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General Terms and Conditions
- BUYER’S ASSENT TO TERMS AND CONDITIONS. (a) Seller herby objects and rejects any and all different or additional terms or conditions contained in any order submitted to Seller by or on behalf of Buyer unless specifically agreed to in writing signed by an officer of Seller. Under no other circumstances are any such different or additional terms to be considered a part of this Agreement. (b) No representative or agent of Seller has any authority to make any different or additional representations or warranties on behalf of Seller.
- PRICES. If no price is set forth on the face hereof, prices for the Goods described herein (the “Goods”) shall be as in effect at the time of shipment. The price is payable COD.
- DELIVERY AND RISK OF LOSS. (a) All sales are F.O.B. Seller’s plant (“Seller’s Plant”). The price for the Goods does not include charges for freight, duties, packaging, insurance, or federal, state or municipal taxes, all of which are the responsibility of Buyer. Prices are based on shipping the entire order at one time. (b) All shipping dates are estimates and do not guarantee a particular date of shipment. SELLER SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES (WHETHER INCIDENTAL, CONSEQUENTIAL OR OTHERWISE) RESULTING FROM ANY DELAYS IN SHIPPING OR DAMAGE OCCURRING DURING SHIPPING. (c) Seller may ship the Goods to Buyer’s address as shown on the face hereof (the ” Shipping Address”) by any commercially reasonable means and may select the carrier and route. Delivery of the Goods by Seller to a carrier at Seller’s Plant shall constitute tender of delivery to Buyer for all purposes. All risk of loss with respect to the Goods shall pass to Buyer upon tender of delivery. Seller does not insure Goods against loss or damage in transit.
- SHORTAGE AND NON-CONFORMITY. Any claim of shortage or that the Goods do not conform to the specifications of the order or model must be made in writing within ten (10) days after delivery of the Goods. (as to which such claim is made) to Sell or its nominees, but in no event shall the claim be later than within the time limit provided by the carrier or insurance company, otherwise such claim shall be deemed waived. The samples, measurements, dimensions and weights contained in the Seller’s literature, catalogs, sales manuals, photographs, and drawings constitute only an approximate guide. The Seller reserves the right to make any changes, which the Seller, in its absolute discretion, considers necessary. Goods may not be returned and will not be accepted without the prior written approval of Seller, in the event that Buyer has a verified claim of shortage or of non-conformity of the Goods to the specifications of the order or the model, and if such claim has been submitted within the required time limits as set forth above, Seller shall, at its own expense, make up for the shortage of the Goods, or replace or repair the Goods, as the case may be, but in on event shall Seller be or become liable to Buyer or to any other person or persons for any loss or damage, direct or indirect, arising out of or being caused by such incidents, or for the loss of profits, business or good will.
- SHIPMENT AS UNITY. Each shipment by seller shall be treated as a separate and distinct unit with respect, but only with respect to forwarding, terms of payment, and the making of claims by Buyer, however, that if Buyer defaults in the payment of any obligation to Seller or any installments thereof, under any agreement between the Buyer and Seller, or if Buyer refuses to accept any Goods when tendered for delivery hereunder or under any other contract between Buyer and Seller, the Seller may, on fifteen (15) days written notice to Buyer with prejudice to Seller’s other lawful remedies, either defer further performance on pending or future orders until the defaulted payments are made in full, or make future deliveries for cash in advance only, and credit any payments to the oldest invoices that are in arrears or treat the entire contract or contracts with Buyer as breached by Buyer and pursue its remedies for breach.
- FORCE MAJEURE ADJUSTMENTS. If performance by Seller is delayed or made impracticable or burdensome by any cause beyond Seller’s control including, without limitation, acts of God, fire, flood, explosion, vandalism, sabotage, riot, insurrection, severe weather, curtailment or termination of Seller’s regular sources of supplies, inability to obtain or a delay in obtaining licenses, permits, materials or equipment, acts or omissions of Buyer, its agents or representatives, shipping delays, strikes or other disputes involving Seller or its subcontractors or suppliers or any existing or future laws or acts or any government or regulatory body, then (i) Seller shall be excused from performance to the extent that and for so long as such performance is delayed or made impracticable or burdensome by such cause, and (ii) Seller may adjust the price of the Goods.
- CANCELLATION; STOP WORK. (a) Orders, for non-stocked product, are non-cancelable and Buyer shall not be relieved for any obligation under this Agreement without the prior written consent of Seller. (b) In the event of cancellation of an order, once entered, Seller will be entitled to a cancellation charge not to exceed its cost plus anticipated profit. If the equipment ordered can be restocked or reasonably used for other customers a restocking charge will apply (usually 20% of the invoice amount not including freight and handling). (c) In the event of Buyer’s default hereunder, Seller has the right immediately cancel this Agreement, stop work, refuse to ship or stop delivery of any Goods, recover any losses or damages incurred by Seller as a result thereof, as well as seek any other remedy provided by law. Buyer’s default means (i) Buyer’ insolvency or the filing or institution of a proceeding under any bankruptcy, reorganization or similar law, by or against Buyer, (ii) an assignment for the benefit or creditors by Buyer, (iii) the appointment of a receiver, trustee or custodian for any of the property or assets of Buyer, and (iv) Buyer’s otherwise being in default of any obligation to Seller hereunder or otherwise. By submitting an order to Seller, Buyer warrants, represents and covenants that it is solvent now and will be solvent at shipment and agrees to notify Seller immediately in writing upon the occurrence of any of the events set forth in the forgoing Section 7 (c).
- LIMITED WARRANTY. Seller warrants the Goods to be free from defects in materials manufactured by Seller and in Seller’s workmanship for a period of (one (1) year) after the tender for delivery (the Warranty Period). THIS LIMITED WARRANTY (a) IS IN LIEU OF, AND SELLER DISCLAIMS AND EXCLUDES, ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OF CONFORMITY TO MODELS OR SAMPLES; (b) does not apply to optics or any Goods which have been (i) repaired, altered or improperly installed; (ii) subjected to improper use or storage; (iii) used or incorporated with other materials or equipment, after Buyer or anyone using the Goods has, or reasonably should have, knowledge of any defect or non-conformance of the Goods; or (iv) manufactured, fabricated or assembled by anyone other than Seller; (c) shall not be effective unless Buyer notifies Seller in writing of any purported defect or non-conformance within (thirty  days) after Buyer discovers or should have reasonably discovered such purported defect or non-conformance; and (d) shall only extend to Buyer and not to any subsequent buyers or users of the Goods. Buyer shall provide Seller access to the Goods as to which Buyer claims a purported defect or non-conformance. Upon request by Seller, Buyer shall, at its own risk and expense, promptly return the Goods in question to Sellers Plant.
- BUYERS REMEDIES. Seller’s liability for any breach of this limited warranty is limited to either (i) repair or replacement of any nonconforming components of the Goods, or (ii) upon return of the nonconforming Goods, return of the amount paid therefore, which ever Seller shall elect. Seller’s liability shall in no event be greater than the price of the item and shall not include any labor, shipping or other costs incurred in connection with any such repair, replacement, reinstallation or reshipment. Any nonconforming Goods returned to Seller must be accompanied by proof of purchase and the transportation of the Goods must be prepaid. Any Goods that are repaired or replaced by Seller shall be redelivered to Buyer F.O.B. Sellers Plant and shall be warranted, subject to the terms hereof, until the its shareholders, directors, officers, affiliates, predecessors, successors and assigns expiration of the original Warranty Period. Notwithstanding the foregoing, Seller shall have no warranty obligations unless and until Buyer performs its obligation hereunder, including payment in full of the purchase price. REMEDY SET FORTH IN THIS PARAGRAPH SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AGAINST SELLER AND BUYER WAIVES ALL OTHER REMEDIES AGAINST SELLER.
- INDEMNIFICATION. Buyer shall defend, indemnify and hold harmless Seller and its shareholders, directors, officers, affiliates, predecessors, successors and assigns, from and against any and all claims, actions, causes of action, liabilities, liens, losses and costs (including, without limitation, the costs of litigation and attorneys’ fees), relating to the Goods or any device, material or thing to which the Goods are attached or of which the Goods are made a part of within which the Goods are enclosed, regardless of whether Seller may be wholly, concurrently, partially, jointly or solely negligent or otherwise at fault.
- LIMITATION OF LIABILITY IN GENERAL. Except as provided herein, in no event whatsoever shall Seller or any of its shareholders, directors, officers, affiliates, predecessors, successors and assigns, be liable to Buyer of any of its shareholders, directors, officers, affiliates, predecessors, successors and assigns, for any loss or damages of any kind, whether direct, incidental, consequential, exemplary, special or otherwise relating in any way to the Agreement or acts or omissions in connection herewith (including, without limitation, the performance or non-performance of this Agreement and the use of or the loss of use of any of the Goods or other property), regardless of whether Seller and/or others may be wholly, concurrently, partially, jointly or solely negligent or otherwise at fault.
- THE LIMITATION ON ACTIONS; WAIVER. (a) Any action by Buyer relating to this Agreement or the Goods must be commenced not later that (one (1) year) after tender of delivery of the Goods. If Buyer fails to commence any such action within such (one  year), the action shall be deemed barred and Seller shall have no liability whatsoever to Buyer, (b) No failure of Seller to require strict performance by Buyer of this Agreement shall waive, affect or diminish any right of Seller to demand strict performance of this Agreement thereafter, The rights and remedies herein reserved to Seller shall be cumulative and in addition to any other rights and remedies provided by law.
- GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be deemed to have been made under, and shall be construed and interpreted in accordance with, the substantive laws of the State of Michigan, without regard to any choice of law, rules or principles. Buyer hereby submits to the jurisdiction of the state and federal courts for the state of Michigan, county of Oakland, and said courts shall have exclusive jurisdiction and venue to adjudicate the rights and obligations of the parties relating in any manner to this Agreement, Buyer hereby designates to the Secretary of the State of Michigan as an authorize agent to accept service of process for Buyer in the State of Michigan.
- SEVERABILITY. If any provision of this Agreement is held by any court to be invalid or unenforceable, such provision shall be deemed to be modified or deleted, but only to the extent necessary to enable that and the remaining provisions of this Agreement to be valid and enforceable.
- NO ASSIGNMENT. Buyer may not assign any rights or obligations under this Agreement without prior written consent of Seller.
- SECURITY INTEREST; COST OF COLLECTION. To secure all of Buyer’s obligations to Seller, Buyer grants to Seller a security interest in all goods purchased from Seller, together with all proceeds and products thereof (the “Collateral”). Buyer agrees not to permit any liens to attach to or dispose of (other than in the ordinary course of business), any of the Collateral prior to satisfaction of all its obligations to Seller and Buyer’s agrees not to permit anything to be done that may impair the value of any of the Collateral or the security intended to be afforded by this Agreement. Buyer shall upon request of Seller, and Seller is irrevocably appointed which appointment is coupled with an interest) Buyer’s attorney-in-fact to do all acts and things, including the execution and filing of financing statements, or the filing of this Agreement as a financing statement, that Seller may deem necessary to perfect the security interest created by this Agreement and to protect the Collateral. Buyer will pay as part of the debt hereby secured, all amounts, including reasonable attorneys’ fees, incurred by Seller (i) to maintain, repair and otherwise protect the value of the Collateral, and (ii) in taking possession of, disposing of or preserving the Collateral after any default of any Buyer’s obligations to Seller.
- RETURNED CHECKS. A $35 processing fee will be assessed for all checks returned for non-sufficient funds.