1. Agreement:In consideration of ETNA Supply Company and/or any of its affiliated or related entities (“Seller”) agreeing to provide goods or services to the Buyer, the Buyer agrees as follows: These Terms and Conditions of Sale together with the terms and conditions of any other credit application, quotation, confirmation and/or invoice prepared by Seller, not inconsistent herewith, 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 10th 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 balances not paid in full as of the 25th of the month on which the payment is due. 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 AND/OR SERVICES, 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 AND/OR SERVICES 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 AND/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 goods or services provided by Seller immediately upon delivery. Notice of any claim for shortage or defects discoverable on such inspection (a “Claim”) shall be made to Seller within five (5) days thereafter. Buyer shall, upon Seller’s request, furnish reasonable proof of any Claim 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 irrevocable acceptance of the goods and an unconditional waiver of any Claim.
5. Risk of Loss:The goods sold pursuant to this Agreement are sold F.O.B. Seller’s place of business. Delivery of goods to a carrier at any of Seller’s places of business or other loading point shall constitute delivery to Buyer. Regardless of shipping terms or freight payment, all risk of loss or damage in transit shall be borne by Buyer (even if goods are shipped in trucks or vehicles owned by Seller). Seller shall direct the method and route of shipment unless Buyer specifies otherwise in writing delivered to Seller prior to delivery of the goods. Buyer assumes responsibility for all costs of transportation.
6. Cancellation/Restocking Fee:Buyer may not cancel any aspect of this Agreement without the prior, written agreement of Seller. Except as expressly set forth herein, Buyer may not return any goods without Seller’s written consent. All returns are subject to a restocking fee/handling charge, which may change from time to time. Contact Seller to determine the exact amount.
7. 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 goods 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.
8. 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.
9. Security Interest:Title to the goods 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 purchase money security interest in the goods sold to Buyer, the accounts receivable related to the goods and the proceeds from the sale of the goods as security for Buyer’s performance of its obligations hereunder. 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.
10. Miscellaneous Provisions Regarding Price and Delivery:
11. Installation: Some or all of the goods sold hereunder are required by law to be installed by a licensed contractor. Seller does not typically install the goods it sells. Buyer may request that Seller install one or more of the goods sold pursuant to the Agreement. If Seller provides such installation services, then Seller will only agree to such installation services pursuant to an explicit, written agreement, and will charge a separate charge for such installation services. Absent such an explicit, written agreement for installation services, Buyer understands that it is solely responsible for the installation of the goods it is purchasing, agrees to undertake all necessary steps to insure that the goods are properly installed, including without limitation hiring a licensed contractor when necessary, assumes all risks relating to such installation, and releases Seller from any and all liability relating to such installation.
12. Limitation of Liability:
13. Indemnification: Buyer shall indemnify, defend and save Seller harmless from any liability, loss, cost, penalty, damage or expense, including attorneys’ fees, which Seller may incur as a result of any claim, damage, injury, cause of action, proceeding, citation, or work stoppage arising out of or in any way connected with Buyer’s purchase, installation, modification, or use of any goods or services provided by Seller. This indemnity includes all costs and attorneys’ fees, regardless of whether litigation is filed or arbitration demanded. This indemnity survives the termination or completion of the sales transaction at issue. This indemnity also includes all claims for patent infringement or any intellectual property claims.
14. 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.
15. Intellectual Property Rights:Buyer acknowledges and agrees that it is not acquiring any right, title or license in or to Seller’s intellectual property or other proprietary rights associated with any of the goods or services provided hereunder.
16. Insurance/Bonding:The Buyer must maintain and pay for insurance coverage of the types and with the limits set forth in this section and its subsections. Buyer agrees and acknowledges that Seller is entering into this Agreement in reliance on Buyer’s representation that the policies of insurance contemplated by these provisions will be in place, with all premiums paid.
Bodily Injury & Property Damage:
17. 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 AGREEMENT, 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.