1. Application. These General Terms and Conditions of Sale (“General Terms”)apply to: (a) all proposals and quotations submitted by Cadillac Looseleaf Products, Inc. (“Seller”); (b) all purchase orders received by Seller; and (c) all sales of goods and services sold by Seller, except as otherwise specifically provided in a document issued by Seller. Any services to be provided by Seller, whether or not they are otherwise ancillary to and part of a sale of goods (as separate units or included as part of a project), will be considered ancillary to a sale of goods, and the UCC will apply to all goods and services to be provided by Seller (“Goods”).
2. Formation. A quotation or invoice from Seller, regardless of the manner in which it is transmitted, is an offer to sell. Buyer will be deemed to have accepted these General Terms and an agreement will be formed by any of the following: (a) signing and returning to Seller a copy of any quotation; (b) sending to Seller a written or email acknowledgment of the quotation; (c) placing a purchase order or giving instructions to Seller to perform work or deliver Goods for Buyer or for Buyer’s benefit (including instructions to bill and hold) following receipt of any quotation; (d) failing to cancel a pending purchase order within 10 days after Buyer issues it; (e) accepting delivery of all or any part of the Goods; (f) paying for all or any part of the Goods; or (g) indicating through words, writing, email or conduct, Buyer’s acceptance of these General Terms. All sales by Seller are exclusively governed by these General Terms and: (a) any other documents which are referred in or attached to these General Terms; and/or (b) in a document signed and issued by Seller that reference the Goods (collectively, these documents are referred to as the “Agreement” in these General Terms). Seller objects to and specifically rejects all contractual terms proposed by Buyer regardless of whether any of Buyer’s documentation makes acceptance of its terms a mandatory condition of the parties’ agreement.
3. Integration and Modification.
A. Revocation. The Agreement supersedes all previous quotations and agreements pertaining to the Goods. Delivery to Seller of Buyer’s acceptance of Seller’s quotation (according to its terms), Seller’s actions in reliance on Buyer’s oral acceptance of a written or oral quotation, or Buyer’s receipt of the Goods, will constitute a binding contract under the terms of the Agreement.
B. Complete Integration. The Agreement is a final, complete and exclusive statement of the parties’ Agreement. An order or an amendment submitted by Buyer orally, electronically, in a purchase order or other writing (whether or not it contains terms or conditions modifying, adding to, repugnant to or inconsistent with these General Terms ), may be accepted, approved or filled by Seller, but any resulting contract and the liabilities or obligations of Seller will be determined solely by the Agreement, and (unless Seller otherwise advises Buyer in writing) Seller objects to any such terms or conditions in Buyer’s purchase order or other document or communication. Seller will not be deemed to have in any way enlarged or modified its liabilities or obligations under the Agreement by filling such order or by failing to further object to Buyer’s terms or conditions.
C. Modification. SELLER IS WILLING TO NEGOTIATE WRITTEN CHANGES TO THESE GENERAL TERMS, BUT SELLER RESERVES THE RIGHT TO MAKE AN ADJUSTMENT IN THE PRICE OF THE GOODS IF CHANGES ARE MADE. No modifications, limitations, waivers, or discharge of the Agreement or any of its terms will bind Seller unless in a writing signed by Seller’s authorized employee. Seller may unilaterally correct mathematical and typographical errors in the Agreement. Typed provisions of the Agreement take precedence over handwritten provisions. A course of performance, course of dealing, or custom in the trade will not modify or waive any right of Seller.
D. Parties. The Agreement is only for the benefit of Buyer and Seller, except all disclaimers and limitations applicable to Seller will be also for the benefit of Seller’s affiliates, agents, employees, contractors, and suppliers. If any other provisions of the Agreement are determined to apply to third parties, all other provisions including limitations, waivers, and disclaimers also apply.
E. Acknowledgments. Buyer and Seller acknowledge that: (a) they are merchants in respect to the Goods produced by Seller; (b) they have had an opportunity to review the Agreement; and (c) the provisions of the Agreement are reasonable when considered as a whole.
4. Authority of Seller’s Agents. No agent, employee, or representative of Seller has authority to bind Seller to any affirmation, waiver, representation, or warranty concerning the Goods, not contained in the Agreement. An affirmation, waiver, representation, or warranty will not be deemed to be part of the basis of the Agreement and will not be enforceable unless it is expressly included within the Agreement.
5. Prices, Payment and Risk of Loss.
A. Prices. Prices in Seller’s quotations or proposals are firm only for a period stated therein or, if no period is stated, for 60 days from the date of the quotation or proposal. After the firm price period, the prices are subject to change, and Buyer should inquire of Seller as to their validity and request a written confirmation or revision. Prices do not include taxes and Buyer must pay all applicable sales or other taxes levied with respect to Goods and the Agreement, unless exempt from such taxes. All prices are in United States dollars and must be paid in U.S. dollars at the location specified in Seller’s invoice.
B. Risk of Loss and Title. Unless stated otherwise on Seller’s quotation, the Agreement is for a shipment contract and the Goods will be delivered F.O.B. Seller’s dock. Risk of loss passes to Buyer upon delivery at Buyer’s designated location only if Seller transports the Goods with its own trucks or equipment. Otherwise, regardless of whether Seller prepays shipping charges, risk of loss passes to Buyer upon tender of the Goods to a carrier and Buyer is responsible for selecting its preferred freight carriers and is responsible for their performance, including but not limited to delays, damage, and / or scheduling errors. Seller’s breach of the Agreement will not affect the passing of the risk of loss to Buyer notwithstanding any provision of law to the contrary. Notwithstanding the transfer of the risk of loss, title to the Goods will remain with Seller until Buyer pays for the Goods in full.
C. Price Adjustments. If any delay in delivery beyond the date of delivery scheduled at the time of entry of the order is requested or otherwise caused by Buyer, Seller will adjust the price under the provisions of this subsection. Buyer and Seller further agree that pricing is only valid for 60-days and that at the expiration of each 60-day period, Seller may unilaterally adjust and condition further supply on a new price due to Seller’s increased cost of performance based on volume fluctuations, increases in the costs of labor, materials, production, or transportation, changes in specifications, or other conditions beyond Seller’s reasonable control. If the price adjustment is based on an increase in cost of raw materials, the new price will include the difference between the raw material cost factored into the prior 60-day period pricing and the current raw material cost as determined on a case-by-case basis.
D. Changes at Buyer’s Request. Seller may unilaterally increase prices to cover increased costs (plus reasonable overhead and profit) of design, materials, manufacturing, and if applicable, delivery, if Buyer modifies shipment or requires changes to the Goods, schedule, or any other performance by Seller after the date of any quotation. Seller is not obligated to perform any such changes, but will be compensated for them if Seller complies with such requested changes.
E. Shipping and Packaging. Except as otherwise provided in the Agreement, Seller will not be responsible for any freight, transportation, insurance, shipping, storage, handling, demurrage, or similar charges arising out of the performance of the Agreement. If such charges are specifically included in the price, any increase in rates for such services becoming effective after the date the price is quoted to Buyer will be added to the price. All Goods will be packed for shipment by Seller in accordance with its standard practices. It is Buyer’s responsibility, whether or not Seller arranges shipping, to determine whether additional packaging procedures and materials are appropriate for the shipment of Goods. Buyer shall make all requests for additional packaging and procedures in writing. Buyer will pay Seller for the additional procedures and materials which Seller agrees to provide. Buyer will pay Seller for additional handling charges for small, expedited, or other shipments outside Seller’s normal and ordinary course of business. As an example only, requests for drop shipments must be in writing and an additional charge will apply.
F. Invoices. Seller will issue an invoice to Buyer once the Goods are ready for shipment. The date the Goods are ready for shipment will be stated as the shipping date on each invoice. Buyer’s delay in taking custody of the Goods, either directly or through a delay caused by Buyer’s carrier, will not delay the effective date of the invoice.
G. Installments. Seller may elect to deliver the Goods in installments. Each installment of Goods to be delivered is to be considered as a separate sale, and Buyer must pay timely the price for each installment which is delivered. Any Goods indicated as back-ordered now or in the future will be considered an installment delivery. A failure to pay for an installment within the time for payment is a material anticipatory breach of other installments by Buyer.
H. Terms. Unless otherwise stated in Seller’s quotation or proposal: (a) first-time Buyers must pay 50% of the total price down as a condition precedent to Seller commencing work and pay the balance upon receipt of the Goods; and (b) all other or subsequent invoices must be paid within 7-days after the shipment date on Seller’s invoice. Seller reserves the right to change payment terms on 7-days’ notice if it has a commercially reasonable insecurity about receiving timely payment and Buyer fails to provide adequate assurance of its ability to make a full, timely payment.
I. Right of Offset. Buyer waives any right of offset or recoupment and will pay all amounts owed to Seller when due regardless of any claim of Buyer regarding warranties, conformity of any individual Good, or other issues arising under contract, tort, statute, or otherwise. Payment of such amounts under written protest will not constitute a waiver by Buyer of its claims.
A. Shipping Dates. Proposed shipping dates are estimates based on Seller’s present capacity and scheduling, and may be revised by Seller upon receipt or scheduling of Buyer’s order. All shipping dates are approximate and will be computed from the date of entry of the order on Seller’s books. Timely delivery is dependent on Buyer providing Seller with timely content, decisions and other input.
B. Method and Cost of Shipment. Unless stated otherwise on Seller’s quotation or proposal: (a) Seller will deliver the Goods by tendering the Goods on its docks for placement in the possession of a carrier and, without liability, will make such contract for their transportation as Seller decides having regard for the nature of the Goods and other circumstances; (b) Seller will generally follow Buyer’s shipping instructions, but may make reasonable changes thereto without liability and at Buyer’s cost; (c) on Buyer’s request, Seller will obtain and send to Buyer documents necessary to enable Buyer to obtain insurance; (d) Seller is not responsible to prepay transportation or insurance costs. Buyer must pay all handling and other charges incidental to transportation. Buyer must pay all expedite costs and fees including those that result from Buyer’s failure to provide Seller reasonable lead time, unless delay was exclusively due to the fault of Seller in which case Seller will be responsible for the incremental difference between the normal delivery costs and expedited delivery costs. Buyer is responsible for making any claim against the carrier and other handlers of the Goods after delivery to Buyer as provided above.
7. Delay of Shipment or Performance Excused for Various Reasons.
A. Delayed Shipment. If shipment of any Goods or other performance by Seller is delayed at the request of or due to the fault of Buyer, Seller may at its option hold the Goods at the place of manufacture or elsewhere at the risk and expense of Buyer from the time it is ready for shipment. If Seller is unwilling to accommodate Buyer by holding such Goods, Buyer must accept shipment immediately.
B. Delayed or Failed Delivery. All inspection, delivery, and other dates for Seller’s performance are estimates only. In addition, Seller will not be in default because of its delay or failure to deliver or perform under the Agreement resulting, in whole or in part, from: (a) any foreign or domestic embargoes, seizures, acts of God, insurrections, war, or the adoption or enactment of any law, ordinance, regulation, ruling, or order; (b) shortages of raw materials or labor; (c) the lack of usual means of transportation, fires, floods, explosions, strikes or other work actions, 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; (d) delays by Buyer in inspecting and acceptance, in furnishing requested specifications, materials, tooling or information, in making payments, or otherwise; (e) failure of Seller’s suppliers to perform, including third party’s failure to provide Directed Source Supplies. If one or more deliveries hereunder is delayed by reason of any one or more of such occurrences for a period of 30 days, Seller may, at its option, terminate the Agreement as to the undelivered Goods or waive such delay and establish a new delivery schedule.
C. Effect. This Section will be effective even as to events described in Subsections A and B which exist on the date of a quotation or of contract formation.
D. Storage. If Buyer requests storage of Goods prior to final delivery, Seller will attempt to provide or arrange such storage, but a reasonable charge for storage as computed by Seller plus all expenditures incurred for space, insurance, and handling will be charged to Buyer. Invoices for Products stored at Buyer’s request will be provided at the beginning of the storage period and periodically thereafter, and payment will be due net 7-days from the date of invoice.
8. Inspection, Testing, and Rejection.
A. Testing. If the Agreement expressly provides for Buyer’s inspection and/or acceptance of the Goods, Seller’s standard test procedures conducted by Seller’s representative will 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.
B. Rejection. All Goods will be deemed approved and/or accepted by Buyer if Buyer does not provide a written objection and/or rejection within 7-days of receipt or other reasonable time established by Seller. If it is rejected, notice must be given to Seller so that it will arrive no later than 7-days after receipt of the item by Buyer. Failure to so act will constitute an irrevocable acceptance by Buyer of the item. Any objection and/or rejection by Buyer must be in writing and state with specificity all defects and non-conformities upon which Buyer will rely to support its rejection. ALL DEFECTS AND NON-CONFORMITIES WHICH ARE NOT SO SPECIFIED ARE WAIVED. Buyer may reject the Goods only for material non-conformities and all non-material non-conformities will be resolved under the express warranty. If Buyer rejects any tender of the Goods and if requested by Seller, Buyer must return them to Seller, express, collect, within 3-days after such request. A failure to so return constitutes an irrevocable acceptance. No attempted revocation of acceptance will be effective, and Buyer will be limited to any available remedies specifically provided in the Agreement. There will be no limitation on the period of time in which Seller may cure any non-conformity or breach, provided it continues to make reasonable efforts to cure.
C. Inspectors. If the Agreement requires, or Seller requests in writing, inspection or testing prior to shipment, and upon notification by Seller that the Goods are ready for inspection or testing, Buyer will provide at the place of manufacture, at its own expense, one or more qualified and authorized employees to inspect and/or test the Goods, check the Goods for general compliance with the Agreement, and authorize shipment. If Buyer fails to do so within 7-days, then Seller may, in its own discretion, determine that Buyer has waived the right of inspection, testing, and/or acceptance prior to shipment and ship the Goods. Correction of defects or non-conformities, which would likely have been discovered by Buyer’s inspection and/or testing and are otherwise covered by Seller’s warranty, will be at Buyer’s expense.
D. Delivery Shortages. Any claim by Buyer for shortages in any delivery must be in writing with satisfactory written evidence delivered to Seller within 7-days of receipt.
E. Expenses. Any expense incurred by Buyer in the inspection or testing of the Goods will be paid by Buyer, whether or not the Goods have been rejected as defective or non-conforming or the Goods have been accepted and a warranty claim has been made for correction of a defect or non-conformity.
9. General Express Warranties.
A. General. Seller warrants to Buyer only, subject to the disclaimers and limitations of the Agreement, that Goods to the extent manufactured by Seller will be free from defects in materials and workmanship, excluding design, at the time of delivery, and will repair or replace Goods that fail due solely to manufacturing defects in materials and workmanship, which are discovered within either 12 months from the shipping date to Buyer or the duration of any warranty Seller received from the manufacturer or supplier of materials used to construct the Goods, whichever is shorter. When Buyer purchases to its own specifications, Seller will not be responsible for the design, fitting, and/or the function of Goods. This is not a warranty of performance, but a limited warranty as to the condition of the Goods at delivery.
B. Nonmaterial Changes. Seller warrants to Buyer only that the Goods will be as described in the Agreement in all material respects, subject to the limitations stated in these General Terms and Seller’s published and internal standards. Seller may, in its discretion, also rely on any generally accepted industry standards.
C. Warranty Requirements. Seller’s warranties will apply only if the Goods: (a) have been installed, maintained, and used in conformity with the highest industry practices; (b) have been subjected to normal use for the purpose for which the Goods were designed; (c) have not been subjected to misuse, negligence, or accident; (d) have not been altered or repaired by persons other than Seller in any respect which, in the judgment of Seller, adversely affects the condition or operation of the Goods; and (e) have been fully paid for.
10. Disclaimer of Patent and Copyright Warranties. SELLER DISCLAIMS ANY IMPLIED WARRANTY OF NON-INFRINGEMENT. IF THE DESIGNS OR SPECIFICATIONS ARE FURNISHED BY BUYER, BUYER WARRANTS THAT THEY DO NOT INFRINGE ON ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHT, AND MUST INDEMNIFY AND HOLD HARMLESS SELLER FROM ANY CLAIMS OF INFRINGEMENT AGAINST SELLER.
11. Disclaimer And Limitation Of Express Warranties UNLESS OTHERWISE INDICATED IN SELLER’S QUOTATION OR PROPOSAL, THERE ARE NO EXPRESS WARRANTIES OTHER THAN THOSE CONTAINED IN THE AGREEMENT, AND THEY ARE NOT ASSIGNABLE. ANY REPRESENTATIONS AS TO PERFORMANCE AND OTHER MATTERS, EXCEPT AS CONTAINED IN THE AGREEMENT, ARE FOR ILLUSTRATIVE PURPOSES ONLY, AND DO NOT CONSTITUTE A WARRANTY. WHETHER OR NOT THE GOODS ARE TO BE USED EXCLUSIVELY BY BUYER, THERE WILL BE NO THIRD-PARTY BENEFICIARIES TO THE EXPRESS WARRANTIES CONTAINED IN THESE GENERAL TERMS. SELLER DOES NOT WARRANT ANY PORTION OF THE GOODS NOT CONCEIVED, DESIGNED, DEVELOPED, OR MANUFACTURED BY SELLER (WHETHER OR NOT SPECIFIED BY BUYER), BUT SELLER MUST ASSIGN TO BUYER UPON REQUEST ALL ASSIGNABLE WARRANTIES OF SELLER’S SUPPLIERS RELATED TO SUCH GOODS.
12. Remedies and Limitation of Seller’s Liability.
A. General. Defective or non-conforming Goods discovered during the express warranty period will be repaired or replaced by Seller without any additional charge and shipped to Buyer, FOB Seller’s plant, for reinstallation by Buyer at its cost, subject to the terms hereof. The warranty obligation of Seller is limited to the repair or replacement of the Goods which Buyer must, exercising reasonable judgment and within the warranty period, return to Seller, with transportation charges prepaid by Buyer, and which Seller will determine upon examination to be defective or not in conformity with the express warranties contained in these General Terms. In lieu of repair or replacement, if Seller elects, Seller may, upon return of such Goods and making a determination of nonconformity or defect, keep the Goods and refund the purchase price. BUYER’S REMEDIES ARE LIMITED EXCLUSIVELY TO THOSE PROVIDED IN THIS SECTION. UNDER NO CIRCUMSTANCES WILL SELLER BE LIABLE FOR EXEMPLARY, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO: LOSS PROFITS OR REVENUES, INCREASED COSTS, OR THE CLAIMS OF THIRD PARTIES FOR SUCH 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 in the Agreement. The replacement or repair of Goods by Seller does not give rise to any new warranty.The warranty period provided for in these General Terms will not be extended by the length of any period from the date the defective or non-conforming Goods are received by Seller until the date the repaired or replacement Goods are delivered to Buyer.
B. Buyer’s Obligations. Buyer must comply with Seller’s return instructions (including return of the Goods) within 30-days or the claim will be deemed conclusively to have been abandoned. Buyer is responsible for properly identifying and packing returned Goods. Goods must be returned in their original packaging. Goods returned without compliance with the above procedures must be returned to the sender at sender’s cost.
C. Scope of Liability. Under no circumstance will Seller’s liability exceed Buyer’s uninsured loss. Buyer waives any right of subrogation. Buyer waives any right of indemnity or subrogation as to third-party claims, in excess of any applicable insurance carried by Seller.
D. Substantial Compliance. Seller will not be liable for any damages for breach of any provision with which it has substantially complied.
13. Disclaimer of Implied Warranties. SELLER DISCLAIMS ALL IMPLIED WARRANTIES AND SIMILAR OBLIGATIONS (OTHER THAN GOOD TITLE) INCLUDING BUT NOT LIMITED TO THOSE OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, WHETHER OTHERWISE ARISING BY LAW, CUSTOM, USAGE, TRADE PRACTICE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. There are no warranties which extend beyond those express warranties contained in the Agreement. Buyer affirms that it has not relied upon Seller’s skill nor judgment to select or furnish the Goods for any particular purpose beyond the specific express warranties in the Agreement. Any design provided by Seller is based on information provided by Buyer. Seller may rely entirely on information provided by Buyer and is under no obligation to verify such information or take any action to obtain explanatory or supplemental information from Buyer or third parties. Buyer’s approval of drawings and/or prototypes constitutes Buyer’s acceptance and waiver of any responsibility for a failure to consider information provided by Buyer. Any modifications of drawings, prototypes and other work of Seller after approval by Buyer will be at Buyer’s expense at Seller’s normal rates for services and materials. Seller does not warrant the Goods will comply with the requirements of any safety or environmental code or regulation of any federal, state, municipality or other jurisdiction beyond the specific express warranties in the Agreement.
14. Indemnification. Buyer will indemnify Seller from any and all third-party claims, damages, and expenses (including reasonable attorney fees) under theories of tort, product liability, infringement, copyright violation, negligence (ordinary or gross), warranty, contract, statute, or otherwise arising out of the production, use, storage, sale, processing, or other disposition of the Goods if the action or inaction of Buyer or its employees, customers or agents, or Buyer’s design specifications, were a material or proximate cause of injuries or damages giving rise to claims against Seller. Seller is under no obligation to indemnify Buyer for any reason.
15. Proprietary Information
A. Buyer’s Rights to Confidentiality. Buyer acknowledges that any information disclosed to Seller has not and will not be considered by Buyer to be confidential or a trade secret unless clearly and conspicuously noted on the disclosure, or in some other writing, delivered to Seller at or prior to the time of the disclosure.
B. Seller’s Rights to Confidentiality. All proposals, plans, and other information furnished by Seller, in any form, during bidding, negotiating, and performing the Agreement, are confidential and the property of Seller, whether or not marked “Confidential”, and may not be shown or disclosed to any other bidder or third party or used by Buyer except as may be necessary for the selection or use of the Goods and Seller provides Buyer with written consent.
C. Patentable Features. Any design, invention, or other information developed by Seller in the performance of the Agreement will remain the property of Seller, whether or not Seller charges for design, research, development, testing, or similar services. Any patentable or copyrightable features developed by Seller will be the exclusive property of Seller and Seller will be under no obligation to refrain from using it for any reason.
D. Drawings and Calculations. Seller is not obligated to furnish detailed drawings, calculations, computer programs, or other information for any Goods.
E. Buyer’s Obligations. Buyer must treat as confidential any business proposal from Seller and all technology made available, directly or indirectly, to Buyer by Seller and by Seller’s licensors, including but not limited to drawings, specifications, bills of material, test results, analysis, recommendations, models, and designs; and Buyer may use such proposal and technology only to evaluate its business relationship with Seller and to enable Buyer to perform under the Agreement. Buyer may not disclose, or authorize or instruct Seller to disclose, any confidential or proprietary information of Seller to any third party that is not bound by contract to at least the same duty of confidentiality to Seller as is Buyer. In addition, only those employees and contractors of Buyer having a need-to-know and bound by contract by the same confidentiality provisions as Buyer may be given access to such technology. Buyer must maintain, for Seller’s inspection, written records which must include the names and address of such employees and contractors granted such access. Buyer will indemnify Seller from all expenses and damages related to the improper use or disclosure by Buyer or its employees and contractors. No license or other right to business proposals or technology is granted to Buyer.
16. Intellectual Property. Any Intellectual Property owned or licensed by Seller and used by Seller in connection with the performance of its obligations will remain the exclusive property of Seller and its licensors, as the case may be. Nothing in this Agreement will be deemed to grant Buyer any license or any other rights in such Intellectual Property. The term “Intellectual Property” includes without limitation all of the following: (a) inventions, discoveries, patents, patent applications and all related continuations, divisional, reissue, utility model, design and process patents, , and certificates of invention; (b) works, copyrights, registrations and applications for registration thereof; (c) computer software programs, data, and documentation; (d) trade secrets, confidential information, know-how, techniques, designs, prototypes, enhancements, improvements, work-in progress, research, and development information; and (e) all other proprietary rights relating to the foregoing.
17. Buyer’s Property. “Buyer’s Property” means those dies, molds, and patterns owned and fully paid for by Buyer and provided to Seller for the purposes of manufacturing Goods or performing services for Seller. If Buyer’s Property wears out under normal use, Buyer must supply to Seller new or repaired Buyer’s Property. Seller will release to Buyer, Buyer’s Property, provided that: (a) Buyer has fully paid for all Goods, raw materials, and work in process produced and/or associated with Buyer’s Property; and (b) Buyer’s Property is not subject to any lien asserted by Seller or any third party. If (a)-(b) are satisfied, upon written request to release by Buyer, Seller, within 30 days of receipt of Buyer’s request, will make Buyer’s Property available for pick up by Buyer. Buyer is responsible for all costs associated with removing and transporting Buyer’s Property from Seller’s premises including but not limited to freight and packaging. Under no circumstances is Seller responsible for any damage that occurs to Buyer’s Property. If Buyer does not remove Buyer’s Property from Seller’s premises within 30days after Seller gives notice to Buyer that Buyer’s Property is ready for removal, Buyer’s Property becomes the property of Seller and Seller may dispose of Buyer’s Property as it sees fit. Buyer must insure Buyer’s Property and other property delivered to Seller against all risks and liability and waives subrogation in the event of loss of or damage to such property or personal injury arising from the use, transportation, or storage of such property.
18. Solvency of Buyer. Buyer represents that it is solvent, able to pay the price for the Goods, and that all financial and business information given to Seller is correct. If Buyer becomes insolvent before payment for the Goods, it must notify Seller. Buyer’s acceptance of delivery will be a reaffirmation of Buyer’s solvency, and that there has not been a material adverse change to Buyer’s financial condition.
19. United States Government Regulations. Buyer may not engage in any transaction with respect to the Goods, by way of resale, use, lease, shipment, or otherwise, which violates any statute or regulation of the United States of America.
20. Cancellation/Termination. If Buyer cancels or terminates all or part of this Agreement for any reason, Buyer must immediately purchase all finished Goods, raw materials, and work in process related to the Agreement. With respect to the work in process, Buyer is obligated the pay the then current purchase price. Buyer is also obligated to immediately reimburse Seller the cost of manufacture and liquidated damages (including labor, engineering, unamortized development cost, equipment time, and overhead) computed using Seller’s standard internal costing procedures, plus 15% of the sale price of the Goods. BUYER AND SELLER ACKNOWLEDGE THE GREAT DIFFICULTY OF PROVING DAMAGES FOR THE CANCELLATION OF PRODUCTS SUCH AS THE GOODS AND THE REASONABLENESS OF THIS LIQUIDATED DAMAGES PROVISION.
A. Default. If Buyer defaults in the performance of its obligations, if Buyer advises Seller that it will default in the performance of its obligations, 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, Seller may cease performance of its obligations, recover the Goods in transit or delivered, disable delivered Goods, and otherwise enforce its remedies for Buyer’s default.
B. Compensation. Seller will be awarded interest, consequential, and incidental damages and costs (such as interest and actual reasonable attorney fees) in any proceeding to enforce its remedies in which it obtains relief or damages or in which it prevails in the defense of any action by Buyer.
C. Security. Seller may require that Buyer post security for any or all amounts to be paid if Seller has a good faith doubt as to Buyer’s ability to make prompt payment. If Buyer does not post such security, Seller may cease performance of its obligations and enforce its remedies for Buyer’s default.
D. Cumulative Rights and Limitations. All rights granted to Seller and all limitations in favor of Seller in the Agreement and by law are cumulative, except that Seller will be entitled to only a single full recovery.
E. Good Faith. Seller will not be liable for any action taken pursuant to a good faith exercise of any of its rights under the Agreement or law.
F. Waiver. Seller’s failure or delay in enforcement of any provision will not constitute a waiver of a breach or of that provision.
22. Consequential, Incidental, and Other Damages. BUYER AND THIRD PARTIES ARE NOT ENTITLED TO ANY CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES, AS DEFINED IN THE UCC OR OTHERWISE. This limitation will be enforced regardless of whether Seller has defaulted in its warranty or other obligations or the limited warranty is held to fail of its essential purpose. Any legal inability to limit or restrict the right of Buyer or a third party to such damages will not affect the right of Seller to indemnification hereunder, and under no circumstance will Buyer recover more than the purchase price. UNDER NO CIRCUMSTANCES WILL SELLER’S LIABILITY FOR CLAIMS FOR NON-DELIVERY OR OTHER NON-PERFORMANCE, DEFECTIVE PERFORMANCE, NON-CONFORMING GOODS, DEFECTIVE GOODS OR OTHERWISE EXCEED THE AMOUNT RECEIVED BY SELLER FOR THE PERFORMANCE OR SHIPMENT WHICH CONTAINED THE NON-CONFORMING GOODS, DEFECTIVE GOODS, OR SUCH OTHER EVENT GIVING RISE TO THE CLAIM.
23. Claims. COMMUNICATIONS CONCERNING DISPUTED DEBTS OR OTHER CLAIMS, INCLUDING AN INSTRUMENT TENDERED AS FULL SATISFACTION OF A DEBT, MUST BE DELIVERED TO THE PRESIDENT OF SELLER.
24. Force Majeure. Seller will not be responsible for any delay or failure in any performance due, without limitation, to acts of God, war, warlike conditions, blockade, embargoes, riots, governmental restriction, labor disturbances, unavailability of anticipated usual means of supplies, transportation, or loading facilities, wrecks, epidemics, quarantine, fire, flood, earthquake, explosion, any unforeseen change in circumstances, or any other causes beyond its reasonable control.
25. Commercial Activity; Absence of Immunity. Buyer represents that it is subject to civil and commercial law with respect to its obligations, and the making and performance by it of the Agreement constitute private and commercial acts rather than public or governmental acts. Buyer represents that it and its property are not entitled to immunity on the grounds of sovereignty or otherwise form the jurisdiction of any court or from any action, suit, set-off or proceeding, or service of process in connection otherwise, arising under the Agreement.
26. Limitations of Actions. A proceeding by Buyer for breach of the Agreement or any other right against Seller arising from or in connection with the Agreement cannot be filed nor maintained by Buyer unless: (a) it is commenced within 1-year after the cause of action has accrued; (b) Buyer has given timely written notice to Seller of the details of its claim as provided in these General Terms; and (c) Buyer pays all amounts due to Seller or deposits the unpaid portion of the purchase price with the tribunal pending final adjudication. An action for breach of warranty or any other provision of the Agreement accrues no later than the shipping date stated on Seller’s invoice.
27. Choice of Law. THE AGREEMENT IS GOVERNED, CONSTRUED, AND ENFORCED UNDER THE LAWS OF THE STATE OF MICHIGAN, INCLUDING THE UNIFORM COMMERCIAL CODE IN FORCE ON THE INITIAL DATE OF THE AGREEMENT (UCC), EXCEPT AS PROVIDED IN THESE GENERAL TERMS. The U.N. Convention on the International Sales of Goods does not apply.
28. Jurisdiction. THE COURTS OF MICHIGAN HAVE EXCLUSIVE JURISDICTION OVER BUYER, SELLER, AND THE CLAIMS ARISING UNDER OR RELATED TO THE AGREEMENT, UNLESS WAIVED IN A WRITING SIGNED BY SELLER AND SUBJECT TO ANY RIGHT OF ARBITRATION WHICH MAY BE PROVIDED BY THE AGREEMENT. Buyer and Seller stipulate to the convenience of Michigan courts in general, and the Oakland County Civil Court and United States District Court for the Eastern District of Michigan, Southern Division, in particular, as to all litigation.
29. Arbitration. At Seller’s election, all controversies and claims arising out of or relating to the Agreement, or the breach thereof, will be settled solely by arbitration held in Troy, Michigan, in accordance with the Commercial Arbitration Rules of the American Arbitration Association, provided Seller may also elect to institute, prior to formation of the arbitration panel, an action for a claim and delivery or replevin action to enforce its security or other interests in the Goods. The arbitrator(s) may enter an interim award that the Goods be returned to Seller for appropriate disposition and the application of any proceeds to amounts owed to Seller. Judgment upon any arbitration award may be entered in any court of record having jurisdiction thereon. No demand for arbitration hereunder may be filed by Buyer. The arbitrator(s) will be bound by the terms of the Agreement and will not apply any principles of ex aequo et bono nor allow any claims not specifically permitted by the Agreement. The arbitrator(s) may include the fees of the arbitration tribunal and arbitrators in an award. The arbitration proceedings and the award will be confidential.
30. Severability. Any provision found to be unenforceable by a final unappealed order entered by the court or tribunal will be severed from this Agreement. Such severance will be as narrow as possible and may not affect the remainder of this Agreement in such action and other actions, unless the court or tribunal also finds, on the request of Seller, that without such provision as originally written, the Agreement is not likely to meet the reasonably commercial expectations of Buyer and Seller and in such case, the court or tribunal will enter an equitable judgment of rescission, termination, or reformation of this Agreement as necessary to reach an equitable result.
31. Assignment. No right or interest in the Agreement may be assigned by Buyer without the prior written consent of the Seller. Any assignment attempted by Buyer will be void and ineffective for all purposes unless made in conformity with this section.
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