Phillips & Johnston, Inc.
Terms and Conditions of Sale
1.
Prices | 2. Payment |
3. Credit
4. Packaging; Delivery; Force Majeure | 5.
Acceptance
6. Assignment of Express Limited Warranties
7.
Limitation of Warranties; Disclaimer of Implied Warranties
8. Limitation of Remedies and Seller's Liability
| 9. Indemnification
10. Cancellation and Breach | 11.
Security Interest Power of Attorney
12. Buyer's Property | 13. Proprietary
Information
14. United States Government Regulations | 15.
Fair Labor Standards Act
16. Time Period for Buyer Claim | 17.
Arbitration
18. Applicable Law, Jurisdiction and Venue | 19.
Assignment
20. Relationship | 21. Conflict
| 22. Waiver
23. Amendment or Modification | 24.
Heading and Definitions
25. Severability | 26. Interpretation
| 27. Samples | 28. Setoff
These general terms and conditions apply
to all quotations, acknowledgments, and/or invoices submitted by
Seller for the sale of products and/or services ("Products"),
to all related purchase orders, order releases and/or similar documents
received by Seller for the purchase of Products, and to all Products
sold by Seller, except as otherwise specifically provided in a document
issued by Seller.
SELLER'S QUOTATIONS ARE EXPRESSLY MADE CONDITIONAL
ON BUYER'S ASSENT TO THE ADDITIONAL OR DIFFERENT TERMS SET FORTH
BELOW WHICH REPRESENT THE SOLE AND EXCLUSIVE TERMS AND CONDITIONS
UPON WHICH PHILLIPS & JOHNSTON, INC. ("SELLER") OFFERS
TO SELL PRODUCTS TO BUYER.
Seller's quotations, including (1) these
terms and conditions, and (2) any documents (such as drawings or
other specifications) expressly incorporated by reference in such
quotations, are referred to herein as the "Agreement."
The Agreement also includes any amendments made from time to time
by the parties - but these terms and conditions of sale shall not
be amended, modified or rescinded, and no amendment, modification
or rescission of the terms and conditions set forth herein will
be binding upon Seller, unless such amendment, modification or rescission
is agreed to in writing, makes express reference to amending these
terms and conditions, and is signed by the Authorized Representative
of Seller (see Section 24 below).
Buyer's acceptance of the Agreement is strictly
limited to acceptance of the terms and conditions set forth herein.
Any proposal for additional or different terms or any attempt by
Buyer to vary in any degree any of the terms of this Agreement in
Buyer's acceptance are hereby objected to and rejected by Seller
(see Section 24 below). THE TERMS OF THIS AGREEMENT
ARE EXCLUSIVE.
1. Prices
A) Seller's published prices, if any, are
subject to change without notice. Whether or not the Agreement references
multiple deliveries of Products over time, prices contained in individual
written quotations or proposals are NOT valid beyond date of the
quotation or proposal and are always subject to the material economics
adjustment set forth in Section 1(B) below. All prices are subject
to change without notice, and Buyer should inquire as to their validity
and request written confirmation or revision. All prices are in
United States Dollars.
B) Quoted prices are based on current costs,
including costs of steel or other purchased components or raw materials.
If at any time after the date of a quotation or proposal Seller's
cost of any purchased component or raw material contained in the
Products increases (by any amount) or if any surcharge is assessed
on such purchased component or raw material, then, in addition to
the Product price, Buyer will pay such additional purchased component
or raw material cost or surcharge effective as of the date such
increase or surcharge is levied upon Seller. Availability of raw
materials and purchased components of the Products is a material
condition and contingency of this contract.
C) Unless otherwise expressly provided by
Seller in the Agreement, prices do not include sales, excise, use,
value-added or other similar taxes or duties now in effect or hereafter
levied, insurance costs, transportation charges (such as freight,
insurance, shipping, storage, packing, handling, demurrage or similar
charges), engineering documentation, special packaging, marketing
or testing, or raw material surcharges and Buyer shall pay all such
charges, including applicable sales, use or other taxes levied with
respect to Products and the Agreement (unless exempt therefrom),
as well as any government fees levied on the inspection and/or installation
of the Products, upon receipt of the related invoice from Seller
and in accordance with this Agreement. In the event that the Agreement
expressly provides that any of the foregoing charges are specifically
included in the price, any charges attributable to increases in
applicable rates after the date such price is quoted to Buyer shall
be added to the price.
D) In the event Buyer requests changes to
Products after the date of quotation, Seller may unilaterally increase
prices to cover increased costs (plus reasonable overhead and profit)
associated with such changes, including without limitation increased
costs of design, materials and/or manufacturing. Seller shall be
under no obligation to honor such requested changes.
E) Where applicable, Seller may add to the
price, and Buyer agrees to pay, for the price of additional Products
or portions of Products made necessary by incomplete or inaccurate
information supplied by the Buyer.
F) Seller shall have no obligation to lower
the Products price to any "lowest prevailing market price"
or other lowest available price and Seller's failure to do so shall
not give Buyer any right to cancel this Agreement.
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2. Payment
A) Invoices may be rendered separately for
each shipment (including any early shipment) made by Seller, and
payment will be due net thirty (30) days after the date of shipment,
unless a different period is stated elsewhere in the Agreement.
Payment is not contingent on any third-party approval unless the
Agreement expressly so states. Buyer shall be liable for the price
of all Products substantially conforming to the Agreement, notwithstanding
that Buyer may not have accepted or may have revoked acceptance
of same. Buyer shall not be entitled to deduct, counterclaim or
set off against the price of Products, or against any other amount
owing under the Agreement including under any invoice, any claim
or alleged claim arising out of the Agreement or any other transaction
with Seller.
B) If payment is not received by the due
date, a service charge will be added at the rate of two percent
(2%) per month (or the maximum legal amount, if less) to the unpaid
invoices from the due date thereof.
C) Any remittances received by a bank or
other depository of Seller in connection with the Agreement will
be received by such bank or other depository solely as a clearing
agency. Such receiving bank or depository has no authority to determine
whether or not the amount remitted constitutes payment in full.
Remittances marked to indicate "payment in full" or other
similar expressions may be deposited by such bank or depository
notwithstanding such markings and such deposit shall not indicate
Seller's acceptance of the remittance as payment in full and shall
not otherwise be treated as an election by, or an impairment of
any of the rights of, Seller unless expressly agreed in writing
by Seller.
D) Seller may elect to deliver the Products
in installments, with each installment being considered a separate
sale and invoiced as such, and Buyer shall timely pay each invoice.
Any Products indicated at any time as back-ordered shall be considered
an installment delivery.
E) Seller shall have the right to stop delivery
if Buyer is in arrears with payment. A failure to pay for an installment
within the time for payment is an anticipatory material breach of
other installments by Buyer.
F) All amounts due on PPAP approval, installation
or other event which requires the action or cooperation of Buyer
which Buyer fails to perform or supply timely shall become due upon
such failure.
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3. Credit
A) Seller may, at any time and in its sole
discretion, limit or cancel the credit of Buyer as to time and amounts,
and as a consequence, may demand payment in cash before delivery
of any unfilled portion of the Agreement, and may demand assurance
of Buyer's due performance including without limitation demanding
that one or more deposits, letters of credit or other assurance
be provided by Buyer. Upon making such demand, Seller may suspend
production, shipment and/or deliveries until Buyer has provided
such assurance. If, within the period stated in such demand, but
in no event longer than thirty (30) days, Buyer fails to agree and
comply with such different terms of payment, and/or fails to give
adequate assurance of due performance, Seller may, in its sole discretion
and without any requirement to do so, (i) by notice to Buyer, treat
such failure or refusal as a repudiation by Buyer of the portion
of the Agreement not then fully performed, whereupon Seller may
cancel all further deliveries and any amounts unpaid hereunder shall
immediately become due and payable, or (ii) make shipment under
reservation of a security interest and demand payment against tender
of documents of title.
B) Buyer hereby represents to Seller that
Buyer is solvent, that it has all requisite power and authority
to enter into the Agreement, that the execution, delivery and performance
of the Agreement does and will not conflict with or result in a
breach of any contract to which it is a party or by which its assets
may be bound, and that no other person other than Seller has or
will have a security interest in the Products covered by this Agreement
until performance in full by Buyer of its obligations under the
Agreement. Buyer further agrees that each acceptance of delivery
of the Products sold under the Agreement shall constitute the remaking
of each of these representations at such time.
C) If this Agreement permits or requires
the use of a letter of credit, the letter of credit shall be assignable,
irrevocable, confirmed by a United States bank acceptable to Seller,
payable in installments, and require payment to Seller on submission
of Seller's invoice and a bill of lading.
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4. Packaging; Delivery; Force Majeure
A) The Agreement shall be a shipment contract,
and the Products shall be delivered F.O.B. Seller's designated facility,
unless otherwise provided in the Agreement. Whether or not Seller
prepays shipping charges, title to each shipment of the Products
sold hereunder and risk of loss thereon shall pass to Buyer when
Seller or its agent delivers such shipment to a common carrier or
licensed trucker consigned to Buyer or his agent, but such shipment
shall remain subject to Seller's rights of stoppage in transit,
rights of reclamation and other legal rights of Seller. Seller's
breach of the Agreement shall not affect the passing of the risk
of loss to Buyer notwithstanding any provision of law to the contrary.
B) If this Agreement involves a blanket order
or an order where Buyer does not state a quantity at the time of
the Agreement, Seller shall not be obligated to sell the quantity
estimated by Buyer or ordered by Buyer in any subsequent order or
release specifying quantity, unless otherwise set forth in the Agreement.
Seller shall not be obligated to sell Buyer's requirements of Products
unless otherwise expressly set forth in the Agreement. Any subsequent
order or release specifying quantity issued by Buyer with respect
to the Products shall constitute a separate and independent offer
to purchase that certain quantity of the Products on the terms of
the contract and shall not obligate Seller to sell the quantity
of the Products specified in such order or release unless and until
Seller accepts such order. If and when Seller accepts such order,
a separate or independent contract shall be deemed to have been
formed on the terms and conditions of the Agreement.
C) Where a shipping/delivery date is specified
by Seller, that date reflects Seller's best estimate for the probable
time required for completion of Buyer's order, based on Seller's
then-current workload, raw material and labor availability capacity
and scheduling; it is not a guaranty or material term. All shipping
dates are approximate and shall be computed from the date of entry
of the order on Seller's books. All shipping/delivery dates are
further subject to Seller's prompt receipt from Buyer of all drawings,
information and approvals necessary to provide the Products and
satisfaction of any other conditions under the Agreement. All delivery
dates are subject at all times to revisions due to Buyer changes,
corrections or revisions of Product/Product specifications, unforeseen
changes in business climate or through events beyond Seller's direct
control, such as, but not limited to the events referenced in Section
4(H) below. Seller shall not incur liability of any kind whatsoever
for failure to ship on any particular date. Once a shipment release
schedule is issued, Buyer shall not have the unilateral right to
change delivery times or schedules or the volume of any delivery,
and unless agreed to by Seller in writing, all product delivery
shall be in accord with Seller's normal production, volume and delivery
schedule or its standard practices, at Seller's discretion.
D) Seller shall put the Products in the possession
of a common carrier selected by and convenient to Seller and, without
liability, make such contract for their transportation as Seller
decides having regard for the nature of the Products and other circumstances.
Extra costs incurred due to special shipping instructions from Buyer
will be charged to Buyer. Buyer shall be responsible for examination
of Products upon receipt and processing of any claims with the carrier.
Buyer specifically understands and agrees that over-shipment or
undershipment within ten percent (10%) of the quantity ordered is
permissible. On Buyer's request, Seller shall obtain and deliver
to Buyer documents necessary to enable the Buyer to obtain insurance.
The Seller is not responsible to prepay transportation or insurance
costs. The Buyer shall pay all handling and other charges incidental
to transportation. Seller will generally follow the Buyer's shipping
instructions, but may make reasonable changes thereto without liability
and at Buyer's cost.
E) Products shall be packaged and labeled
in accordance with standard labeling of Seller. Identification of
all packages shall be with the standard labels of Seller. Identification
of all packages shall be with the Seller's part number. Special
packaging or labeling shall be an additional charge to Buyer.
F) Buyer assumes responsibility for compliance
with all U.S. federal, state and local laws governing exports from
the United States in connection with the sale and use of the Products
covered by the Agreement, and/or any subsequent re-export of such
Products. All export and import duties, fees, permits, licenses,
etc. for Products to be delivered outside of the United States shall
be the responsibility of the Buyer.
G) If shipment of any Products or other performance
by Seller is delayed at the request of or due to the fault of the
Buyer, the Seller may at its option hold the Products at the place
of manufacture at the risk and expense of the Buyer from the time
the Products are ready for shipment. In the event of any such delay
to shipment, full and final payment for an item shall be due and
payable thirty (30) days after the Buyer is notified that the item
is ready for shipment and an invoice issued for such Products. If
the Seller is unwilling to accommodate the Buyer by holding such
item, then Buyer agrees to accept shipment immediately.
H) All inspection, delivery, and other dates
for Seller's performance are estimates only. In addition, Seller
shall not be in default or liable, directly or indirectly, or be
deemed negligent because of Seller's delay or whole or partial failure
to deliver or perform arising or resulting, in whole or in part,
from (i) any cause beyond Seller's control or beyond the control
of Seller's suppliers or contractors, including but not limited
to embargo, governmental regulation, seizures, acts of God, insurrections,
war, the adoption of any law, ordinance or regulation, accidents,
strikes, vandalism, riot, intervention of authorities or agencies
of government, power shortages, late receipt of order having full
manufacturing details, ruling or order, supplier delays, or inability,
impracticability or delay in obtaining materials such as steel,
or similar circumstances (ii) the lack of usual means or transportation,
fires, floods, explosions, strikes, labor disputes or any other
accidents, contingencies or events, at Seller's or its supplier's
plant or elsewhere (whether or not beyond Seller's control) which
directly or indirectly interfere with, or render substantially more
burdensome, Seller's production, delivery or performance, or (iii)
delays by Buyer in inspecting and acceptance, in furnishing requested
specifications, materials, tooling or information, in making payments,
or otherwise. In the event of any such delay or failure in performance,
Seller shall have such additional time within which to perform its
obligations under the Agreement as may reasonably be necessary under
the circumstances; and Seller shall also have the right, to the
extent necessary in Seller's reasonable judgment, to apportion fairly,
among itself and its various customers in such manner as Seller
may consider equitable, Products then available for delivery. If,
as a result of any such contingency, Seller is unable to perform
under the Agreement in whole or in part or if its performance would
be impracticable or illegal, then, Seller shall notify Buyer, and
to that extent, the Agreement shall be deemed terminated without
liability to either party, but shall remain in effect as to the
unaffected portion of the Agreement, if any. This section shall
be effective even as to circumstances which exist at the time of
quotation or as of the date of the Agreement.
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5. Acceptance
A) Each order or release from Buyer must
be specified by product number and/or description or size. Failure
to provide such information in accurate form shall absolve Seller
of all responsibility for incorrect shipment. Buyer shall accept
any tender of Products which substantially conform to the description
of the Products set forth in the Agreement. Seller's standard test
procedures conducted by Seller's representative shall be the criteria
for inspection and/or acceptance, unless other specific procedures
have been specified in the Agreement. On request Seller will quote
to Buyer additional charges required to conduct any additional procedures
requested by Buyer which may be acceptable to Seller. Buyer shall
be solely responsible for Product specification and design. Buyer
shall be deemed to have approved and accepted drawings, specifications,
technical documentation, samples, prototypes and Products unless
Buyer gives Seller notice in writing stating with specificity all
defects and nonconformities upon which Buyer will rely to support
its rejection: (i) in the case of defects discoverable through inspection,
within seven (7) days after receipt of the item or (ii) in the case
of defects not discoverable through inspection, within thirty (30)
days or other reasonable time established by Seller after receipt
of the item. Failure to so act shall constitute an irrevocable acceptance
by Buyer of the item. ALL DEFECTS AND NON-CONFORMITIES WHICH ARE
NOT SPECIFIED ARE WAIVED. If Buyer rejects any tender of the Products
or other items and if requested by Seller, Buyer shall return them
to Seller, pursuant to Seller's direction. In the case of Buyer
acceptance of non-conforming Products, Buyer shall immediately notify
Seller whether or not Buyer will continue to accept similarly non-conforming
Products and failure to do so shall constitute a waiver by Buyer
of specification requirements for said Products. In any event, when
any Products shall have been altered from their original state,
Buyer shall be deemed to have accepted such Products. Buyer's acceptance
of Products tendered under this Agreement shall be final and irrevocable.
No attempted revocation of acceptance shall be effective, and Buyer
shall be limited to the remedies specifically provided in the Agreement.
In respect of items manufactured by Seller to Buyer's requested,
furnished, accepted or approved specifications or design, Buyer
shall defend and indemnify Seller, its successors, officers, directors
and agents against, and hold them harmless from, any and all claims,
losses or expenses (including attorney fees) arising or alleged
to arise, in whole or in part, from the manufacture, sale or use
of the Product(s), including but not limited to infringement, or
products liability or other alleged tort.
B) If the Agreement requires, or Seller requests
in writing, inspection or testing, Buyer shall provide at the place
of manufacture at its own expense, one or more qualified and authorized
employees to inspect and/or test the Products, check them for general
compliance with the Agreement, and authorize shipment. If Buyer
fails to do so within seven (7) days, then Seller may, in it own
discretion, determine that Buyer has waived the right of inspection,
testing and/or acceptance prior to shipment of the Products. Correction
of defects or non-conformities, which would likely have been discovered
by Buyer's inspection and/or testing and otherwise covered by Seller's
warranty, will be at Buyer's expense. Buyer shall also provide,
at its cost and risk of loss, all materials, fixtures, tooling and
other items necessary for any inspection and/or testing required
by the Agreement or requested by Seller. If Buyer fails to supply
such items within the time required, Seller may supply them at Buyer's
expense. Equipment, parts and materials furnished by Buyer for Seller's
testing and/or inspection will be returned to Buyer at Buyer's cost,
unless Buyer authorizes their disposal. If the Products include
the necessary fixtures and tooling, the inspection and/or testing
at the place of manufacturer may be performed on equipment similar
to but other than that identified to the Agreement.
C) Any expense incurred by Buyer in the inspection
or testing of Products shall be paid by the Buyer, whether or not
the Products have been rejected as defective or non-conforming or
the Products have been accepted and a warranty claim has been made
for correction of a defect or non-conformity.
D) Any claim by Buyer for shortages in any
delivery must be in writing with satisfactory evidence delivered
to the Seller within thirty (30) days of receipt. Carriers are responsible
for Products lost or damaged in transit. In the case of loss or
damage to Products in transit, Buyer shall immediately notify the
carrier or its agent in writing of such loss or damage and shall
do all things necessary to assert and prosecute a claim against
the carrier for such loss or damage.
E) Seller may charge Buyer a restocking charge
equal to fifty percent (50%) of the invoice price of returned Products.
Returned Products must be returned to Seller in the original packaging
and Buyer must first obtain a written consent from Seller to return
the Products. Seller may offset the restocking charge against any
amounts Seller owes to Buyer.
F) It is expressly understood that any technical
advice furnished by Seller with respect to the production or use
of its Products is given without charge, and Seller assumes no obligation
or liability for the advice given or results obtained, all such
advice being given and accepted at Buyer's risk. Seller is not an
engineering firm. Any issues, concerns, specifications or requirements
for Buyer's use of the Products is beyond Seller's knowledge and
Buyer agrees no reliance is given to any suggestion or advice given
by Seller. Buyer represents that it has consulted with or had an
opportunity to consult with engineers and any such other expert
or specialist and has satisfied itself that the specifications required
for the Products ordered are satisfactory for its use. Seller has
not been provided with and has made no advice, recommendation or
representation that the Products specified are adequate for the
purpose Buyer intends.
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6. Assignment of Express Limited Warranties
A) Seller passes on and assigns to Buyer,
to the extent assignable, all manufacturer's warranties made to
Seller with respect to the Products. Seller retains the right to
change the dimensions, composition, design, performance, color and
appearance of the Products without liability if, in its judgment,
the change is non-material. Seller may, in its discretion, also
rely on any generally accepted industry standards.
B) Each order or release from Buyer must
be specified by Product number and/or description or size. Failure
to provide such information in accurate form shall absolve Seller
of all responsibility for incorrect shipment.
D) This assignment of manufacturer's warranty
may not be expanded or modified in any way except in writing by
an officer of Seller.
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7. Limitation of Warranties; Disclaimer
of Implied Warranties
A) THE ASSIGNMENT OF MANUFACTURER'S LIMITED
EXPRESS WARRANTIES IN THIS AGREEMENT IS IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, AND SELLER DISCLAIMS ALL IMPLIED WARRANTIES
INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF FITNESS FOR
A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT.
B) All descriptions, shipping specifications
and illustrations of the Products in catalogues, brochures and price
lists otherwise provided by Seller and not expressly and specifically
incorporated in the Agreement were and are for general guidance
only, and Seller is not responsible for any errors or omissions
therein or for any loss or damage resulting from reliance thereon.
Seller does not warrant that it or the Products are in compliance
with any industry standards, guidelines, or procedures, or with
the requirements of any safety or environmental code or regulation
of any federal, state, municipality or other jurisdiction unless
otherwise specifically provided in the Agreement. Buyer affirms
that it has not relied upon Seller's skill or judgment to select
or furnish Products for any particular purpose beyond the specific
express warranties in this Agreement.
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8. Limitation of Remedies and Seller's
Liability
A) Seller's warranty responsibility is limited
to the assignment of manufacturer's warranties to the extent they
are assignable. The sole and exclusive remedy of Buyer under the
assigned warranties is as set forth in those warranties. Buyer must
comply with the terms of such warranties to make any warranty claim.
B) NOTWITHSTANDING ANYTHING SET FORTH IN
THIS AGREEMENT (INCLUDING ITS ATTACHMENTS), AND TO THE EXTENT PERMITTED
BY LAW, IN NO EVENT SHALL SELLER BE RESPONSIBLE OR LIABLE TO BUYER
FOR ANY LOSS OF USE, REVENUE OR ANTICIPATED PROFITS, OR FOR ANY
INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, CONTINGENT OR PUNITIVE
DAMAGES IN CONNECTION WITH ANY BREACH OF WARRANTY OR OTHER BREACH
OF SELLER'S OBLIGATIONS UNDER THIS AGREEMENT (INCLUDING ANY ATTACHMENTS
HERETO) OR ANY OTHER CLAIM (IN CONTRACT, TORT OR OTHERWISE) ARISING
OUT OF OR RELATING TO THE PRODUCTS OR THIS AGREEMENT. SELLER'S AGGREGATE
LIABILITY FOR ANY DAMAGES OR CLAIMS ARISING OUT OF OR RELATING TO
ANY PRODUCTS HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT BUYER
PAID FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR DAMAGES. Buyer
waives any causes of action or theories of liability including,
but not limited to, those arising under contract, tort, strict liability,
product liability, statutes, or otherwise, except as specifically
provided by the UCC as modified and limited herein. Buyer further
waives any right of implied contractual or common law indemnity
against Seller for any claim, including, but not limited to, liability
for claims for damages to person or property arising out of the
use of Products sold to Buyer under this Agreement. The replacement
or repair of Products by the Seller does not give rise to any new
warranty except the warranty period provided for herein shall be
extended by the length of any period in which defective or non-conforming
Products are in possession of Seller.
C) The Agreement is only for the benefit
of the parties, except all disclaimers and limitations applicable
to Seller and all indemnification to which Seller is entitled shall
be also for the benefit of Seller's parent, subsidiary and affiliate
companies (and their respective officers, directors, employees,
agents, contractors and suppliers). If any other provision of the
Agreement is determined to apply to other parties, all other provisions
including limitations, waivers and disclaimers shall also apply.
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9. Indemnification
Buyer shall indemnify, defend and hold harmless
Seller, and Seller's parent, subsidiary and affiliate companies,
and their respective shareholders, officers, directors, employees,
representatives and agents, from and against any and all third party
claims, damages, and expenses (including reasonable attorney fees)
under theories of tort, product liability, negligence (ordinary
or gross), warranty, contract, statute or otherwise arising out
of the use, storage, sale, processing or other disposition of the
Products, supplies or materials used in connection with the Products,
or parts manufactured with the Products if (A) if the action or
inaction of the Buyer or its employees, customers or agents, or
Buyer's requested, furnished, accepted or approved design or specifications,
were a material or proximate cause of injuries or damages giving
rise to claims against Seller, and/or (B) the claim asserted is
inconsistent with the limitation of warranties, limitation of liability
and/or limitation of remedies set forth in this Agreement.
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10. Cancellation and Breach
A) An order may be cancelled by Buyer only
upon prior written request, and written authorization by Seller,
and upon payment of a reasonable cancellation fee. The reasonable
cancellation fee will be determined by Seller and will reflect,
among other factors, the expenses already incurred, losses on Product
already completed or in process and commitments made by Seller,
sales and administrative overhead and lost profits and any cancellation
of other charges assessed against Seller.
B) If Buyer fails, with or without cause,
to furnish Seller with instructions for, or refuses to accept deliveries
of, any of the Products sold under the Agreement, or is otherwise
in default under or repudiates all or any part of the Agreement
or any other agreement with Seller, or advises Seller that it will
default in the performance of any of its obligations, or fails to
pay when due any invoice under the Agreement or any other agreement
with Seller, or if any action is started by or against Buyer seeking
the appointment of a trustee or receiver or the entry of an order
for debtor's relief for Buyer, then, in addition to any and all
remedies allowed by law, Seller may, without notice: (i) bill and
declare due and payable all undelivered Products under the Agreement
and/or any other agreement between Seller and Buyer, (ii) cease
performance of its obligations and defer shipment under the Agreement
and/or any other agreement between Buyer and Seller until such default,
breach or repudiation is removed, (iii) cancel any undelivered portions
of the Products and/or any other agreement with Buyer in whole or
in part and/or (iv) recover Products in transit or delivered, retrieve
delivered Products, repossess all Products which may be stored by
Seller for Buyer's account and otherwise enforce its remedies for
Buyer's default. Buyer shall remain liable for all damages suffered
or incurred by Seller in any such circumstances. Seller shall be
awarded incidental damages including, without limitation, reasonable
profits and costs such as actual reasonable attorney fees in any
proceeding to enforce its remedies in which it obtains relief for
damages or injunctive relief. All rights granted to Seller in the
Agreement and by law are cumulative, provided Seller shall be entitled
to only a single full recovery.
C) Seller shall not be liable for any action
taken pursuant to a good faith exercise of any of its rights under
the Agreement or law.
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11. Security Interest Power of Attorney
In addition to any security interest granted
by the UCC, Buyer hereby grants a security interest to Seller in
all Products and documents related thereto and proceeds and products
therefrom to secure all obligations of Buyer to Seller, whether
or not arising under the Agreement. Buyer authorizes Seller to file
financing statements evidencing the security interest as reasonably
requested by Seller, or Seller may file a copy of the Agreement
or portion thereof as a financing statement. Buyer grants Seller
an irrevocable power of attorney to sign Buyer's name to a financing
statement if necessary or convenient to perfect Seller's security
interest. Buyer shall provide a landlord's waiver of any lien rights
at the premises to which the Products are to be installed. In case
of a default by Buyer, Seller may peaceably enter the premises of
the Buyer and others to repossess or render inoperable all Products
in which it has a security interest. In case of a default by Buyer,
Buyer hereby irrevocably appoints Seller as its agent to obtain
possession of the Products and documents related thereto. Buyer
shall not sell, exchange, transfer, convey, mortgage, pledge, hypothecate
or grant a security interest in any Products or the proceeds thereof
(including cash, accounts, contract rights, instruments and chattel
paper) which are the subject to this Agreement if payment therefor
shall not have been made in full to Seller.
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12. Buyer's Property
Buyer shall insure all materials, fixtures,
tooling, and other property delivered to Seller against all risks
and waives subrogation in the event of loss of or damage to such
property.
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13. Proprietary Information
A) Unless otherwise agreed, Buyer acknowledges
that any information disclosed to Seller is subject only to Buyer's
patent rights, without any other restrictions on Seller's use, including
reproduction, modification, disclosure or distribution of the information.
Buyer agrees not to label any such information with a notice asserting
that the information is proprietary or confidential to Buyer. In
addition, Buyer agrees not to assert any claim (other than a claim
for patent infringement) against Seller, Seller's customers or their
respective suppliers, with respect to any information that Buyer
has disclosed or may disclose to Seller in connection with the Products.
B) All proposals, plans, specifications,
models, tools, patterns, processes, fixtures, designs and other
information furnished by the Seller or Seller's parent, subsidiary
or affiliate companies in bidding, negotiating and performing the
Agreement, are proprietary to Seller and shall not be shown or disclosed
to any other bidder, and shall not be shown or disclosed to any
third party or used by Buyer except as may be necessary for the
selection or use of the Products. Seller is not obligated to furnish
detailed or shop working drawings, engineering calculations, computer
programs, or other information for any Products or part thereof
unless specifically required by the Agreement.
C) Any invention or other information, whether patentable or not,
developed by Seller in the performance of the Agreement shall remain
the property of Seller. Seller shall be under no obligation to refrain
from using in its business any of Seller's proprietary information
disclosed to Buyer under this Agreement.
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14. United States Government Regulations
Buyer shall not engage in any transaction
with respect to the Products, by way of resale, lease, shipment
or otherwise, which violates any statute or regulation of the United
States of America.
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15. Fair Labor Standards Act
Seller certifies that any Products produced
in the United States shall be produced in compliance with all applicable
requirements of Sections 6, 7 and 12 of the United States Fair Labor
Standards Act, as amended, and of the regulations and orders of
the United States Department of Labor issued under Section 14 thereof.
No other certifications or waivers regarding payments to Seller's
suppliers or laborers are required.
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16. Time Period for Buyer Claim
Any proceeding by Buyer for breach of the
Agreement or any other right against Seller arising from or in connection
with payment by Buyer or the Agreement cannot be filed or maintained,
unless (i) it is commenced within one (1) year after the cause for
action has accrued, (ii) Buyer has given timely written notice to
Seller of its claim as provided herein, and (iii) Buyer deposits
any unpaid portion of the purchase price for Products with the tribunal
pending final adjudication. An action shall accrue no later than
shipment of the Products.
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17. Arbitration
A) All controversies and claims arising out
of or relating in any way to the Agreement, or any breach thereof,
shall be settled solely by arbitration held in Kent County, Michigan,
in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, except (i) Seller may elect to institute,
prior to formation of the arbitration panel, with an action for
a claim and delivery, replevin or similar relief to enforce its
interests in the Products, and (ii) either party may seek injunctive
relief from a state court located in Kent County, Michigan or federal
court in the Western District of Michigan, to enforce provisions
of the Agreement relating to confidential information. Judgment
upon any arbitration award may be entered and enforced in any court
having proper jurisdiction. No demand for arbitration hereunder
may be filed by Buyer as a claim or counterclaim if Buyer has not
given timely written notice of its claim to Seller or if more than
one (1) year has expired from the date of the cause of action accrued,
as provided in the Agreement. The arbitrator(s) may enter an interim
award that the Products be returned to Seller for appropriate disposition
and the application of any proceeds to amounts owed to Seller.
B) Upon the filing of a demand for arbitration
by Seller or Buyer, Buyer shall deposit with the arbitrator(s) any
unpaid balance of the purchase price for any Products and any other
unpaid amount under the Agreement to be held in an interest bearing
account. If such deposit is not made, the arbitrator(s) shall enter
a final award against Buyer in the amount of the unpaid purchase
price and other amounts owed by Buyer to Seller under the Agreement.
The arbitrator(s) shall be bound by the terms of the Agreement,
shall not apply principles of equity or allow any claims not permitted
by the Agreement, may only award or grant to the parties such remedies
as a court of competent jurisdiction could award or grant within
the locality where the arbitration takes place and which are authorized
(and not excluded or otherwise limited under the Agreement), and
may not award consequential or punitive damages. The arbitrator(s)
may include the arbitration fees in an award.
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18. Applicable Law, Jurisdiction and Venue
A) This Agreement shall be governed, construed
and enforced under the law of the State of Michigan including the
uniform commercial code in force on the initial date of the agreement
(the "UCC"), without regard to its conflict of law rules
and except as provided herein. The U.N. Convention on the International
Sale of Products shall not apply. Any services to be provided hereunder,
whether or not they are otherwise ancillary to and part of a sale
of Products (whether as separate units or included in a construction
project), shall be considered ancillary to a sale of Products and
the UCC shall apply to all Products to be provided hereunder.
B) State courts in Kent County, Michigan
and federal courts in the Western District of Michigan shall have
exclusive jurisdiction over the parties and the claims arising under
the Agreement, subject to the provisions of Section 17 above regarding
arbitration. Neither party shall assert any objection to such jurisdiction
nor that venue in any such court is inconvenient or otherwise improper.
Buyer and Seller consent to service of process by personal delivery
or by postage prepaid, certified U.S. mail, mailed to the address
of such party set forth in this Agreement.
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19. Assignment
The Agreement and Buyer's rights and obligations
hereunder may not be assigned, pledged, hypothecated or otherwise
transferred by Buyer except with the prior written approval of Seller,
which shall not be unreasonably withheld or delayed. Any assignment
attempted by Buyer shall be void and ineffective for all purposes
unless made in conformity with this section. Seller may freely assign
all rights and obligations it has under this agreement and may subcontract
performance of any aspect of this Agreement.
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20. Relationship
The relationship between Buyer and Seller
is solely that of a vendor and vendee. Buyer is not an agent of
Seller and has no authority to act on behalf of Seller, accept service
or process, to create obligations of any kind or bind Seller in
any respect.
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21. Conflict
To the extent any express terms set forth
in Seller's quotation to which these terms and conditions of sale
are attached or in which they are incorporated by reference are
inconsistent with these terms and conditions of sale, the express
terms set forth in Seller's quotation shall control (to the extent,
and only to the extent, of such inconsistency).
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22. Waiver
Waiver by Seller of any provision of the
Agreement or of a breach by Buyer of any provision of the Agreement
shall not be deemed a waiver of future compliance with the Agreement
and such provision, as well as all other provisions of this Agreement,
shall remain in full force and effect.
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23. Amendment or Modification
A) The Agreement is the complete and exclusive
statement of the Agreement of the parties and supersedes any and
all previous quotations and/or agreements relating to the Products.
B) Seller is willing to consider negotiating
written changes to the Agreement, including these terms and conditions
of sale, but reserves the right to make an adjustment in the price
of the Products.
C) No amendments, modifications, supplements,
limitations, waivers or discharges of this Agreement or any of its
terms shall bind Seller unless in writing and signed by the President
of Seller (herein, the "Authorized Representative of Seller"),
making express reference to amending the Agreement. No agent, employee,
or representative of Seller has any authority to sign and bind the
Seller with respect to any of the foregoing (including without limitation
any representation or warranty concerning Products not contained
in the Agreement), except the Authorized Representative of Seller.
D) Notwithstanding anything to the contrary
in this Agreement, no modifications, limitations, waiver or discharge
of any provision of the Agreement shall affect Buyer's liabilities
to Seller accrued prior thereto.
E) Orders submitted in any Buyer's purchase
order or other writing (whether or not it contains terms or conditions
modifying, adding to, repugnant to, or inconsistent with the terms
and conditions of the Agreement), may be accepted, approved, or
filled by Seller, but any resulting contract and the liabilities
or obligations of Seller shall be determined solely by the Agreement,
and (unless Seller otherwise advises Buyer in writing signed by
the Authorized Representative of Seller) notice is hereby given
that Seller objects to any such terms or conditions in Buyer's purchase
order or other writing. Seller shall not be deemed to have in any
way enlarged or modified its liabilities or obligations under the
Agreement by filling such purchase orders or by failing to further
object to Buyer's terms or conditions.
F) Obvious stenographic and clerical errors
contained in the Agreement are subject to correction by Seller.
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24. Heading and Definitions
The heading and definitions in the Agreement
are inserted for convenience only and shall not constitute a part
hereof.
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25. Severability
If any provision of the Agreement shall be
held to be unenforceable or invalid, such provision shall be ineffective
to the extent of such prohibition or invalidity, and the balance
of the Agreement shall be interpreted as if such provision were
so excluded. Any declaration of unenforceability of a provision
shall be as narrow as possible.
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26. Interpretation
Any interpretation of the Agreement shall
be construed consistently by and against both parties, and shall
not be construed against the draftsperson hereof. Buyer and Seller
acknowledge that they are merchants in respect to the Products,
they have had an opportunity to review the Agreement, and the previsions
of the Agreement are reasonable when considered as a whole.
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27. Samples
The Agreement covers the Products provided
as samples, whether or not provided without charge, except that
they are provided with all faults and that all warranties provided
in the Agreement are disclaimed. Samples are provided only for evaluation
by Buyer as examples of the type of Products available from Seller,
and not as a representation that the quality or specifications of
Products which may be supplied under a separate Agreement for the
sale of Products will be similar or as high. Samples may not be
used in production or final assembly and must be returned to Seller
upon Seller's request if they were provided without charge.
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28. Setoff
Buyer hereby authorizes Seller to credit
toward the payment of any monies that may become due Seller hereunder,
any sums which may now or hereafter be owed to Buyer or Seller or
by any subsidiary or other affiliate of the Seller.
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