GENERAL TERMS AND CONDITIONS OF SALE
1. Applicability: These General Terms and Conditions of Sale (“Terms and Conditions”) apply to all quotations, purchase orders or order acknowledgments (collectively and individually referred to as “Purchase Orders”) issued by United Resin, Inc. (“Seller”) as well as to orders received by Seller for all goods sold. It is understood and agreed that Seller objects to any terms and conditions other than set forth herein and these Terms and Conditions of Sale shall be the exclusive Terms and Conditions.
2. Offer: Seller’s quotation or Purchase Order constitutes Seller’s offer to enter into a contract for sale of the goods or products (“Goods”) identified in the quotation or Purchase Order only according to these Terms and Conditions of Sale.
3. Acceptance: A contract is formed when Purchaser accepts Seller’s quotation or Purchase Order by written acknowledgment or by the issuance to Seller of an order, or other acceptance of documents for the Goods, other acts indicating acceptance, or when Seller delivers its order acknowledgment to Purchaser. Acceptance is expressly limited to these Terms and Conditions and the Terms and Conditions expressly referenced on the face of the quotation or Purchase Order. Notwithstanding any contrary provision in Purchaser’s Purchase Order or other documents, delivery of the Goods or commencement of production by Seller shall not constitute acceptance of Purchaser’s Terms and Conditions to the extent such Terms and Conditions are inconsistent with or in addition to the Terms and Conditions contained herein.
4. Adjustments: Seller reserves the right to actively adjust the price and delivery terms of the quotation or Purchase Order in the event of, and as condition to, any changes in the specifications or requirements for the Goods, scope of any work covered by the quotation or Purchase Order or estimated annual volumes of Goods.
5. Shipping and Delivery: All sale of Goods are FOB Seller’s facility (sometimes referred to as “FOB origin” or “FOB shipping point”) unless otherwise specified in the Seller’s quotation or Purchase Order. Responsibility of Seller shall cease upon delivery to and receipt of the Goods by a common carrier at which point Purchaser will bear the risk of loss for the Goods. Premium shipping expenses and/or related expenses necessary to meet Purchaser’s accelerated delivery schedule shall be the sole responsibility of Purchaser. Schedule of deliveries proposed by Purchaser are subject to the approval of Seller. Purchase Orders and/or delivery of orders placed by Purchaser may be changed, deferred and/or cancelled only upon specific agreement in writing by Seller and Seller may condition such agreement upon Purchaser’s assumption of liability and payment to Seller for: (a) all completed work at the order price, (b) the sum equal to the cost of the work in process including costs accrued for labor and material, (c) any amount for which Seller is liable by reason of commitments made by Seller to it suppliers, and (d) any other loss, cost or expense of Seller as a result of such change, deferment or cancellation, including reasonable consequential damages, including lost profits, costs and/or attorney fees.
6. Payment and Credit Terms: Unless otherwise expressly set forth in the quotation or Purchase Order, all accounts are payable in U.S. currency thirty (30) days from the date of Seller’s invoice. Purchaser will be responsible to pay Seller a late payment charge of 5% of the invoice amount after sixty (60) days from the invoice date, together with all costs, expenses and attorney fees incurred by Seller in collecting unpaid invoices and late charges amounts from the Purchaser. Payment terms shall be established by Seller from time to time. If Purchaser fails to pay for any one or more shipments when due, then Seller shall have the right, in addition to other remedies, either: (a) to suspend or cancel deliveries, or (b) to require cash payment on deliveries. Should Purchaser’s financial responsibility become unsatisfactory to Seller, cash payment or satisfactory security may be required by Seller before proceeding with deliveries. All credit transactions, including payments by credit card or its equivalent, are at the sole and unfettered discretion of Seller and, if consented to, may be the subject of a service charge which may be changed from time to time by Seller. Purchaser is prohibited from and shall not set off against or recoup from any invoice amounts due or to become due from Purchaser or its affiliates any amounts due or to become due to Seller or its affiliates, whether arising under the quotation or any related Purchase Order or under any other agreement.
7. Prices: Purchaser shall purchase the Goods at prices quoted by Seller. Prices are subject to change without prior notice and Seller shall therefore notify Purchaser of any price changes. In the event of a price increase, Purchaser may cancel any undelivered portion of any order by written notice to Seller, provided such notice is received by Seller not more 15 days after Purchaser’s receipt of Seller’s notice of price increase. Upon cancellation, Purchaser shall pay Seller: (1) the price for all Goods which have been completed or are in the process of completion, and (2) components or Goods secured by Seller from outside sources for the performance of the order. Unless otherwise expressly set forth in the quotation or Purchase Order, prices for the Goods specified in the quotation or Purchase Orders do not include storage, handling, packing or transportation charges or any applicable federal, state, local or foreign duties, tariffs, import/export fees and/or taxes.
8. Suitability and Warranty:
a. Suitability : Seller is manufacturing the Goods for and selling them to Purchaser on the understanding that Purchaser has the sole responsibility to determine the suitability of Goods, since Seller has no control over Purchaser’s use of the Goods. Purchaser has complete responsibility for having qualified personnel with requisite skills, training and experience to select, use, handle, sell and/or dispose of the Goods. If samples were exhibited to Purchaser they were for general information purposes only and shall not be deemed a warranty by sample or model or otherwise have any legal effect.
b. Warranty : Seller warrants only at the time of delivery to Purchaser that the Goods will conform to the specifications, designs and/or drawings that are referenced in any quotation or Purchase Order. Any claim for breach of warranty, including for defective materials or defective manufacture, shortages in count, weight, or any other claim with respect to the Goods shall be presented to Seller by Purchaser in writing within sixty (60) days from the date of receipt of the Goods by Purchaser. Failure by Purchaser to provide Seller with a written notice of any defect or shortage in weight or count within such sixty (60) day period shall be deemed an absolute and unconditional waiver of Purchaser’s claim for defects or shortage in count. Purchaser shall hold and make available for inspection and testing by Seller all Goods claimed by Purchaser to be defective or in breach. Any claim for defective material, workmanship and/or breach must be verified by Seller and, in such case, Seller’s liability shall be limited to the replacement or repair, at Seller’s election, of such Goods in question.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PURCHASER IS SOLELY RESPONSIBLE FOR DETERMINING THE PROPER APPLICATION AND USE OF THE GOODS. SELLER SHALL HAVE NO TORT LIABILITY TO PURCHASER WITH RESPECT TO ANY OF THE GOODS AND REGARDLESS OF THE CLAIM SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, INDIRECT OR PUNITIVE DAMAGES ARISING FROM ANY PRODUCT DEFECT, DELAY, NON-DELIVERY, RECALL OR OTHER BREACH. SELLER SPECIFICALLY, BUT NOT BY WAY OF LIMITATION, DISCLAIMS ANY AND ALL LIABILITY FOR THE USE OR PERFORMANCE OF THE GOODS AND APPLICATION(S) SELECTED BY PURCHASER AND PURCHASER’S CUSTOMERS. SELLER FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR GOODS THAT ARE FURTHER PROCESSED BY PURCHASER OR ANY OTHER THIRD PARTY OR IN ANY WAY CHANGED BY PURCHASER OR ANY THIRD PARTY FROM THE GOODS DELIVERED BY SELLER.
9. Use of Seller’s Trade Name or Labels: Under no circumstances shall Purchaser affix or reaffix Seller’s labels to other Goods or repackaged Goods or use Seller’s trade name or copyrighted materials without Seller’s prior express written permission in writing.
10. Limitation of Liability: The maximum liability, if any, of Seller for all direct damages, including without limitation, contract damages and damages for injuries to person or property, whether arising from Seller’s breach of the commercial invoice, breach of warranty, indemnity, negligence, strict liability, or other tort (if allowed given the aforementioned disclaimer of tort liability) or otherwise with respect to the Goods, or any services in connection with the Goods, is limited to an amount not to exceed the price of the particular Goods. In no event shall Seller be liable to Purchaser for any indirect, incidental, consequential, or special damages, including without limitation, lost revenues and profits, even if such damages were foreseeable or Seller had been advised of the possibility of such damages. The right to recover damages within the limitations specified is Purchaser’s exclusive remedy.
11. Governing Law; Submission to Jurisdiction: This agreement and any agreement made hereunder shall be construed in accordance with the laws governing contracts made and to be performed in the State of Michigan, USA, exclusive of the U.N. Convention on the International Sale of Goods which shall not apply. Purchaser consents to the jurisdiction of any local, state or federal court located within the State of Michigan and waives any objection which Seller may have based on improper venue or forum non conveniens to any proceeding in any such court.
12. Compliance With Law: At all relevant times Purchaser agrees to comply with all applicable federal, state, local or foreign laws, executive orders, rules, regulations, conventions, ordinances or standards (sometimes the “Law”) through which the Goods are transported, or in which the Goods or products thereof are intended to be used, including those that relate to the manufacture, labor, transportation, importation, licensing approvals or certificates, certification of goods or services including but not limited to those relating to environmental matters, wages, hours, conditions of employment, subcontractor selection, discrimination, occupational safety/safety and motor vehicle safety which may be applicable to Seller’s performance of its obligations under any Purchase Order or related agreement.
13. Indemnification: Purchaser shall be liable for all claims, losses, costs, expenses, and other damages resulting from or arising out of the acts or omissions of Purchaser and relating to the Goods. Purchaser expressly agrees to indemnify and hold Seller harmless from any and all loss, cost, liability, expense and attorneys’ fees arising from the acts or omissions of Purchaser. Further, Purchaser shall indemnify and hold Seller harmless from and against any and all such claims, losses, costs, expenses, and other damages resulting from or arising out of any failure of Purchaser or Purchaser’s employees, agents, and subcontractors (other than Seller) to comply with any applicable Law.
14. Taxes, Etc: Unless prohibited by law, the Purchaser shall pay all federal, state and local tax, transportation tax or other tax, including but not limited to custom duties and tariffs which is/are required to be imposed upon the Goods ordered, or by reason of their sale or delivery.
15. International Shipments: Seller shall provide a signed certificate which identifies the country of origin of the Goods within 10 calendar days of receiving a written request from Purchaser.
16. Setoffs; Recoupment: Seller will have the right to setoff against or to recoup from any payment or other obligation owed to Seller, in whole or in part, any amounts due to Seller or its affiliates or subsidiaries from Purchaser or its affiliates or subsidiaries. In that event, Seller will provide Purchaser with a statement describing any offset or recoupment taken by Seller.
17. Seller’s Website: Seller may modify these Terms and Conditions from time to time by posting revised Terms and Conditions to Seller’s website. Such revised Terms and Conditions shall apply to all orders and order revisions issued on or after the effective date thereof. Purchaser shall review Seller’s website periodically.
18. Force Majeure: Any delay or failure of either party to perform its obligations under the Purchase Order or any agreement will be excused to the extent that Seller is unable to produce, sell or deliver, or Purchaser is unable to accept delivery, or use, the Goods covered by the order or any agreement, directly as a result of an event or occurrence beyond the reasonable control of such party, without such party’s fault or negligence (a “Force Majeure Event”), including, if applicable, actions by any governmental authority (whether valid or invalid), pandemic, epidemic, mechanical breakdown, shortages or delays in obtaining suitable parts or equipment, material, labor or transportation, labor strikes, utility shortages, blackouts or disruptions, fires, floods, hurricanes, windstorms, explosions, riots, national disasters, war and sabotage or acts of terrorism, provided that written notice of such force majeure event (including the anticipated duration of the delay) must be given by the affected party to the other party as soon as possible.
19. Severability: Should any provision of these Terms and Conditions be declared or determined by a court of competent jurisdiction to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and said illegal or invalid part, term or provision shall be deemed not a part of the agreement.
20. Entire Agreement: The Agreement set forth on the face of Seller’s order acknowledgment or Purchase Order and any attached exhibits shall constitute the entire Agreement of the parties and correctly states the rights, duties, and obligations of each party as of the document’s date. Any prior Agreement, promises, negotiations, or representations between the parties not expressly stated in the purchase agreement or in these Terms and Conditions are not binding upon United Resin.
21. Waiver of Jury Trial: PURCHASER AND SELLER ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH OF PURCHASER AND SELLER, AFTER CONSULTING (OR HAVING THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS CHOICE, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO ANY OF THE CONTRACT DOCUMENTS OR TERMS AND CONDITIONS OR OTHER DOCUMENT PERTAINING TO ANY ORDER OR THE RELATIONSHIP BETWEEN THE PARTIES.
22. Execution and Exchange of Documents: Any documents that are required under these Terms and Conditions may be issued or returned electronically and executed via electronic means and in one or more counterparts, which counterpart shall be effective upon execution of all necessary parties or one or more such counterparts. Facsimile and/or fax signatures shall be deemed to be of the same force and effect as original signatures and may be accordingly relied upon by the parties.
Effective April 15, 2023