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General Information
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Models: TAH 4 to TCH 35
Flow capacity: 12 to 123 scfm
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1. Applicable Law; Jurisdiction. These general terms and conditions apply to all proposals and quotations submitted by Seller, to all purchase orders received by Seller, and to all goods and services sold by Seller, except as otherwise specifically provided in a document issued by Seller. This sale or any sale resulting herefrom consists only of these terms and conditions and those in other documents which are referred to herein or are attached hereto or in a document subsequently signed by Seller and referencing this transaction (all of which constitute the "Agreement"). THE AGREEMENT SHALL BE GOVERNED, CONSTRUED AND ENFORCED UNDER THE LAW OF THE STATE OF MICHIGAN INCLUDING THE UNIFORM COMMERCIAL CODE IN FORCE ON THE INITIAL DATE OF THE AGREEMENT ("UCC"), EXCEPT AS PROVIDED HEREIN. Any services to be provided hereunder, whether or not they are otherwise ancillary to and part of a sale of goods (as separate units or included in a construction project), shall be considered ancillary to a sale of goods and the UCC shall apply to all goods and services to be provided hereunder ("Goods"). THE COURTS OF MICHIGAN SHALL HAVE EXCLUSIVE JURISDICTION OVER THE PARTIES AND THE CLAIMS ARISING UNDER OR RELATED TO THE AGREEMENT. The parties stipulate to the convenience of Michigan courts in general, and Oakland County Circuit Court in particular, as to all litigation.
2. Formation, Integration; Modification. (A) The Agreement supersedes all previous quotations and agreements pertaining to the Goods. Delivery to Seller of the Buyer's acceptance of a Seller’s quotation (according to its terms), Seller's actions in reliance on Buyer's oral acceptance of a written or oral quotation, or Buyer's receipt of the Goods, will constitute a binding contract under the terms of the Agreement. The Agreement is subject to Seller's revocation or cancellation without liability until it is approved by the Seller at its home office. Notice of such approval may be furnished to the Buyer in the form of an acknowledgment, shipment, or other form of express approval. (B) An order submitted by Buyer orally or in a purchase order or other writing (whether or not it contains terms or conditions modifying, adding to, repugnant to, or inconsistent with these Terms and Conditions), may be accepted, approved or filled by Seller, but any resulting contract and the liabilities or obligations of Seller shall be determined solely by the Agreement, and (unless the Seller otherwise advises Buyer in writing) notice is hereby given that Seller objects to any such terms or conditions in Buyer's purchase order or other writing. Seller shall not be deemed to have in any way enlarged or modified its liabilities or obligations under the Agreement by filling such order or by failing to further object to Buyer's terms or conditions. (C) The Agreement is a final, complete and exclusive statement of the Agreement of the parties. THE SELLER IS WILLING TO NEGOTIATE WRITTEN CHANGES TO THESE TERMS AND CONDITIONS, BUT RESERVES THE RIGHT TO MAKE AN ADJUSTMENT IN THE PRICE OF THE GOODS. No modifications, limitations, waivers or discharge of the Agreement or any of its terms shall bind Seller unless in writing and signed by Seller's authorized employee at its home office. Notwithstanding anything to the contrary in this Agreement, no modifications, limitation, waiver or discharge of any provision of the Agreement shall affect the Buyer's liabilities to Seller accrued prior thereto. Typed provisions of the Agreement take precedence over printed provisions. A course of performance, course of dealing, or customs in the trade shall not constitute a modification or waiver by Seller of any right.
3. Prices, Payment; Risk of Loss. (A) Prices contained in Seller's published price lists, if any, are subject to change without notice. Prices contained in individual written quotations or proposals are firm only for a period of 30 days from the date of the quotation. Beyond the 30 day period the prices are subject to change, and Buyer should inquire of Seller as to their validity and request a written confirmation or revision. Prices do not include taxes and Buyer shall pay all applicable sales or other taxes levied with respect to Goods (and replacements) and the Agreement, unless exempt therefrom. All prices are in United States dollars. Buyer shall pay all government fees levied on the installation and inspection of the Goods. Buyer shall pay upon receipt all invoices rendered by Seller for any such items Seller may pay. (B) This Agreement is for a shipment contract and the Goods shall be delivered F.O.B. Seller’s dock. Whether or not Seller prepays shipping charges, risk of loss passes to Buyer upon tender of the Goods to a carrier. Seller's breach of the Agreement shall not affect the passing of the risk of loss to Buyer notwithstanding any provision of law to the contrary. (C) Seller may unilaterally increase prices to cover increased costs (plus reasonable overhead and profit) of design, materials, and manufacturing required by changes requested by Buyer after the date of any quotation. (D) Except as otherwise provided in the Agreement, Seller shall not be responsible for any freight, transportation, insurance, shipping, storage, handling, demurrage or similar charges arising out of the performance of this Agreement. If such charges are specifically included in the price, any increase in rates becoming effective after the date the price is quoted to the Buyer shall be added to the price. (E) If, at any time, reasonable grounds for insecurity arise with respect to Buyer's performance of its payment or other obligations hereunder, Seller may demand immediate payment in full or financial security for such payment or other obligations. (F) Invoices may be rendered separately for each shipment (including any early shipment) made by Seller. Buyer shall pay all invoices net 30 days after the date of shipment. Seller may change any payment term to Buyer on 7 days written notice. (G) Seller may elect to deliver the Goods in installments. Each installment of Goods to be delivered is to be considered as a separate sale and the Buyer shall timely pay the price for each installment which is delivered. A failure to pay for an installment within the time for payment is an anticipatory material breach of other installments by Buyer. (H) All amounts not paid to Seller when due shall incur a carrying charge of 1.5% per month to the extent allowed by law and otherwise at the highest written contract rate allowed by law.
4. Delivery. Shipping dates are estimates based on Seller's present engineering and assembly capacity and scheduling, and may be revised by Seller upon receipt or scheduling of Buyer's order. All shipping dates are further subject to Seller's prompt receipt from Buyer of a written purchase order or acceptance, letter of credit, down payment, and other conditions as specified in the Agreement, and of all drawings, information and approvals necessary to provide the Goods and to grant any credit proposed in the Agreement.
5. Delay of Shipment; Excuse of Performance. (A) If shipment of any item or other performance by Seller is delayed at the request of or due to the fault of the Buyer, the Seller may at its option hold the item at the place of manufacture at the risk and expense of the Buyer from the time it is ready for shipment. In the event of any such delay in shipment, full and final payment for an item shall be due and payable in 30 days after the Buyer is notified that the item is ready for shipment. If the Seller is unwilling to accommodate the Buyer by holding such item, the Buyer shall accept shipment immediately. (B) Dates for Seller's performance are estimates only. In addition, the Seller shall not be in default because of its delay or failure to deliver or perform resulting, in whole or in part, from: (i) any foreign or domestic embargoes, seizures, acts of God, insurrections, war, or the adoption or enactment of any law, ordinance, regulation, ruling or order; or (ii) the lack of usual means or transportation, fires, floods, explosions, strikes or any other accidents, contingencies, or events, at the Seller's or its supplier's plant or elsewhere (whether or not beyond the Seller's control) which directly or indirectly interfere with, or render substantially more burdensome, Seller's production, delivery, or performance; or (iii) delays caused by Buyer. In the event that one or more deliveries hereunder is delayed by reason of any one or more of such occurrences for a period of 30 days, the Seller may, at its option, terminate the Agreement as to the undelivered goods or waive such delay and establish a new delivery schedule.
6. Inspection, Testing and Rejection. (A) If the Agreement expressly provides for Buyer's inspection and/or acceptance of the Goods, Seller's standard test procedures conducted by Seller's representative shall be the criteria for inspection and/or acceptance, unless other specific procedures have been specified in the Agreement. On request Seller will quote to Buyer additional charges required to conduct any additional procedures requested by Buyer which may be acceptable to Seller. (B) All drawings, specifications, technical documentation, samples, prototypes and Goods shall be deemed approved and/or accepted by Buyer if Buyer does not provide a written objection and/or rejection within 7 days of receipt or other reasonable time established by Seller. (Buyer shall have 7 days after receipt of the item to inspect and either accept or provide notice of objection and/or rejection. If it is rejected, notice must be given to the Seller so that it will arrive no later than 10 days after receipt of the item by the Buyer. Failure to so act shall constitute an irrevocable acceptance by the Buyer of the item) Any objection and/or rejection by the Buyer must be in writing and state with specificity all defects and non-conformities upon which Buyer will rely to support its rejection. ALL DEFECTS AND NON-CONFORMITIES WHICH ARE NOT SO SPECIFIED ARE WAIVED. (If the Buyer rejects any tender of the Goods and if requested by Seller, Buyer shall return them to the Seller, express, collect, within 3 days after such request. A failure to so return shall constitute an irrevocable acceptance.) (C) Buyer shall provide, at its cost and risk of loss, all materials, fixtures, tooling and other items necessary for any inspection and/or testing required by the Agreement or requested by Seller. If the Buyer fails to supply such items within the time required, Seller may supply them at Buyer's expense or test by such means as available at the place of manufacturer. Equipment, parts and materials furnished by Buyer for testing and/or inspection will be returned to Buyer at Buyer's cost, unless Buyer authorizes their disposal. (D) Any claim by the Buyer for shortages in any delivery must be in writing with satisfactory written evidence delivered to the Seller within 14 days of receipt.
7. Installation. (A) All Goods shall be assembled and installed by and at the expense of the Buyer. Seller may furnish, upon request and without additional cost or liability to Seller, written instructions for installing, maintaining, and operating the Goods. At Buyer's request and cost, Seller may furnish personnel and equipment to assist in the installation and/or startup of the Goods. Buyer shall pay Seller its prevailing per diem rates for such personnel and equipment plus reasonable transportation, food, lodging and other travel expenses. Buyer shall have competent supervisory, maintenance and operating personnel present when Seller's personnel are performing such services. (B) Buyer assumes all risk of using the Goods in its location and in connection with other equipment. Seller has no responsibility to determine the adequacy of the foundation, utilities, skills of Buyer's staff, or other matters. The foundation (whether or not constructed with Seller’s drawing) is not warranted and Seller shall not be responsible for any defects in the foundation or consequences which may result from an inadequate foundation.
8. Software License. The Seller grants the Buyer, for its internal use only, a nonexclusive perpetual license ("License") of all user manuals, software programs, firmware, and storage media ("Software") provided by the Seller in conjunction with the Goods with which the Software is provided, for the sole purpose of the operation of the Goods. This License terminates automatically if Buyer is in default of its obligations. SELLER MAY RESERVE THE RIGHT TO REMOTELY DISABLE THE SOFTWARE IF BUYER MATERIALLY BREACHES THE AGREEMENT. SELLER SHALL PROVIDE BUYER 15 DAYS NOTICE PRIOR TO DISABLING THE SOFTWARE. The Software may be provided in machine readable object code only. Buyer shall not make any effort to obtain or reproduce the Software's source code. Title and all ownership rights to the Software remain with Seller, its licensors, or its suppliers. The Software is the proprietary information and trade secret of the Seller or its licensors, whether or not any portion thereof is or may be validly copyrighted or patented. The License may not be assigned nor transferred by Buyer except as a part of a transfer of the Goods without the written consent of Seller which may be withheld. The Software is provided for the Buyer's internal use only and the Buyer shall maintain the confidential nature of the Software and related materials and protect them against disclosure or improper use. Buyer shall pay all taxes based on the Software or use of the Software, however designated or levied, except those based on Seller's net income. These provisions take precedence over any government procurement policy, regulation, or contract clause relating to rights in computer software. All disclaimers and limitations applicable to the Goods apply to the License.
9. Patent Express Warranties. Seller shall defend and indemnify Buyer from any claim which asserts that the Goods or their inherent methods of operation, intrinsically infringe any United States patent, except as to a claim based on Buyer's use of the Goods as a step in an overall process. Seller's obligation shall not apply to a claim based on Goods specified, designed, or manufactured by Buyer. Buyer shall notify Seller promptly of any assertions of patent infringement and provide Seller with assistance and information requested by Seller for its defense, or shall have no further obligation to defend or indemnify. Seller shall defend with its counsel or other counsel of its choice and shall have the sole right, without consultation with Buyer, to take all action Seller deems appropriate to prosecute or settle such claims. Seller's exclusive obligation to indemnify as to Goods declared to infringe is limited to the acquisition of a license, the replacement of Goods with non-infringing goods, the modification of the Goods so that they are non-infringing, or the return of the purchase price and shipping costs in exchange for the Goods, as Seller may elect. This section states the Seller's entire and exclusive obligation regarding patent infringement.
10. Disclaimer and Limitation of Express Warranties. There are no express warranties other than those contained in the Agreement. Any representations as to performance and other matters, except as contained in the Agreement, were for illustrative purposes only and do not constitute a warranty. Whether or not the Goods are to be used exclusively by Buyer, there shall be no 3rd party beneficiaries to the express warranties contained herein. Seller does not warrant any portion of the Goods not manufactured or not furnished by Seller (whether or not specified by Buyer), but Seller shall assign to Buyer upon request all assignable warranties of Seller's suppliers related to such Goods. All descriptions, shipping specifications and illustrations of the Goods or the Seller and its quality and other systems and capabilities in catalogues, brochures and price lists or otherwise provided by the Seller are intended for general guidance only and the Seller is not responsible for any errors or omissions therein or for any loss or damage resulting from reliance on them. Seller does not warrant that it or the Goods are in compliance with any entity, organization or industry standards, guidelines, or procedures unless specifically contained in the Agreement.
11. Remedy and Limitation of Seller's Liability. (A) Defective or non-conforming Goods or parts thereof discovered during the warranty period shall be repaired, or replaced by Seller without any additional charge and shipped to Buyer, FOB Seller's plant, for reinstallation by Buyer at its cost, subject to the terms hereof. The warranty obligation of Seller is limited to the repair or replacement at Seller's plant of any part of the Goods which Buyer shall, within the warranty period, return to Seller, with transportation charges prepaid by Buyer, and which Seller shall determine upon examination to be defective or not in conformity with the express warranties contained herein. In lieu of repair or replacement, if Seller elects, Seller may, upon return of such Goods and making a determination of nonconformity or defect, keep the Goods and refund the purchase price. Buyer's remedies shall be limited (even in the event of Seller's default of its warranty obligations) exclusively to those provided in this section. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. Buyer waives any causes of action or theories of liability including, but not limited to, those arising under contract, tort, strict liability, product liability, statutes, or otherwise, except as specifically provided by the UCC as modified and limited herein. The replacement or repair of Goods by the Seller does not give rise to any new warranty except the warranty period provided for herein shall be extended by the length of any period from the date the defective or non-conforming Goods are received by the Seller until the date repaired or replacement Goods are delivered to Buyer. (B) Buyer must contact Seller requesting warranty coverage plus a return authorization number and other instructions for the return of Goods to Seller or other instructions. If requested by Seller, Buyer shall issue a new purchase order or amendment to Seller for replacement parts, subject to Seller issuing a credit memo if Buyer’s claim for warranty coverage is approved. Buyer must comply with Seller’s return instructions (including return of the Goods) within 30 days or the claim shall be deemed conclusively to have been abandoned. Buyer is responsible for properly tagging, identifying, and packing returned Goods. Goods returned without compliance with the above procedures shall be returned to the sender at sender’s cost.
12. Disclaimer of Implied Warranties. THE SELLER DISCLAIMS ALL IMPLIED WARRANTIES (OTHER THAN GOOD TITLE) INCLUDING BUT NOT LIMITED TO THOSE OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT. Buyer affirms that it has not relied upon the Seller's skill nor judgment to select or furnish Goods for any particular purpose beyond the specific express warranties in this Agreement. Seller does not warrant the Goods will comply with the requirements of any safety or environmental code or regulation of any federal, state, municipality or other jurisdiction beyond the specific express warranties in this Agreement.
13. Parts, Service and Training Performed by Seller. All warranty and non-warranty parts, labor, service, software, and training, if any, provided by the Seller or its agents and contractors (including those provided under purchase orders subsequent to the Agreement) related to the Goods are subject to all limitations and disclaimers of warranties and remedies provided in the Agreement.
14. Indemnification. (A) Buyer shall indemnify the Seller from any and all 3rd party claims, damages, and expenses (including reasonable attorney fees) under theories of tort, product liability, negligence (ordinary or gross), warranty, contract, statute, or otherwise arising out of the use, storage, sale, processing or other disposition of the Goods, supplies or materials used in connection with the Goods, or parts manufactured with the Goods, if the action or inaction of the Buyer or its employees, customers or agents, or the Buyer's design specifications, were a material or proximate cause of injuries or damages giving rise to claims against the Seller. (B) Buyer shall use and shall require its employees to use all safety devices and guards furnished with or intended to be used with the Goods, and to follow proper safe operating procedures in accordance with general industry standards and as set forth in manuals and instruction information furnished by Seller. If Buyer fails to comply with the obligations set forth in this subsection, Buyer shall indemnify and save Seller harmless from any liability or obligation incurred by Seller to persons injured directly or indirectly in connection with the operation of the Goods and all warranties of Seller shall become automatically void. Buyer shall notify Seller promptly, and in any event within 30 days, of any accident or malfunction involving Goods which results in personal injury or damage to property and shall cooperate fully with Seller in investigating to determine the cause of such accident or malfunction, including allowing Seller access to the Goods and Buyer's reports regarding the Goods for Seller's inspection. If Buyer fails to give such notice to Seller and so cooperate, Buyer shall indemnify Seller from any claims arising from such accident or malfunction.
15. Breach. If Buyer defaults in the performance of its obligations, if Buyer advises Seller that it will default in the performance of its obligations, or if any action is started by or against Buyer seeking the appointment of a trustee or receiver or the entry of an order for debtor's relief for Buyer, the Seller may cease performance of its obligations, recover Goods in transit or delivered, disable delivered Goods, and otherwise enforce its remedies for Buyer's default. Seller shall be awarded incidental damages and costs (such as actual reasonable attorney fees) in any proceeding to enforce its remedies in which it obtains relief or damages. The Seller may require that the Buyer post security for any or all amounts to be paid if Seller has a good faith doubt as to the Buyer's ability to make prompt payment, and if such security is not posted Seller shall have the right to cease performance of its obligations and enforce its remedies for Buyer's default. All rights granted to Seller in the Agreement and by law are cumulative.
16. Consequential, Incidental, and Other Damages. BUYER AND 3rd PARTIES SHALL NOT BE ENTITLED TO ANY CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES, AS DEFINED IN THE UCC OR OTHERWISE. This limitation shall be enforced regardless of whether Seller has defaulted in its warranty or other obligations. Any legal inability to limit or restrict the right of the Buyer or a 3rd party to such damages shall not affect the right of Seller to indemnification, and under no circumstance shall Buyer recover more than the purchase price.
17. Security Interest, Power of Attorney. In addition to any security interest granted by the UCC, the Buyer hereby grants a security interest to the Seller in all Goods and documents related thereto and proceeds and products therefrom to secure all obligations of the Buyer to the Seller, whether or not arising under the Agreement. Buyer shall sign financing statements evidencing the security interest as reasonably requested by Seller, or Seller may file a copy of the Agreement or portion thereof as a financing statement. Buyer grants Seller an irrevocable power of attorney to sign Buyer's name to a financing statement if necessary or convenient to perfect Seller's security interest. In case of a default by Buyer, Seller may peaceably enter the premises of the Buyer and others to repossess or render inoperable all Goods in which it has a security interest. Buyer shall not sell, exchange, transfer, convey, mortgage, pledge, hypothecate, or grant a security interest in any Goods which are the subject to this Agreement if payment therefore shall not have been made in full to Seller.
18. Proprietary Information. (A) Buyer acknowledges that any information disclosed to Seller has not and will not be considered by Buyer to be confidential or a trade secret unless clearly and conspicuously noted on the disclosure, or in some other writing delivered to Seller at or prior to the time of the disclosure. Seller shall be under no obligation to refrain from using in its business any information, manufacturing processes or unpatented disclosures which may pass to it from the Buyer in the performance of the Agreement. (B) All proposals, plans and other information furnished by the Seller in bidding, negotiating and performing the Agreement, are confidential and the property of Seller and shall not be shown or disclosed to any other bidder, and shall not be shown or disclosed to any 3rd party or used by Buyer except as may be necessary for the selection or use of the Goods. (C) Any design, invention or other information developed by Seller in the performance of the Agreement shall remain the property of Seller and shall not be disclosed by the Buyer to any 3rd party.
19. Time for Bringing Action. Any proceeding by the Buyer for breach of the Agreement or any other right against Seller arising from or in connection with the payment cannot be filed nor maintained unless: (i) it is commenced within 1 year after the cause for action has accrued; (ii) Buyer has given timely written notice to Seller of its claim as provided herein; and (iii) Buyer deposits the unpaid portion of the purchase price with the tribunal pending final adjudication. An action shall accrue no later than shipment of the Goods.
20. Assignment. No right or interest in the Agreement may be assigned by the Buyer without the prior written consent of the Seller. #414549v5
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