PROCESS ENGINEERING & EQUIPMENT COMPANY
SALES TERMS AND CONDITIONS
- Applicability. These terms and conditions of sale (these “Terms”) apply to the sale of all goods (“Goods”) by Process Engineering & Equipment Company, a Michigan corporation (“Seller”) to the buyer named on Seller’s Purchase Order Confirmation (“Buyer”). These Terms also apply to the services provided to Buyer as described in Seller’s Purchase Order Confirmation (“Services”).I If a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, then the terms and conditions of that contract shall prevail to the extent they are inconsistent with these Terms. If Buyer has executed a commercial application for credit with Seller, then that credit application and the terms and conditions of credit incorporated in it (the “Credit Application”) are incorporated by reference. Seller’s Purchase Order Confirmation, these Terms, and the Credit Application (collectively, the “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. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. For the avoidance of doubt, Seller will not be bound by any additional or different terms or conditions contained in any purchase order, correspondence, or other documents or records referencing any order or transaction (and this shall constitute Seller’s objection to any such terms and conditions under Section 2-207(2)(c) of the Michigan Uniform Commercial Code). Any such additional or different terms or conditions shall be deemed mere surplusage and shall not alter these Terms.
- Delivery of Goods. All delivery dates and performance dates are approximate only. Seller shall not be liable for any delays, loss or damage in transit. Unless otherwise specified in Seller’s Purchase Order Confirmation, delivery shall be FOB Seller’s designated point of shipment. Seller will Goods shipped from Seller’s facilities available for shipment at the Seller’s Facility using Seller’s standard methods for packaging and shipping such Goods. Buyer shall be responsible for all loading costs. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the quantity or units of Goods shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. Seller shall use reasonable efforts to meet any performance or delivery dates specified in the Purchase Order Confirmation, but any such dates shall be estimates only. Any additional amounts payable to the shipping carrier, including, but not limited to, charges for demurrage, detention, redelivery, unloading, sorting, stop-off, excess freight, switching or other charges, will be Buyer’s responsibility and Buyer shall reimburse Seller for such amounts upon receipt of proper documentation. Buyer shall take delivery of the Goods at the agreed date and at the agreed upon quantity and price during the terms of this Agreement and agrees to indemnify the Seller against any costs or losses incurred by the Seller as a result of any failure to do so. In such circumstances, the Seller may terminate the Agreement, without liability, and sell the Goods and charge the Buyer for any shortfall below the Agreement price. Seller shall have no liability for any loss or damage arising as a result of Buyer’s breach of its obligations in these Terms.
- Non-Delivery. The quantity of any installment of Goods as recorded by Seller on shipment at the point of shipment is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within seven days of the date when the Goods would in the ordinary course of events have been received. Any liability of Seller for non-delivery of the Goods shall be limited to delivering the shortfall in Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered. Buyer shall not have the right to reject partial shipments. Buyer acknowledges and agrees that the remedies set forth in this Section 3 are Buyer’s exclusive remedies for the non-delivery or partial delivery of Goods.
- Title. Each order that has been accepted by Seller pursuant to these Terms shall be an “Individual Transaction[A1] .” Title to Goods ordered under any Individual Transaction passes to Buyer upon payment by Buyer for the Individual Transaction in full.
- Risk of Loss. Risk of loss to all Goods ordered under any order passes to Buyer upon Seller’s tender of such Goods to the carrier for delivery.
- Price. As orders are placed by Buyer, and accepted by Seller in a written confirmation (“Purchase Order Confirmation”), Seller will sell Goods to Buyer, and Buyer agrees to pay for the Goods, at the prices stated in Seller’s Purchase Order Confirmation. These Terms do not obligate Seller to accept any additional or future orders. All prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, 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 and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personal or real property, or other assets.
- Payment Terms. Seller shall issue an invoice for each Individual Transaction. Unless otherwise noted in the invoice or Purchase Order Confirmation, Buyer shall pay all invoiced amounts due to Seller within 10 days from the date of such invoice, except for any amounts disputed by Buyer’s in good faith pursuant to Section 10. Buyer shall make all payments in U.S. dollars by check or wire transfer.
- Late Payments. Buyer shall pay a time-price differential on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall also reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. 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.
- Unsatisfactory Credit Status. If Seller determines in its sole discretion that Buyer’s financial condition or creditworthiness is inadequate or unsatisfactory, then in addition to Seller’s other rights, Seller may without liability or penalty take any of the following actions: (a) accelerate all amounts owed by Buyer to Seller under this Agreement and any Individual Transaction; (b) on seven day’s prior written notice, modify the payment terms specified in Section 7 for outstanding and future Individual Transactions, including requiring Buyer to pay cash in advance; (c) cancel any previously accepted orders; (d) delay any further shipment of Goods; (e) on seven day’s prior written notice, terminate this Agreement; or (f) any combination of the above. No actions taken by Seller under this Section 9 (nor any failure of Seller to act under this Section) constitute a waiver by Seller of any of its rights to enforce Buyer’s obligations under this Agreement including, but not limited to, the obligation of Buyer to make payments as required under this Agreement.
- Invoice Disputes. Buyer shall notify Seller in writing of any dispute with any invoice (along with a reasonably detailed description of the dispute) within seven days from the date of such invoice. Buyer will be deemed to have accepted all invoices for which Seller does not receive timely notification of disputes, and shall pay all undisputed amounts due under such invoices within the period set forth in Section 7. The Parties shall seek to resolve all such disputes expeditiously and in good faith. Notwithstanding anything to the contrary, Buyer shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, Buyer’s obligation to pay all due and undisputed invoice amounts.
- Limited Warranties for Goods. SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; OR (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. THE REMEDIES SET FORTH IN THESE TERMS SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE TERMS SET FORTH HEREIN. SELLER AGREES TO ASSIGN ANY WARRANTIES PROVIDED BY THE MANUFACTURERS OF COMPONENT PARTS INCLUDED IN GOODS TO THE EXTENT SUCH WARRANTIES ARE ASSIGNABLE.
- Inspection and Remedies for Nonconforming Goods. For purposes of these Terms, “Nonconforming Goods” means the following: (i) Goods shipped that are different than identified in Buyer’s Purchase Order; or (ii) Goods bearing a label or packaging that incorrectly identifies its contents. Buyer shall inspect the Goods within seven days of receipt (“Inspection Period”) of the Goods and either accept or, if such Goods are Nonconforming Goods, reject such Goods. Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall determine, in its sole discretion, whether the Goods are Nonconforming Goods. If Seller determines that the Goods are Nonconforming Goods, it shall, in its sole discretion: (i) replace such Nonconforming Goods with conforming Goods, or (ii) refund the Price for such Nonconforming Goods, together with all shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located at Comstock Park, Michigan. 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 location.
BUYER ACKNOWLEDGES AND AGREES THAT THIS SECTION SETS FORTH THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH UNDER THESE TERMS. BUYER HAS NO RIGHT TO RETURN GOODS PURCHASED UNDER THIS AGREEMENT TO SELLER.[A2]
- Representation and Warranty for Services.
- Seller represents and warrants to Buyer that it shall perform the Services using personnel of required skill, experience, and qualification and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
- The Seller shall not be liable for breach of the warranty set forth above unless Buyer gives written notice of defective Services, reasonable described, to Seller within seven days of the time when Buyer discovers or should have discovered the Services were defective.
- If Buyer timely notifies Seller of any defective Services, Seller shall determine, in its sole discretion, whether the Services are defective. If Seller determines the Services are defective, it shall, in its sole discretion: (i) correct the defective Services or (ii) refund the Buyer for the cost of the defective Services.
- Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL 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, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS AND SERVICES SOLD HEREUNDER. THE LIABILITY LIMITATION SET FORTH IN THIS SECTION SHALL NOT APPLY TO LIABILITY RESULTING FROM SELLER’S FRAUD OR WILLFUL MISCONDUCT.
- Buyer Indemnification. Subject to the terms and conditions of this Agreement, Buyer shall indemnify, defend and hold harmless Seller and its members, officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, “Losses”), arising from or relating to: (i) Buyer’s handling, storage, marketing, or distribution of the Goods; (ii) the use of the Goods by Buyer or its employees, agents, contractors, successors, assigns, or customers, including without limitation, as an ingredient or component of any other item or otherwise, in their respective manufacturing, production, labeling, marketing or distribution processes and the subsequent marketing and/or sale of products which used or contained the Goods into the retail or wholesale marketing or distribution channels; (iii) any negligent or more culpable act or omission of Buyer or its personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; (iv) any bodily injury, death of any person or damage to real or tangible personal property caused by the negligent acts or omissions of Buyer or its personnel; (v) any packaging, formulas, or labeling supplied by or obtained at the direction of Buyer, including without limitation, any nutrition facts labeling; (vi) any allegation that the Goods or the use thereof by Buyer or its employees, agents, contractors, successors, assigns, or customers infringes any intellectual property right of a third party; or (vii) any failure of Buyer to comply with any applicable laws. Notwithstanding the foregoing, Buyer is not obligated to indemnify or defend Indemnified Party against any claim (direct or indirect) to the extent such claim or corresponding Losses arise out of or result from Indemnified Party’s or its personnel’s gross negligence or more culpable act or omission (including recklessness or willful misconduct), or bad faith failure to materially comply with any of its material obligations set forth in this Agreement.
- All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer 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.
- Compliance With Laws. Buyer shall at all times comply with all Laws applicable to this Agreement, Buyer’s performance of its obligations hereunder and Buyer’s use or sale 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.
- . Seller may terminate any and all Agreements between Buyer and Seller upon written notice to Buyer: (a) if Buyer fails to pay any amount when due under this Agreement (“Payment Failure”) and such failure continues for 14 days after Buyer’s receipt of written notice of nonpayment; (b) if within any 12 month period, two or more Payment Failures occur; (c) if Buyer breaches any provision of this Agreement or any Individual Transaction (other than a Payment Failure), and either the breach cannot be cured or, if the breach can be cured, it is not cured by Buyer within 14 days after Buyer’s receipt of written notice of such breach; (d) if any action by the Buyer causes the Seller to reasonable deem the Seller to be insecure; or (e) if Buyer (i) becomes insolvent or is generally unable to pay its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Effect of Termination. The termination of this Agreement will not affect any rights or obligations of the parties that come into effect upon or after expiration or termination of this Agreement. Any notice of termination under this Agreement automatically operates as a cancellation of any deliveries of Goods to Buyer that are scheduled to be made subsequent to the effective date of termination, whether or not any orders for such Goods had been accepted by Seller. With respect to any Goods that are still in transit upon termination of this Agreement, Seller may require, in its sole and absolute discretion, all sales and deliveries of such Goods be made on either a cash-only or certified check basis.
- Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Further Assurances. Upon Seller’s reasonable request, Buyer shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.
- Entire Agreement. This Agreement, including all related exhibits, schedules, attachments and appendices, together with the Terms, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement must be in writing and addressed to the other party at its address set forth on the order, Purchase Order Confirmation, or scale ticket, as applicable. Notice may also be given by facsimile or email (with confirmation of transmission).
- Solvency. Buyer warrants that Buyer is from the date of this agreement, solvent within the meaning of the Michigan Uniform Commercial Code, MCLA 440.1101, et seq.
- Choice of Law. This Agreement, including all Individual Transaction documents and exhibits, schedules, attachments and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the state of Michigan, United States of America, without regard to its conflict of laws provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- Dispute Resolution. The parties shall attempt to resolve any disputes through good faith business negotiations. In the event negotiations fail to result in an acceptable outcome, either party may bring litigation in the proper venue, as discussed below.
- Venue. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be brought in the state courts in Ingham County, Michigan, or in the federal courts in the Western District of Michigan, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
- Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement 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.
- Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
- Relationship. 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.
- Severability. If any term or provision of this Agreement is 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.
- Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Remedies and Limitation of Liability, Confidential Information, Compliance with Laws, Governing Law, Venue, Survival, and Statute of Limitations.
- Statute of Limitations. Notwithstanding any right under any applicable statute of limitations to bring a claim, no legal suit, action or proceeding based upon or arising in any way out of this Agreement may be brought by either party more than 12 months after the date of Seller’s Confirmation, and the parties waive the right to file any such action after such period; provided, however, that the foregoing waiver and limitation do not apply to the collection of any amounts due to Seller or to claims arising from Buyer’s disclosure of Seller’s Confidential Information.
- Amendment. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized officer of each party.