TERMS AND CONDITIONS OF ORDERS AND QUOTES
1. Agreement: In consideration of Etna Supply Company (“Seller”) agreeing to sell to the Buyer, the Buyer agrees as follows: The terms and conditions of this Quotation together with the terms and conditions of any credit application, quotation, confirmation and/or invoice prepared by Seller constitute the agreement between the parties (the “Agreement”). Buyer agrees to each and every term contained in the Agreement as a precondition to Seller’s performance. Any term or condition in any purchase order or other form or document issued by Buyer, regardless of the materiality of the term or condition, that differs from or is contrary to the terms and conditions contained in the Agreement are objected to and excluded unless expressly agreed to in a written acknowledgment issued by Seller. No other terms or conditions not set forth in the Agreement shall apply unless expressly agreed to in a written acknowledgment issued by Seller.
2. Payment: Payment shall be made by the 25th of the month following delivery. A time-price differential charge equal to 1.7% per month (20.4 % per annum) will be charged on all past due balances. If Buyer’s financial responsibility shall become unsatisfactory to Seller at any time and for any reason, Seller shall have the right, in addition to whatever other rights Seller may have at law or equity, to require payment in cash or to obtain satisfactory security from Buyer before making any further deliveries. In case any payment is not made when due, Seller shall have the right, in addition to its other remedies, to seek specific performance of this Agreement, to suspend any further deliveries, alter payment terms, or terminate this Agreement. Approval of credit for one or more deliveries shall not be deemed a waiver of this provision.
3. Disclaimer of Warranties. SELLER DISCLAIMS ALL WARRANTIES IN CONNECTION WITH THE GOODS, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION DESCRIPTION, QUALITY, DESIGN, PERFORMANCE, SPECIFICATIONS, CONDITION, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. BUYER ACKNOWLEDGES THAT BUYER IS NOT RELYING ON SELLER’S SKILL OR JUDGMENT TO SELECT OR FURNISH GOODS SUITABLE FOR ANY PARTICULAR PURPOSE. NO PERSON, INCLUDING BUYER, IS AUTHORIZED BY SELLER TO MAKE WARRANTIES OR ASSUME ANY LIABILITY FOR SELLER WITH RESPECT TO THE GOODS OR SERVICES. ORAL STATEMENTS DO NOT CONSTITUTE WARRANTIES AND SHALL NOT BE RELIED ON BY BUYER AND ARE NOT PART OF THE AGREEMENT. SELLER’S WARRANTY OBLIGATIONS, AND BUYER’S REMEDY, ARE SOLELY AS STATED IN THIS AGREEMENT.
4. Notice of Claims. Buyer shall inspect the products immediately upon delivery. Notice of any claim for shortage or defects discoverable on such inspection shall be made to Seller within five (5) days thereafter. Buyer shall, upon Seller’s request, furnish reasonable proof of any claimed defect and Seller shall be given an opportunity to investigate. Failure of Buyer to give notice of any claim within the specified period shall be deemed an absolute and unconditional waiver of such claim.
5. Risk of Loss: The products sold pursuant to this Agreement are sold F.O.B. Seller’s place of business. Purchaser assumes responsibility for all costs of transportation. If Seller assists Purchaser in this regard, it is agreed that such assistance is gratuitous, and Seller shall have no obligation or liability arising out of such assistance. Risk of loss shall pass to Buyer when Seller completes its performance with respect to delivery of the products to Buyer.
6. Force Majeure: Seller shall not be liable for any delay or impairment of performance resulting in whole or in part from any cause beyond Seller’s control including, without limitation, fires, floods, explosions, accidents or other catastrophes, acts of God, strikes, lockouts or labor disruption, wars, riots or embargo delays, government allocations or priorities, shortages of transportation, fuel, labor or materials, inability to procure the products or raw materials, severe weather conditions, changes of law or regulation, or any other circumstance or cause beyond Seller’s control. Such excuse from performance shall extend so long as the event continues to delay or impair Seller’s performance.
7. Field Representations: The services of Seller’s representatives in the field are offered on request and when personnel are available for such period of time and for such charge as Seller deems appropriate. Any such service is offered only on the condition that Seller shall not be deemed to have approved of, or in any manner to have assumed responsibility for, the engineering, design, supervision, inspection, or quality of the workmanship of the job. IN NO EVENT SHALL THE SERVICES OR STATEMENTS OF SELLER’S REPRESENTATIVE CREATE A WARRANTY, EXPRESS OR IMPLIED, OR ANY OTHER OBLIGATION WITH RESPECT TO ANY PRODUCT OR SERVICE OF SELLER.
8. Security Interest: Title to the products sold pursuant to the Agreement shall remain with Seller until all payments therefore shall have been made in full in cash. Seller shall retain a security interest in the Products, the accounts receivable related to the Products and the proceeds from the sale of the Product as security for Buyer’s performance of its obligations. Buyer hereby authorizes Seller to create and file a financing statement. Buyer agrees to execute and deliver such other documents as necessary to create, perfect, preserve or enforce such security interest.
9. Limitation of Liability:
a. Exclusive Remedy. The exclusive remedy for the Buyer for any damages incurred as a result of the Agreement is limited to the return of the purchase price of the goods. In no event shall Seller be liable to Buyer or any other person or entity for damages of any kind, including, without limitation, indirect, special, incidental, consequential or punitive damages, arising from the sale of the Products or in connection with the use or inability to use the Products for any purpose whatsoever, irrespective of whether the claims or actions for such damages are based upon contract, tort, negligence, strict liability, warranty or otherwise. In no event shall Seller incur any liability whatsoever for damages of any kind arising out of or relating to delay in delivery.
b. Purchase Price: Should the remedy of replacement be found to be inadequate or to have failed of its essential purpose for any reason whatsoever, Buyer agrees that return to it of the full purchase price of the particular products by Seller shall prevent the remedy from failing of its essential purpose and shall be considered by Buyer a fair and adequate remedy.
10. Costs of Collection: In the event Buyer or Guarantor shall default in any way on Buyer’s or Guarantor’s obligations under this or any other Agreement, including without limitation the failure to make a timely payment, Buyer and Guarantor shall be liable to Seller for all of Seller’s costs of collection including, but not limited to, attorney’s fees and expenses.
11. Governing Law/Jurisdiction-Venue/Statute of Limitations: This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan without regard to its conflict of law doctrine. By entering into this contract, Buyer waives any right to a jury trial. By entering into this agreement Buyer agrees to submit itself to jurisdiction in Michigan and to venue in any state or federal court located in Kent County, Michigan. BUYER WAIVES ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY WAY IF NOT BROUGHT WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION FIRST ACCRUED TO BUYER.
12. Special Orders: All special order items are designated by a “#” and require a signed confirmation before Seller will Order the part. Special Order items may not be returned without a return authorization signed by an ETNA Supply Representative. Any returned or cancelled special order item will have a minimum 35% restocking fee. Any special order item not returnable to the manufacturer becomes the property of the Contractor.
13. No Representation of Accuracy: This Quotation involves our interpretation of the materials required by the plans and specifications prepared by the engineer/architect/contractor relative to the project. WE MAKE NO REPRESENTATION AS TO THE ACCURACY OF OUR INTERPRETATION. The person or entity to whom this Quotation is directed, by receipt of this Quotation, agrees to accept all responsibility for determining the materials and quantities required for the project.
14. Quotation Not Transferable: This Quotation is based on various business factors and considerations and may not be used by any other contractor or any other person or entity without the express written consent of Seller. Seller reserves the right to discount the quoted prices for any reason and in any amount without offering such discount to any other contractor or any other person or entity.
15. Quotation Not Offer: This Quotation is not an offer to sell. All purchase orders and shipments are subject o the prior approval of Seller’s Credit Department. No purchase order should be considered as accepted until acknowledged in writing by a duly authorized representative of Seller.
16. Termination of Quotation: This Quotation will become void at 11:59 P.M. Eastern Time, thirty (30) days after the date this Quotation was created. An order resulting from the Quotation must be placed and released within thirty (30) days of the Quotation in order for the prices set forth therein to remain firm.
17. Cancellation: Goods purchased, orders made and/or charges incurred by Seller on good faith reliance on Buyer’s order (either verbal or in writing), which order Buyer subsequently cancels, will be chargeable to Buyer to the same extent paid by Seller.
18. Escalation: Seller reserves the right to escalate prices up to 10% cumulatively for each 60-day period or fraction thereof following price protection.
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