Terms of sale
All sales of products and services by EISELE CONNECTORS, INC. (“Seller”), are made on the following terms and conditions. In these Terms of Sale (“Terms”), any products sold by Seller to the buyer named in Seller’s quotation or acknowledgment (“Buyer”) are referred to below as “goods;” any services sold by Seller to Buyer are called “services;” and “Contract” means the contract between Seller and Buyer with respect to the goods and services, including these Terms.
If Buyer has not otherwise agreed to these Terms, then Buyer’s acceptance of delivery of, or payment for, the goods or services shall constitute Buyer’s agreement to these Terms. Seller objects to and will not agree to any terms that are additional to or different from these terms. Terms that are printed on or contained in a purchase order or other form prepared by Buyer which are additional to, in conflict with, or inconsistent with those in these Terms shall be considered inapplicable and shall have no force or effect.
2. Offers; Order Acceptance.
(a) Unless otherwise expressly stated in writing, no proposal or quotation by Seller shall be considered a binding offer. Instead, any such proposal by Seller shall only be considered an invitation to negotiate or submit an offer. Seller shall have no duty to perform under any agreement until Seller confirms in writing that Seller is so bound.
(b) Unless otherwise expressly stated in writing, all descriptions, pricing, illustrations, and specifications of products and services contained in catalogs, price lists, circulars, brochures or the like shall not be binding upon Seller, and shall merely serve to provide general information to prospective customers about Seller’s available goods and services offered by Seller.
3. Cancellation/Reschedule of Purchase Order(s).
(a) Buyer may not cancel any purchase order after the goods are transferred to the carrier for delivery to Buyer. In the event of any cancellation of all or part of any purchase order, Buyer agrees to pay Seller for all reasonable and allocable materials, material management, labor, overhead and general and administrative costs and expenses incurred as a result of any such cancellation, plus a reasonable profit, within 10 days from the date of Seller’s invoice. Non-standard and custom goods are not returnable and not cancelable under any circumstances.
(b) If Buyer shall fail to timely pay for Buyer’s goods, Seller may cancel all of Buyer’s orders that Seller has not yet fulfilled.
4. Payment Terms.
Unless otherwise specified in Seller’s quotation or acknowledgment, payment in full of the price is due immediately upon Buyer’s receipt of the goods or performance of the services, except that if at any time Seller determines that Buyer’s financial condition or credit rating does not justify a sale on credit or if Buyer is at any time in default in any indebtedness or obligation that Buyer owes to Seller, then Seller may require advance payment or may ship C.O.D. (cash on delivery). Any payment that is not made when the payment is due shall accrue a finance charge of 1-1/2% per month. Payment is to be made to Seller at the place and in the manner described on the invoice or by other direction provided to Buyer by Seller. Seller shall have the right to increase Seller’s prices at any time upon notice to Buyer to reflect any unusual or unforeseen increase in Seller’s costs, including but not limited to any increase in the cost of materials. Buyer may not offset or recoup any claim against amounts due Seller. Unless otherwise agreed in writing signed by Buyer and Seller, all payments shall be in U.S. Dollars.
5. Delivery and Risk of Loss.
(a) Unless otherwise specified in writing by Seller, all agreed delivery periods shall begin when Buyer receives Seller’s order confirmation.
(b) Unless Seller agrees otherwise in writing, Seller shall deliver the goods EXW (Incoterms 2010) Seller’s facility from which the goods will be shipped, or the point of origin of the goods if the goods are shipped directly to Buyer from a third party, except that if Seller’s facility, or the point of origin of the goods if the goods are shipped directly to Buyer from a third party, and Buyer’s facility are both located in the United States, then Seller shall deliver the goods F.O.B. (Uniform Commercial Code term) Seller’s facility from which the goods will be shipped, or the point of origin of the goods if the goods are shipped directly to Buyer from a third party. The risk of loss of the goods shall pass to Buyer upon identification of the goods to the Contract, whether such identification occurs at Seller’s facility or a point of origin other than Seller’s facility. Shipping, delivery and performance dates are estimates only, and time is not of the essence for Seller’s obligations under the Contract. Seller may deliver all the goods at one time or in portions from time to time. Seller may withhold delivery from Buyer if Seller believes in good faith that Seller has a valid claim or action against Buyer.
Seller’s price does not include any privilege, occupation, personal property, value-added, sales, excise, use or other taxes, and Buyer shall be liable for all such taxes, whether or not Seller invoices Buyer for them. If Buyer does not furnish to Seller an appropriate sales and use tax exemption certificate with respect to Buyer’s purchase of the goods and if Seller is required by a governmental entity to collect and remit sales or use tax with respect to Seller’s sale of the goods to Buyer, then Seller’s invoice to Buyer for the purchase price shall include, and Buyer shall pay to Seller, the full amount of that tax.
7. Unavoidable Delay.
If Seller is not able to finish and deliver the goods to Buyer, or to perform the services, on time because of anything Seller cannot control (such as casualty, labor trouble, accidents, unavailability of supplies or transportation, or Buyer’s failure to approve production samples), then the estimated delivery or performance time shall be extended for the duration of such events plus two additional weeks, and Seller shall not be liable to Buyer for any damages caused by the delay. Should any such event last more than 6 weeks, Seller shall have the right to cancel all or part of the affected Contract if, in Seller’s sole discretion, it becomes unreasonable for Seller to render services.
Seller shall have the right to make design or engineering changes in Seller’s parts, equipment, processes and methods of manufacture, but Seller will not, without Buyer’s prior approval, make any changes in operational or dimensional specifications that Buyer submits. Stenographical and clerical errors in quotations are subject to correction.
9. Limited Warranty; Remedies.
(a) Seller warrants to Buyer that all goods manufactured solely by Seller (“Products”) will be free from defects in material or workmanship under normal and intended use and service for a period of one year after the date of delivery of the Products. The Products shall not be defective to the extent that (i) the Products conform with drawings of or specifications for or a sample of goods that have been approved by Buyer; (ii) the Products conform with goods, testing results, dimensional layouts or manufacturing methods that have been submitted and approved by Buyer; (iii) the Products are damaged due to the method or length of storage by Buyer; (iv) to the extent the Products conform to the specifications as changed or waived if Buyer’s representative agrees, either orally or in writing, to the change in or waiver of the specifications for any Product; (v) the Products are not free from anti-wetting substances, such as silicone or light lubrication; or (vi) the Products were exposed to a chemical, biological, radiological, nuclear or explosive event or otherwise exposed to a hazardous material. If there is a defect in any Product that does constitute a breach of the warranty provided in these Terms, Seller will at Seller’s option either (A) repair or replace such Product free of charge, or (B) in lieu of repair or replacement, refund to Buyer the original purchase price less the reasonable value of Buyer’s use of the Products.
(b) Seller will not (i) pay for any of Buyer’s charges or labor costs for correcting defects or making additions, or (ii) accept any returned goods for credit, unless Seller gives prior written authorization of such correction or return. Seller shall furnish to Buyer instructions for the disposition of the defective goods. Seller shall have the option of requiring the return of the defective goods, transportation prepaid, and proof that the goods were not used, installed or altered or subject to misuse or abuse to establish the claim. If Seller consecutively delivers defective replacement goods, or fails to repair a defect after two attempts, then Buyer may elect to receive a refund of the price that Buyer paid to Seller for that part of the goods that was defective. No goods shall be returned to Seller (A) without Seller’s prior consent, or (B) if the goods were exposed to a chemical, biological, radiological, nuclear or explosive event or otherwise exposed to a hazardous material. The acceptance of any goods returned to Seller shall not be deemed an admission that the goods are defective or in breach of any warranty, and if Seller determines that the goods are not defective they may be returned to Buyer at Buyer’s expense, which expense may include costs related to Seller’s inspection of such goods. This Section sets forth Buyer’s sole and exclusive remedies for any defect in the goods. The rights and obligation under this warranty may not be assigned or delegated to a third party by Buyer without the prior written permission of Seller. Neither Buyer nor any other person may modify or expand the warranty provided herein, waive any of the limitations, or make any different or additional warranties with respect to any goods. Any statements to the contrary are hereby rendered null and void unless expressly agreed to in writing by an authorized officer of Seller.
(c) If a service proves to be defective (as defined below) within one year after Seller performs the service, then Seller shall, at Seller’s option, either re-perform the service, at Seller’s expense, or refund to Buyer the price that Buyer paid to Seller for that part of the service that was defective. A service shall be considered “defective” if the service is found by Seller to have failed to meet the standards in Seller’s industry and if that failure materially impairs the value of the service to Buyer, except that if Buyer shall have approved or furnished to Seller specifications for the service, then the service shall not be considered defective to the extent the service conforms to the specifications. If Seller defectively performs a service on three consecutive occasions, then Buyer may elect to receive a refund of the price that Buyer paid to Seller for that part of the service that was defective. This Section sets forth Buyer’s sole and exclusive remedy for any defect in the services.
(d) Seller makes no warranty for any goods that are not solely manufactured by Seller. To the extent permitted by law and contract, Seller shall assign to Buyer any warranty that is extended to Seller by the actual manufacturer of such goods, and Buyer shall look solely to such warranty in the event of a claim or action relating to such goods.
(a) EXCEPT AS STATED IN THE IMMEDIATELY PRECEDING SECTION OF THESE TERMS, SELLER DOES NOT MAKE ANY WARRANTY AS TO THE GOODS OR SERVICES AND, IN PARTICULAR, DOES NOT MAKE ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND BUYER IS SOLELY RESPONSIBLE FOR DETERMINING THE PROPER APPLICATION AND USE OF THE GOODS.
(b) SELLER SHALL NOT HAVE ANY TORT LIABILITY TO BUYER OR ANY OTHER PERSON WITH RESPECT TO ANY OF THE GOODS OR SERVICES AND SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, INDIRECT OR PUNITIVE DAMAGES ARISING FROM ANY PRODUCT DEFECT, DELAY, NONDELIVERY, RECALL OR OTHER BREACH. BUYER SHALL NOT HAVE ANY RIGHT OF REJECTION OR OF REVOCATION OF ACCEPTANCE OF THE GOODS.
11. Solvency and Security Interest.
Buyer represents that Buyer is solvent.
(a) Buyer grants to Seller a security interest in and the right of repossession of the goods, including a purchase money security interest, until full and final payment for the goods and services (including notes and collection costs) has been made. In the event of default in any payment due from Buyer to Seller, the full amount unpaid shall be due and payable on demand, and Seller may at Seller’s option either (i) recover the full amount unpaid or repossess the goods and all additions to the goods, wherever found, free from all claims whatsoever; or (ii) treat this Contract as void and retain all payments made as rent for the use of goods.
(b) The goods or any part of the goods shall not be considered a fixture, or be incorporated into any real property by reason of the goods attachment to real property, and may be separated from any real property, as well as personal property, for the purpose of repossession. Seller shall not be liable to Buyer nor shall Seller be subject to any legal proceedings, criminal or civil, for Seller’s acts in such repossession. Seller shall not be liable to Buyer for the repayment of any money paid as partial payment for the goods.
(c) Buyer agrees to execute any necessary instruments to perfect Seller’s security interest in the goods and Seller shall have the benefit of the applicable Uniform Commercial Code and the remedies under that law. Seller shall have the right to elect to assert a claim of a mechanic’s lien against the real property upon which the goods are erected.
(d) Buyer shall not grant any right or security interest in or to the goods before payment in full to Seller for all goods and services without the prior written consent of Seller.
(e) Except as otherwise provided these Terms or required by law, pursuit of any right reserved in these Terms or granted by law shall not preclude or waive the pursuit of any other right.
12. Insecurity and Adequate Assurance.
If Seller ever believes in good faith that Seller has grounds for insecurity as to Buyer’s performance under these Terms, then Buyer shall provide adequate assurance of due performance within 10 days after Seller demands the assurance, which shall be considered to be a reasonable time. Buyer’s failure to do so shall be considered to be a repudiation by Buyer of all then-existing contracts (including these Terms) that provide for Buyer to purchase goods from Seller (“Outstanding Contracts”). “Grounds for insecurity” include, without limitation, (a) Buyer’s failure to make a payment to Seller or to perform another obligation under these Terms or any other Outstanding Contract; (b) Buyer’s insolvency; (c) a deterioration in Buyer’s financial condition after these Terms were entered into; and (d) Buyer’s failure to provide financial statements and other financial information to Seller promptly upon Seller’s request. “Adequate assurance of due performance” includes, without limitation, providing a letter of credit or comparable security for all obligations of Buyer that then exist or that will arise in the future under all Outstanding Contracts.
13. Permits and Compliance.
Seller is not responsible for obtaining any permit, inspection or license that is required for installation or operation of the goods. Seller does not make any promise or representation that the goods will conform to any law, ordinance, regulation, code or standard.
14. Safety Features.
Buyer shall install and operate the goods properly and according to Seller’s operating instructions and shall not remove or change any safety device, warning or operating instructions that Seller placed on the goods.
15. Components of Another Product.
If any of the goods constitute parts or components that are to be incorporated or installed in a product that is manufactured or assembled by or for Buyer or for a third party, then Buyer shall (a) obtain, or cause the end-user of the product to obtain, all permits, inspections and licenses required for installation or operation of the product, (b) cause the product to conform to all applicable laws, ordinances, regulations, codes and standards and (c) place on the product all safety devices and warnings, and furnish to Buyer’s customer all operating instructions, that are necessary or desirable to prevent any death, personal injury or property damage from being caused by any use or operation of the product.
On any resale of the goods, Buyer shall contractually limit the rights and remedies of Buyer’s customer against both Buyer and Seller to the same extent that these Terms limit Buyer’s rights and remedies.
17. Independent Contractor.
Seller is an independent contractor under this Contract. Nothing in this Contract shall be deemed to make Seller or Seller’s employees or agents an employer, employee, partner or joint venturer of Buyer.
Seller may overrun or underrun the agreed-upon quantities by up to 5%, and Buyer shall pay Seller at the unit price for quantities that Seller delivers within these limits. Any claim by Buyer that Seller failed to deliver the agreed-upon quantity of goods (subject to any adjustment under the preceding sentence) must be submitted to Seller in writing within 30 days after Buyer receives the goods. If Buyer fails to do so, then the proper quantity shall be conclusively presumed to have been delivered.
19. Blanket Purchasing Agreement.
If the Contract is a blanket purchasing agreement under which Buyer will from time to time issue to Seller “releases” with respect to portions of the goods, then, except to the extent that Seller otherwise expressly agrees in writing, (a) when Buyer issues a release for any of the goods, Seller shall be permitted to ship all of those goods within the time period that Seller’s quotation specifies or that Seller otherwise agrees to in writing, notwithstanding any contrary provision in the release, (b) any delivery dates specified in any release shall be extended automatically to the extent that Seller is not reasonably able to meet those dates and (c) Buyer shall be obligated to release the entire quantity of goods provided for in the Contract within one year after the date on which the Contract is formed.
If Seller imposes and Buyer pays a separately-identified charge for tooling to be used in the manufacture of the goods, then the tooling shall be the property of Buyer, subject to the following: (a) risk of loss of the tooling shall at all times remain with Buyer; (b) Buyer shall maintain standard fire and extended coverage insurance with respect to the tooling for the tooling’s full replacement value, shall cause Seller to be named as an additional insured on the policy and, upon Seller’s request, shall give Seller evidence of Buyer’s compliance with this clause, (c) Seller retains a security interest in the tooling to secure all obligations that Buyer at any time owes to Seller; (d) Buyer shall not have any right to possess the tooling as long as Seller has any outstanding obligation to sell to Buyer goods whose manufacture requires use of the tooling; (e) Buyer shall reimburse Seller on demand for all costs of modifications of the tooling that are made reasonably necessary by changes in the specifications for the goods; and (f) upon Seller’s demand, Buyer shall immediately remove the tooling from Seller’s premises, at Buyer’s expense, and if Buyer fails to do so within ten (10) days after that demand, then Seller may destroy or otherwise dispose of the tooling, without further notice or liability to Buyer.
21. Intellectual Property and Confidentiality.
All inventions (whether or not patentable), devices, technologies, ideas, improvements, processes, systems, software and other works and matters that Seller creates or develops in the course of Seller’s design, development or manufacture of the goods or performance of the services and all drawings and specifications that Seller provides to Buyer (“Intellectual Property”) shall be Seller’s sole property, and Buyer assigns, and agrees to assign, to Seller all right, title and interest that Buyer now has or in the future acquires in the Intellectual Property. Buyer shall not disclose or use any of the Intellectual Property or any information about Seller’s business, operations or activities, except to the extent necessary for Buyer to use the goods or services.
(a) Buyer does not have any right to cancel Buyer’s agreement to buy the goods or services from Seller. If, however, Seller agrees in writing to permit cancellation, then Buyer shall immediately pay to Seller a cancellation charge in an amount equal to the purchase price (including any tooling charge) less allowances (in amounts that Seller determines) for (i) the realizable value to Seller of any standard components that Seller purchased or ordered before cancellation, (ii) the realizable scrap value to Seller of the remaining material and tooling that Seller purchased, fabricated or ordered before cancellation and (iii) any direct labor costs that Seller saved by reason of the cancellation.
(b) If Buyer fails to pay or perform any indebtedness or obligation that Buyer at any time owes to Seller (whether or not the indebtedness or obligation is related to the sale of goods to which these Terms apply), then Seller may consider Buyer’s failure to be an anticipatory repudiation of any or all outstanding contracts that provide for Seller to sell goods or services to Buyer, and Seller may, without liability to Buyer, cancel any or all of those outstanding contracts.
Buyer shall indemnify and hold harmless Seller with respect to all damages, losses, claims and expenses, including consequential and incidental damages and attorney fees, that Seller incurs as a result of (a) Buyer’s breach of any of Buyer’s obligations under these Terms, (b) any claimed unfair competition or patent, trademark or copyright infringement or any other claim that results from Seller’s manufacture of the goods, or performance of the services, to Buyer’s specifications, (c) Buyer’s modification of any of the goods, (d) the incorporation or installation of any of the goods in a product that is manufactured or assembled by or for Buyer, or (e) the return of any goods to Seller that were exposed to a chemical, biological, radiological, nuclear or explosive event or otherwise exposed to a hazardous material.
24. Seller’s Rights.
Seller has all rights and remedies that applicable law gives to sellers. Seller’s rights and remedies are cumulative, and Seller may exercise them from time to time. Seller’s waiver of any right on one occasion shall not be a waiver of any future exercise of that right.
25. Time For Bringing Action.
Any action that Buyer brings against Seller for breach of this Contract or for any other claim that arises out of or relates to the goods or their design, manufacture, sale or delivery or the services must be brought within one year after the cause of action accrues.
26. Governing Law and Language.
This Contract between Seller and Buyer shall be considered to have been made in the State of Michigan, and this Contract shall be governed by and interpreted according to Michigan law, excluding the United Nations Convention on Contracts for the International Sale of Goods. Either party may bring any action that arises out of or relates to this Contract in any federal or state court in Kent County, Michigan, that has jurisdiction of the subject matter, and Buyer irrevocably consents that any such court shall have personal jurisdiction over Buyer and waives any objection that the court is an inconvenient forum.
27. Complete Agreement; Amendment.
The terms on Seller’s quotation and acknowledgment and these standard Terms contain the entire agreement between Buyer and Seller. Any change to this Contract must be agreed to in writing by an authorized officer of Seller.
The invalidity, illegality, unenforceability, or impracticability of any provision of this Contract, or a provision in any other agreement which is identical to one in this Contract, shall not affect the other provisions and this Contract shall be given effect as if the invalid, illegal or unenforceable provision had been deleted. In such case, Seller and Buyer shall undertake to replace such provision with a new provision that comes as close as possible to the spirit and purpose of the provision to be replaced.