1. Agreement:In consideration of ETNA Supply Company ("Seller") agreeing to provide a quotation for sale to the Buyer, the Buyer agrees as follows: These Terms and Conditions of 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. 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.
3. 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 labour disruption, wars, riots or embargo delays, government allocations or priorities, shortages of transportation, fuel, labour 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.
4. Field Representatives: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.
5. Limitation of Liability:
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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. Pricing does not include taxes.
12. Termination of Quotation:This Quotation will become void at 11:59 P.M. Eastern Time, fourteen (14) days after the date this Quotation was created. An order resulting from the Quotation must be placed and released within fourteen (14) days of the Quotation in order for the prices set forth therein to remain firm.
13. 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
14. Escalation: Seller reserves the right to escalate prices up to 10% cumulatively for each 60-day period or fraction thereof following price protection.
15. Sales:All goods or services ordered by Buyer or otherwise provided by Seller to Buyer are further subject to the following Terms and Conditions of Sale.