UNITED SIGN COMPANY TERMS AND CONDITIONS OF SALE
UNITED SIGN COMPANY TERMS AND CONDITIONS OF SALE (Effective September 15, 2010)
** PLEASE NOTE: “ALL PAYMENTS WILL BE PROCESSED AT THE TIME OF ORDER PLACEMENT FOR THE FOLLOWING: FLIP PRICE SIGNS & MAUFACTURER DROP SHIP ITEMS”
The following Terms and Conditions of Sale (the "Terms") supersede any other terms indicated on any other documents including but not limited to, catalogs (printed or electronic), transactional documents (invoices, acknowledgements, packing lists) and any other promotional literature. Unless otherwise stated below, the Terms apply to all sales of products by United Sign Company (the "Seller"). Such sales are made subject to the following Terms. The item or items being sold are referred to below as "goods" or "products," and the customer purchasing the goods or products is referred to as "Buyer."
- Agreement. By placement of an order, and/or by acceptance of goods ordered, Buyer signifies agreement that no terms, conditions or warranties other than those stated in these Terms, and no agreement or understanding, oral or written, in any way purporting to modify these Terms, conditions and/or warranties, whether contained in Buyer’s purchase order or elsewhere, shall be binding on Seller, unless made in writing and signed by an appropriate officer of Seller. Seller expressly objects to any terms inconsistent with those expressly stated herein.
- Pricing. Published prices are subject to change without notice. Prices on scheduled shipments will be based upon the quantity released for each shipment. Quantity prices apply to the quantity of purchases of each specific part number. All quotes are valid for thirty (30) days. Published prices do not include taxes, handling or shipping charges that may apply. After any artwork, samples, or other designs or specifications have been approved by Buyer, any changes will be solely Buyer’s expense.
- Payment Terms. Unless Seller agrees otherwise in writing, businesses with approved credit ratings must make payment in full of the price within thirty (30) days after shipment or pick up. No early payment discounts or cash discounts apply. Visa, MasterCard, Discover and American Express are accepted. For all other Buyers payment is cash on delivery ("C.O.D.") without discount until proper credit ratings have been established. In the case of any special order or custom product, Seller may, at its discretion, require a deposit in an amount deemed sufficient by the Seller prior to the product being ordered. Any payment not made when due will accrue a late charge equal to one and one-half percent (1½%) per month. All checks that are returned for non-sufficient funds may be subject to a $25.00 handling fee and will be presented to the bank a second time. Past due accounts may be placed on hold, causing shipments to be delayed, until account is current. At Seller’s discretion, accounts which are past due over sixty (60) days may be subject to third party collection and forfeiture of open account privileges. Buyer shall pay Seller all costs incurred to collect any past due account from Buyer, including, but not limited to, all court costs and attorney’s fees to the maximum extent permitted by law. Payment must be made at Seller’s office located at 2265 Black Creek Road, Muskegon, Michigan 49444. All prices are in U.S. Dollars and payment should be made in U.S. Dollars. Any exchange rate charges will be billed to Buyer.
Delivery and Risk of Loss. Shipping dates are estimates only. Time is not of the essence. Seller may ship all the goods at one time or in installments from time to time. Seller will have the right to determine the method of shipment and routing of the goods unless otherwise mutually agreed upon by Buyer and Seller.
DOMESTIC ORDERS. Prices are quoted FOB Origin Muskegon, Michigan and risk of loss passes to Buyer upon delivery to the shipper. Shipping and handling charges are prepaid and added to commercial invoice. Orders may be shipped collect with customer’s preferred carrier. All C.O.D. shipments will include a C.O.D. fee on each package in addition to the shipping and handling charge. Shipments will be insured according to value at Seller’s discretion.
CANADIAN ORDERS. Prices are quoted EXW Origin Muskegon, Michigan and risk of loss passes to Buyer upon delivery to the shipper according to Incoterms 1990 in U.S. Dollars. Shipping and handling charges are prepaid and added to commercial invoice. Orders may be shipped collect with customer’s preferred carrier. Payments must be made in U.S. Dollars. Buyer is responsible for all brokerage fees, taxes and duties. No minimum purchase amount exists for Canadian orders.
INTERNATIONAL ORDERS. International orders are defined as requiring both a "bill to" and "ship to" address outside the United States, excluding Canada and Puerto Rico. Minimum purchase order amount is $25.00. Orders under $500.00 will include a $25.00 international processing fee. Prices are quoted EXW Origin Muskegon, Michigan and risk of loss passes to Buyer upon delivery to the shipper according to Incoterms 1990 in U.S. Dollars. Shipping and handling charges are prepaid and added to commercial invoice. Orders may be shipped collect with customer’s preferred carrier. Payments must be made in U.S. Dollars in advance. Buyer is responsible for all brokerage fees, taxes and duties.
- Taxes, Brokerage Fees, Duties. Seller’s price does not include any privilege, occupation, personal property, value-added, sales, excise, use or other taxes, brokerage fees or duties and Buyer will be responsible for all such taxes, brokerage fees or duties, whether or not invoiced by Seller. Buyer is responsible for all applicable taxes or for providing a valid sales tax exemption certificate.
- Unavoidable Delay. Seller shall not be responsible for any delay in or impairment of performance resulting in whole or in part from any force majeure event, including but not limited to Acts of God, labor disruptions, shortages, inability to procure product, supplies or raw materials, severe weather conditions, or any other circumstances or cause beyond the control of Seller in the conduct of its business. If Seller is unable to finish and ship the goods to Buyer on time due to any of the preceding situations, the estimated delivery time will be extended accordingly, and Seller will not be liable to Buyer for any damages caused by the delay
Returns. All standard catalog items maintained in our warehouse are shipped on a thirty (30) day trial basis. As long as the product is in new and resalable condition, as determined by Seller in its sole discretion, at the time of authorized return, Buyer may return the merchandise, freight prepaid, and Buyer will be issued a credit upon Seller’s receipt of the same. Return items purchased by check may not be refunded for at least 14 days from original receipt allowing the original check to clear the bank. Return items purchased by credit card will be issued to the original credit card presented at the time purchase according to return policy. Returned items purchased on account will be credited to customer account. If there is an outstanding credit, the customer will need to contact Seller for refund. If credit is not applied or refund requested within one (1) year, any balance remaining will be subject to cancellation and Seller shall have no further liability except as required by applicable law.
All standard catalog item returns of products maintained in our warehouse in new and resalable condition past the thirty (30) day trial time period are subject to a minimum ten percent (10%) restocking charge. Custom made and/or reworked items are subject to a +/- ten percent (10%) quantity shipping variance unless quoted otherwise. Once custom made or reworked items are in process, the Order may not be cancelled. Special order or modified items may be returned only at the sole discretion of Seller who is permitted a reasonable time to inspect such items to determine whether it will accept the attempted return. Any returned special order or modified items accepted by Seller will be subject to a restocking charge which shall not be less than ten percent (10%), as determined from time to time by Seller. Custom made products are not returnable. All defective merchandise returns will be subject to inspection upon return to Seller.
Returns must be pre-approved by calling the Seller to obtain a Return Authorization Number. All returns must be made via United Parcel Service (UPS) and with reference to Seller’s shipper, invoice and return authorization number.. Seller will pay freight only for the return of defective or nonconforming goods or goods shipped incorrectly by Seller. If after three (3) pickup attempts the product has not been made available for return, Buyer becomes responsible for freight costs of return. A twenty percent (20%) restocking fee, plus freight charges will apply to goods returned for any other reason. In the case of returns from a foreign country, including Canada, Seller will not be responsible for any brokerage fees with may be incurred regardless of the reason for the return. Any discrepancies in Buyer’s order (shortages, damages, wrong parts, etc…) must be brought to Seller’s attention within thirty (30) days of receipt by Buyer.
LIMITED WARRANTY. Goods sold are warranted by Seller only to Buyers for resale, for use in business or original equipment manufacture against defect in workmanship or materials under normal use for six (6) months after date of original delivery ("Limited Warranty"). Seller, in its sole discretion, will determine whether any product is defective. The acceptance by Seller of any product returned is not an admission that the product is defective, and if Seller determines the product is not covered by the Limited Warranty, the product will be returned to the Buyer at Buyer’s expense. Only if the product is destroyed as a result of its defect or any defect in any product covered by the Limited Warranty and Seller is reasonably satisfied that the product was defective at the time of sale will Buyer be excused from providing Seller with the product at issue. In the event Seller determines any product to be defective, Buyer’s EXCLUSIVE REMEDY will be, at Seller’s option, the repair, replacement or return of the purchase price of the product.
Further exclusions from the Limited Warranty are as follows:
- a. Any defects that appear after the warranty period are excluded from this Limited Warranty.
- b. Seller makes no warranty on products for which another manufacturer or seller furnishes a separate warranty – such products are sold AS IS.
- c. Seller makes no warranty with respect to designs, logos, trademarks and/or other specifications provided by the Buyer in regards to infringement or any other claims.
- d. The Limited Warranty does not apply to defects caused by cleaning, repairs, lubrication, calibrations, maintenance or replacements because of (a) improper repairs, misapplication, abuse, improper installation, improper operation, unauthorized alteration or modification, misuse or lack of proper maintenance by the Buyer, its employees and agents or (b) abnormal conditions of temperature, moisture, dirt, corrosive matter, and similar conditions.
- e. There will be no obligation to repair or replace products that by their nature are expendable.
- f. The Limited Warranty does not apply to damage caused by weather or disaster such as fire, wind, or flood, or an unsuitable installation location, or defects from labor or materials furnished by persons other than Seller, its employees and agents.
- g. Seller neither assumes nor authorizes any person to assume for it any other liability in connection with the sale of products.
- h. Repairs or replacements under this Limited Warranty are warranted as described and limited in this Limited Warranty but only for the remainder of the original warranty period.
- i. The Limited Warranty is effective only if and so long as the Buyer complies with all payment obligations to Seller. Failure to meet payment obligations voids all warranties and does not extend the Limited Warranty period when payment is made.
- j. Seller assumes no obligation or liability for advice or assistance given or results obtained in connection with goods sold hereunder. All such advice or assistance is given and accepted solely at the Buyer’s risk. Any decision as to use or installation of goods hereunder is that of the Buyer.
- k. No Warranty to Consumers. Seller makes no warranties to those defined as "Consumers" in the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act. Products may be warranted to "Consumers" by the manufacturer of the product. Copies of such manufacturers’ warranties may be supplied with the product, or are available from the manufacturer. Seller may also supply manufacturers’ sales literature to customers. Seller, however, assumes no liability for the content of such manufacturers’ warranties or literature.
- l. Limitation of Liability. Buyer’s sole and exclusive remedy against Seller will be for the repair, replacement or return of purchase price of the defective products(s) as provided above. No other remedy (including, but not limited to, incidental or consequential damages for lost profits, lost sales, injury to persons or property, or any other incidental or consequential loss) will be available to Buyer. Seller’s liability to Buyer will not exceed the purchase price under any circumstances.
- m. To the best of Seller’s knowledge, manufacturers of products sold by Seller comply with Federal Occupational Safety and Health Act ("OSHA") design standards of any items shown in this catalog as meeting specific OSHA standards. Actual use, however, determines whether all OSHA requirements have been met; thus, the ultimate responsibility for OSHA compliance rests with the end user. Accordingly, Seller does not warrant or represent that merchandise sold complies with any law, including, but not limited to, OSHA, the Walsh-Healey Public Contracts Act, and/or regulations promulgated there under.
- n. THIS WARRANTY IS IN LIEU OF ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Advice. Seller assumes no obligation or liability for advice or assistance given or results obtained in connection with any goods sold. All such advice or assistance if given and accepted at Buyer’s risk. Any decision as to the use or installation of Product sold hereunder is that of the Buyer.
- Solvency and Security Interest. Buyer represents that Buyer is solvent. Seller reserves the right by written notice to cancel any order or require full or partial payment or adequate assurance of performance from Buyer without liability to Seller in the event of: (i) Buyer’s insolvency, (ii) the filing of a voluntary petition in bankruptcy by Buyer, (iii) the appointment of a receiver or trustee for Buyer, or (iv) the execution by Buyer of an assignment for the benefit of creditors. Seller reserves the right to suspend its performance until payment or adequate assurance of performance has been received. Seller also reserves the right to cancel Buyer’s credit at any time for any reason. Seller retains a security interest in the goods to secure payment of the price and all other indebtedness now and in the future owing by Buyer to Seller. At Seller’s request, Buyer will sign and deliver to Seller a financing statement evidencing this security interest.
- Permits and Compliance. Seller is not responsible for obtaining any permits, inspections or licenses required for installation or operation of the goods. Seller makes no representation that the goods will conform to any federal, state or local laws, ordinances, regulations, codes, or standards.
- Safety Features. Buyer will install and operate the goods properly and according to Seller’s operating instructions and will not remove or change any safety devices, warnings or operating instructions placed on the goods by the Seller.
- Components of Another Product. If any of the goods constitute parts or components to be incorporated or installed in a product manufactured or assembled by or for Buyer: (1) Buyer will obtain, or cause the end-user of the product to obtain, all permits, inspections and licenses required for installation or operation of the product, (2) Buyer will cause the product to conform to all applicable laws, ordinances, regulations, codes and standards and (3) Buyer will place on the product all safety devices and warnings, and will furnish to its buyer all operating instructions, that will be necessary or desirable to prevent any death, personal injury or property damage from being caused by any use or operation of the product.
- Indemnity. Buyer will indemnify and hold harmless Seller from and against all damages, losses, claims, and expenses, including attorney fees, incurred by Seller as a result of: (a) incorporation of the product into another product, (b) any breach by Buyer of any of its obligations under these terms of sale or (c) any claimed unfair competition or patent, trademark or copyright infringement or any other claim resulting from Seller’s manufacture of goods to Buyer’s specifications.
- Seller’s Rights. Seller has all rights and remedies given to sellers by applicable law, and Seller’s rights and remedies are cumulative and may be exercised from time to time. No waiver by Seller of any right on one occasion will constitute a waiver of any future exercise of that right.
- Time for Bringing Action. Any action by Buyer against Seller for breach of these Terms, the Order, or Contract or for any other claim arising out of or relating to the goods or their design, manufacture, sale or delivery must be brought within one (1) year after the cause of action accrues.
- Applicable Law. This agreement between Seller and Buyer will be considered to have been made in the State of Michigan, and it will be governed by and interpreted according to Michigan law. Any action arising out of or relating to this agreement may be brought in any state court in Muskegon, Michigan or federal court in Grand Rapids, Michigan, having jurisdiction of the subject matter, and Buyer irrevocably consents that any such court will have personal jurisdiction over Buyer and waives any objection that the court is an inconvenient forum.
- Federal Government Buyers. While all products listed on GSA Advantage!® meet the requirements of the Trade Agreements Act, as implemented by FAR Part 25, other products may not meet these requirements. Seller will advise Buyer properly identifying themselves as Authorized Schedule Purchasers at the time of purchase whether an item is "TAA-compliant". Buyers seeking to purchase non-TAA items will be given the opportunity to purchase an alternative item, or to purchase the non-TAA item through an "open market" purchase instead of through the schedule. Federal Buyers are advised the open market purchases are NOT GSA Schedule purchases. By purchasing any item on the open market, Buyer represents that it has authority to make such purchase and has complied with all applicable procurement regulations.
- Severability. If any portion of these Terms is found to be invalid or unenforceable by a court of competent jurisdiction, the applicable term(s) shall be redefined, or a new enforceable term provided, such that the intent of Seller and Buyer in agreeing to the provisions of these Terms and Conditions shall be enforceable to the fullest extent of the applicable laws.
- Complete Agreement; Amendment. No terms or conditions, other than those stated herein and no agreement or understanding, oral or written in any way purporting to modify these terms and conditions, whether contained in Buyer’s purchase order, Seller’s acknowledgement, shipping forms, or elsewhere, will be binding on Seller unless made in writing and signed by an officer of the Company. Trade usage will neither be applicable or relevant to this agreement, nor be used in any manner whatsoever to explain, qualify or supplement any of the provisions herein.
UNITED SIGN COMPANY TERMS AND CONDITIONS OF PURCHASE
UNITED SIGN COMPANY TERMS AND CONDITIONS OF PURCHASE(Effective September 6, 2011)
Unless otherwise stated below, all purchase orders of United Sign Company ("Buyer"), including those transmitted electronically, are subject to the following terms and conditions of purchase (the "Terms"). As used in these Terms, "Seller" means the name of the vendor specified in the order. "Goods" and/or "Services" refer to the goods or services to be purchased by Buyer from Seller as described on the Order. The "Order" refers to Buyer’s purchase order, including these Terms and "Contract" refers to any contract formed pursuant to an Order.
- Agreement. If the order is stated on its face to be an offer to purchase, but is in legal effect an acceptance of a prior offer by Seller, then Buyer’s acceptance is conditional upon Seller’s assent to all terms herein that are additional or different from the terms of Seller’s offer. If the order is stated on its face to be an acceptance of an offer by Seller, then Buyer’s acceptance is not conditional. By signing and returning a copy of the order or by shipping the goods or performing the services, Seller agrees to all of the terms stated herein. Buyer objects to any different or additional terms of Seller.
Price and Payment. Unless Buyer agrees otherwise, all prices stated in Buyer’s order are fixed and include all costs such as customs costs, insurance, and packaging costs (except for packaging provided by Buyer). Seller warrants that the prices for the goods are not less favorable than those currently extended to any other customer for the same or like goods under conditions similar to those specified in Buyer’s order. In the event Seller establishes or offers a lower price for the sale of such goods in such quantities, Seller agrees to reduce the prices hereof correspondingly. Unless Buyer agrees otherwise in writing, Buyer shall not be required to pay any sales, use, or other taxes arising because of Buyer’s purchase from Seller. Seller must pay any and all taxes collected from Buyer to the proper governing agencies. Such taxes, if any, shall be separately stated in Seller’s invoice. If Seller fails to pay any such tax, Seller will be responsible for the tax and all penalties and interest charges levied against Buyer due to the failure to pay the tax. Buyer shall not be required to pay any late charge, interest, finance charge or similar charge.
Regardless of FOB terms of sale, title to and risk of loss shall pass and acceptance of the goods shall take place when such goods have been delivered to Buyer’s specified destination and have passed Buyer’s inspection and tests. If Buyer pays any part of the purchase price of the goods before delivery to Buyer, (1) title, but not risk of loss, of the goods will pass to Seller upon payment, (2) Seller will have a security interest in the goods pending complete payment of the purchase price, (3) Seller will sign and deliver to Buyer appropriate financing statements to evidence that security interest, and (4) Seller may file a photocopy of these Terms and Conditions of Purchase as a financing statement.
Buyer’s payment of the purchase price does not indicate its acceptance of the goods or services. Unless other payment terms are agreed upon, payment shall generally be made within thirty (30) days or under 15th prox terms from the latest of (a) the scheduled date for delivery or performance, (b) the actual date of delivery of conforming goods or performance of conforming services, (c) the date of Seller’s invoice, and, (d) in the case of capital equipment, completion of Buyer’s final inspection and acceptance after installation, and acceptance after installation.
- Delivery. Seller shall deliver goods to the place specified in Buyer’s order in accordance with the terms of the Uniform Commercial Code. Time of delivery or performance is of the essence, and Buyer’s stated delivery or performance date cannot be extended for any reason, including delays in manufacture or shipment that Seller cannot control, except with Buyer’s written approval. Seller shall immediately notify Buyer in writing if Seller is unable to comply with Buyer’s stated delivery or performance date. If Buyer is responsible for clearing goods through customs, Seller shall provide all necessary documents on time and shall indemnify Buyer for all costs and expenses resulting from Seller’s delay.
- Excess, Installment, and Early Deliveries. If Seller delivers more goods than Buyer ordered, Buyer shall not have to pay for the excess. Unless Buyer agrees otherwise in writing, Seller shall deliver all of the goods in a single delivery and not in installments. Buyer’s acceptance of a delivery containing less than the required quantity shall not relieve Seller of its obligation to deliver the balance of the ordered goods at the price and on the other terms specified in the order. If Seller delivers the goods more than ten (10) working days before the scheduled delivery date, Buyer may, at Seller’s expense and risk, either store them or return them to Seller. Buyer’s acceptance of an early delivery shall not change the payment terms.
- Warranties. Seller warrants that the goods will be merchantable, of good material and workmanship, and fit for the purposes for which Buyer intends them and that any services covered by the order will be of good, workmanlike quality, free from faults and defects. Seller also warrants that the goods and services conform to any samples, drawings, specifications, or standards that are referred to on the face of the order or that Buyer has otherwise specified or to which Buyer has agreed. Seller warrants that the goods, and their manufacture and sale, will comply with all applicable federal, state and/or local laws and regulations, including, without limitation, the Fair Labor Standards Act. Seller warrants that the goods shall be free from all liens and encumbrances and shall not infringe upon or violate any patent, copyright, trademark, tradename or, without limitation, any other rights belonging to others. If Buyer requests it, Seller shall give Buyer certificates of compliance with applicable laws and regulations. Seller also warrants and agrees that Seller has not offered or given, and will not offer or give, to any of Buyer’s employees any gratuity or thing of value. Seller’s warranties extend to future performance of the goods and services and survive inspection, tests, acceptance, and payment.
- Claims. Seller shall indemnify and hold Buyer harmless (and defend Buyer if Buyer requests) as to any claims, liabilities, and expenses brought against Buyer or incurred by Buyer because of (a) any breach by Seller or any of its warranties to, or agreements with Buyer, (b) any claim of unfair competition or patent, trademark, or copyright infringement relating to the goods or any services, or (c) any death, injury, or damage to any person or property alleged to have been caused by the goods or services.
- Inspection. Buyer’s employees may enter Seller’s premises at any reasonable time to inspect and test the goods, Seller’s process of manufacture of them, and any materials, components, or work-in-process that is to be used in their manufacture. Upon Buyer’s request, Seller shall provide Buyer with specific information, in such detail as Buyer may reasonably request, as to the location and method of manufacturing or assembly of goods. Seller shall provide Buyer with written notice of any change in the location or manufactduring or assembly of goods and Seller shall be fully responsible for all costs and/or delays resulting from such changes.
- Shut Down. If a material part of Buyer’s business is shut down, permanently or temporarily, because of anything Buyer cannot reasonably control (such as casualty or labor dispute or disruption), Buyer may cancel this order without liability except as to conforming goods delivered to Buyer or conforming services performed for Buyer before Buyer cancels.
- Changes. Buyer may at any time, by written notice to Seller, change the (a) specifications of the goods or services, (b) time and place of delivery or performance, (c) method of packing or shipment, and/or (d) quantity of the goods or extent of the services. If this causes a change in Seller’s cost or time of performance, an equitable adjustment shall be made in the price or time for delivery or performance, or both, if Seller gives Buyer a written request for an adjustment within 20 days after Buyer notifies Seller of the change.
- Termination at Buyer’s Option. Buyer may terminate any contract formed pursuant to an Order, in whole or in part, at any time by written notice to Seller stating the extent and effective date of termination. Buyer reserves the right, by written notice, to cancel any order without liability to Buyer in the event of (1) insolvency of Seller; (2) filing of a voluntary petition of bankruptcy by Seller; (3) filing of an involuntary petition to have Seller declared bankrupt; (4) the appointment of a receiver or trustee for Seller. Upon receipt thereof, Seller shall, unless otherwise directed by Buyer, stop work and acquisition of materials in connection with the order and protect property in Seller’s possession in which Buyer has or may acquire an interest. Not later than thirty (30) days from the effective date of termination, Seller may submit to Buyer its claim, if any, for reasonable compensation for termination. Buyer shall have the right to audit and inspect Seller’s books, records, and any other documents relating to any such termination claim. If the parties cannot agree within a reasonable time upon the amount of fair compensation for the termination, Buyer shall pay to Seller the following amounts without duplication: (a) the purchase order price for goods or services completed in accordance with the provisions of the purchase order but not previously paid for, and (b) the actual costs incurred by Seller and properly allocable or apportionable under recognized cost accounting practices to the terminated portion of the order, but not to exceed the contract price for the terminated portion of the order, less any other payments made by the Buyer in respect thereof. These amounts shall be payable upon delivery to Buyer of any completed goods. Termination under this paragraph shall not impair Seller’s obligations under Paragraphs 5, 6, 11, 12, 13, and 19 of these Terms.
Buyer’s Rights. Buyer may, at its option, (a) return non-conforming goods to Seller, at Seller’s risk and expense, and require Seller either to give Buyer full credit against the price, or promptly to repair or replace the goods at Seller’s risk and expense; or (b) retain the goods and set-off losses against any amount due Seller; or repair or replace the goods and charge Seller with the expense.
If at any time Seller defaults in the performance of any of Seller’s obligations to Buyer, or Seller repudiates any contract formed pursuant to the order, then Buyer may terminate any contract formed pursuant to the order, in whole or in part, and Seller, to the extent demanded by Buyer, shall immediately deliver to Buyer all finished and unfinished, work-in-process, and raw materials acquired for use in the manufacture or processing of the goods. Payment of part or all of the purchase price by Buyer shall not be a precondition to Seller’s obligation to make the delivery. After Buyer’s damages for Seller’s breach or repudiation (including, without limitation, any cost of "cover" or of completing the manufacture or processing of the goods) are determined, Buyer shall pay to Seller any excess of the purchase price over Buyer’s damages. Termination by Buyer under this paragraph will not impair Seller’s obligations under Paragraphs 5, 6, 12, 13, and 18 of these Terms.
In addition to Buyer’s rights set out in these Terms, Buyer has all of the other rights and remedies that the law gives to buyers, including the right to recover incidental and consequential damages resulting from any breach by Seller. Buyer shall not lose any right for lack of exercise. Buyer shall have the full period of statute of limitations to bring any action arising out of Buyer’s agreement with Seller. Seller agrees that Buyer shall have at least two (2) years from the time it discovers a breach to notify Seller of the breach.
- Furnished Items. Any drawings, specifications, and other information and any tooling or other property that Buyer may furnish to, or acquire from Seller in connection with Seller’s manufacture of the goods or performance of the services ("Furnished Items") remain Buyer’s property. Seller shall maintain in good condition any Furnished Items and identify the Furnished Items as property of Buyer; not commingle the Furnished Items with property of Seller or third parties; allow Buyer to inspect and examine the Furnished Items at any time; and return the Furnished Items to Buyer immediately after the manufacture of the goods or performance of the service ordered. All Furnished Items are confidential, and Seller shall not furnish any of the Furnished Items, or disclose their contents, to any third party (including any of its suppliers) or use any Furnished Items in the manufacture or sale of products to, or in the performance of services for, any third party without Buyer’s prior written consent.
- Insurance. Seller shall maintain, at Seller’s own expense, insurance coverage (including but not limited to, Workers Compensation, Employers’s Liability, Automobile Liability, Commercial General Liability) that will fully protect both Seller and Buyer from any and all claims and liabilities of any kind or nature for property damage, personal injury, death, and economic damage, to any person, that shall arise from the goods or their use for the performance of the services or any activities connected therewith. If services are covered by an order, Seller shall maintain employee’s liability and compensation insurance that will protect Buyer from any and all claims and liabilities under any applicable worker’s compensation or occupational safety and health laws. Such policies shall be occurrence policies, not claims-made policies. All insurance required by this paragraph shall be in such amounts and coverages, and shall be issued by such insurers, as to be satisfactory to Buyer. Upon request by Buyer at any time, Seller shall furnish Buyer with certificates evidencing this Insurance. Buyer shall be named as an additional insured on an endorsement acceptable to Buyer.
- Indemnity. Seller agrees to protect, defend, indemnify and hold harmless Buyer, and it Related Parties, from and against any and all claims, actions, demands, liabilities, losses, cost and expense, including attorney fees, (1) arising out of any actual or alleged injury to or death of any person, or damage to any property, or any other damage to any property, or any other damage or loss, by whomsoever suffered, including Seller’s or Buyer’s agents or employees, resulting or claimed to result, directly or indirectly, from the purchase, shipment, storage, delivery, sale, use, servicing or other handling of the goods sold hereunder, without regard to whether such loss, damage, injury or liability is contributed to or cuase by negligence of Buyer or its agents or employees; or (2) arising out of Seller’s violation of federal, State, or local statute, regulation, or requirement related to any authorization of Seller’s personnel to work in the United States; or (3) resulting from the actual or alleged breach of any of Seller’s warranties or other covenants herein; or (4) resulting from any actual or alleged trademark, patent or copyright infringement or trade secret misappropriation related to the goods sold hereunder.
- Work on Premises. If performance of services by Seller involves operations by its employees or subcontractors on the premises of Buyer, (a) Seller shall at all times enforce strict discipline and maintain good order among all persons engaged in the service and shall cause them to comply with all fire prevention and safety rules and regulations in force at the premises, and (b) Seller shall keep the premises free from accumulation of waste materials and rubbish caused by performance of the services and upon completion shall promptly remove all of Seller’s equipment and surplus materials. Seller agrees to fully comply with the requirements of the Immigration Reform and Control Act and all related authority, including but not limited to required Form I-9 completion, re-verification and retention. Seller acknowledges and understands that no employment relationship has been established between its personnel and Buyer. Seller agrees to fully comply with all rules, regulations and determinations of OSHA and MIOSHA insofar as they pertain to Seller’s labor or services to be rendered to Buyer.
- Services. If an order covers services: (a) Seller is an independent contractor, and neither Seller nor any of Seller’s employees or agents shall be considered agents or employees of Buyer, and (b) Seller shall furnish, at Seller’s expense, all labor, materials, equipment, transportation, facilities, and other items necessary to perform the services.
- Material Safety Data Sheets. Upon the initial purchase of goods containing hazardous materials (as defined by federal and/or state law), Seller shall send a Material Safety Data Sheet ("MSDS") to Buyer. The MSDS must be on a form approved by the Occupational Safety and Health Administration. Seller shall also send Buyer all revisions to any MSDS previously supplied.
- Other Terms. Seller shall not have and hereby waives, any security interest in or lien (including any statutory lien) upon any Furnished Items or the goods. Seller may not delegate any of its obligations under an order without Buyer’s written consent. Buyer may deduct from, and set off against, any amounts at any time owing to Seller under an order any damages or other amounts then owing to Buyer by Seller. If at any time Buyer has reasonable grounds for insecurity as to Seller’s performance, Seller shall provide adequete assurance of performance within ten (10) days after demand by Buyer, which is agreed to be a reasonable time.
- Applicable Law. The Order and the Contract shall be governed by, and interpreted according to, Michigan law. Any federal or state court in Muskegon County or Kent County, Michigan, at Buyer’s choice, may handle an action based upon or arising out of the Order or the Contract, and Seller irrevocably consents that the court shall have personal jurisdiction over Seller and waives an objection that the court is an inconvenient forum.
- Complete Agreement. Seller has not made any promises or representations to Buyer, and Buyer has not made any to Seller, that are not in these Terms, the Order or Contract. Any change in, or waiver of, any provisions of these Terms, the Order, or Contract must be in writing, signed by Buyer.