Acceptance of Order: The terms and conditions of sales as set forth below will be the only terms and conditions that will apply to and govern any purchase order accepted by BUILT SYSTEMS. Any term or condition in any Customer’s purchase order or other form in conflict with these terms or conditions is hereby expressly rejected and shall not be binding upon BUILT SYSTEMS. No term, provision or condition stated by Customer in a purchase order or elsewhere will be binding on BUILT SYSTEMS if in conflict with, inconsistent with, or in addition to the terms and conditions set forth below, unless expressly approved in writing by BUILT SYSTEMS. BUILT SYSTEMS is not required to accept Customer’s orders. All sales are final and may not be revoked, canceled or returned by Customer, unless BUILT SYSTEMS specifically agrees in advance in writing.
Price: Prices for goods and services provided by BUILT SYSTEMS are set by BUILT SYSTEMS and are subject to change without notice prior to BUILT SYSTEMS’s acceptance of Customer’s order. Except as may be expressly stated otherwise on the face of a purchase order (an “Order”) accepted by BUILT SYSTEMS, the prices stated in the Order constitute the full purchase price to be paid for the good and services purchased hereunder. Unless otherwise specified in writing, the purchase price for goods and services does not include delivery, shipping, and transportation charges, which will be paid for by Customer.
Packing, Marking and Shipping: All products are shipped F.O.B., point of shipment. BUILT SYSTEMS shall label, pack, mark and ship all goods and supplies in accordance with the requirements of the Order and so as to be in compliance with transportation regulations and good commercial practice for protection and shipment, and shall secure the most advantageous transportation service and rates consistent therewith. No separate or additional charge is payable by Customer for containers, crating, boxing, bundling, dunnage, drayage, or storage unless specifically stated in the Order. Duplicate itemized packing lists of contents must be placed in each package bearing this Order number. No charge will be allowed by Customer for cartage or packing unless agreed upon beforehand in writing. All expenses incurred by BUILT SYSTEMS’s failure to furnish necessary shipping documents shall be charged to BUILT SYSTEMS. Risk of loss shall transfer to the Customer upon tender of goods to Customer, Customer’s representative, or common carrier. The cost of any special packing or special handling caused by Customer’s requirements or requests shall be added to the amount of the order. If Customer causes or requests a shipment delay, or if BUILT SYSTEMS ships or delivers the products erroneously as a result of inaccurate, incomplete or misleading information supplied by Customer or its agents or employees, storage and all other additional costs and risks shall be borne solely by Customer. Claims for products damaged or lost in transit should be made by Customer to the carrier, as BUILT SYSTEMS’s responsibility ceases upon tender of goods to Customer, Customer’s representative or common carrier.
Taxes: The amount of any sales, excise, or other taxes, if any, applicable to the products shall be added to the purchase price and shall be paid by Customer unless Customer provides BUILT SYSTEMS with an exemption certificate acceptable to the taxing authorities. Any taxes which BUILT SYSTEMS may be required to pay or collect under any existing or future law, upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption of any of the products, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of the Customer, who shall promptly pay the amount thereof to BUILT SYSTEMS upon demand.
Delivery: BUILT SYSTEMS will make a good faith effort to complete delivery of the products as indicated by BUILT SYSTEMS in writing, but BUILT SYSTEMS assumes no responsibility or liability and will accept no back charge for loss or damage due to delay or inability to deliver, whether or not such loss or damage was made known to BUILT SYSTEMS, including, but not limited to, liability for BUILT SYSTEMS’s non-performance caused by acts of God, war, labor difficulties, accidents, inability to obtain materials, delays of carriers, contractors or suppliers, or any other causes of any kind whatever beyond the control of BUILT SYSTEMS. Under no circumstances shall BUILT SYSTEMS be liable for any special, consequential, incidental, indirect, or liquidated damages, losses, or expense (whether or not based on negligence) arising directly or indirectly from delays or failure to give notice of delay. Customer’s acceptance of goods/services also constitutes a waiver of any claim for delay.
Payment: Unless otherwise specified on the Order, payment terms are net thirty (30) days from the date of the BUILT SYSTEMS’s invoice. Amounts are paid in U.S. dollars, and prices quoted by BUILT SYSTEMS are deemed to include all taxes. BUILT SYSTEMS reserves title to all goods until full payment on the Order. Customer will be conclusively deemed to have accepted and agreed to any invoice from BUILT SYSTEMS, unless BUILT SYSTEMS receives written objection to the invoice from Customer within seven (7) days after the date the invoice is sent to Customer. If payment is not made when due, or if Customer otherwise violates this agreement, Customer will pay BUILT SYSTEMS a late charge at the rate of 1.5% per month on the amount due.
WARRANTY and CLAIMS: BUILT SYSTEMS provides a separate document containing BUILT SYSTEMS’s express Limited Warranty warranting the quality and condition of its goods. BUILT SYSTEMS’s express Limited Warranty can also be found on its website, at BUILT SYSTEMS may modify the terms of its Limited Warranty from time to time for any goods prior to their delivery and acceptance. SUBJECT TO BUILT SYSTEMS’S EXPRESS LIMITED WARRANTY, BUILT SYSTEMS and Customer agree as follows:
BUILT SYSTEMS MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR SUITABILITY. Except for its express Limited Warranty, BUILT SYSTEMS disclaims all other express and implied warranties, including but not limited to any warranty of merchantability, fitness for a particular purpose, or suitability.
Except for any warranty claims under the terms and conditions of BUILT SYSTEMS’s express Limited Warranty, Customer waives and releases BUILT SYSTEMS from any other liability for damages, whether direct, incidental, special, or consequential, for breach of warranty.
In no event will BUILT SYSTEMS have any liability for any incidental or consequential damages arising out of or in connection with a breach of the sale or any other duty of BUILT SYSTEMS with respect to the goods/services, including, but not limited to, incidental or consequential damages for lost profits, lost sales or injury to persons or property.
Any production figures quoted are approximate, based on the conditions as understood by BUILT SYSTEMS, but actual figures may vary substantially depending on operating conditions. Hence, no such figures are guaranteed.
BUILT SYSTEMS’s liability on any claim of any kind, including but not limited to warranty, negligence, strict liability, and any other cause of action, for any loss or damage arising out of, connected with, or resulting from the performance or breach of the terms of sale of any goods/services, or from the design, manufacture, sale, delivery, or use of any goods or services or part of those goods or services will in no case exceed the purchase price allocable to the goods or services or part of those goods or services that gives rise to the claim.
Customer agrees to indemnify, defend and hold BUILT SYSTEMS harmless from any and all claims, demands, liability, losses, expenses, attorney’s fees, and other obligations incurred by BUILT SYSTEMS which arise out of Customer’s acts or omissions with respect to any goods/services sold by BUILT SYSTEMS to Customer or with respect to any other matter or transaction between the parties or which arise out of Customer’s violation of any law.
Changes / Cancellation: Customer may make changes in shipping and packing instructions, place of delivery, and/or delivery schedule up to seven (7) days prior to promised date of shipment. Changes to quantity, designs, or specification may be made up to seventy-two (72) hours after receipt of Order acknowledgement, subject to BUILT SYSTEMS’s written consent following appropriate adjustments to scheduling, pricing, and for additional fees. Customer shall have no right to change, modify, or cancel an Order without BUILT SYSTEMS’s written consent, which BUILT SYSTEMS may withhold in its sole and unfettered discretion. Subject to BUILT SYSTEMS’s written consent to Customer’s request for a cancellation, BUILT SYSTEMS’s general Cancellation Policy is priced as follows: (1) within twenty-four (24) hours of the Order date is no charge; (2) within three (3) days of the Order date is twenty-five percent (25%) of the Order price; (3) within eight (8) days of the Order date is fifty percent (50%) of the Order price; (4) within twelve (12) days of the Order date is seventy-five (75%) of the Order price; (5) after thirteen (13) days of the Order date is one hundred percent (100%); and (6) notwithstanding the foregoing cancellation pricing, any Order cancelled two (2) days or fewer prior to the promised date of shipment will be charged one hundred percent (100%) of the Order price. Specially-fabricated or ordered items may not be cancelled or returned, and no refund will be made.
Indemnification / Patents (BUILT SYSTEMS): BUILT SYSTEMS agrees to indemnify and save harmless the Customer, its officers, employees, agents, or representatives or any of its customers buying or using the goods specified herein from any loss, damage, or injury arising out of a claim or suit at law or equity for actual or alleged infringement of patents, by reason of the buying, selling, or using of the goods supplied under the Order, and will assume the defense of any and all suits and will pay all costs and expenses incidental hereto.
Indemnification (Customer): Except to the extent caused by BUILT SYSTEMS’s breach of warranty, Customer shall defend, indemnify and hold harmless BUILT SYSTEMS, its employees, officers and directors, and their respective successors and assigns, from and against any and all liability, damages, claims, causes of action, losses, costs and expenses (including attorneys’ fees) of any kind (collectively, “Damages”) arising out of injuries to any person (including death) or damage to any property caused by or related to the goods or any negligent act or omission of Customer, its employees, agents, or assigns. Except to the extent caused by BUILT SYSTEMS’s actual or alleged infringement of patents under Section 9 above, Customer shall indemnify and save harmless BUILT SYSTEMS, its officers, employees, agents, or representatives, from and against any and all Damages, royalties and license fees arising from or for infringement of any patent by reason of any sale or use of goods which are manufactured according to Customer specifications or sample, and Customer will assume the defense of any and all suites and will pay all costs and expenses incidental hereto.
Confidential Information: BUILT SYSTEMS agrees not to make use of any data, designs, drawings, specifications, and other information furnished to it by the Customer, except for the performance of this Order and then only under similar restrictions against use and disclosure. Upon completion or termination of this Order, BUILT SYSTEMS shall return to Customer on demand, all such data, designs, drawings, specifications, and other information, including copies made by the BUILT SYSTEMS. This Order is confidential between the Customer and the BUILT SYSTEMS, and it is agreed by the BUILT SYSTEMS that none of the details connected herewith shall be published or disclosed to any third party without the Customer’s written permission.
Remedies of BUILT SYSTEMS: Upon default by Customer, Customer agrees to reimburse BUILT SYSTEMS all attorney fees and court costs incurred by BUILT SYSTEMS in connection therewith. Customer agrees that any of the following shall constitute an event of default which shall enable BUILT SYSTEMS, at its option, to cancel any unexecuted portion of this order or to exercise any right or remedy which it may have by law: (a) the failure of Customer to perform any term or condition contained herein; (b) any failure of Customer to give required notice; (c) the insolvency of Customer or its failure to pay debts as they mature, an assignment by Customer for benefit of its creditors, the appointment of receiver for Customer or for the materials covered by this order or the filing of any petition to adjudicate Customer bankrupt; (d) the death, incompetence, dissolution, or termination of existence of Customer; (e) a failure by Customer to provide adequate assurance of performance within ten (10) days after a justified demand by BUILT SYSTEMS; or (f) if BUILT SYSTEMS, in good faith, believes that Customer’s prospect of performance under this Agreement is impaired. All rights and remedies of BUILT SYSTEMS herein are in addition to, and shall not exclude, any rights or remedies that BUILT SYSTEMS may have by law. In the event it becomes necessary to incur any expense for collection of any overdue account, reasonable collection charges, including reasonable attorneys’ fees, will be added to the balance due and Customer shall pay all such charges.
Work on Customer’s Premises: In the event this Order provides for services to be provided on the premises of the Customer, the provisions of BUILT SYSTEMS’s On-Site Work Rider will apply to govern all aspects of this Order as if fully set forth at length herein. Customer shall provide BUILT SYSTEMS with copies of Customer’s plant safety and health rules and any other specific terms and conditions that Customer proposes to include with the rider, and such terms shall be incorporated within the rider to the extent accepted in writing by both parties.
Inspection and Acceptance: Claims for damage, shortage, or errors in shipping must be reported within one (1) day following delivery to Customer. Customer shall have seven (7) days from the date Customer receives any products to inspect such products and services for defects and nonconformance which are not due to damage, shortage, or errors in shipping and notify BUILT SYSTEMS, in writing, of any defects, nonconformance, or rejection of such products. After such seven (7) day period, Customer shall be deemed to have irrevocably accepted the products, if not previously accepted. After such acceptance, Customer shall have no right to reject the products for any reason or to revoke acceptance. Customer hereby agrees that such seven (7) day period is a reasonable amount of time for such inspection and revocation. The sole and exclusive remedy for merchandise alleged to be defective in workmanship or material will be the replacement of the merchandise subject to the manufacturer’s inspection and warranty.
Severability: These terms and conditions of sale shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these terms and conditions of sale and any uncertainty or ambiguity shall not be interpreted against any one party. If any provision hereof is held to be illegal, invalid, or unenforceable under any present or future laws, such provision shall be fully severable and the terms and conditions herein shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never been made a part hereof. The remaining provisions herein shall remain in full force and effect, and shall not be affected by such illegal, invalid, or unen-forceable provisions or by their severance herefrom.
Set-Off: Customer shall not be entitled to set-off any amounts due Customer against any amount due BUILT SYSTEMS in connection with this transaction.
Entire Agreement: This is the entire agreement between the parties and may not be modified or amended except by a written document signed by the party against whom enforcement is sought. This agreement may be signed in more than one counterpart, in which case each counterpart will constitute an original of this agreement.
Governing law: This transaction shall be governed in all respects by the laws of the state of Michigan (excluding choice of law provisions). Venue for any action shall be in Ottawa County, Michigan. All actions, regardless of form, arising out of or related to this transaction or the products sold hereunder must be brought against BUILT SYSTEMS within the applicable statutory period, but in no event more than ONE (1) YEAR after the date of invoice.
Waiver: The failure of either party to insist on performance of any provision of this Order shall not be construed as a waiver of that provi-sion in any later instances.