CUSTOMER TERMS OF SALE
The goods, services or work (referred to as the “Products”) offered are offered for sale at prices indicated in the offer. The offer to sell the Products and acceptance of Seller’s offer by any customer (“Buyer”) is contingent upon, and will be governed by all the terms and conditions contained in this Offer of Sale. Buyer’s order for any Products specified in Buyer’s purchase document or Seller’s offer, proposal or quote (“Quote”) attached to the purchase order, when communicated to Seller verbally, or in writing, shall constitute acceptance of this offer.
1. TERMS AND CONDITIONS: Seller’s willingness to offer Products for sale or accept an order for Products is subject to the terms and conditions contained in this Offer of Sale. Seller objects to any contrary or additional terms or conditions of Buyer’s order or any other document or other communication issued by Buyer.
2. PRICE AND PAYMENT: Prices stated on Seller’s Quote are valid for thirty (30) days, except as explicitly otherwise stated therein, and do not include any sales, use, or other taxes or duties unless specifically stated. Seller reserves the right to modify prices to adjust for any raw material price fluctuations. Unless otherwise specified by Seller, all prices are F.C.A. Seller's facility (INCOTERMS 2010). Payment is subject to credit approval and payment for all purchases is due thirty (30) days from the date of invoice (or such date as may be specified by Seller’s Credit Department). Unpaid invoices beyond the specified payment date incur interest at the rate of 1.5% per month or the maximum allowable rate under applicable law.
3. SHIPMENT, DELIVERY, TITLE AND RISK OF LOSS: All delivery dates are approximate. Seller is not responsible for damages resulting from any delay. Regardless of the manner of shipment, delivery occurs and title and risk of loss or damage pass to Buyer, upon placement of the Products with the shipment carrier at Seller's facility. Unless otherwise stated, Seller may exercise its judgment in choosing the carrier and means of delivery. No deferment of shipment at Buyers' request beyond the respective dates indicated will be made except on terms that will indemnify, defend and hold Seller harmless against all loss and additional expense. Buyer shall be responsible for any additional shipping charges incurred by Seller due to Buyer’s acts or omissions.
4. WARRANTY: Seller warrants that the Products sold hereunder shall be free from defects in material or workmanship for a period of twelve (12) months from the date of delivery or 2,000 hours of normal use, whichever occurs first. All prices are based upon the exclusive limited warranty stated above, and upon the following disclaimer: DISCLAIMER OF WARRANTY: THIS WARRANTY IS THE SOLE AND ENTIRE WARRANTY PERTAINING TO PRODUCTS PROVIDED. SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING DESIGN, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5. CLAIMS, COMMENCEMENT OF ACTION: Buyer shall promptly inspect all Products upon receipt. No claims for shortages will be allowed unless reported to the Seller within ten (10) days of delivery. No other claims against Seller will be allowed unless asserted in writing within thirty (30) days after delivery. Buyer shall notify Seller of any alleged breach of warranty within thirty (30) days after the date the defect is or should have been discovered by Buyer. Any claim or action against Seller based upon breach of contract or any other theory, including tort, negligence, or otherwise must be commenced within twelve (12) months from the date of the alleged breach or other alleged event, without regard to the date of discovery.
6. LIMITATION OF LIABILITY: IN THE EVENT OF A BREACH OF WARRANTY, SELLER WILL, AT ITS OPTION, REPAIR OR REPLACE A DEFECTIVE PRODUCT, OR REFUND THE PURCHASE PRICE WITHIN A REASONABLE PERIOD OF TIME. IN NO EVENT IS SELLER LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR AS THE RESULT OF, THE SALE, DELIVERY, NON-DELIVERY, SERVICING, USE OR LOSS OF USE OF THE PRODUCTS OR ANY PART THEREOF, OR FOR ANY CHARGES OR EXPENSES OF ANY NATURE INCURRED WITHOUT SELLER'S WRITTEN CONSENT, WHETHER BASED IN CONTRACT, TORT OR OTHER LEGAL THEORY. IN NO EVENT SHALL SELLER'S LIABILITY UNDER ANY CLAIM MADE BY BUYER EXCEED THE PURCHASE PRICE OF THE PRODUCTS.
7. USER RESPONSIBILITY: The user, through its own analysis and testing, is solely responsible for making the final selection of the system and Product and assuring that all performance, endurance, maintenance, safety and warning requirements of the application are met. The user must analyze all aspects of the application and follow applicable industry standards and Product information. If Seller provides Product or system options based upon data or specifications provided by the user, the user is responsible for determining that such data and specifications are suitable and sufficient for all applications and reasonably foreseeable uses of the Products or systems.
8. BUYERS OBLIGATION, RIGHTS OF SELLER: To secure payment of all sums due or otherwise, Seller retains a security interest in all Products delivered to Buyer and this agreement is deemed to be a Security Agreement under the Uniform Commercial Code. Buyer authorizes Seller as its attorney to execute and file on Buyer's behalf all documents Seller deems necessary to perfect its security interest.
9. IMPROPER USE AND INDEMNITY: Buyer shall indemnify, defend, and hold Seller harmless from any losses, claims, liabilities, damages, lawsuits, judgments and costs (including attorney fees and defense costs), whether for personal injury, property damage, patent, trademark or copyright infringement or any other claim, brought by or incurred by Buyer, Buyer’s employees, or any other person, arising out of: (a) improper selection, application, design, specification or other misuse of Products purchased by Buyer from Seller; (b) any act or omission, negligent or otherwise, of Buyer; (c) Seller’s use of patterns, plans, drawings, or specifications furnished by Buyer to manufacture Products; or (d) Buyer’s failure to comply with these terms and conditions. Seller shall not indemnify Buyer under any circumstance except as otherwise provided.
10. CANCELLATIONS AND CHANGES: Buyer may not cancel or modify or cancel any order for any reason, except with Seller's written consent and upon terms that will indemnify, defend and hold Seller harmless against all direct, incidental and consequential loss or damage. Seller may change Product features, specifications, designs and availability.
11. FORCE MAJEURE: Seller does not assume the risk and is not liable for delay or failure to perform any of Seller’s obligations by reason of events or circumstances beyond its reasonable control (hereinafter “Events of Force Majeure”). Events of Force Majeure shall include without limitation: accidents, strikes or labor disputes, acts of any government or government agency, acts of nature, delays or failures in delivery from carriers or suppliers, shortages of materials, or any other cause beyond Seller’s reasonable control.
12. WAIVER AND SEVERABILITY: Failure to enforce any provision of this agreement will not invalidate that provision; nor will any such failure prejudice Seller’s right to enforce that provision in the future. Invalidation of any provision of this agreement by legislation or other rule of law shall not invalidate any other provision herein. The remaining provisions of this agreement will remain in full force and effect.
13. TERMINATION: Seller may terminate this agreement for any reason and at any time by giving Buyer thirty (30) days prior written notice. Seller may immediately terminate this agreement, in writing, if Buyer: (a) breaches any provision of this agreement (b) appoints a trustee, receiver or custodian for all or any part of Buyer’s property (c) files a petition for relief in bankruptcy on its own behalf, or one if filed by a third party (d) makes an assignment for the benefit of creditors; or (e) dissolves its business or liquidates all or a majority of its assets.
14. GOVERNING LAW: This agreement and the sale and delivery of all Products are deemed to have taken place in, and shall be governed and construed in accordance with, the laws of the State of Michigan, as applicable to contracts executed and wholly performed therein and without regard to conflicts of laws principles.
15. ENTIRE AGREEMENT: This agreement contains the entire agreement between the Buyer and Seller and constitutes the final, complete and exclusive expression of the terms of sale. All prior or contemporaneous written or oral agreements or negotiations with respect to the subject matter are herein merged. The terms contained herein may not be modified unless in writing and signed by an authorized representative of Seller.
16. COMPLIANCE WITH LAWS: Buyer agrees to comply with all applicable laws, regulations, and industry and professional standards of care, including those of the United Kingdom, the United States of America, and the country or countries in which Buyer may operate.