Mick Electric General Terms and Conditions of Sale
- Terms and Conditions of Sale. Seller hereby agrees to sell the goods and services described on the reverse side (collectively, the "Goods") to the Buyer, upon and subject to, the terms and any conditions hereof (the "Agreement"). The terms and conditions of this Agreement constitute the full and final expression of the contract for the sale of the Goods to the Buyer, and supersedes all prior quotations, purchase orders, correspondence or communications whether written or oral between Seller and Buyer. Buyer acknowledges and agrees that any purchase orders or other documents related to the transaction covered by this Agreement and issued by Buyer or its agents, are issued solely for authorization and internal uses of the issuing party and Seller specifically objects to, and shall not be bound by, any such terms and conditions which are not specifically set forth herein or are in conflict with this Agreement, and Buyer further acknowledges and agrees that shipment by Seller to Buyer is not an acceptance of the terms and conditions of any purchase order or other document issued by Buyer or its agents. Buyer shall be bound by the Agreement when it sends a purchase order or otherwise indicates acceptance of this Agreement, or when it accepts delivery from Seller of the Goods.
- Price Quotation. All prices quoted by Seller are based upon the costs and conditions existing on the date of the quotation and are subject to change by Seller, in its sole discretion, before Buyer's acceptance. Notice of any such change shall be in writing and forwarded to Buyer. Quoted prices do not include sales, use, excise, or similar taxes or assessments, which shall be the sole obligation of Buyer, unless Seller expressly agrees otherwise.
- Payment. Payment for the Goods by Buyer, shall not be subject to any right of set-off and shall be paid either: (i) in full no later than the 25th day of the month following the month in which Seller invoices Buyer for the Goods, (ii) in the event Seller offers Buyer a cash discount in writing, Buyer shall pay the cash discounted amount in full by the 10th day of the month following the month in which Seller invoices Buyer for the Goods; or (iii) in the event Seller offers Buyer payment terms in writing other than those set forth in subparts (i) or (ii), payment shall be made in accordance with such specific terms. The parties agree that all payments not received when due shall bear interest at 1.5% per month.
- Packaging. Seller shall endeavor to comply with Buyer's packaging specifications, if any, but Seller reserves the right to substitute any other methods of packaging that is reasonably comparable to the specifications furnished by Buyer, if any, both with respect to costs and risk to which the Goods are subject.
- Shipping and Delivery. Unless otherwise provided in writing by Seller, Seller shall delivery the Goods FOB origin at Seller's place of business at 3219 South Avenue, Toledo, Ohio. Buyer shall pay all transportation costs of the Goods. Seller may make partial delivery at Seller's sole discretion. Seller shall endeavor to meet the shipping date specified by Buyer; provided, however, if Seller is unable to meet that date, Buyer shall have no claim against Seller for any damages resulting from any such delay in delivery.
- Title and Risk of Loss. Title to the Goods passes to Buyer when the Goods are fully paid for. Any risk associated with the sale or transit of the Goods rests with Seller up to the time Buyer receives the goods at the place of delivery. After delivery, all risk of loss is with Buyer, including, without limitation, any risk associated with the transportation of the Goods or any Goods subsequently returned to Seller.
- Warranties. SELLER HAS MADE NO AFFIRMATION OF FACT AND HAS MADE NO PROMISE RELATING TO THE GOODS BEING SOLD AND DELIVERED UNDER THIS AGREEMENT THAT HAVE BECOME A BASIS OF THE BARGAIN MADE OR THAT HAVE CREATED OR AMOUNTED TO AN EXPRESS WARRANTY THAT THE GOODS WOULD CONFORM TO ANY AFFIRMATION OR PROMISE. SELLER IS SELLING THE GOODS UNDER THIS AGREEMENT ON AN "AS IS" AND "WITH ALL FAULTS BASIS". SELLER IS NOT LIABLE FOR NORMAL MANUFACTURING DEFECTS OR FOR CUSTOMARY VARIATIONS FROM QUANTITIES OR SPECIFICATIONS, UNLESS EXPRESSLY STATED HEREIN. SELLER EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND (WHETHER ARISING BY IMPLICATION OR BY OPERATION OF LAW) WITH RESPECT TO THE GOODS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR REPRESENTATIONS AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
- Conditions of Warranty. Seller's warranty of any Good is of no effect if: (i) the Good is not stored or handled appropriately; (ii) the defect of the Good resulted from damages occurring after delivery of the Good; (iii) the defect of the Good has not been reported to Seller within thirty (30) days after delivery; or (iv) the defect should have been discovered by Buyer in Buyer's inspection and it is not reported within five (5) days after the Good's delivery.
- Defective Goods. If a Good does not conform to any express warranty herein and the warranty is not excluded by Section 7 hereof, then Buyer must promptly notify Seller. If Seller determines that the Good does not comply with en express warranty provided herein, Seller shall repair or replace the defective Good at no cost to Buyer. Except as provided in this Section 9, SUCH REPAIR OR REPLACEMENT IS THE ONLY REMEDY OF BUYER FOR ANY BREACH OF THE WARRANTY PROVIDED BY SELLER.
- Returns. No Goods may be returned to Seller without providing prompt written notice of that intent and obtaining Seller's prior written consent. Returned Goods must be securely packed by Buyer to reach Seller without damage. Buyer is responsible for the costs of returning the Goods without being damaged. All returned Goods are subject to a restocking fee of between 10% and 50% of the price charged for such Goods.
- Liability Limitation. IN NO EVENT IS SELLER RESPONSIBLE TO BUYER OR ITS AGENTS AND CUSTOMERS FOR ANY INCIDENTAL, SPECIAL, LIQUIDATED, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES OR BACKCHARGES RELATED TO ANY DELAY IN OR NON-PERFORAMCE OF REQUIRED DEADLINES OR JOB COMPLETION PROMISES, OR ANY DIRECT OR INDIRECT LOST PROFITS OR REVENUE, REGARDLESS OF WHETHER THOSE DAMAGES WERE FORESEEABLE. THE TOTAL CUMULATIVE LIABILITY OF SELLER ARISING FROM OR RELATED TO THE GOODS OR THIS AGREEMENT, IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, SHALL NOT EXCEED THE PRICE OF GOODS ON WHICH SUCH LIABILITY IS BASED.
- Property. Unless otherwise provided in writing by Seller, all property of any description, including, without limitation, tools, equipment, machinery, materials, drawings, and manufacturing aides, used in the performance of this Agreement or the production of the Goods shall belong to Seller.
- Termination. In the event of a breach by Buyer, Seller may terminate this Agreement without liability to Buyer upon giving ten (10) days' written notice of termination. Further, Seller may immediately terminate this Agreement without liability to Buyer by delivering written notice to Buyer upon the occurrence of any of the following events: (i) Buyer becomes insolvent; (ii) Buyer applies for or consents to the appointment of a receiver, trustee, liquidator, or custodian; (iii) Buyer makes a general assignment for the benefit of creditors; (iv) Buyer is adjudicated bankrupt or insolvent; (v) Buyer commences a voluntary case under any applicable bankruptcy law or files a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief; or (vi) Buyer dissolves. If this Agreement is terminated by Seller pursuant to this Section 13, Seller shall be entitled to reasonable reimbursement for any labor, material, or other expenses incurred in connection with this Agreement, plus a reasonable amount of overhead.
- Force Majeure. Seller shall not be liable or responsible in damages to Buyer for any delay or failure to perform any obligation or condition under this Agreement due to any event or occurrence beyond the reasonable control of Seller, including, without limitation, acts of God, fires, explosions or other casualty, lockouts or other industrial disturbances, material shortages, acts of the public enemy, wars, blockades, insurrections, riots, epidemics, arrests and restraints of government and of people, civil disturbances, and the binding order of any court or governmental authority.
- Indemnification. To the maximum extent allowed by law, Buyer shall defend, indemnify, and hold Seller, and Seller's employees and agents harmless from and against all sums, costs, liabilities, losses, obligations, suits, actions, damages, back charges, penalties, fines, interest and other expenses (including, without limitation, reasonable attorneys' fees) that Seller may incur or be obligated to pay as a result of: (i) Buyer's negligence, use, ownership, maintenance, transfer, transportation or disposal of any of the Goods; (ii) any infringement or alleged infringement of the industrial or intellectual property rights (including, without limitation, patent rights and copyrights) of others arising from Buyer's plans, specifications (including, without limitation, Buyer's trademarks and brand names), or production of the Goods; (iii) Buyer's violation or alleged violation of any federal, state, county, or local laws or regulations, including, without limitation, the laws and regulations governing product safety, labeling, packaging, and labor practices; and, (iv) Buyer's breach of this Agreement including, but not limited to, Buyer's non-payment of any amount due hereunder.
- Succession and Assignment. This Agreement, and the rights, benefits, duties, and obligations of the parties hereunder, shall inure to the benefit of and be binding upon the parties hereto and upon their respective assigns and successors in interest. Buyer may not assign, delegate, or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Seller.
- Governing Law. The parties acknowledge that the transaction that is the subject matter of this Agreement bears a reasonable relation to the State of Ohio and agree that this Agreement and their rights and duties hereunder shall be governed, construed, and enforced in accordance with the laws of the State of Ohio. The parties specifically intend that Uniform Commercial Code as enacted in the State of Ohio, as amended (Ohio Revised Code Chapter 13), shall govern and control all aspects of this Agreement and its interpretation and that all the definitions contained in those statutes will be applicable to this Agreement, except when this Agreement specifically provides otherwise.
- Jurisdiction and Venue. The parties irrevocably submit and agree to the exclusive jurisdiction of the state courts located within Lucas County, State of Ohio, with respect to any action, suit, or proceeding arising under or relating to this Agreement and irrevocably agree that all such actions or proceedings shall be litigated in such courts, and waive any objection which they may have based on improper venue or forum non conveniens to the conduct of any proceeding in any such court.
- Severability. The terms and provisions of this Agreement are hereby declared to be severable, so that if any terms, provisions, or parts hereof are held invalid, void, or otherwise unenforceable, the remainder of this Agreement and application of such terms, provisions, or parts to other circumstances shall not be affected thereby.
- Notices. Any notice required or permitted under this Agreement shall be deemed given when hand delivered; when deposited in United States certified mail, return receipt requested; or when sent by a nationally recognized courier service, return receipt requested, addressed as follows: (i) to Seller, at 3219 South Avenue, Toledo, Ohio; and (ii) to Buyer, at its last known business address. The parties may from time to time change the address to which notices are to be given by written notice to the other party.
- Miscellaneous. The parties are independent contracting parties and nothing in this Agreement shall make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant to either party any authority to assume or to create any obligation on behalf or in the name of the other. The terms of Sections 1, 6, 7, 8, 9, 10, 11, 12, 15, 16, 17 and 18 hereof shall survive the expiration or earlier termination of this Agreement. No waiver of any breach or condition of this Agreement shall be deemed to be a waiver of any other or subsequent breach or condition, whether of like or different nature.
© 2011 MICK ELECTRIC COMPANY, INC. 3219 South Ave. Toledo, OH 43609
Phone: (419) 385-6604 | Fax: (419) 385-4567