KNOEDLER MANUFACTURERS CANADA, LTD.
TERMS AND CONDITIONS OF SALE
1) Acceptance. Acceptance, acknowledgement, or shipment of any part of this sales order constitutes an agreement to all terms and conditions set forth or referenced herein and on the face hereof and on attachments hereto and such terms and conditions shall constitute the entire agreement between Seller and Purchaser. This sales order constitutes an acceptance by Seller of an offer by Purchaser and expressly limits acceptance to the terms and conditions stated herein. No agent or employee of Seller is authorized to make any agreement or understanding in any way modifying the terms and conditions of the sales order, nor shall any additional provisions or provisions of variance herewith that may appear in the purchaser’s purchase order, acknowledgement, invoice, or in any other communications from Purchaser to Seller be deemed accepted by or binding on Seller, such provisions being rejected by Seller and superseded by the terms and conditions stated herein, unless and until expressly assented to in writing with legal consideration by Seller’s authorized representative. Stenographic and clerical errors and omissions by the Seller shall be subject to correction.
2) Purchaser’s exclusive remedy. Purchaser’s exclusive remedy for any goods having defects in materials or workmanship and for any damages caused thereby will be either (1) pursuant to any express limited written warranty provided with product(s), or (2) if no express limited written warranty is provided, a refund of the purchase price or replacement of such defective goods returned to the Seller within thirty (30) days after receipt thereof by the Purchaser. Either (a) Purchaser’s failure to allow Seller a reasonable opportunity to inspect, test, or sample the goods prior to their return to the Seller or (b) Purchaser’s failure to give written notice of the defects to Seller within ten (10) days after receipt of the goods, constitutes a waiver by Purchaser of all claims with respect to the goods furnished hereunder. There are no warranties, express or implied, which extend beyond these terms and conditions. IN NO EVENT SHALL KNOEDLER HAVE ANY RESPONSIBILITY FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES.
3) Disclaimer of Warranty of Merchantability. KNOEDLER MAKES NO WARRANTY OF MERCHANTABILITY UNDER THE UNIFORM COMMERCIAL CODE OR ANY STATE’S EQUIVALENT OF THE UNIFORM COMMERCIAL CODE WITH RESPECT TO THE GOODS SOLD AND DESCRIBED HEREUNDER. There are no warranties, express or implied, which extend beyond the terms and conditions.
4) Disclaimer of Warranty of Particular Purpose. Knoedler MAKES NO WARRANTY THAT THE GOODS DESCRIBED HEREUNDER ARE FIT FOR ANY PARTICULAR PURPOSE. There are no warranties, express or implied, which extend beyond these terms and conditions.
5) Purchaser’s liability. Purchaser assumes the entire responsibility and liability for losses, expenses, damages, demands, and claims in connection with or arising out of any personal injury or alleged personal injury (including death), and/or damage or destruction or alleged damage or destruction to property sustained or alleged to have been sustained in connection with or to have arisen out of the negligent or improper performance of any installation, service, repair, maintenance, replacement, alteration, or modification by Purchaser, its agents, employees, subcontractors, and/or consultants, of the goods described hereunder except liability as may result from or in connection with the design or manufacture of the goods provided by Seller, its officers, agents, employees or independent contractors acting for Seller. Purchaser shall indemnify and hold harmless Seller, its officers, agents, and employees from any and all liability for such losses, expenses, damages, demands, lawsuits, and claims and shall defend any lawsuit or action brought against any or all of them based on any alleged personal injury, death, or damage to property and shall pay any damage costs, expenses, fees (including attorney’s fees), settlement, verdict, judgment, or appeal in connection with or resulting from such lawsuit, claim, or other action.
6) Indemnification. The Purchaser shall indemnify and hold harmless Seller, its officers, agents, and employees from any and all liability for losses, expenses, damages, demands, lawsuits, and claims in connection with or arising out of any personal injury or alleged personal injury (including death) and/or damage or destruction or alleged damage or destruction to property sustained or alleged to have been sustained in connection with or to have arisen out of the negligent performance, and/or unauthorized installation, service, repair, replacement of component parts, restoration, misuse, and/or any other conduct performed by Purchaser, its agents, employees, independent contractors, and/or consultants which results in the modification, alteration, or change in the design or manufacture of the goods provided by the Seller and described hereunder. Purchaser shall indemnify and hold harmless Seller, its officers, agents, and employees to the fullest extent permissible by law from any and all liability for such losses, expenses, damages, demands, lawsuits, and claims and shall fully defend any lawsuit or action brought against any or all of them based on any alleged personal injury, death, or property damage and shall pay any damage costs and expenses, fees (including attorneys fees), settlement, verdict, judgment, or appeal in connection with or resulting from such lawsuit, claim, or action.
7) No authorized agency relationship. Seller has no local or national agents or authorized dealers which perform field work by or on behalf of Seller. This field work includes service, repair, replacement, maintenance, or any other type of work performed in the field. Therefore, any field work such as that described herein is performed at the request and at the risk of a person or party other than Seller. Seller neither authorizes nor warrants such field work.
8) Description. Sale of Goods. KNOEDLER shall transfer ownership and deliver possession to purchaser and purchaser shall pay for and accept the goods specified in KNOEDLER’s Acknowledgment of Purchase Order.
9) Delay of Shipment Excused. KNOEDLER shall not be liable for any late delivery hereunder.
10) Method of Delivery or Tender. If specified in the Acknowledgment of Purchase Order or otherwise agreed to by the parties, KNOEDLER will deliver the finished goods to the location specified by the purchaser. Otherwise, KNOEDLER will tender delivery by giving notice to purchaser as soon as the goods are ready for delivery. Purchaser agrees to receive the goods at KNOEDLER’s place of business or at a predetermined location specified by KNOEDLER within forty-eight (48) hours after having been given notice that the goods are being held at purchaser’s disposal. Failure to receive the goods within the allotted time frame will cause KNOEDLER to impose a storage fee for goods not removed (Section14).
11) Shipping Terms and Risk of Loss. From the time products or materials are placed in the hands of a carrier under shipment terms agreed upon herein as F.O.B. or EXW from any location as specified by KNOEDLER (examples: St. Hubert, Quebec, Canada or Battle Creek, MI), purchaser assumes all risk of loss or destruction of or damage to the products or materials and all additions thereto for any reason. The occurrence of any such casualty shall not relieve purchaser from making payments hereunder, nor from any other obligation under this agreement.
12) Insurance. KNOEDLER agrees to procure insurance for the value of all goods sold under this contract until the time of actual receipt of the goods by purchaser. Purchaser agrees to reimburse KNOEDLER for the cost of this insurance.
13) Cost of Storage. Purchaser agrees to reimburse KNOEDLER 10% of the invoiced amount per day per unit for storage costs resulting from failure to promptly take possession of the goods after KNOEDLER tenders delivery.
14) Disclaimer of Express Warranties. Other than any express written limited warranty provided by KNOEDLER (which purchaser must strictly comply with), any description of the goods is for identification only and not part of the basis of the bargain, and does not constitute a warranty. Samples or models are for illustrative purposes only and do not create any warranty. No affirmation of fact or promise by KNOEDLER shall constitute a warranty.
15) Release. KNOEDLER is released from liability and shall be held harmless from any injury or damage incurred by purchaser or any third party resulting from misuse of the goods or use contrary to any warnings, cautions, or instructions.
16) Method of Payment. Purchaser shall pay in U.S. funds (or as stated on the invoice) by legal tender or by bank or certified check payable to KNOEDLER and properly endorsed.
17) Time of Payment. Unless otherwise stated, purchaser shall pay the full purchase price within thirty (30) days from delivery or tender of delivery by KNOEDLER.
18) Interest for Delayed Payment. Purchaser shall pay a service charge of 1.5% per month on any unpaid balance not paid within the specified terms.
19) Grant of Security Interest. Purchaser grants KNOEDLER a security interest in the goods to secure any unpaid portion of the purchase price and agrees to execute any required security agreement.
20) Collection Costs. Purchaser shall pay all reasonable costs of collection, including attorney fees, for any unpaid amounts.
21) Purchaser Acceptance. Purchaser accepts the goods upon notice of tender of delivery from KNOEDLER unless otherwise specified.
22) KNOEDLER’s Damages. If entitled to damages under Section 2-703 of the Uniform Commercial Code, KNOEDLER may recover either the difference between market price and contract price or lost profit under Section 2-708(2), plus incidental damages under Section 2-710.
23) Solvency of Purchaser. Purchaser represents it is not insolvent as defined in the Uniform Commercial Code and agrees to notify KNOEDLER if it becomes insolvent before receiving the goods; failure to notify shall be deemed reaffirmation of solvency.
24) Negation of Right to Cover. If KNOEDLER breaches under Section 2-711, purchaser’s sole remedy is the difference between contract price and market price, with no right to cover or recover incidental or consequential damages.
25) Prohibition of Assignment and Delegation. No right or interest in this contract may be assigned by the purchaser without KNOEDLER’s prior written consent. No delegation of obligations may be made without such consent. Any attempted assignment or delegation shall be void.
26) Choice of Law. This contract shall be governed by the laws of the State of Michigan, including the Uniform Commercial Code as adopted therein, excluding the UN Convention on Contracts for the International Sale of Goods.
27) Force Majeure. KNOEDLER shall not be liable for delays or defaults due to causes beyond its control, including acts of God, government actions, strikes, fires, floods, accidents, or other unforeseeable events, and shall notify purchaser within five (5) days of such delay.
28) Warnings. Purchaser and installer are responsible for determining product suitability. Serious injury may occur if head clearance is inadequate and must be verified at maximum seat height. Incorrect installation may result in serious injury or death and must comply with manufacturer instructions and applicable standards. All adjustments must be made before movement, and the seat must not be adjusted while the vehicle is in motion. Hands must be kept clear of the suspension, which must remain covered, and the suspension must be blocked at maximum height during installation, removal, or servicing.