TERMS AND CONDITIONS OF SALE
1. Parties. "Midwest" means Midwest Glass Fabricators, Inc., a Michigan corporation. "Customer" means the entity or person submitting the purchase order to Midwest or otherwise buying Products from Midwest.
2. Application. These Terms and Conditions of Sale ("Terms and Conditions") define the relationship of Customer and Midwest and apply to all sales of products, parts, supplies and/or services (individually and collectively, "Products") by Midwest to Customer. Customer acknowledges and agrees to be bound by the Terms and Conditions and that these Terms and Conditions are incorporated in, and are a part of, each quotation, purchase order, invoices, release, requisition, work order, shipping instruction, specification and any other document, whether expressed verbally, in written or electronic form, relating to the sale of Products by Midwest to Customer "(Sales Document"). The Sale Documents and these Terms and Conditions are collectively referred to as the "Agreement". In the event of any inconsistency between the Sales Documents and the Terms and Conditions, the Terms and Conditions control.
3. Quotation Expiration. Written quotations are valid for a period of thirty (30) days unless otherwise noted by Midwest. Midwest will have the right to withdraw any quote which has not been accepted by Customer within the thirty (30) day time period.
4. Pricing. Prices for Products and other related information shown in any Midwest or manufacturer product publication including, but not limited to, catalogs, brochures and websites are subject to change without notice. Prices do not include related freight charges, use tax, sales tax, excise tax, value-added tax, or similar taxes, or charges of any nature whatsoever imposed by any governmental authority unless otherwise expressly noted by Midwest.
5. Taxes. Prices quoted do not include (and Customer shall pay) all taxes and fees of any kind which may be levied or imposed on either party by federal, state, municipal, or other governmental authorities in connection with the sale or delivery of the Products by Midwest with the exception of Midwest’s income tax obligations arising out of the sale of the Products.
6. Terms of Payment. Payments for certain specialty or custom Products may require a deposit or full payment as determined by Midwest. Otherwise, payments shall be due from Customer, without setoff or other deductions or charges, net thirty (30) days of Midwest’s invoice. Payments shall be made to Midwest at the address specified in the invoice. Pro-rata payments shall become due as shipments are made. Prices are F.O.B. Midwest's shipping point unless otherwise stated in the Agreement. When any payment is not paid on or before its due date, Customer agrees to pay a late charge on the sum outstanding, from the due date for receipt of payment to the actual date of receipt of payment, at a rate equal to the lesser of one and one-half percent (1.5%) per month or the highest rate permitted by law on the unpaid balance, and any costs and expenses of collection incurred by Midwest, including, without limitation, attorneys’ fees and expenses and court costs. Further, when any payment is not paid on or before its due date, Customer agrees that Midwest may cease performance under the Agreement. Whenever, in the sole discretion of Midwest, the financial condition of Customer no longer justifies the continuation of production of shipment on the specified terms of payment, Midwest may require full or partial payment in advance. Credit card payments shall incur an additional fee of two and one-half percent (2.5%) of the total invoice amount.
7. Security Interest. As security for payment of all amounts due to Midwest, Customer grants to Midwest a security interest in all Products sold by Midwest to Customer, and Midwest will have all rights of a secured party under the Uniform Commercial Code with respect to such Products. Customer appoints Midwest as its attorney-in-fact with authority, at Midwest’s option, to take such actions as Midwest deems reasonable in the circumstance to perfect the above security interest in any one or more jurisdictions, and Customer shall pay all applicable filing fees and related attorneys' fees.
8. Limited Warranty – Disclaimer of Warranties. The warranty obligations of Midwest for Products sold by Midwest will in all respects conform and be limited to the warranty extended by the manufacturer of such Products, if and only if transferable. The sole remedy available to Customer with respect to defects in such Products will be against such manufacturer under any applicable manufacturer’s warranty to the extent available to Customer. TO THE EXTENT THE MANUFACTURER'S WARRANTY IS NOT TRANSFERABLE TO CUSTOMER, MIDWEST MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO OR IN ANY WAY RELATING TO THE PRODUCTS, WHETHER BASED ON BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MIDWEST FUTHER MAKES NO WARRANTY OR REPRESENTATION THAT THE PRODCUTS MEET ANY APPLICABLE BUILDING CODES OTHER APPLICABLE REGULATIONS.
If Products are resold by Customer, Customer will include in its agreement for resale provisions which limit recoveries in accordance with the Agreement. In case of Customer’s failure to include in any such agreement for resale the terms providing for such limitations, Customer will indemnify and defend Midwest and hold Midwest harmless against any liability, loss, cost, damage, or expense (including reasonable attorney’s fees) arising out of or resulting from such failure.
IN NO EVENT WILL MIDWEST BE LIABLE OR RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR EXPENSE OCCASIONED BY THE USE OF DEFECTIVE PRODUCTS, OR PRODUCTS THAT DO NOT MEET APPLICABLE BUILDING CODES OR OTHER APPLICABLE REGULATIONS. CUSTOMER ASSUMES FULL RESPONSIBILITY THAT THE PRODUCTS PURCHASED UNDER THE AGREEMENT MEETS THE SPECIFICATIONS AND/OR INTENDED USE OF CUSTOMER, INCLUDING ALL APPLICABLE BUILDING CODES OR OTHER APPLICABLE REGULATIONS, AND MIDWEST MAKES NO REPRESENTATION WITH RESPECT THERETO.
9. Delivery and Force Majeure. Any delivery dates or other schedule of performance by Midwest are approximations, and the sole obligation of Midwest with respect to the schedule of delivery or performance will be to use commercially reasonable efforts to deliver the Products, or otherwise to perform, consistent with the reasonable demands of its business. In any event, Midwest will have no liability to Customer or any other person for delays in performance due to strikes or labor disputes of any type, accidents, fire, floods, acts of God, or actions by governmental authorities, acts, omissions, or delays of Customer or any other third-party, shortages of labor, or without limitation of the above, for any causes reasonably beyond the control of Midwest.
10. Title and Risk of Loss. Title to and risk of loss or damage to the Products will pass to Customer upon delivery by Midwest F.O.B. (a) Midwest’s facility, (b) Midwest’s supplier’s facility when Products is shipped directly from the manufacturer, or (c) as otherwise specifically indicated in the Agreement.
11. Inspection and Acceptance. Upon delivery of the Products, Customer shall inspect the Products for any defects and nonconformance and shall immediately notify Midwest, in writing, of any defects, nonconformance or rejection of such Products. Notwithstanding the foregoing, Customer will be deemed to have irrevocably accepted the Products, to the extent it executes any document, including any bills of lading or other receipt of shipment, included with delivery of the Products. After such acceptance, Customer will have no right to reject the Products for any reason or revoke acceptance. Claims for damage due to shipping must be made by Customer to the freight carrier.
12. Suspension. If any shipment is delayed at the request of Customer, payment for such shipment shall remain due and payable in accordance with Section 6 of these Terms and Conditions. Further, following a seven-day grace period, such shipment shall be subject to storage charges at a rate of five hundred dollars ($500.00) per crate, per month, with any partial month treated as a full month. Should such delay exceed ninety (90) days, including the seven-day grace period, Midwest shall ship the Products to an off-site facility at Customer’s cost and direction, at which time risk of loss and title to the Products shall pass to Customer. Under no circumstance shall Midwest be liable for any costs, fees, damages or loss to Products or materials stored pursuant to this section. Midwest specifically disclaims any liability for, or damage resulting from, the storage of finished Products or materials stored hereunder in any manner contrary to industry standards or specific storage requirements identified by Midwest in any product documentation.
13. Cancellation or Termination. In the event of cancellation of the Agreement by Customer, or in the event of default under the Agreement by Customer which is not cured within thirty (30) days after notice by Midwest, Customer will pay to Midwest on demand all direct and indirect costs (including without limitation all applicable restocking or cancellation charges including reimbursement for direct costs assessed by the manufacturer) incurred directly or indirectly by Midwest in connection with the Agreement, all as reasonably determined by Midwest, plus any profit to be negotiated with Customer. In no event, however, will any amount payable by Customer under the Agreement exceed the total price payable by Customer for the Products.
14. Changes. Midwest reserves the right from time to time to correct any typographical or clerical errors, including errors in mathematical computation, which may exist in the Agreement.
15. Technical Support. Unless otherwise specifically provided on the quotation or invoice, the Agreement does not include any services of Midwest in connection with installation, testing, or evaluation of the Products. Midwest will, however, consistent with its capabilities and subject to scheduling acceptable to Midwest, make available to Customer, at Customer’s expense, technical support services relating to the Products at the rates then imposed by Midwest, together with any out-of-pocket expenses to Midwest in connection with such technical support. The sole remedy of Customer in connection with any acts or omissions of Midwest in the provision of such technical support will be the provision of further technical support to Customer reasonably required to correct the act or omission.
16. Modifications and Waiver – Entire Agreement. Neither party has rights, warranties, or conditions expressed or implied, statutory or otherwise, other than those contained in the Agreement. The Agreement contains the entire agreement between Midwest and Customer and can be modified or rescinded only by a writing signed by both parties. No waiver of any provision of the Agreement will be binding unless in writing signed by an authorized representative of the party against whom the waiver is asserted, and unless expressly made generally applicable, will apply only to the specific case for which the waiver is given. Failure of either party to insist upon strict performance of the Agreement will not be construed as a waiver of any term or condition of the Agreement.
Any document submitted by Customer to Midwest confirm its intention to purchase Products described in the Agreement (e.g., purchase orders or releases) will be deemed to constitute a confirmation and acceptance of the Agreement, even if such documents states terms in addition to or different from those in the Agreement. All agreements between Midwest and Customer will be solely under the terms and conditions of the Agreement, including these Terms and Conditions, and to the extent there are conflicting additional or different terms contained in any document submitted to Midwest by Customer, the Agreement, including the Terms and Conditions, shall control. Any execution by Midwest of any other document submitted by Customer in connection with the purchase of Products does not constitute acceptance of or agreement to any terms and conditions in addition to or different from those contained in the Agreement and these Terms and Conditions but will constitute only acknowledgement of receipt of such document. In addition, notwithstanding any terms contained in any documents submitted by Customer in connection with the purchase of Products described under the Agreement, the acceptance of delivery by Customer of Products described in the Agreement will constitute a course of conduct constituting Customer's agreement to the Agreement including these Terms and Conditions, to the exclusion of additional or different terms and conditions.
17. Compliance with Laws, Building Codes and Regulations and Indemnification by Customer. Customer is solely responsible for compliance with any and all federal, state or local laws, building codes and regulations respecting safety of the Products and respecting use of the Products. Customer shall indemnify and defend Midwest and hold Midwest harmless from and against any and all claims relating in any way violations of such laws, building codes or regulations and all other claims of personal injury or property damage directly or indirectly related to the selection, purchase, installation, maintenance, performance or operation of the Products.
18. Customer Specifications. With respect to Products manufactured, designed or sold to Customer's specifications, Customer shall indemnify and defend Midwest and hold Midwest harmless from and against any claim suit or expense, including attorney's fees and expenses and court costs, which shall be asserted or brought against Midwest relating to the Products.
19. Governing Law and Forum Selection. The Agreement shall be considered to have been made and agreed to by Customer in the State of Michigan and shall be governed by and interpreted according to Michigan law, without giving effect to conflict of law principles. Except as provided below, Customer agrees that any legal or equitable action or proceeding brought by Customer within respect to the Agreement or the Products shall be brought only in any court sitting in Oakland County or the State of Michigan, or the United States District Court for the Eastern District of Michigan. Customer hereby submits to and accepts generally and unconditionally the jurisdiction of those courts with respect to Customer and Customer's property and irrevocably consents to the service of process in connection with any such action or proceeding by personal delivery or by the mailing thereof by registered or certified mail, postage prepaid to Customer's address set forth in the Agreement. Alternatively, and at Midwest's sole election, any dispute arising out of or relating to the Agreement may be submitted to binding arbitration in Oakland County, Michigan accordance with the rules of the American Arbitration Association. Any award ordered as a result of such arbitration shall be enforceable in any court of competent jurisdiction. In the event any suit is brought against Midwest by Customer in violation of this provision, Customer agrees to pay Midwest's costs and expenses to defend such suit, including its reasonable attorney fees and expenses and court costs.
20. Limitation of Action by Customer. No claim, suit, or other proceeding arising out of or related to the Agreement may be brought by Customer after (1) year from the date of sale of the Products.
21. Authority. Each signatory represents that it has all requisite authority to execute the Agreement on behalf of its principal and that the Agreement is fully enforceable against such principal in accordance with its terms.
22. Waiver of Jury Trial. THE PARTIES KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY, THIS WAIVER BEING A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THE AGREEMENT.