TERMS AND CONDITIONS
All goods and services purchased by Purchaser from Seller (the “Products”) are subject to the terms and conditions set forth in the following numbered paragraphs (the “Terms and Conditions”). Purchaser acknowledges and agrees that these Terms and Conditions are incorporated in, and are a part of, each quotation, purchase order, invoice, release, requisition, work order, shipping instruction, specification, proposal, and any other document, whether expressed in writing or verbally, relating to the sale of Products by Seller to Purchaser.
PRICES: All prices (a) are F.O.B. Point of Origin, (b) are subject to change without notice at any time prior to acceptance of Purchaser’s order by Seller’s home office, as evidenced by Seller’s formal acknowledgment, and (c) do not include sales, use, excise, or similar taxes. All such charges shall remain the full responsibility of Purchaser. In addition to the prices specified, the amount of any present or future sales, use, excise or other similar tax applicable to the sale or use of the equipment shall be the sole responsibility of and paid by Purchaser. If Purchaser is either exempt from collection of such taxes or entitled to a reduced rate of taxation pursuant to a tax treaty or other applicable law, and provides Seller with adequate documentation of such exemption from or reduced rate of taxation, Seller will be entitled to collect only such taxes from which Purchaser is not exempt. Purchaser must remit to Seller all taxes reasonably requested by Seller.
WARRANTY: With respect to any Products for which Seller is the distributor only, Purchaser agrees that its remedies will be limited to pursuit of the manufacturer’s warranty directly against the manufacturer of the Products and not against Seller. The manufacturer’s warranty shall be the sole and exclusive warranty in connection with such Products. With regard to any Products manufactured by Seller, Seller’s obligation will not exceed repairing or replacing any Product (or part or component of a Product), which, under normal operating conditions in the plant of Purchaser, was identified as defective in material or workmanship within six (6) months after the date of shipment from Seller’s location. Seller will have no responsibility for claims for defects discovered after that six (6) month deadline. Purchaser’s exclusive remedy applicable to this transaction is limited to and shall be fully discharged by repairing any defective part, or supplying without charge, F.O.B. Seller’s location, a similar part to replace any which have been defective as to material or workmanship within the six (6) month period after the date of shipment from Seller’s location. Seller shall have the option of requiring the return of these defective materials, transportation prepaid, to establish, evaluate, or otherwise analyze the claim.
LIMITATIONS OF WARRANTY: The provisions in the specifications hereto attached are descriptive unless expressly stated as warranties. Except as stated above, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, APPLICABLE TO THIS TRANSACTION.
LIMITATION OF LIABILITY: Seller and Purchaser acknowledge that Purchaser’s sole and exclusive remedy against Seller shall be for the repair and replacement, at Seller’s sole and exclusive discretion, of defective parts as provided for herein. Without limitation, in no event shall Seller’s liability in relation to goods or services sold to Purchaser exceed the amount of purchase price paid by Purchaser in relation to such Products or parts of a Product that have caused Purchaser to suffer damages. IN NO EVENT WILL SELLER BE LIABLE TO PURCHASER OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFITS OR BUSINESS, OR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING FROM OR AS A RESULT OF THESE CONTRACT TERMS, ANY GOODS OR SERVICES PROVIDED, ANY ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE GOODS OR SERVICES PROVIDED, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PRECEDING EXCULPATION OF LIABILITY INCLUDES, BUT IS NOT LIMITED TO, LOST PROFITS, PLANT DOWNTIME, DELAY OF ANY TYPE OR KIND, OR SUITS BY THIRD PARTIES, INCLUDING BUT NOT LIMITED TO THOSE CLAIMED TO BE CAUSED BY DEFECTIVE MATERIALS, AND NO ALLOWANCE WILL BE GIVEN BY THE SELLER FOR REPAIRS OR ALTERATIONS UNLESS MADE PURSUANT TO ITS WRITTEN CONSENT AND APPROVAL. Seller shall not be held responsible for any part that has been modified in any way from the condition in which it was shipped by the Seller or for any apparatus furnished by or repairs or modifications made by Purchaser or its contractors, staff, or unauthorized persons unless specifically agreed to and authorized in writing by Seller. This Section 4 shall survive termination or expiration of these Terms and Conditions.
SAFETY PRECAUTIONS: Purchaser shall not remove, modify or allow any thing to cover or remove from view any safety device, guard or warning sign relating to a Product. Purchaser shall comply with any and all federal, state, or local laws or regulations respecting safety or respecting use of the Products, including but not limited to the provisions of applicable standards and regulations of the Federal Occupational Safety and Health Act and other safety materials provided in relation to the Products. Purchaser agrees to indemnify, defend, and hold harmless the Seller from any claim or loss (including, but not limited to, personal injuries) arising in connection with use of Products in a manner other than as provided in the Proposal or these Terms and Conditions.
INDEMNITY: Purchaser shall indemnify, hold harmless and defend Seller against all claims, costs, expenses, damages and liabilities of whatever nature, including all costs, expenses damages and liabilities attributable to claims for loss damage, bodily injury or death, whether or not proven and whether or not arising from claims of third parties, arising out of or related to the manufacture, selection, use, operation, possession, maintenance, repair and/or delivery of the Products, including Seller’s own products liability and/or negligence, wheresoever and by whomsoever brought (including, but not limited to, claims by Purchaser and/or job site workers, employees, agents, contractors, invitees and licensees of Purchaser). The listing of specific instances requiring indemnity in this Section 6 shall not in any manner limit the scope of this indemnity and is not intended to be an exhaustive list of all instances requiring indemnity. The parties agree that the language used herein shall be accorded the broadest possible interpretation in favor of indemnity. Provided, however, that nothing herein will require Purchaser to indemnify, defend, or hold harmless Seller against any claims, costs, expenses, damages or liabilities arising out of Seller’s gross negligence or intentional misconduct. This Section 6 shall survive termination or expiration of these Terms and Conditions.
CANCELLATION: (a) An order may not be cancelled by Purchaser without consent of Seller, (b) Seller shall have the absolute right to cancel and refuse to complete an order upon the occurrence of either of the following: (1) if at any time Purchaser is not in strict compliance with any of these Terms and Conditions (including any requirement of progress payments), or (2) if at any time Purchaser becomes bankrupt or insolvent, (c) In the event of cancellation by Seller as set forth above, or if Seller consents to the request by Purchaser to stop work or to cancel the whole or any part of an order, Purchaser shall make payments to Seller as follows: (1) Any and all work that can be completed within (30) days from date of notification to stop work on account of cancellation shall be completed, shipped and paid in full, (2) For work in progress and any materials and supplies procured, or for which definite commitments have been made by Seller in connection with the order, Purchaser will pay Seller’s actual costs and overhead expenses (determined by Seller in accordance with Seller’s standard accounting practice) plus fifteen percent (15%), (3) Purchaser shall assume all responsibility for all cancellation charges and expenses in connection with any terminated or partially completed sales agreement between Seller and any of its vendors or suppliers. In the event that Purchaser causes or partially causes any delay in the completion of any agreement that Seller has with a third party, Seller shall be entitled to further payment from Purchaser in an amount sufficient to compensate Seller for the additional costs associated with the delay.
TERMS OF SALE: (a) Unless otherwise specified in writing by Seller, all purchases are CASH on Delivery, (b) On orders for standard Products, Seller may (but is not required to) permit payment on the following credit terms: Purchaser must pay 30% within five (5) days of placing an order, Purchaser must pay 40% within five (5) days of the date that Seller indicates the Products are ready for shipment and Seller is not required to ship until such payment is made, Purchaser must pay the remaining balance net 30 days (with approved credit), (c) On all orders for special or modified Products, Seller may (but is not required to) permit payment on the following credit terms: Purchaser must pay 50% within five (5) days of placing an order, Purchaser must pay 40% within five (5) days of the date that Seller indicates the machines are ready for shipment and Seller is not required to ship until such payment is made, Purchaser must pay the remaining balance net 30 days (with approved credit), (d) Delinquency charge: Purchaser will pay to Seller interest on all balances not paid by Purchaser within designated net terms in an interest amount accruing at the lesser rate of one and one-half percent (1 1/2%) interest per month (18% per annum); OR the greatest rate of interest permitted by applicable law, (e) In the event that Purchaser fails to pay Seller in accordance with these Terms and Conditions all sums when due, Purchaser shall pay Seller all of Seller’s actual attorney fees and costs in connection with any efforts to collect delinquent amounts owed, regardless of whether arbitration has been instituted, (f) In the event that any dispute arises between the parties, any and all disputes shall be resolved by arbitration through a single arbitrator and in accordance with the Rules of the American Arbitration Association for Commercial Disputes in existence at the time this contract was entered into. Any such arbitration award is final and binding and enforceable in a court of competent jurisdiction, (g) In the event that arbitration is initiated, the parties agree that the sole and exclusive venue for any proceedings between the parties shall be in Kent County, Michigan. Seller and Purchaser both hereby knowingly and unequivocally waive any right to a jury trial.
DELIVERY: Any delivery dates or other schedule of performance by Seller are approximations, and the sole obligation of Seller with respect to the schedule of delivery or performance will be to use commercially reasonable efforts to deliver the Products, or otherwise to perform, consistent with the reasonable demands of its business. In any event, Seller will have no liability to Purchaser or any other person for delays in performance due to strikes or labor disputes of any type; accidents, fire, floods, acts of God, or actions by governmental authorities; acts, omissions, or delays of Purchaser or any other third party; shortages of labor; or without limitation of the above, for any causes reasonably beyond the control of Seller.
INSPECTION: Purchaser will have 30 days from the date of delivery to inspect the Products for defects and nonconformance and to notify Seller, in writing, of any defects, nonconformance, or rejection of the Products (other than defects or nonconformities due to damage, shortage, or errors in shipping that will be reported as set forth below). Claims for shipping damage, errors, or shortages must be made in writing to Seller no more than15 days after receipt of shipment. After this period, Purchaser will be deemed to have irrevocably accepted the Products, if not previously accepted. After acceptance, Purchaser will have no right to reject the Products for any reason or revoke acceptance.
SECURITY INTEREST IN PRODUCTS: Seller retains and Purchaser consents (and to the extent necessary, grants) a purchase money security interest in the Products to secure all obligations owed by Purchaser to Seller. Purchaser authorizes Seller to file Uniform Commercial Code financing statements and to take such other actions as Seller determines to be appropriate to perfect its security interest, including, but not limited to, notification communication to other secured creditors of Purchaser. Failure to make any payment as provided herein or any other amounts due Seller from Purchaser, or any other credit concerns of Seller, shall entitle Seller to cease and stop shipments without notice to Purchaser, and Purchaser consents that Seller, its successors and assigns, shall be and are hereby authorized to retake possession and custody of any Products already shipped and/or received by Purchaser and upon written notice to Purchaser, cancel the balance and/or unexecuted portion of any order and hold Purchaser liable for any and all damages incurred as a result of or in any manner growing out of the default or failure to so pay on the part of Purchaser.
TRANSPORTATION: Transportation/Cartage costs are the responsibility of Purchaser unless specifically designated otherwise. All reports of, and claims for damage resulting from or incurred in transportation, must be filed with the carrier by the Purchaser and Seller has no liability for any such damages.
PLACE OF CONTRACT: This contract shall be construed in accordance with the laws of the State of Michigan, and Purchaser hereby consents to the jurisdiction over this contract and any controversies arising out of this contract. The parties (a) irrevocably submit to the jurisdiction of any Michigan or federal court sitting in Grand Rapids, Michigan, in any legal action arising out of this agreement, (b) agree that all claims in any action may be decided in either court, and (c) waive, to the fullest extent that they may effectively do so, the defense of an inconvenient forum. The parties also agree that a final judgment in any such action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
ACCEPTANCE: These Terms and Conditions , together with any specifications that accompany these Terms and Conditions, constitute an offer by the Seller to sell Products upon the Terms and Conditions appearing herein. Acceptance of this offer, by issuance of a purchase order or otherwise, is limited to the terms, conditions, specifications, and prices set forth herein or attached hereto, and any additional terms, conditions, specifications, and/or prices are rejected unless expressly agreed to in writing by Scarlett, Inc. Any reference made to Purchaser’s purchase order does not imply acceptance of any terms and/or conditions in such purchase order. All conflicting terms in any other documents aside from these Terms and Conditions are hereby disclaimed, void, and of no consequence. In addition, notwithstanding any terms contained in any documents submitted by Purchaser in connection with the purchase of Products, the acceptance of delivery by Purchaser of Products will constitute a course of conduct constituting Purchaser’s agreement to these Terms and Conditions, to the exclusion of any additional or different terms and conditions.
GENERAL: These Terms and Conditions, as supplemented by the Proposal, comprise the Seller’s and Purchaser’s entire agreement, constitute a final written expression of all the terms of the agreement between the Seller and Purchaser, are a complete and exclusive statement of those terms and can be modified or rescinded only by a writing signed by both parties. Any and all oral or written communication, correspondence, proposal, quotation, agreement, representations, promises, warranties or statements by Seller’s agents or employees are merged into and superseded by these Terms and Conditions as supplemented by the Proposal and Purchaser disclaims any reliance on any oral or written communication, correspondence, proposal, quotation, agreement, representations, promises, warranties or statements not memorialized in writing in these Terms and Conditions as supplemented by the Proposal. There are no agreements between Seller and Purchaser with respect to the Products quoted in the Proposal except as set forth in writing and expressly made a part of the Proposal. The designs and specifications of all Products are subject to change without notice, and in the event of any such changes, Seller will have no obligation whatsoever to make similar changes in a Product previously ordered by the Purchaser. Purchaser may not assign this Agreement without written consent of Seller.
Wherever used herein, Seller shall mean Scarlett, Inc.; Purchaser shall mean the customer placing the purchase order with Seller.