The entity identified as the seller of goods (“Goods”) or services (“Services”) on the document to which these General Terms and Conditions of Sale (“Terms”) are attached or in which they are referenced or incorporated (the “Incorporating Document”) is referred to herein as “Seller” and the person or entity purchasing Goods or Services is referred to herein as “Buyer”. These Terms are applicable to all offers, acceptances, acknowledgments, confirmations, sales and deliveries of Goods and performance of Services by Seller and will form an integral part of the contract for the purchase and sale of the Goods and Services between Seller and Buyer (this “Contract”). If these Terms or the Incorporating Document state any terms or conditions that are additional to or different from those stated in Buyer’s order or other purchasing document, Seller’s acceptance of Buyer’s order is conditional on Buyer’s assent to such additional and/or different terms and conditions. Buyer’s acceptance of the Goods and Services will manifest Buyer’s assent to these Terms without addition or variation. If the Incorporating Document is deemed an offer by Seller, acceptance by Buyer is limited to the terms and conditions contained in Seller’s offer, including these Terms. Any additional or different terms or conditions in Buyer’s order or other purchasing documents are hereby objected to by Seller.
1. Prices. Unless specifically stated otherwise in this Contract, prices are exclusive of any tax, duty or other governmental charge imposed or assessed on or in connection with the sale of Goods or Services by Seller to Buyer or the use thereof by Buyer, and if any such tax, duty or charge is paid by or assessed against Seller or is required by law to be collected by Seller from Buyer (other than taxes based on Seller's net income or profit), Seller may add the same to the price of the Goods and Services or invoice Buyer separately therefor.
2. Payment Terms. Unless stated otherwise in this Contract, payment for Goods and Services is due no later than 30 days from the date of Seller's invoice in the currency specified by Seller in its invoice or otherwise. If Buyer fails to make any payment when due, Seller will have the right to either terminate this Contract or to suspend further performance under this and/or other contracts with Buyer. If any amount owed to Seller is not paid when due, it will bear interest from the due date until paid at rate of 1.5% per month or the maximum rate permitted by law, whichever is lower. Buyer will be liable for all expenses, including attorneys’ fees, incurred by Seller to collect past-due amounts. Should Buyer's financial condition become unsatisfactory to Seller, cash payments or security satisfactory to Seller may be required by Seller before providing further Goods or Services under this Contract. If such cash payment or security is not provided, Seller may discontinue further deliveries of Goods and further performance of Services. Buyer hereby grants Seller a security interest in all Goods delivered to Buyer, which security interest will continue until such Goods are fully paid for in cash and Buyer, upon Seller's demand, will execute and deliver to Seller such instruments as Seller requests to evidence or perfect such security interest.
3. Delivery, Title & Risk. Shipment, delivery or performance dates quoted, acknowledged or agreed by Seller are approximate and not guaranteed. While Seller will use commercially reasonable efforts to maintain such dates as far as circumstances reasonably permit, Seller will have no liability for delay in delivery. Seller will not be bound to tender delivery of any Goods for which Buyer has not provided shipping instructions and other required information. If the shipment of the Goods or performance of Services is postponed or delayed by Buyer for any reason, Buyer will reimburse Seller for any and all storage costs and other additional expenses resulting therefrom. Unless otherwise stated in this Contract, the Goods will be delivered EXW Seller’s dock (as defined by the ICC’s latest edition of Incoterms). Risk of loss and legal title to the Goods will transfer to Buyer upon delivery.
4. Limited Warranty. Seller warrants that, at the time of delivery to Buyer, the Goods will be new and Seller will have good title to the Goods free and clear of all liens. Furthermore, and subject to the conditions, exclusions and limitations set forth below in this Section 4 and in Section 5, Seller warrants that, during the Warranty Period (as defined below): (a) Goods will (i) be free from defects in materials and workmanship and (ii) conform to Seller’s standard written specifications; and (b) Services will be performed by qualified personnel using (if applicable) proper equipment. “Warranty Period” means 1 year from the date Goods have been delivered to Buyer or Services have been completed, as applicable. This Goods warranty does not cover or apply to ordinary wear and tear, misuse or abuse.
During the Warranty Period, Buyer must notify Seller in writing of any alleged breach of this warranty within 48 hours of discovery (and in any event before the expiration of the Warranty Period). Buyer shall fully cooperate with and, as soon as reasonably possible, make the applicable Goods available for inspection and testing by Seller, if requested. If Seller’s inspection and testing reveals that a Good or Service does not conform to this warranty, Seller shall, at its option, repair or replace (in the case of Goods), reperform (in the case of Services), or provide a credit or refund for the purchase price of the non-conforming Good or Service. Buyer’s failure to notify Seller in writing of Buyer’s warranty claim within the Warranty Period shall constitute a waiver of such claim regardless of whether the facts giving rise to such claim were first discovered during or after the Warranty Period.
5. Limitation of Warranties, Remedies & Liability. The express warranties stated in Section 4 constitute the sole and exclusive warranties given by Seller with respect to the Goods and Services and are given in lieu of, and seller hereby disclaims, all other warranties, whether express, implied, statutory or otherwise, including, without limitation, warranties of merchantability and fitness for particular purpose, regardless of whether the purpose or use has been disclosed by Buyer to Seller or whether the Goods have been specifically selected, designed or manufactured by Seller for Buyer’s purpose or use. The remedies stated in Section 4 are Buyer’s exclusive remedies for a breach of Seller’s warranties in Section 4. Notwithstanding any provision in this Contract to the contrary, in no event, regardless of the form of the claim or cause of action (whether based in contract, infringement, negligence, strict liability, other tort or otherwise), (A) will Seller be liable for incidental, consequential, indirect, special or punitive damages or (B) will Seller’s Liability in respect of a claim or cause of action exceed the price of the specific items or units of Goods or Services giving rise to that claim or cause of action. The damages described in clause (A) include, but are not limited to, loss of anticipated revenue or profits, business interruption, loss of use, loss of data, loss of or damage to equipment or other goods, cost of capital, damage to goodwill or reputation, and damages paid or payable by Buyer to third parties. Seller will not be liable for, and Buyer assumes all liability for and will indemnify and hold harmless Seller and is affiliates from and against, any claims, injuries, damage or losses arising out of the handling, transportation, storage, resale or disposal of the Goods, or use of the Goods or Services, after delivery of the Goods or performance of the Services by Seller except to the extent resulting from Seller’s breach of this Contract, negligence or willful misconduct. This indemnity covers claims by Buyer’s employees and independent contractors even if Buyer’s liability to such persons is otherwise limited by workers’ compensation or similar laws or by contract. Buyer waives all immunity that may be afforded to it under such laws and/or contracts to the extent of claims, injuries, damage or losses covered by the foregoing indemnity. Buyer bears sole responsibility to determine whether the Goods are suitable for Buyer’s intended purpose or use.
6. Excuse of Performance. Notwithstanding any provision in this Contract to the contrary, Seller will not be liable for any delay in performance or non-performance if performance is prevented, hindered or made commercially impracticable, directly or indirectly, by: flood, fire, explosion, weather, natural disaster or Act of God; act or omission or Buyer, its affiliates or their independent contractors; riot, civil commotion, sabotage, war or act of terrorism; epidemic or pandemic; compliance with law or government request or requirement; plant or equipment malfunction or shutdown in anticipation of malfunction; unavailability of adequate Goods, raw materials, fuel, power, utilities, containers or transportation from usual sources on usual terms of supply; failure or delays of suppliers, carriers or independent contractors; strike, lock-out or other labor trouble; or any other event, whether or not of the class or kind enumerated herein, beyond the reasonable control of Seller. In the event of any of the foregoing, Seller may, upon written notice to Buyer, delay, suspend or cancel deliveries and other performance hereunder without liability, but the balance of this Contract will otherwise be unaffected. Further, if Seller determines that its ability to supply the total demand (from all sources, not just Buyer) for the Goods, or to obtain raw materials used directly or indirectly in the manufacture of the Goods, is prevented, hindered or made commercially impracticable, Seller may allocate its available supply of Goods or raw materials (without obligation to acquire other supplies of any such Goods or raw materials) among itself, its affiliates and its non-affiliate customers, including regular customers not then under contract, on such basis as Seller determines, in good faith, to be fair and reasonable without any liability for any delay in performance or non-performance that may result therefrom.
7. Further Export. Buyer shall not, and shall ensure that its affiliates and (if applicable) reseller customers do not, export, re-export, resell, ship or divert or cause to be exported, re-exported, resold, shipped, or diverted, directly or indirectly, any of the Goods to any prohibited country specified by export control laws of the United States or to any foreign national, country, end-use, or end-user that requires an export license or other approval without first obtaining such license or approval.
8. Miscellaneous. This Contract constitutes the complete and exclusive statement of the terms and conditions of the parties’ agreement with respect to the subject matter hereof, and supersedes all previous communications and agreements, verbal or written, between the parties with respect to such subject matter. This Contract may not be amended or supplemented orally, by usage of trade or by course of performance or dealing, but only by and pursuant to a writing, signed by authorized representatives of both parties, that specifically refers to, and clearly states that it is amending or supplementing (or uses words of similar meaning), this Contract. Seller will not be deemed to have waived or released any condition, right or remedy stated in or arising out of this Contract except to the extent such waiver or release is expressly stated in a writing signed by an authorized representative of Seller. Buyer will not assign any of its rights or delegate any of its obligations under this Contract without the prior written consent of Seller, and any purported assignment or delegation without the prior written consent of Seller will be void. If any provision of this Contract is declared invalid or unenforceable in any jurisdiction, the remainder of this Contract will remain in full force and effect. This Contract will be governed by and interpreted in accordance with laws of the State of Michigan, U.S.A. without regard to or application of conflicts of law principles. The U.N. Convention on Contracts for the International Sale of Goods will not apply. All suits, actions and proceedings to enforce this Contract, or to declare the parties’ rights or obligations hereunder, must be brought exclusively in the State or Federal courts sitting in or serving Berrien County, Michigan, U.S.A., and Buyer consents and submits to the exclusive jurisdiction of such courts. No action, regardless of form, arising out of any transactions relating to this Contract may be brought by either party more than 2 years after the cause of action has accrued. The headings of the sections of these Terms are inserted for convenience only and will be disregarded in the interpretation of this Contract. English is the language of this Contract. Any translation of this Contract into a different language is solely for the convenience of the parties and is neither intended to have legal effect nor to alter or supplement in any way the terms and conditions of the English version of this Contract.