“Seller” means McDunnough, Inc., a Michigan corporation, and each of its subsidiaries and affiliates. “Buyer” means the entity or person submitting a sales or purchase order to Seller.
Buyer acknowledges and agrees that (i) these General Terms and Conditions are incorporated in, and are a part of, this contract and each sales order, purchase order, release, requisition, work order, shipping instruction, specification and other document, whether expressed in written form or by electronic data interchange, relating to the products and/or services to be provided by Seller pursuant to this contract (such documents are collectively referred to as the “Contract”), and (ii) Seller’s acceptance of Buyer’s offer to purchase is made conditional upon the incorporation of these General Terms and Conditions into the Contract. Any execution by Seller of any other document submitted by Buyer in connection with the purchase of products and/or services does not constitute acceptance of or agreement to any terms and conditions in addition to or different from those contained in these General Terms and Conditions, but will constitute only acknowledgment of receipt of such document. If Buyer accepts the products and/or services which are the subject of the Contract, Buyer shall be deemed to have accepted the Contract including, but not limited to, these General Terms and Conditions, in their entirety without modification. Any additions to, changes in, modifications or revisions of the Contract (including, but not limited to, these General Terms and Conditions) shall require the written consent of Seller.
Battle of the Forms Not Applicable
The parties have agreed and it is their intent that the battle of the forms described in Section 2-207 of the Uniform Commercial Code shall not apply to the Contract and that Contract including, but not limited to, these General Terms and Conditions, shall exclusively control the relationship between the parties.
Payment for the products and/or services shall be net thirty (30) days from the date of shipment or as otherwise agreed in writing and confirmed by Seller’s invoice. Late payments are subject to a service charge equal to 1.5% per month or the maximum amount permitted under law. Seller reserves the right at any time to suspend credit or to change credit terms provided herein, when, in Seller’s sole discretion, Buyer’s financial condition so warrants. Buyer shall have no right to offset any amounts due or to become due to Seller against any claims, charges, expenses, fees or other payments of any kind whatsoever under any circumstances, including, but not limited to, any liability which may arise due to any breach or alleged breach of the Contract. Buyer shall pay all court costs, attorneys’ fees and other costs incurred by Seller in collecting any past due amounts owed by Buyer under the Contract. All NSF checks returned to Seller will be subject to a NSF fee. Seller may assign and/or sell any receivables or indebtedness owed by Buyer in the sole discretion of Seller.
Prices for products and services and other related information shown in any Seller or manufacturer product publication including, but not limited to, catalogs, brochures and websites are subject to change without notice. Prices do not include related freight charges, use tax, sales tax, excise tax, value-added tax or similar taxes or charges of any nature whatsoever imposed by any governmental authority unless otherwise expressly noted by Seller.
If Seller and Buyer have mutually agreed to use an EDI system to facilitate purchase and sale transactions, Buyer agrees that it will not contest (a) any contract of sale resulting from an EDI transaction under the provisions of any law relating to whether agreements must be in writing or signed by the party to be bound thereby, or (b) the admissibility of copies of EDI records under the business records exception to the hearsay rule, the best evidence rule or any other similar rule, on the basis that such records were not originated or maintained in documentary form.
Buyer grants to Seller a security interest under the Uniform Commercial Code in the products sold until payment in full has been received by Seller. In the event of default by Buyer under the Contract, Seller shall have all the rights and remedies of a secured creditor under the Uniform Commercial Code. Buyer agrees and appoints Seller as its attorney-in-fact to do, at Seller’s option, all acts and things Seller may require to perfect the above security interest in any one or more jurisdictions, and Buyer agrees to pay all applicable filing fees.
Taxes and Other Charges
Any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between Seller and Buyer shall be paid by Buyer in addition to the invoiced price. In the event Seller is required to pay any such tax, fee or charge, Buyer shall reimburse Seller therefor or, in lieu of such payment, Buyer shall provide Seller at the time the order is submitted, an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
Shipment of products will be made F.O.B. Seller’s facility unless otherwise agreed to by Seller (Ex Works per INCOTERMS 2000 for international shipments). Buyer acknowledges that due to the nature of Seller’s business, Seller is unable to guarantee on time delivery or to predict when delivery delays may occur. Accordingly, Seller will use commercially reasonable efforts to insure on time delivery, provided that any delay in shipment shall not relieve Buyer of its obligations under the Contract. In no event shall Seller be liable for any loss, damage or expense incurred by Buyer or any of its customers arising from late or non-delivery of products. Title and risk of loss to products shall pass to Buyer upon delivery to the delivery point per applicable shipping term. Buyer shall pay all insurance costs associated with delivery of the products, and Buyer shall be responsible for filing and pursuing claims with carriers for any loss of or damage to the products while in transit.
Buyer may, by written notice, request Seller to temporarily suspend performance or delivery hereunder; provided that Seller is reimbursed for any and all costs incurred as a result thereof, including, but not limited to, storage, insurance, preservation, and other costs attributable to such suspension. Payment of the Contract price shall become due when Buyer is notified that the products are ready for shipment and Buyer shall be responsible for all price increases instituted by Seller during the period of suspension. In the event that the duration of such suspension exceeds thirty (30) days, Seller may, at its option, declare Buyer to be in breach of the Contract and shall have the right to assert any available remedy under the Contract or otherwise available at law or in equity.
Buyer may request changes to the Contract. Seller shall promptly advise Buyer in writing of any increase in price and updated delivery date as a result of such change. Seller shall not be required to institute any Buyer-dictated change until the parties have agreed to an equitable adjustment to the price and/or delivery date. Purchase orders for special, custom or non-stock items may not be cancelled. All other products may only be cancelled upon the written confirmation of Seller and are subject to a cancellation charge of 25% of the Contract price.
All returns of products will be subject to Seller’s approval and other instructions. All products approved by Seller to be returned must contain all original Seller labels, be new and not commingled or combined with any other products, it being understood that Buyer shall not be entitled to receive a refund on any such products for failing to comply with any of these requirements.
Buyer shall have a period of ten (10) days from the date of delivery of the products or completion of the services to inspect the products and/or services for any defect or deficiency. In the event of any defect or deficiency, Buyer must give written notice thereof to Seller within the above inspection period and permit Seller the opportunity to inspect such products and/or services. Failure by Buyer to give such notice constitutes unqualified acceptance of the products and/or services. Buyer’s sole remedy for any defects or deficiencies in the products and/or services which are discovered by Buyer within the inspection period and validated by Seller shall be replacement of such products and/or services.
Disclaimer of Warranties
Seller has no control over the use, suitability or application of the products or services and therefore, does not guarantee the effectiveness or safety of any possible application of the products and/or services. Buyer is responsible for conducting all tests to determine the suitability of the products and/or services for its own use. Buyer assumes full responsibility that the products and/or services purchased hereunder meet the specifications and/or intended use of Buyer, and Seller makes no representation or warranty with respect thereto. ALL PRODUCTS AND SERVICES PROVIDED BY SELLER HEREUNDER ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND. SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED BY LAW, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT AND OTHERWISE.
The entire risk arising out of the use or performance of the products and/or services provided hereunder remains with Buyer. The provisions in any specification, brochure or chart issued by Seller are descriptive only and are not warranties. Further, no employee or agent of Seller is authorized to make any warranty. Buyer agrees that if products sold hereunder are resold by Buyer, Buyer will include in the agreement for resale, provisions which limit recoveries in accordance with these General Terms and Conditions.
Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, shareholders, employees, successors and assigns, from and against any and all claims, demands, actions, causes of action, suits, judgments, settlements, costs, fees (including attorneys’ fees), penalties, damages, liabilities and obligations of whatever nature arising out of or relating to a breach of the Contract by Buyer, the acts or omissions of Buyer or any of its employees, agents or representatives, and the use or resale by Buyer of the products and/or services.
Limitation on Liability
To the fullest extent permitted by applicable law, in no event will Seller be liable for any form of indirect, incidental, special, liquidated, consequential, punitive or similar damages of any kind, including, but not limited to, claims for lost profits, loss of data or business interruption losses. In no event will the total, aggregate liability of Seller under the Contract, whether or not insured, exceed the cost of the products and/or services giving rise to the claim or liability. Seller disclaims all liability relative to gratuitous information provided by, but not contractually required of Seller. The liability limitations contained herein shall apply even if Seller has been notified of the possibility or likelihood of such damages occurring and regardless of the form of action, whether in contract, negligence, strict liability, tort, products liability or otherwise, and will extend to the benefit of Seller’s employees, representatives and suppliers as third-party beneficiaries. Each provision hereof which provides for a limitation of liability, disclaimer of warranty or condition or exclusion of damages is severable and independent of any other provision and is to be enforced as such.
Nothing in the Contract will be deemed by implication or otherwise to convey to Buyer or any of Buyer’s customers any rights under any patent, trade secret, trademark, service mark, copyright or other intellectual property right related to the products and/or services, other than the right to incorporate or use the products and/or services purchased from Seller.
Compliance with Laws
Buyer will be responsible for compliance with any and all federal, state and local laws and regulations respecting safety or respecting use of the products and/or services.
Buyer shall not disclose to any third party any information of Seller directly or indirectly delivered to Buyer or acquired pursuant to the Contract, including, without limitation, business affairs, data, designs, manuals, formulas, supplier and vendor information, processes, methods, pricing, financial and accounting data, products and specifications, systems and technical information (collectively, “Confidential Information”). Buyer shall be permitted to disclose Confidential Information strictly to its own employees, accountants and attorneys and other agents and representatives to the extent such disclosure is reasonably necessary for the performance of their duties and obligations; provided, however, that Buyer shall be responsible for any violation of the confidentiality obligations set forth herein by and of such permitted parties to which it provides Confidential Information. Buyer covenants that it will not attempt to circumvent Seller, directly or indirectly, in any manner, for the purpose of purchasing any products and/or services sold by Seller from any of Seller’s vendors or suppliers. Buyer shall not disclose any information of Seller, including any Confidential Information, to any of Buyer’s customers or vendors or take any other action for the purpose of diverting business from Seller.
Seller shall not be liable for any loss, damage or delay arising out of its failure to perform hereunder due to causes beyond its reasonable control, including, without limitation, (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of the Contract; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; (i) epidemic, pandemic, or serious illness; (j) emergency state; (k) shortages of or inability to obtain raw materials; (l) shortage of power or transportation facilities; (m) closure of public highways, railways, airways or shipping lanes; and (n) other similar events beyond the reasonable control of Seller. In the event of such delay, Seller’s performance date(s) will be extended for such length of time as may be reasonably necessary to compensate for the delay.
Certifications and Accreditations
Unless expressly set forth on Seller’s sales order, Seller makes no representation or warranty that it is certified or accredited by any organization, including, without limitation, the International Organization for Standardization (ISO).
Products supplied hereunder may be subject to various export laws and regulations. It is the responsibility of the exporter to comply with all such laws and regulations. Notwithstanding any other provision in the Contract to the contrary, in the event that U.S. or local law requires export authorization for the export or re-export of any products or associated technology, no delivery can be made until such export authorization is obtained, regardless of any otherwise promised delivery date. In the event that any required export authorization is denied, Seller and Seller’s supplier will be relieved of any further obligation relative to the sale and delivery of the products subject to such denial without liability of any kind relative to Buyer or any other party. Seller will not comply with boycott related requests except to the extent permitted by U.S. law and then only at Seller’s discretion.
Any failure of Seller to insist upon strict performance of any term of this Contract shall not be construed as a waiver of its right to strict performance thereafter. This Contract shall be governed by the laws of the State of Michigan, USA, without regard to conflicts of laws principles of such State. Seller and Buyer hereby agree that any legal proceeding with respect to the Contract shall be brought only in a court of the State of Michigan or in a court of the United States sitting in Michigan, and both Seller and Buyer submit to and accept generally and unconditionally the personal jurisdiction of those courts with respect to their person and property. THE PARTIES KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THAT THEY MAY HAVE TO A TRIAL BY JURY, THIS WAIVER BEING A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THE CONTRACT. The parties agree that these limits of liability shall survive and continue in full force and effect despite any termination or expiration of the Contract between Seller and Buyer. Any action by Buyer against Seller must be commenced within one year after the cause of action has accrued. The Contract sets forth the entire understanding and agreement between the parties with respect to the subject matter hereof and cancels and supersedes all prior agreements, understandings, representations or promises, whether oral or written, between the parties.