TERMS AND CONDITIONS OF SALE
“SELLER” is Seller
“BUYER” is the person, firm, or company that has issued a Purchase Order for Seller products to Seller or Seller’s authorized agent.
“GOODS, PRODUCTS OR EQUIPMENT” refer to goods, or materials sold by the Seller and subject to the terms and conditions contained herein.
“SERVICES” refer to any design, engineering, or manual labor services sold by the Seller and subject to the terms and conditions contained herein.
Seller, “CREDIT TERMS AND POLICIES OF SALE” supersede all other terms and conditions which may or may not have been presented and/or accepted by any party other than Seller and shall govern all sales transacted between Buyer and Seller.
This “Terms and Conditions of Sale” document encompasses the majority of the “CREDIT TERMS AND POLICIES OF SALE” and is presented in abbreviated format for the purposes of order acceptance or acknowledgement. The “terms and conditions” mean the terms and conditions set out herein together with any terms and conditions specified in any Quotation, Order Acknowledgement, or Notification of Credit Terms Accepted, as issued by Seller, or Seller’s authorized agent, for products or services covered under the Purchase Order.
Seller’s acceptance of this order is expressly conditioned on Buyer’s assent to the terms contained herein. An authorized employee of Seller at the factory must accept all orders. All purchase orders will be acknowledged in writing. Any changes to purchase orders made after acceptance will be acknowledged in writing. Purchaser must issue amended Purchase Order validating all changes to equipment specifications made after the initial acceptance of the order. Any of the following constitute Buyer’s acceptance of these Terms as the sole terms and conditions governing the sale by the Seller to Buyer. Buyer has read and understands these Terms. Buyer’s written acceptance of these Terms (including Buyer’s issuance of a purchase order). Buyer’s acceptance of any goods or services from Seller or Buyer’s payment for any goods or services from Seller. Buyer expressly acknowledges and agrees that all terms and conditions proposed by Buyer which are different from or in addition to these Terms are unacceptable to Seller, are hereby expressly rejected by Seller, and shall not become a part of the contract between Buyer and Seller. No variation of these Terms shall be effective unless expressly agreed to by the Seller’s CEO or his designated representative in writing.
Buyer represents that Buyer is financially solvent. To secure any unpaid portion of the purchase price, or any other indebtedness from Buyer to Seller, Buyer hereby assigns to Seller and grants Seller a security interest in the Equipment. Buyer agrees to execute such financing statements or additional documents, or take such other action, as Seller may reasonably require to perfect such interest and Buyer hereby appoints Seller its attorney-in-fact for the purpose of executing such documents or taking such action.
No Consumer Sales
Buyer acknowledges that Seller is not in the business of selling its Equipment to consumers. Buyer warrants and represents to Seller that it is purchasing the Equipment solely for business or commercial purposes, and it is not a “consumer” as defined by any applicable law or regulation
All quotations are for information only and are not an offer by the Seller. An order by a Buyer shall not constitute a contract between it and the Seller unless it has been accepted by the Seller in writing, which acceptance shall be deemed to occur at Seller’s offices in Harbor Springs, Michigan, USA.
Published or quoted prices are not unconditional offers to sell and are subject to change without notice. Seller’s stated prices are F.O.B. shipping point and, unless otherwise specified, do not include the cost of delivery, documentation, the cost of special packaging, unloading, uncrating, installation and/or final on- site adjustment. Such costs may be prepaid and billed as a separate invoice item. Seller’s prices do not include any privilege, occupation, personal property, value-added, sales, excise, use, income, or any other tax. Seller’s prices do not include any cost of inspection, certification, or permit fees. Seller may add the amount of any such tax/fee to the invoice. Buyer shall be liable for all such taxes/fees, whether or not invoiced by Seller. If an exemption certificate provided by Buyer is determined to be invalid, or if Buyer fails to timely furnish a valid exemption certificate, notarized affidavit, or other necessary documentation, any resulting sales, use, import, export, or similar excise tax may be billed to Buyer. Prices quoted by Seller are subject to change thirty (30) calendar days after quotation (unless stated otherwise on quotation). Seller reserves the right to withdraw quoted prices by written notice. In the event of late payment, the Seller reserves the right to charge interest at the lesser of 1.5% per month or the highest nonusurious rate permitted under applicable law. The Buyer shall not be entitled to set-off, and Buyer expressly waives and releases any right of set-off, against monies due to the Seller, any sums claimed by or due to the Buyer from the Seller under the contract or any other contract between the Seller and the Buyer, including, without limitation, any and all claims for damages of any kind.
All orders are subject to Seller’s evaluation of Buyer’s credit. Provided the Seller in its sole discretion deems the Buyer to be credit worthy, standard terms are as follows:
|Sale Amount||Payment Terms|
|$150 – $9,999||Due Net 30 days from shipment|
|$10,000 – $49,999||40% due with Purchase Order, 60% due Net 30 days from shipment|
|$50,000 +||30% due with Purchase Order, 30% due Prior to shipment, 40% due Net 30 days from shipment|
Purchase Orders and terms are subject to accounting approval prior to fabrication. Release of shipment is subject to receipt of payment according to payment schedule. Seller reserves the right to reject and/or suspend shipment of any order at any time if Seller determines the Buyer’s credit to be unfavorable. If Seller for any reason in its sole discretion feels insecure about the Buyer’s willingness or ability to perform, Seller shall have the unconditional right to require payment in full in advance of shipment.
Except where specifically agreed to the contrary in writing by Seller, Shipping/Freight costs are the responsibility of Buyer. Shipment to Buyer shall be arranged and pre-paid by Seller and added to the final invoice. Shipping will be F.O.B. shipping point and risk of loss shall pass to Buyer upon delivery to the carrier. The Buyer is responsible for international import/export arrangements and related fees.
Late Shipment at Buyer’s Request
In the event Buyer postpones shipment, requests that Seller suspend manufacture, fails to give Seller sufficient information to process Buyer’s order, or otherwise fails to take delivery, the Seller shall be entitled, without prejudice to any other rights it may have, to treat the contract at an end and to resell the Equipment, or to submit an invoice for the Equipment in which event payment in full shall immediately become due. In either case the Seller shall charge Buyer for the handling and storage of the Equipment from the date of the invoice to the date of ship to the Buyer or of disposal elsewhere.
Delivery and Shipment Dates
Delivery dates are beyond the purview of the Seller. Seller is not responsible for performance of freight service providers. Seller makes shipment date estimates only, and time is not of the essence. Although Seller shall endeavor as far as practicable to ship adhering to the estimated ship date, Seller may in its sole discretion cancel or modify ship dates and Seller shall not be liable to Buyer for any loss or damage whatsoever, including loss of profit or any direct, indirect, special, incidental, consequential or other damages, caused by such cancellation, modification, late delivery or failure to deliver. Job drawing approval delays by the Buyer may result in ship date adjustments by the Seller.
Neither party shall incur any liability or damages due to failure or delay in performance of any obligation caused by Force Majeure, at least for the duration of the Force Majeure, including fire, explosion, power failures, pest damage, lightning, power surges, strikes, labor disputes, epidemics, pandemics, flood, acts of God, war, civil disturbances, terrorism, acts of civil or military authorities, loss of availability of communications services or network facilities, or other causes beyond the party’s reasonable control.
Substitutions and Charges
Unless otherwise agreed in writing, Seller reserves the right to substitute the latest superseding design and/or manufactured equivalent equipment based on form, fit, and function, for the Equipment. Buyer may, with the express written consent of Seller, make changes in the specifications for equipment or work covered by the contract. In such event the parties will adjust the contract price and ship dates. Seller shall be entitled to profit plus costs and expenses incurred for work and materials rendered unnecessary because of such changes, and for work and materials required to effect said changes.
Buyer agrees that before ordering the Equipment, Buyer shall determine the suitability of the Equipment for Buyer’s intended use and shall assume all risk and liability whatsoever in connection with that determination; Buyer shall use the Equipment properly and according to Seller’s instructions, complying with all safety requirements; Buyer shall not remove or change any instructions or warnings placed on the Equipment, or remove or modify any safety devices installed by Seller; and Buyer shall use and install the products in accordance with all applicable laws and codes.
The Buyer bears full responsibility for determining the efficiency and safety requirements of the application on which purchased equipment shall be installed. The Buyer is responsible to guarantee that the equipment is properly installed in keeping with industry standard engineering practices or those put forth by the Seller for optimum performance of the equipment. The Buyer assumes the responsibility for contacting their insurance underwriter and advising the Seller of specific application requirements for additional safety equipment including but not limited to explosion venting, and fire protection. All process streams using dust collection methods of containment must considered explosive or combustible. The Buyer is also advised to adhere to prescribed OSHA, NFPA, Federal, State and Local codes and regulations applicable to industrial process ventilation systems, on which Seller equipment may be applied. Independent testing of process stream constituents by qualified experts is advised to determine the kind of safety components needed to reduce the risk of fire or explosion in the system and is the sole responsibility of the Buyer.
Liability limitation and indemnification
Buyer shall indemnify and hold harmless the Seller, and, if so requested, defend the Seller, from any and all costs, claims, damages, judgments and expenses (including reasonable attorney fees) suffered or incurred by Seller that arise out of, or as a result of or in connection with, any act, omission, or use of the Equipment by Buyer or its employees, agents, or Buyers, or any breach by Buyer of these Terms. Buyer shall notify the Seller promptly, and in any event within thirty days, of accident or malfunction involving the Equipment which results in personal injury or damage to property and shall cooperate fully with the Seller in investigating and determining the cause of such accident or malfunction. Buyer’s decision to acquire or use seller equipment is Buyer’s sole responsibility. Seller is not responsible for, and will not be liable for, any damages arising from Buyer’s decision to use seller products for a particular purpose. Seller’s cumulative liability to Buyer for any cause whatsoever (including, but not limited to, those arising out of or related to any particular order and regardless of the form of action, shall not exceed the amounts paid by Buyer for products ordered. In no event shall seller be liable under any theory of tort, contract, strict liability or other legal or equitable theory for any lost profits, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby excluded by agreement of the parties regardless of whether or not seller has been advised of the possibility of such damages. Buyer will defend seller against any third-party claims, and Buyer will indemnify seller for any judgments and settlements resulting from a claim, related to the application, use or installation of the products.
If the Seller provides Buyer with assistance or advice concerning the Equipment or any parts/service supplied hereunder or any system or equipment in which any such part/service may be installed and which is not required pursuant hereto, the furnishing of such assistance or advice shall not subject Company to any liability, whether based in contract, warranty, tort (including negligence) or otherwise.
No Seller representative is authorized to imply or guarantee performance beyond the limits expressed in the standard specifications in effect at the time of equipment fabrication.
If litigation or other legal action is commenced by Seller to enforce its rights under these Terms, Seller shall have the right to collect all the expenses of such litigation or other action, including reasonable attorney’s fees, from Buyer. In addition to the foregoing, Seller shall have all the rights and remedies given to sellers by applicable law. Seller’s rights and remedies shall be cumulative and may be exercised from time to time. Seller shall not lose any right because it has not exercised it in the past. Forbearance or indulgence by the Seller shown or granted to the Buyer whether in respect of these Terms or otherwise shall not affect or prejudice the rights of the Seller against the Buyer or be taken as a waiver of any of these Terms.
Buyer may cancel undelivered parts of any order only with the written approval of Seller. If the Seller for any reason in its sole discretion feels insecure about the Buyer’s willingness or ability to perform, Seller shall have the unconditional right to cancel this sale. In the event of any cancellation by either party, Buyer shall pay to Seller the reasonable costs and expenses (including engineering expenses and all commitments to Seller’s suppliers and subcontractors) that Seller has incurred prior to such cancellation, plus the Seller’s usual rate of profit for similar work. Fees will be a minimum of 25% of order on packaged/standard equipment and up to 100% for custom built equipment.
The Seller shall have the option (without prejudice to any of its other rights against the Buyer) by notice in writing to the Buyer to cancel any order or to suspend shipment in the following events: should any sum owing by the Buyer to the Seller be overdue; should the Buyer be in any breach of any term of the contract with the Seller; should the Buyer enter into any arrangement with, or for the benefit of, its creditors or file a petition in bankruptcy, or have a receiver appointed over all or part of its assets, or if any order is made against the Buyer for the preservation, safeguarding, or regulating the use of, the Buyer’s property or assets; or Seller determines in its sole discretion that the Buyer is not creditworthy.
The Seller warrants that the Equipment will be free of defects in workmanship and material (if properly installed, operated and maintained) for a period of 12 MONTHS from date of shipment to Buyer, subject to the limitations hereunder set forth. If within the warranty period, the Seller receives from the Buyer written notice of any alleged defects in the Equipment and if the Equipment is not found to be in conformity with this warranty (the Buyer having provided the Seller a reasonable opportunity to perform any appropriate tests thereon) Seller will, at its option, either repair the Equipment or supply a replacement therefore. The Seller under either option shall have the right to require Buyer to deliver the Equipment to Seller’s designated service center and the Buyer shall pay all charges for in-bound and out-bound transportation and for services of any kind, diagnostic or otherwise, excepting only the direct and actual costs of repairing or replacing the Equipment. If after reasonable effort the Seller cannot correct said deficiencies, the Seller will make an equitable price adjustment based on actual performance, provided that such adjustment shall under no circumstances exceed the purchase price. The Seller further warrants that the parts, and components supplied by the Seller and forming a part of the Equipment will be free from defects in material and workmanship for a period of 12 MONTHS from date of shipment to the Buyer. The Seller’s liability shall be solely limited to the supplying of replacement parts and materials. The foregoing warranties are subject to the following general conditions. For purposes of these Terms, the Equipment will be deemed defective only if the defect materially impairs the value of the Equipment to Buyer, the Equipment was defective on the date of original shipment, and the Buyer notifies Seller in writing of the claim within the warranty period. If the Buyer requests and the Seller agrees to the performance of warranty work during any time other than Seller’s ordinary business hours and work periods, the Buyer shall be required to pay for all premium time, travel time, living and travel expenses of any personnel of Seller required to perform such warranty work. THE WARRANTIES HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. SELLER MAKES NO OTHER WARRANTIES EITHER EXPRESS OR IMPLIED. IN PARTICULAR, SELLER MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER SHALL HAVE NO LIABILITY TO BUYER FOR DIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, PROPERTY DAMAGES, LOST PROFITS, OR OTHER ECONOMIC INJURY DUE TO ANY DEFECT IN THE EQUIPMENT, ANY USE OR INABILITY TO USE THE EQUIPMENT, OR ANY OTHER BREACH BY SELLER OF THIS CONTRACT. SELLER SHALL HAVE NO LIABILITY TO BUYER IN TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) FOR ANY PRODUCT LIABILITY CONCERNING THE EQUIPMENT, OR FOR THE OMISSION OF ANY WARNING THEREFROM. THE FOLLOWING REMEDY SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDIES OF BUYER UNDER THIS CONTRACT AND IS EXPRESSLY MADE IN SUBSTITUTION OF ANY AND ALL OTHER REMEDIES.
Equipment sold but not manufactured by the Seller will be warranted against defects in material and workmanship consistent with the warranty policy of the original manufacturer of the equipment. All warranties shall be null and void where the Equipment has been subjected to accident, altered, misused, or abused, or Buyer has failed to ensure proper storage, installation, operation and/or maintenance of the Equipment. Use of the Equipment in improper or non-recommended applications (including operation above rated load capacity), or use of parts or components not meeting the Seller’s specifications or quality standards (e.g., non-Seller parts or components) renders all warranties null and void. The foregoing warranties do not apply to any product or part thereof which may have a life, under normal usage, shorter than the indicated warranty period such as, but not limited to, mist eliminators, filters and filter stages, belts, and bearings, gasketing and the like. All production figures, throughput rates, production rates, capacity figures and cost figures contained in seller’s proposals, printed literature, advertising, drawings and/or quotes are based on tests seller believes are reliable and on seller’s understanding of the Buyer’s project and are not warranted or otherwise guaranteed.
The headings to these Conditions have been inserted for convenience and shall not affect their construction.
If any of these Terms is found to be invalid or unenforceable, the provision shall be ineffective to the extent of such invalidity or unenforceability, but the remaining provisions shall be unaffected.
Applicable Law and Jurisdiction.
The contract between Seller and Buyer shall be considered to have been made in the State of Michigan and shall be governed by and interpreted according to Michigan law. Any action or suit arising hereunder must be brought within one (1) year from the date the cause of action accrues. Any lawsuit arising out of this contract shall be brought in the federal or state court having jurisdiction over Emmett County, Michigan. Buyer consents to personal jurisdiction in such court and waives any other jurisdiction that might be available by reason of presence or otherwise.
PO Box 223
Conway, MI 49722
670 West Conway Rd
Harbor Springs, MI 49740