Test Equipment Distributors
GENERAL TERMS AND CONDITIONS FOR THE SALE OF GOODS
1. Applicability:
(a) These terms and conditions of sale (“Terms“) are the only terms that govern the sale of the goods (“Goods“) by Test Equipment Distributors, LLC (“Seller“) to the Buyer named on Seller’s Order Confirmation (as defined below). As an authorized distributor and manufacturer’s representative, Seller is authorized by multiple manufacturers (“Manufacturer”) for the sale of the Goods. Collectively Buyer, Manufacturer and Seller are referred to as the “Parties” and individually as “Party.”
(b) The accompanying order confirmation (the “Order Confirmation“) and these Terms (collectively, this “Agreement“) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Seller expressly rejects Buyer’s general terms and conditions of purchase, and fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions or serve to modify or amend these Terms. Acceptance of the Order Confirmation by Buyer, which shall be deemed accepted should Buyer not object in writing within one (1) business days of receipt of the Order Confirmation, is a prerequisite to the purchase of the Goods and shall operate as an acceptance of these Terms which are expressly incorporated into the Order Confirmation. Notwithstanding anything herein to the contrary, if a written contract signed by both Parties, and expressly by the President of Seller, is in existence covering the sale of individual Goods exceeding $10,000.00 USD, that contract shall prevail in the event of any inconsistency with these Terms. Additional terms that will govern these types of Goods are listed in “Appendix A”.
2. Delivery:
(a) The goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order subject to availability of the Goods. Delivery dates given by Seller are estimates only and are subject to Manufacturer delay, shipping variations and requirements. Seller shall not be liable for any delays, loss, or damage in transit.
(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to the Buyer’s designated shipping location (the “Delivery Point“) using Seller’s standard methods for packaging and shipping such Goods.
(c) All shipments are made FOB Origin. Title to and risk of loss for the Goods shall pass to the Buyer upon delivery of the Goods to the carrier at the Seller’s shipping point. The Buyer is responsible for all costs associated with shipping, including freight, insurance, and any applicable tariffs, duties, or taxes. The Seller will select the best method and carrier for shipment unless otherwise specified in writing by the Buyer. The Buyer waives the right to dispute the method and carrier chosen by the Seller if no designated shipping terms are specified in writing.
(d) The Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer from any of Seller’s locations. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
3. Title and Risk of Loss:
(a) Title and risk of loss for the Goods shall pass to the Buyer upon delivery of the Goods to the carrier at the Seller’s shipping point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a Purchase Money Security Interest under the Uniform Commercial Code.
4. Amendment and Modification:
(a) Except for Section 1(b), these Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each Party.
5. Inspection:
(a) Buyer shall inspect the Goods within (3) days of receipt (“Inspection Period“). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods (as defined below) during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in the Order Confirmation; or (ii) product’s label or packaging incorrectly identifies its contents; or (iii) product is unusable due to defect not caused by carrier mishandling.
(b) Upon timely notification by Buyer any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable third-party shipping and handling expenses actually incurred and paid by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility designated in a Return Merchandise Authorization (“RMA”). If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 5(b) are Buyer’s exclusive remedies for Nonconforming Goods. Except as provided under Section 5(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller. The Seller reserves the right to refuse any return of Goods.
6. Return Merchandise Authorization:
(a) Apart from Nonconforming Goods as defined in Section 5(a), and excluding any custom product, Buyers may request an RMA within (30) days of receipt of invoice for the Goods for the following reasons: (i) Buyer changed mind, (ii) Buyer no longer needs the product, (iii) Buyer ordered incorrectly, (iv) Buyer has quality requirements that do not allow the Goods purchased. For all RMAs, apart from Nonconforming Goods as defined in Section 5(a), Seller will charge a return fee (“Restock Fee”) that is 25% of the selling price of the Goods. Seller may increase or decrease the Restock Fee percentage at its sole discretion.
(b) If Buyer timely notifies Seller of desire to return Goods, Seller shall, in its sole discretion, credit or refund the Price for such Goods. Seller reserves the right to refuse any return of Goods. Buyer must notify Seller according to terms specified in Section 5 before obtaining an RMA.
(c) Upon issuing an RMA, Seller must return Goods in original condition to Buyer within 30 days. If Buyer fails to return Goods within 30 days, the RMA is considered void, and the Buyer has lost its ability to return the Goods. Seller will inspect upon receipt the returned Goods and will adjust the credit or refund to the Buyer if Goods received are not in original condition.
(d) Apart from Nonconforming Goods as defined in Section 5(a), Buyer is responsible for all shipping charges, including freight, insurance, and any applicable tariffs, duties, and taxes to return the Goods to the Seller.
7. Price:
(a) Buyer shall purchase the Goods from Seller at the prices (the “Prices“) set forth in Seller’s published price list or as quoted by Seller. The Seller reserves the right to amend or change any Prices published or listed in a quote if the manufacturer of the goods changes their price to Seller.
(b) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, tariffs, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, tariffs, duties, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets. The Prices include standard packaging. The Prices exclude transportation and insurance costs which are the responsibility of the Buyer.
(c) Seller may increase the price of the Goods by the amount of any new or increased tax, duty (excluding franchise, net income and excess profits taxes) or tariff which Seller may be required to pay on the manufacture, sale, transportation, delivery, export, import or use of the Goods or the materials required for their manufacture or which affects the cost of such materials.
8. Payment Terms
(a) Buyer shall pay Seller all amounts owed within 30 days after delivery or the date of Seller’s invoice, whichever is later. All payments hereunder shall be in US dollars and made by ACH, unless otherwise agreed upon. Seller reserves the right to require pre-payment in its sole discretion.
(b) Buyer must agree to provide credit references upon Seller’s request. Seller reserves the right to refuse credit to any Buyer.
(c) Seller may accept payments made by credit card under $5,000.00 USD. Any credit card payment made by Buyer above $5,000.00 USD will incur a 3% credit card processing fee (” Credit Card Fee”).
(d) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law, which Seller does not waive by the exercise of any rights hereunder, Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for 5 days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.
9. Limited Warranty. Seller warrants to Buyer that:
(a) All Goods are warranted by their respective manufacturer’s warranty. The seller does not warrant or guarantee any Goods outside of the Manufacturer’s warranty period or coverage (the “Warranty Period“).
(b) Buyer will receive good and valid title to the Goods, free and clear of any encumbrances and liens.
(c) The warranties under this section do not apply where the Goods have been: (i) subjected to abuse, misuse, neglect, negligence, accident, abnormal physical stress or environmental conditions, use contrary to any instructions issued by Seller, or improper testing, installation, storage, handling, repair, or maintenance; (ii) reconstructed, repaired, or altered by anyone other than Seller or its authorized representative; or (iii) used with any third-party product, hardware, or product that has not been previously approved in writing by Seller.
10. Buyer’s Exclusive Remedy for Warranty Claims.
(a) During the Warranty Period: Buyer shall notify Seller, in writing, of any alleged warranty claim within 1 days from the date Buyer discovers, or upon reasonable inspection should have discovered, such alleged claim but in any event before the expiration of the applicable Warranty Period;
(b) With Manufacturer approval and guidance, Buyer shall ship the relevant Goods within 30 days of the date of its notice to Seller, at its expense and risk of loss, to Seller or Manufacturer’s facility designated in an RMA for inspection and testing by Manufacturer;
(c) If Manufacturer’s inspection and testing reveals, to their reasonable satisfaction, that such Goods do not conform with the limited warranty set forth herein, Manufacturer shall in their sole discretion address the warranty claim as per their stated warranty terms.
(d) THIS Section 10 SETS FORTH THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN Section 9.
11. WARRANTIES DISCLAIMER:
(a) EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN Section 9, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER INDIVIDUAL OR ENTITY ON SELLER’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN Section 9 OF THIS AGREEMENT.
12. Limitation of Liability:
(a) IN NO EVENT SHALL SELLER OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(b) SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT PAID TO SELLER PURSUANT TO THIS AGREEMENT FOR THE RELATED GOODS.
13. Compliance with Law:
(a) Buyer shall at all times comply with all laws applicable to this Agreement, and Buyer’s use of the Goods. Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase or use of the Goods and (b) not engage in any activity or transaction involving the Goods, by way of shipment, use, or otherwise, that violates any law.
14. Termination:
(a) In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement, and such failure continues for 30 days after Buyer’s receipt of written notice of nonpayment; or (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
15. Waiver:
(a) No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by an authorized representative from Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement by Seller operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by Seller precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by Seller.
16. Confidential Information:
(a) All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, Buyer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
17. Force Majeure:
(a) Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s control, including but not limited to the following force majeure events (“Force Majeure Events”): (i) acts of God; (b) flood, fire, earthquake, or other potential disasters or catastrophes; (ii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest or; (iii) order or action by any governmental authority or requirements of law or; (iv) embargoes or blockades in effect on or after the date of this Agreement or; (v) national or regional emergency or; (vi) strikes, labor stoppages or slowdowns, or other industrial disturbances or; (vii) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials or; (viii) other events beyond the reasonable control of the Impacted Party.
18. Assignment:
(a) Buyer’s rights, interests, or obligations hereunder may not be assigned, transferred, or delegated by Buyer without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
19. Relationship of the Parties:
(a) The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
20. No Third-Party Beneficiaries:
(a) This Agreement benefits solely the Parties to this Agreement. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
21. Governing Law; Jurisdiction:
(a) This Agreement is governed by and construed in accordance with the laws of the State of Michigan without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. All legal proceedings shall be instituted in the state or federal courts of the State of Michigan. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts.
22. Notices:
(a) All notices shall be in writing and addressed to the parties at the addresses set forth on the face of the Order Confirmation or to such other address for either party as that party may designate by written notice. All notices must be delivered by nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested).
23. Severability:
(a) If any term or provision of this Agreement is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Appendix A
These additional terms govern agreements for sale of Goods where the individual Good is above $10,000.00 USD as defined in Section 1(b) of General Terms and Conditions. These Additional Conditions of Sale shall apply except to the extent expressly modified above or in writing in a document signed and accepted by the President of Test Equipment Distributors, LLC (“Seller”):
1. TITLE
Title to the material and equipment covered by this contract, and to all additions or accessions thereto and substitutions therefore, shall remain with Seller until Buyer has completed payment of the purchase price, plus accrued interest, if any, and fully performed all of the terms and conditions hereof; and Buyer grants to seller a security interest in and to such materials and equipment as security for the full performance of Buyer’s obligation hereunder.
2. PROTECTION OF SELLER’S SECURITY INTEREST
Said material and equipment shall remain strictly personal property, irrespective of the mode of its attachment to realty, the consequences of it being disturbed or removed, or the use made thereof; and Buyer shall not sell, mortgage, pledge or otherwise deal in or encumber said material and equipment of any part thereof and not permit the same to be removed from the place where first installed (so long as any portion of the purchase price remains unpaid,) without Seller’s prior written consent.
3. SELLER’S REMEDIES
Time is of the essence hereof; and in the event that Buyer fails to make any payment hereunder when due, or otherwise defaults in the performance of the terms and conditions, hereof, or if a receiver or trustee of Buyer’s property of business is appointed by any court, or if a proceeding in bankruptcy or insolvency is instituted by or against Buyer (and not dismissed within sixty days), or if Buyer makes assignment for the benefit of creditors, or if for any other reason Seller deems itself to be insecure hereunder, the entire amount unpaid hereunder shall become immediately due and payable, at Seller’s option.
In such event, Seller may exercise the rights of a secured creditor under the Uniform Commercial code; and in conjunction with, addition to, or substitution for, these rights, Seller may (a) sue to collect the unpaid balance, or (b) take immediate possession of the material and equipment covered hereby (including all additions or accessions thereto and substitutions therefore), without notice, demand, or legal process, and without liability to Buyer for any damages or otherwise for so doing, and retain all payments therefore made by Buyer as liquidated damages and compensation for the use and wear of the equipment (and not by way of penalty). The aforesaid remedies shall be cumulative to all other rights of remedies now or hereafter given to Seller by law; and Seller may enforce one or more remedies hereunder successively or concurrently.
4. SELLERS LIABILITY
Seller warrants equipment of its own manufacture as provided in Seller’s. Seller’s liability for defective parts shall in no event exceed the furnishing of replacement parts F.O.B. the factory where originally manufactured.
Seller makes no warranty whatsoever, including those of merchantability and fitness for a particular purpose, as to parts, accessories, or other goods, manufactured by someone other than Seller and installed as a result of Buyer’s specific instructions or covered by a separate warranty that passes to Buyer which provides at least the same remedy as provided in this Agreement and for at least as long a time period as the warranty given for the Equipment.
Buyer is responsible for any expense for work performed by others upon Seller’s equipment sold under this contract unless Seller gives prior written authorization. A detailed accounting together with documentation of the authorized work shall be forwarded to the Seller along with the request for a credit. Any such expenses or potential expenses cannot be deducted from invoices rendered by Seller but will be included in the final contract price settlement. Furthermore, unauthorized work to equipment and systems may void the manufacturers and/or Seller’s warrantee.
Seller shall not be liable to Buyer for loss, damage or injury to persons (including death), or to property of things of whatsoever kind including, but without limitations, Goods processed by the use of the equipment; any incidental or consequential damages including but without limitation, loss of anticipated profits, occasioned by or arising out of the design installation, operation, use, misuse, nonuse, repair, or replacement of said material and equipment, or out of the use of any method or process for which the same may be employed.
Exclusion of liability for third parties Goods. Seller is only liable for the Goods manufactured by itself and only to the extent pursuant to these terms. For avoidance of doubt, to the extent permitted by law, any non-Seller manufactured Goods (“third-party Goods”) even if such third party Goods are sold by Seller to Buyer, are provided “as is” with no warranties whatsoever, other than those warranties expressly provided to Seller by the provider of the applicable third party product, to the extent that these can be provided by Seller. In no event shall Seller be liable for any direct, indirect, or consequential damage or loss that the Buyer may incur resulting from purchasing, installation, or use of third-party Goods.
Exclusion of liability for recommendations of third parties’ Goods. As far as Seller mentions or recommends any third-party Goods, such mentioning or recommendation shall be understood as the mentioning or recommendation of an example of a group of Goods; it does not and shall not constitute an advertisement in favor of such Goods, nor does Seller act as the distributor of such Goods. Buyer shall remain fully responsible whether or not and to what extent they want to acquire and use such Goods. In case Buyer acquires any such third-party Goods, Buyer shall enter into all necessary agreements and use the third-party product in compliance with all applicable terms. Seller shall not be liable for any damage cause by any such third-party Goods or by the use of such third-party Goods.
THIS CONTRACT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO, AND THERE ARE NO UNDERSTANDINGS, REPRESENTATIONS, OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING, BUT WITHOUT LIMITATIONS, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE), NOT EXPRESSLY SET
FORTH HEREIN.
5. EXCLUSIONARY SERVICE AGREEMENT AND RATES
Unless specifically stated in and made a part of this Agreement, the cost of a factory service technician for erection, demonstration, start-up, or repair of machinery sold by Seller is not included in the sales price. When requested by the Buyer, a technician will be supplied by Seller at a cost according to the Standard Service Rate. Refer to the Appendix – Standard Service Rate on the last page of this quote for details.
6. CONTINGENCIES
Seller shall not be liable to Buyer for any loss of damage suffered by Buyer, directly or indirectly, as a result of Seller failure to perform, or delay in performing, any term or condition hereof, where such failure or delay is caused by fires, labor troubles (including strikes and lockouts), wars, embargoes, Government regulations, or restrictions of any and all kinds, expropriation of plant by Federal or State authority, interruption of or delay in transportation, inability to obtain materials and supplies, excess of demand for equipment over the available supply, accidents, explosions, acts of God, or other causes of like or different character beyond Seller’s control. If work is delayed due to circumstances beyond Seller’s control, the period for completion of the project will be extended by a period equal to the delay.
5. RISK OF LOSS
The risk of loss, destruction of, or damage to, the material and equipment shall be borne by Buyer following delivery by Seller to Buyer or a common carrier. Said material and equipment shall be insured by Buyer at its own expense against loss of damage by fire and the other causes covered by the extended coverage endorsement, in an amount not less than the balance due to Seller hereunder. Seller shall be named as an insured until full payment of the purchase price, plus accrued interest, has been made. In the event that Buyer fails to obtain insurance, buyer nevertheless shall be liable to Seller for the full amount of the unpaid purchase price, plus accrued interest, but any insurance paid to Seller on account of any such destruction or damage shall be credited against such unpaid purchase price. It is the intent of the Seller and Buyer that all risks of loss including, but not limited to, losses caused by Seller negligence or for which Seller would be liable under any legal theory except the limited warranty set forth in Paragraph 4 “SELLER’S LIABILITY” shall be covered by an insurance policy purchased by Buyer. In the absence of such insurance, Buyer shall be solely responsible for all such losses.
8. PATENTED PROCESSES
The purchase of said material and equipment does not entitle Buyer to employ the same with any patented process owned by Seller or others, except where Buyer is expressly authorized to use such a process. The purchase of a proprietary process control system does not entitle Buyer to employ the same for any other machine center or in any other location without the express written permission from the applicable supplier.
9. TAXES
Should any tax assessment become delinquent, Buyer shall promptly so notify Seller; and any payment made by Seller to discharge such assessment shall become part of the purchase price and be secured by and under this contract. Prices do not include applicable sales, use, or like taxes unless specifically stated on the face of the Sales Agreement. Payment of such taxes to taxing authorities is the responsibility of the Buyer except to the extent such taxes are paid by Buyer to Seller.
10. ADDITIONS AND SUBSTITUTIONS
If substitute or additional equipment is purchased by Buyer from Seller, the terms and conditions of this contract shall be applicable thereto, the same as if such substitute or additional equipment had been originally purchased hereunder.
11. NON-WAIVER
Waiver by Seller of any default or defaults of Buyer shall not to be construed as a waiver of any subsequent default; and the acceptance by Seller of overdue payments shall not constitute a waiver of any default except with respect to the payments so accepted. No extension of the time of payment or other indulgence granted to buyer shall operate as a waiver of any Seller’s rights hereunder.
12. CANCELLATION CHARGES
This contract is subject to cancellation by Buyer only upon payment to Seller of reasonable cancellation charges which shall take into account expenses already incurred, commitments made by Seller, and Seller’s anticipated profit.
13. INTEREST
Interest on deferred balance shall be paid by Buyer at a rate of 12% per annum from date of delivery until maturity, such interest to be payable along with such deferred payments. All amounts not paid when due shall bear interest from the due date on the unpaid balance at the rate of 1.5% per calendar month or any portion thereof during which it is unpaid, or the highest legal rate whichever is lower.
14. INSTALLATION
If installation is delayed at the option of the Buyer for longer than two weeks of the scheduled date, TED reserves the right to invoice the job as complete, excluding any amounts quoted for installation, and the final payment (“withhold”) shall become due and payable.
15. INTERPRETATION
This contract has been entered into under, and is subject to, and shall be interpreted in accordance with the laws of the State of Michigan (excluding its Conflicts of Laws Rules) regardless of where negotiated or signed.
16. DISPUTES
All disputes between the parties arising out of, or related to this contract, or the materials or equipment provided hereunder shall be resolved by arbitration in accordance with the rules of the American Arbitration Association. Provided, however, that if arbitration is initiated and either party determines that a third party should be joined in such proceeding for a complete resolution of the issues in dispute, and such third party cannot and will not voluntarily be made a party to such arbitration proceeding, then the party desiring to join the third party may abate the arbitration proceeding and proceed to litigation, but only if such third party is joined in such litigation. Exclusive jurisdiction and venue for all such litigation shall be in the Circuit Court of the State of Michigan, or the United States District Court for the Detroit Division of the District of Michigan. Arbitration Hearings shall be convened in Detroit, Michigan. The arbitrator’s award shall be final and binding and may be docketed as a final judgment in the Circuit Court of the State of Michigan. The prevailing party in any litigation or arbitration shall be awarded such party’s reasonable attorney’s fees, costs, and expenses incurred therein (including deposition costs) and in any appeal therefrom, and in enforcing or collecting any judgment or award rendered.
17. TARIFFS
Buyer is responsible for all related import duties, fees, tariffs, or taxes. Accordingly, Seller may increase the price of the Goods by the amount of any new or increased tax, duty (excluding franchise, net income and excess profits taxes) or tariff which Seller may be required to pay on the manufacture, sale, transportation, delivery, export, import or use of the Goods or the materials required for their manufacture or which affects the cost of such materials.
NOTE:
Orders shipping to Canada and or Mexico require an account number for the freight carrier chosen, i.e. UPS, DHL, Fed-Ex or trucking co.