Terms and Conditions of Sale
1. FOB POINT / PRICES:
Products are sold FCA Madison Heights.
Any taxes are in addition to the prices and may be invoiced later.
2. SHIPPING SCHEDULE:
The shipping schedule is our current estimate
of delivery dates and we agree to use reasonable efforts to comply
with the schedule.
(a) Any DME trademarked or tradenamed product or part thereof
manufactured by or for us which, under normal operating conditions
in the plant of the Buyer thereof, proves defective in material or
workmanship, as determined by our inspection, within 12 months
from the date of shipment will be replaced or repaired free of charge
This warranty is contingent upon the following conditions:
promptly receive notice of the defect; that Buyer establish that the
product has been properly installed, maintained, and operated within
the limits of related and normal usage as specified by us; and that,
upon our request, Buyer will return to us at our expense the
defective product or part thereof.
(b) The terms of this warranty do not in any way extend to any
product or part thereof which have a life, under normal usage,
inherently shorter than 12 months.
(c) The conditions of actual production in each end user’s plant
vary considerably. Therefore, descriptions of the production or
performance capabilities of any product or software materials
are estimates only and are not warranted.
4. EXCLUSIONS OF WARRANTIES:
THE WARRANTIES TO REPAIR OR REPLACE DEFECTIVE PRODUCTS
OR PARTS AS SET FORTH IN PARAGRAPH 3, AND ANY ADDITIONAL
WARRANTY EXPRESSLY STATED TO BE A WARRANTY AND SET
FORTH IN WRITING AS PART OF THESE TERMS HEREIN ARE IN LIEU
OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANT-
ABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5. LIMITATION OF REMEDIES AND LIABILITIES:
UNDER NO CIRCUMSTANCES SHALL WE OR ANY AFFILIATE OF
OURS HAVE ANY LIABILITY WHATSOEVER FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES HOWSOEVER CAUSED OR ARISING
(INCLUDING CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHERWISE), such as, but not limited to, loss of profit or revenue;
loss of use of the product, part thereof; cost of capital; cost of
replacement equipment; claims that the warranty failed of its
essential purpose or claims resulting from contracts between Buyer,
its customers and/or suppliers. Unless expressly provided for herein,
in no event shall we or any affiliate of ours assume responsibility or
liability for (a) penalties, penalty clauses or liquidated damages
clauses of any description, (b) certifications or (c) indemnification of
Buyer or others for costs, damages or expenses arising out of or
related to the product or part thereof.
Unless otherwise agreed, Buyer may cancel all or
any part of the order by written notice received by us before our
completion of the order or applicable portion of the order. On receipt
of such notice, all work on the order or part thereof canceled will be
stopped as promptly as is reasonably possible. Buyer will then be
invoiced for and will pay to us a cancellation charge. For completed
items, the charge will be equal to their established prices. For items
not completed, the charge will be equal to our full cost plus a
premium in addition to a charge for any packing and storage and
less a credit for the balance of the material as scrap.
7. PAYMENT TERMS:
Payment is due in accordance with any
applicable progress, advance or other agreed upon payment
schedule, or, if no such schedule has been agreed to, upon
Acceptance as specified in Paragraph 8, but in no event later than
30 days from the date of invoice. No cash discount is provided. If,
in our judgment, Buyer’s financial condition changes, we may stop
work until financial arrangements satisfactory to us are made.
8. ACCEPTANCE OF PRODUCT:
Each such product shall be deemed to
be accepted within seven days after delivery of the product to the
Buyer, unless we receive written notification of rejection for cause
from Buyer within the seven day period.
No goods are returnable without prior approval,
prepaid transportation and an issued RMA number. All items are
subject to our inspection before credit will be allowed.
NO GOODS ARE RETURNABLE LATER THAN THIRTY DAYS AFTER
RECEIPT OF MERCHANDISE.
9. PATENT INDEMNITY:
We shall defend any suit or proceeding
brought against Buyer and pay all costs and damages awarded
against Buyer provided that:
(a) The suit or proceeding is based upon a claim that the product or
part thereof is an infringement of any claim of a presently existing
(b) The claim of infringement is not based, directly or indirectly,
upon (i) the manufacture, use, or sale of any product furnished by us
which has been modified without our consent; or, (ii) the manufac-
ture, use, or sale of any combination of a product furnished by us
with products not furnished by us; or (iii) performance of a patented
process using a product furnished by us or production thereby of a
patented product; and,
(c) We are notified promptly and given information and assistance
(at our expense) and the authority to defend the suit or proceeding.
We shall not be responsible hereunder for any settlement made
without our written consent nor shall we be responsible for costs
or expenses incurred without our written consent. If our product is
adjudicated to be an infringement and its use in the U.S. by Buyer
is enjoined, we shall, at our own expense, either:
(i) procure for Buyer the right to continue using our product;
(ii) replace it with a noninfringing product;
(iii) modify it so it becomes noninfringing;
(iv) remove the product or part thereof and refund Buyer’s net
book value and transportation costs attributable to it.
The foregoing states our entire liability with respect to any patent
infringement by our products or any parts thereof. To the extent that
our product or any part thereof is supplied according to specifica-
tions and designs furnished by Buyer, Buyer agrees to indemnify us
in the manner and to the extent set forth above insofar as the terms
thereof are appropriate.
We shall not be liable for any delay in perfor-
mance or nonperformance which is due to war, fire, flood, acts of
God, acts of third parties, acts of governmental authority or any
agency or commission thereof, accident, breakdown of equipment,
differences with employees or similar or dissimilar causes beyond
our reasonable control, including but not limited to, those interfering
with production, supply or transportation of products, raw materials
or components or our ability to obtain, on terms we deem reason-
able, material, labor, equipment or transportation.
11.ACCEPTANCE OF ORDERS:
Buyer agrees that all orders, including
any arising from our Proposal, shall include these terms and
conditions only, notwithstanding any different or additional terms
that may be embodied in Buyer’s order. All orders are subject to our
acceptance and we reserve the right to reject orders as, in our sole
judgement, mandated by business conditions. We reserve the right
to not proceed with any order until all necessary information is
received from Buyer.
This Agreement entirely supersedes any prior
oral representations, correspondence, proposal, quotation, or
agreement. This writing constitutes the final and total expression
of such agreement between the parties, and it is a complete and
exclusive statement of the terms of that agreement.
Neither party may assign this Agreement without
the written consent of the other party, except that we may assign
this Agreement to a third party that acquires substantially all of
our assets or we may assign the flow of funds arising out of this
This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan.