditions of sale (these “Terms”) are the only terms that govern the sale of goods (“Goods”), and services (“Services”), by NeoCoil, LLC, a Wisconsin limited liability company (“NeoCoil”) to you (“Buyer”). Notwithstanding anything herein to the contrary, in the event NeoCoil and Buyer are party to a written contract signed by both parties in connection with the sale of Goods and/or Services, the terms and conditions of such contract shall apply in lieu of these Terms.
    2. These Terms comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
  2. Delivery of Goods and Performance of Services.
    1. The Goods will be delivered in accordance with the applicable Purchase Order or otherwise within a reasonable time after the receipt of Buyer’s purchase order[, subject to availability of finished Goods]. NeoCoil shall not be liable for any delays, loss, or damage in transit.
    2. Unless otherwise agreed in writing by the parties, NeoCoil shall deliver the Goods to the location(s) designated by Buyer (the “Delivery Point”) using NeoCoil’s standard methods for packaging and shipping such Goods. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point, and will unload and release all transportation equipment promptly so NeoCoil incurs no demurrage or other expense.
    3. NeoCoil may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
    4. If for any reason Buyer fails to accept delivery of any of the Goods (except in the case of Nonconforming Goods rejected in accordance with Section 7 of these Terms) or if NeoCoil is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) NeoCoil, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage, and insurance).
    5. NeoCoil shall use reasonable efforts to meet any performance dates to render the Services specified in the Purchase Order, and any such dates shall be estimates only.
    6. With respect to the Services, Buyer shall (i) cooperate with NeoCoil in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by NeoCoil, for the purposes of performing the Services; (ii) respond promptly to any NeoCoil request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for NeoCoil to perform Services in accordance with the requirements of these Terms; (iii) provide such customer materials or information as NeoCoil may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
  3. Goods Lost in Transit; Undelivered Goods. The quantity of any installment of Goods as recorded by NeoCoil on dispatch from NeoCoil’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. In no event shall NeoCoil be liable for any Goods that are shipped by NeoCoil but subsequently lost in transit. However, in the event NeoCoil fails to include any Goods in an order or shipment (such Goods, the “Undelivered Goods”), Buyer shall provide notice of the Undelivered Goods within [two business] days of the date when such Undelivered Goods would in the ordinary course of events have been received by Buyer. Any liability of NeoCoil for Undelivered Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered, in NeoCoil’s sole discretion. Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer’s exclusive remedies for any Undelivered Goods, and that Buyer shall not be entitled to any remedies for Goods that are shipped but lost in transit.
  4. Shipping Terms. Delivery of the Goods shall be made FOB “Shipping Point” and NeoCoil shall make delivery in accordance with the terms on the face of the Purchase Order.
  5. Title and Risk of Loss. Title and risk of loss pass to Buyer upon delivery of the Goods at the time shipment is made by NeoCoil. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to NeoCoil a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code.
  6. Buyer’s Acts or Omissions. If NeoCoil’s performance of its obligations under these Terms is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, NeoCoil shall not be deemed in breach of its obligations under these Terms or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
  7. Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Goods upon receipt and Buyer will be deemed to have accepted the Goods unless it notifies NeoCoil in writing of any Nonconforming Goods (defined, below) within five business days of receipt of such Nonconforming Goods, along with such written evidence or other documentation as reasonably required by NeoCoil. “Nonconforming Goods” means only the following: (a) product shipped is different than identified in the Purchase Order; or (b) a product’s label or packaging incorrectly identifies its contents. NeoCoil shall, in its sole discretion, (x) replace such Nonconforming Goods with conforming Goods, or (y) credit or refund the price for such Nonconforming Goods. Nonconforming Goods shall be returned by Buyer in accordance with NeoCoil’s instructions, at the shipping expense of NeoCoil. Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer’s exclusive remedies for the delivery of Nonconforming Goods and except as provided in this Section, Buyer has no right to return Goods purchased under these Terms to NeoCoil.
  8. Price. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, NeoCoil’s income, revenues, gross receipts, personal or real property, or other assets.
  9. Payment Terms. Buyer shall pay all invoiced amounts due to NeoCoil within 30 days from the date of NeoCoil’s invoice. Buyer shall make all payments hereunder by [wire transfer/check, which wire transfer instructions shall be verified by Buyer and NeoCoil via telephone] and in US dollars. Buyer shall pay interest on all late payments at the lesser of the rate of 1% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse NeoCoil for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which NeoCoil does not waive by the exercise of any rights hereunder), NeoCoil shall be entitled to suspend the delivery of any Goods or performance of any Services and stop Goods in transit if Buyer fails to pay any amounts when due hereunder.
  10. Limited Warranty. EXCEPT FOR NEOCOIL’S LIMITED WARRANTY FOR DIRECT SALE DEVICES, A COPY OF WHICH HAS BEEN PROVIDED TO BUYER (IF APPLICABLE), NEOCOIL MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (WHETHER EXPRESS OR IMPLIED BY LAW), COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

  11. Limitation of Liability. IN NO EVENT SHALL NEOCOIL BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT NEOCOIL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL NEOCOIL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO NEOCOIL FOR THE GOODS AND SERVICES SOLD HEREUNDER.

  12. Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Terms.
  13. Termination. In addition to any remedies that may be provided under these Terms, NeoCoil may terminate these Terms with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under these Terms; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
  14. Waiver. No waiver by either party of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by the waiving party. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
  15. Confidential Information. All non-public, confidential or proprietary information of NeoCoil, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by NeoCoil to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with these Terms is confidential, solely for the use of performing these Terms and may not be disclosed or copied unless authorized in advance by NeoCoil in writing. Upon NeoCoil’s request, Buyer shall promptly return or destroy all documents and other materials received from NeoCoil. NeoCoil shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure, as demonstrated by Buyer’s records at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party who is under no confidentiality obligation to NeoCoil.
  16. Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms (except for any obligations of Buyer to make payments to NeoCoil hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s reasonable control, including, without limitation, acts of God, flood, fire, earthquake, and other events beyond the reasonable control of such impacted party, provided that the impacted party shall give reasonable notice within [five business] days of such event to the other party, stating the period of time the occurrence is expected to continue, and the impacted party shall use diligent efforts to end the failure or delay and ensure the effects of such event are minimized. The impacted party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
  17. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of NeoCoil. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under these Terms.
  18. Governing Law. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Wisconsin.
  19. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Wisconsin in each case located in the City of Milwaukee and County of Milwaukee, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
  20. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
  21. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms including, but not limited to, the following provisions: Confidential Information, Governing Law and Survival.
  22. Miscellaneous. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. These Terms is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms. If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.