The Seller (“Seller”) and the Purchaser (Buyer”) named on the face hereof agree
that the following terms and conditions apply to the materials, goods and/or products
(the “Goods”) listed on the front of this agreement “Agreement”) or subsequently
ordered pursuant to this Agreement.
2. ACCEPTANCE/SOLE TERMS.
Unless another agreement is executed in writing by both parties, this order is expressly
conditioned upon Buyer’s acceptance to foregoing terms. Buyer is hereby put on notice
that no terms additional to or deviating from the foregoing terms shall become part
of the order, unless and until letter acceptance of such additional or deviating
terms, signed by an office of Seller has been issued to Buyer. Buyer’s acceptance
of any goods supplied by or on behalf of, Seller shall, without limitation constitute
acceptance of Seller’s foregoing terms. If Buyer retains possession of the Goods
for a period of ten (10) days or longer after the receipt of their shipment or makes
use of the Goods at any time after their receipt, Buyer shall be deemed to have
expressly assented to Seller’s foregoing terms without condition or qualification,
and in so doing, Buyer shall have confirmed its express intention to waive any conditions
or qualifications on Buyer’s acceptance of Seller’s offer.
All prices are Net 30, F.O.B. Seller’s plant unless otherwise specifically set forth
on the face side hereof. Prices stated are subject to change without notice in the
event of (i) alterations in specifications, quantities, designs, or delivery schedules:
(ii) increases in the cost of fuel, power, material supplied, or labor, and/or (iii)
foreign or domestic legislation enacted by any level of government, including tax
legislation which increases the cost of producing, warehousing or selling the Goods
purchased hereunder. No discount will be allowed unless specifically set forth on
the face side hereof. Seller may require full or partial payment in advance.
Seller warrants that the materials, Goods manufactured by it will be free from defects
in material and workmanship for ninety days (90) following the date of shipment
THE FOREGOING WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR
IMPLIED. ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE NOT EXPRESSLY HEREIN, ARE HEREBY EXCLUDED. NO
AFFIRMATION OR SELLER, BY WORDS OR ACTION, OTHER THAN AS SET FORTH IN THIS WARRANT
CLAUSE SHALL CONSTITUTE A WARRANTY. GOODS WHICH MAY BE SOLD BY SELLER BUT WHICH
ARE NOT MANUFACTURED BY SELLER ARE NOT WARRANTED BY SELLER, BUT ARE SOLD ONLY WITH
THE WARRANTIES. IF ANY, OF THE MANUFACTURERS THEREOF. Seller’s warranty does not
apply to any Goods which have been subjected to misuse, mishandling, misapplication,
neglect, accident, or modification.
a. If any of the goods are found by Seller to be defective, such Goods will, at
Seller’s option, be replaced or repaired at Seller’s cost or Seller will refund
the purchase price or give Buyer a reasonable allowance thereof. The parties hereto
expressly agree to Buyer’s sole and exclusive remedy against the Seller shall be
for the repair or replacement of the defective Goods or the refund of the purchase
price or allowances thereof. Buyer herby agrees that this excusive remedy shall
not be deemed to have failed of its essential purpose so long as the Seller is willing
and able to repair or replace defective Goods in the prescribed manner or refund
the purchase price of give Buyer an allowance thereof.
b. Any warranty claim by Buyer with reference to the Goods sold hereunder shall
be deemed waived by the Buyer unless submitted in writing to Seller with the earlier
of (i) 30 days following the date Buyer discovered, or by reasonable inspection
should have discovered, any claimed breach of the foregoing warranty, or (ii) 90
days following the date of shipment. Any cause of action for breach of the foregoing
warranty shall be brought within one year from the date of alleged breach was discovered
or should have been discovered, whichever occurs first.
c. Seller expressly warrants that the goods or services ordered shall be merchantable;
shall conform to this order, to specifications, drawings, and other descriptions
referenced in this order, and to any accepted samples; shall be free from defects
in materials and workmanship; shall be free from defects in design unless the design
was supplied by Buyer; and shall be fit and safe for the intended purposes. Seller
warrants that it has clear title to the goods and that the goods and services shall
be delivered free of liens or encumbrances.
d. Seller warrants that the goods; (1) are not adulterated or misbranded within
the meaning of the Federal Food, Drug and Cosmetic Act as amended (Act), or within
the meaning of any applicable state or municipal law in which the definitions of
“adulteration” and “misbranding” are substantially identical with those contained
in Act: (2) are not goods which may not under the provisions of Section 404, 505,
512, 515, or 516 of the Act be introduced into Interstate commerce, or which may
not under substantially similar provisions of any state or municipal law be introduced
into commerce; and (3) are in full compliance with the Biological Products section
of the Public Health Service Act.
e. Seller’s remedies relating hereto to shall be cumulative and in addition to any
other remedies provided herein or by law or in equity.
5. LIMITATION OF LIABILITY.
SELLER’S LIABILITY (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT OR WARRANTY,
NEGLIGENCE, OR STRICT LIABILITY) FOR ITS GOODS SHALL BE LIMITED TO REPAIRING OR
REPLACING (AT SELLER’S OPTION) GOOD S FOUND BY SELLER TO BE NON-CONFORMING, OR AT
SELLER’S OPTION, TO REFUNDING THE PURCHASE PRICE OF THE NON-CONFORMING GOODS. At
Seller’s request, Buyer will send at, Buyer’s sole expense, any allegedly defective
Goods to Seller’s plant.
6. DISCLAIMER OF CONSEQUENTIAL AND INCIDENTAL DAMAGES.
IN NO EVENT SHOULD SELLER BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING
OUT OF OR IN CONNECTION WITH THIS A GREEMENT INCLUDING WITHOUT LIMITATION BREACH
OF ANY OBLIGATION IMPOSED ON SELLER HEREUNDER OR IN CONNECTIN HEREWITH. THE REMEDY
UNDER THE WARRANTY PROVISION IS LIMITED TO REPAIR OR REPLACEMENT. Consequential
damages for purposes hereof shall include, without limitation, loss of use, income
or profit or losses sustained as the result of injury (including death) to any person
or loss of or damage to property (including without limitation, property handled
or processed by the use of the goods). Buyer shall indemnity Seller against all
liability, cost or expense which may be sustained by Seller on account of any such
loss, damage or injury.
7. ACCEPTANCE OF GOODS, DELIVERY AND TRANSPORTATION.
Upon buyer’s receipt of shipment, buyer shall immediately inspect the Goods. Unless
Buyer provides Seller with written notice of any claim or shortages of or defects
in the Good eight (48) hours after receipt of shipment, such Goods shall be deemed
finally inspected, checked and accepted by Buyer. In the absence of shipping and
packing instructions, Seller shall use its own discretion in choice of carrier and
method of packing. Seller shall not be responsible for insuring shipments unless
specifically requested by Buyer and any insurance so requested shall be at Buyer’s
expenses and valuation. Seller expressly reserves the right to overship or undership
Goods by up to twenty (20%) percent.
8. TITLE AND RISK OF LOSS.
Title to any Goods sold and risk of loss of such Goods passes to Buyer upon delivery
by Seller to carrier, and any claims for losses or damage shall be made by Buyer
directly to carrier.
9. CREDIT TERMS.
All orders and shipments shall at all times be subject to the approval of the Seller’s
Credit Department. The Seller reserves the right to decline to make shipment whenever,
for any reason, there is doubt as to Buyer’s financial responsibility and Seller
shall not in such event be liable for breach or nonperformance of this contract
in whole or in part.
10. SECURITY INTEREST.
To secure prompt payment of the purchase price for the goods identified on the face
hereof. Buyer hereby grants to Seller a purchase money security interest in the
goods purchased from Seller and all proceeds thereof (the “Collateral”). Buyer agrees
to execute and deliver to Seller USS financing statements, together with any and
all other documents, and shall take such other action, as may be required to perfect
Seller’s security interest in the Collateral.
11. COSTS OF COLLECTION.
If, at any time or times, Seller incurs legal expenses or other costs of expenses
in connection with: (i) any litigation, contest, suit, dispute, proceeding or action
in any way relating to the Collateral: (ii) any attempt by Seller to enforce any
rights of Seller against Buyer or any other person which may be obligated to seller
hereunder, or (iii) any attempt to inspect, verify, protect, preserve, restore,
collect, sell, liquidate or dispose of the Collateral; then, in any such event,
the expenses and costs (including attorney’s fees) relating to any of the foregoing
events or actions shall be payable by Buyer on demand to Seller and shall be considered
additional obligations hereunder secured by the Collateral. Seller reserves the
right to revoke any credit extended to Buyer at any time, because of Buyer’s failure
to pay for any goods when due or for any reason deemed good and sufficient by Seller.
Any sales, sue or similar taxes, export charges, fees or other levies, taxes or
surcharges now or hereafter imposed in connection with the production, sale, delivery,
use or proceeds of the goods herein specified (except for taxes on seller’s net
income) shall be payable by Buyer, and if such taxes or fees are paid or are required
to be paid by Seller, the amount thereof shall be added to and become part of the
price payable by Buyer hereunder, unless Buyer provides Seller with a valid tax
Prices stated are based on Seller’s standard packaging. Seller reserves the right
of packaging the Goods in pallets, bulk or individual cartons. Packaging will be
standard commercial package and acceptable to commercial carrier. Special customer
packaging will be furnished only when specified and so stated herein, and the cost
thereof shall be borne by Buyer.
Unless expressly specified to the contrary, Goods in stock will be shipped immediately,
and Goods not in stock will be shipped as soon as possible. However, all shipping
dates are approximate, and are based upon current availability of materials, present
production schedules, and prompt receipt of all necessary information. Seller will
not be liable for any damage, loss, fault, or expenses arising out of delays in
shipment or other nonperformance of this Agreement caused by or imposed by: (a)
strikes, fires, disasters, riots, acts of God, (b) acts of Buyer, (c) shortages
of labor, fuel, power, materials, supplies, transportation, or manufacturing facilities,
(d) governmental action, (e) subcontractor or supplier delay including, but not
limited to failure by subcontractor or supplier to make timely delivery, or (f)
any other cause of condition beyond Seller’s reasonable control. In the event of
any such delay or nonperformance, Seller may, at its option, and without liability,
cancel all or any portion of this Agreement and/or extend any date upon which any
performance hereunder is due.
15. TERMINATION, CANCELLATION AND CHANGES.
Orders cannot be terminated, cancelled or modified, or shipment deferred after acceptance
of Buyer’s order by Seller, except with Seller’s written consent and subject to
reasonable charges for expenses incurred and work executed by Seller or its suppliers.
Purchase shall be obligated to accept any portion of the goods shipped or delivered
by Seller pending Seller’s written approval of cancellation. Orders for custom made
material may not be cancelled after Seller has been in production unless Seller
agrees in writing.
16. RETURNED PRODUCTS.
Delivered Goods returned to Seller require prior written approval from seller before
such goods will be accepted. Handling, inspection, restocking and invoicing charges
will be accessed, if applicable, plus any outgoing packing and freight expenditures
paid by Seller. All returns allowed must be shipped to Seller prepaid and must be
in excellent resale condition. Goods processed to Purchaser’s specifications are
17. NO WAIVER.
Forbearance or failure of Seller to enforce any of the terms and conditions stated
herein, or to exercise any right accruing from default of Buyer, shall not affect
or impair Seller’s rights arising from such defaults; nor shall forbearance or failure
be deemed a waiver of Seller’s rights in case of any subsequent default of Buyer.
If any provision of this Agreement is unenforceable or invalid, this Agreement shall
be interpreted and enforced to the greatest extent possible as if the unenforceable
provision or portion had never been a part hereof.
This Agreement shall be binding upon and shall inure to the benefit of the successors
and assigns of buyer and Seller provided, however, that buyer may not assign or
transfer this contract, in whole or in part, except upon the prior written consent
20. GOVERNING LAW.
This Agreement shall be construed in accordance with and governed by the laws of
the State of North Carolina without regard to its conflict of law provisions. All
actions or proceedings arising directly or indirectly herefrom shall be litigated
only in the courts of the State of Michigan or United States federal courts located
therein and the parties hereby consent to the jurisdiction and venue of such courts.
21. ALTERNATIVE DISPUTE RESOLUTION.
a. Any dispute or claim arising from or relating to this Agreement or performance
under it shall be resolved amicably through discussions between Buyer and Seller
attempting in good faith to negotiate a resolution thereof; provided, however, that
either buyer or Seller may seek injunctive relief from a court of proper jurisdiction
where appropriate, in order to maintain the status quo while this procedure is being
followed. If the parties fail to resolve any dispute arising under this Agreement,
either party may seek arbitration as follows: (a) By written notice to the other
party, submitting the dispute to binding arbitration, in accordance with the then
current Expedited Commercial Arbitration Rules under the American Arbitration Association
(“AAA”), each party to bear equally the costs of the arbitration provided, however,
that the other party may agree or refuse to participate in such arbitration. (b)
If the parties are not successful in resolving the dispute through self-help or
one of the parties refuses to participate in arbitration, the dispute shall be resolved
b. Any claim submitted to arbitration must be governed by the Expedited Commercial
Rules of the AAA: except that (i) Provision 20 must govern applicable law and construction,
(ii) the locale of any arbitration will be in The State of Delaware or agreed to
by the parties in writing, (iii) the arbitration panel will consist of a single
arbitrator, selected pursuant to the rules of the AAA, (iv) the language of the
arbitration must be in English, (v) any arbitration award must state the arbitrator’s
material findings of fact and conclusions of law, (vi), a party may seek preliminary
injunctive or other equitable relief from any court of competent jurisdiction to
preserve the status quo pending establishment of an arbitration panel, (vii) a prevailing
party in litigation to require arbitration or to obtain preliminary relief pending
establishment of an arbitration panel, in arbitration, or in litigation to confirm
or enforce an arbitration award will be entitled to recover is reasonable attorney’s
fees and costs. Any suite to require arbitration under this agreement, or to enforce
judgment upon an arbitration award, may be brought in the state and federal courts
of the State of Delaware.
22. ENTIRE CONTRACT.
Unless another agreement is executed in writing by both parties or upon Seller’s
acceptance of buyer’s order, the terms and provision set forth herein shall constitute
the entire agreement between Buyer and Seller and no statement, correspondence,
sample or other terms shall modify of effect terms hereof.