These General Terms and Conditions (the “Terms”), together with the purchase order (the “Order”) and the Order Confirmation (as defined below), if any, govern the terms and conditions of the sale of the Products to the exclusion of all other terms that are contradictory to these Terms and Conditions of sale. “Customer” is defined as the purchaser of the Products from Seller. These Terms shall prevail over any conflicting or additional clauses contained in Customer’s Purchase Order terms and conditions of purchase, which are hereby rejected. Customer’s submission of an Order or acceptance of delivery of any Products constitutes acceptance of these Terms. These Terms supersede any and all previous agreements and understandings, whether written or oral, between the parties with respect to the subject matter. “Seller”, as used herein, means Gordon Bullard & Company, LLC and its affiliates.
This price list issued by Seller from time to time (the “Price List”) supersedes all previous price lists. The indicated prices are exclusive of sales tax, V.A.T. and all other taxes, and the Seller reserves the right to modify the Price List without any prior notification, and any modified Price List shall apply to all Orders not yet confirmed by an Order Confirmation.
Orders for the Products will only be binding on Seller upon Seller’s written express acceptance (the “Acceptance”) by Seller’s written order confirmation (the “Order Confirmation”).
All Accepted Orders are final and cannot be cancelled by Customer without Seller’s prior written consent, which Seller may withhold in its sole discretion. If Seller consents to a cancellation within fifteen (15) calendar days after the Order Confirmation is sent by Seller, Customer shall pay Seller’s restocking charges and all costs incurred by Seller in connection with the Order; Customer shall pay the full Purchase Price for any Order cancelled more than fifteen (15) calendar days after the Order Confirmation is sent by Seller. No Product shall be returned to, or Refund paid, by Seller without prior written authorization from Seller. All approved returns are subject to Seller’s inspection upon receipt. Credit will not be allowed for damaged or used material. Seller in its sole discretion may apply standard restocking charges for the returned Products value. All Products authorized for return are to be shipped prepaid to Seller, accompanied by a document specifying the invoice details related to each single Product. If a refund is not authorized by Seller, then the full Purchase Price shall be retained by Seller as a reasonable estimate of its damages due to the breach by Customer and such amounts shall be retained as liquidated damages. If the Products have been personalized to Customer’s specifications then Customer shall be responsible for the full Purchase Price and no refund shall issue.
Shipping terms shall be Ex Works Seller’s factory (Incoterms® 2020) and the risk of loss passes to Customer in accordance with such terms. Such Terms shall be applicable even in case of special arrangements where the Seller pays the carriage or freight charges. All shipping and delivery dates are:
A) Subject to Customer furnishing complete shipping and delivery instructions in such a manner as to reach Seller timely before the date of any shipment and delivery specified in the Order and/or Order Confirmation.
B) To be considered approximate and not of the essence, since the ability of Seller to complete and deliver the Products ordered by such date may be dependent upon conditions over which Seller has no reasonable control or which it cannot predict exactly. In no event shall Seller be liable for any actual, special, consequential or exemplary damages of any kind, known or unknown, anticipated and non-anticipated, including without limitation, lost profits or lost production resulting from delays in production, shipment or delivery. Seller shall be authorized to make partial shipments of Orders depending on the availability of Products, without prejudice to the payments due by the Customer, even if the Order is not completely filled. If the Customer does not provide the Seller with specific instructions as for the shipment method then Seller shall be authorized to use the means of transportation that Seller deems, in its discretion, most suitable for the delivery of the Product(s).
Seller shall not be liable for damages or costs that Customer incurred for delay in delivery of the Products.
Seller or the Manufacturer shall have the right to modify the designs and/or specifications of the Products at any time without notice to the Customer. In the event of any such change, Seller shall have the right to supply the Products so modified.
Products will be supplied with Seller’s customary packaging.
Customer shall inspect the Products upon their arrival at the delivery destination and shall within eight (8) business days after delivery give written notice to Seller of any claim for damages, defects, differences in quantity or nonconformity. Failure to give such notice within said period shall constitute irrevocable acceptance of the Products and acknowledgment that the Products have been received by Customer in good condition and free of damages.
Title to the Products shall remain with Seller until the Purchase Price has been paid in full (including any interest and any additional amounts) by Customer. To secure payment of all amounts owed, Customer hereby grants Seller a purchase money security interest in the Products and all proceeds thereof, and authorizes Seller to file UCC-1 Financing Statements and any other documents necessary to perfect such interest. Customer may re-sell the Products to a third party (the “Third Party”) only if the Purchase Price has been paid in full and if the sale to the Third Party included a retention of title clause similar to the one herein. If the Customer sells the Products to a Third Party before having made full payment to Seller, such sale shall constitute a default by Customer, the full Purchase Price shall become immediately due, and Customer shall hold all proceeds of such sale in trust for Seller and hereby assigns to Seller its right to receive such proceeds to the extent of amounts owed to Seller. Customer shall fully insure the Products against damages or loss in its own name and in the name of Seller as loss payee, and shall provide evidence of such insurance to the Seller immediately upon request.
The full purchase price, including all associated duty, transport and delivery costs and charges for the Products (the “Purchase Price”) is due and payable IN ADVANCE of shipment unless a later payment time is authorized by Seller in writing, signed by the President of Seller. If any payment is not made when due then, in addition to Seller’s other rights and remedies, Customer shall be liable for late interest charge calculated at the lesser of (I) 1 and ½ percent (1.5%) per month or (II) the highest rate permitted by law. Customer shall have no right to setoff or withhold any payment due by the Seller or any kind of credits that the Customer has towards the Seller.
In addition to any other remedy available to Seller, if (I) Customer defaults in payment of any part of the Purchase Price when due, (II) Customer fails to perform any of its obligations, (III) Customer becomes insolvent or bankrupt or a petition for appointment of a receiver is filed by or against Customer, or (IV) Seller reasonably deems that collection of the then unpaid Purchase Price is insecure, then the full Purchase Price shall become immediately due at the sole option of Seller, Seller may suspend or cancel any further shipments, and if the Purchase Price is not paid immediately, Customer shall return the Products to Seller on demand and at Customer’s sole cost, and Seller may enter Customer’s premises to repossess the Products. Seller shall retain all payments of the Customer as liquidated damages and not as a penalty.
Customer acknowledges that Seller acts solely as a sales agent for, and is not the manufacturer of, the Products. SELLER MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO THE PRODUCTS. The Products are subject only to the warranty, if any, provided by the manufacturer of the applicable Product (the “Manufacturer” and such warranty, the “Manufacturer’s Warranty”), for the period and on the terms and conditions set forth in the Manufacturer’s Warranty document(s). To the extent permitted by the Manufacturer, Seller will pass through to Customer the benefit of the Manufacturer’s Warranty. Customer’s sole and exclusive remedy for any defect in, or nonconformity of, the Products shall be against the Manufacturer under the Manufacturer’s Warranty, and Seller shall have no obligation to repair, replace, refund, or otherwise remedy any defect or nonconformity. Seller may, as an accommodation to Customer and without assuming any obligation or liability, forward warranty claims submitted by Customer to the Manufacturer. Customer waives any other right or remedy against Seller, whether in contract (for breach of contract, breach of warranty or otherwise), in tort (for negligence, strict liability, misrepresentation or otherwise), in equity, under any statute, rule or regulation or upon any other basis. Payments made to Seller prior to a warranty claim are non-refundable and shall be retained and applied to the Purchase Price.
SELLER IS A SALES AGENT AND MAKES NO WARRANTY OF ITS OWN WITH RESPECT TO THE PRODUCTS. ANY WARRANTY APPLICABLE TO THE PRODUCTS IS PROVIDED SOLELY BY THE MANUFACTURER. SELLER DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, AND ALL LIABILITIES OF ANY KIND. SELLER NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR SELLER, ANY OBLIGATION, WARRANTY OR LIABILITY IN CONNECTION WITH THE PRODUCTS. SELLER DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, MERCHANTABILITY OR FITNESS FOR USE FOR ANY PARTICULAR PURPOSE.
NOTWITHSTANDING ANYTHING IN THE ORDER OR OTHER AGREEMENTS BETWEEN THE PARTIES TO THE CONTRARY, SELLER’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS, WHETHER SUCH CLAIM IS BASED UPON TORT, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHERWISE, IS LIMITED TO THE PURCHASE PRICE ACTUALLY PAID BY CUSTOMER FOR THE SPECIFIC PRODUCT GIVING RISE TO THE CLAIM, AND IN NO EVENT SHALL SELLER BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES RESULTING FROM LOSS OF USE OF THE PRODUCTS, LOSS OF PRODUCTION, OR LOSS OF PROFITS, INCOME OR LOSS OF BUSINESS OPPORTUNITY ARISING OUT OF THE CLAIMS AGAINST SELLER. SELLER SHALL NOT BE LIABLE FOR DAMAGES OF CUSTOMER OR ANY THIRD PARTY ARISING OUT OF DEFECTS CAUSED BY IMPROPER USE OF THE PRODUCTS, REPAIRS OF THE PRODUCT BY CUSTOMER OR OTHER THIRD PARTY. ANY ACTION BY CUSTOMER ARISING OUT OF THESE TERMS OR THE PRODUCTS MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.
Customer shall indemnify, defend and hold harmless Seller, and Seller’s shareholders, its officers, directors, managers, employees, and agents (the “Seller Indemnitees”) from and against any losses, liabilities, damages, demands, obligations, fines or civil penalties, expenses, costs, and fees (including, but not limited to, court costs and reasonable attorney’s fees) of any kind and nature whatsoever (collectively, the “Losses”) imposed on, incurred by or asserted against any Seller Indemnitee, in any way relating to or arising out of (a) the use, operation, installation, possession or disposition of the Products by Customer; (b) the willful misconduct or gross negligence of Customer or any of its officers, directors, employees, or agents; (c) the negligence of Customer or any of its officers, directors, employees, or agents, to the extent that Losses are caused by such negligence; (d) any personal injury or property damage suffered by any third party arising out of the use of Product; (e) Customer’s breach of these Terms or the Order; (f) any claim that Products made to Customer’s specifications infringe any third party’s intellectual property rights; or (g) Customer’s violation of any applicable law.1000,000 USD
Customer acknowledges Seller’s exclusive right, title and interest in and to the Seller trademarks and any and all Seller’s intellectual property rights pertaining to the Products. Customer shall not take any act or step impairing Seller’s intellectual property rights or do anything that may otherwise adversely affect the Seller’s intellectual property rights. The trademarks Bullard’s BollardsTM and BYIBA TM and the associated logos are the sole property of Gordon Bullard & Company, LLC.
Customer shall maintain as confidential any information furnished or disclosed by Seller, whether disclosed in writing or orally, relating to the business of the Seller, including its products and customers, drawings, know-how, research and development, patent applications and registered patents, trademarks, ideas, whether patentable or not, financial and marketing information, and these Term, including the pricing terms under which the Customer has agreed to purchase the Products. Customer shall use the same degree of care to protect the confidentiality of the disclosed information as the Customer uses to protect the confidentiality of its own information, but not less than reasonable care. Customer shall disclose such information only to its employees having a need to know such information to perform the transactions contemplated by these Terms and the Order. The obligation to maintain the confidentiality of such information shall not extend to information in the public domain at the time of disclosure, and/or information that is required to be disclosed by law or by court order.
Seller shall not be responsible for delays or failure to fulfill any obligation under the Terms and the Order due to strikes, fire, acts of nature (including pandemics), acts of God, embargoes, currency restrictions, labor shortages, war, terrorism, epidemics, pandemics, civil riot, import or export restrictions, shortage of materials or labor, or any other cause beyond Seller’s reasonable control, even if Seller knew, had reason to believe, or was advised of the possibility of any such cause.
Sales tax, value added tax, property, use, excise, occupational tax or any other Federal, state or municipal tax, duty or surcharge, permit fee, registration and inspection fees and costs have not been included in the Purchase Price, and Customer hereby assumes and agrees to pay and/or reimburse Seller for any of the above taxes, assessments, duties, or fees.
The failure of either party to enforce at any time any of the provisions of the Terms and of the Order shall not be construed to be a waiver of such provisions or of the right of such party thereafter to enforce any such provisions. No agent, salesman, or other party, is authorized to bind Seller by an agreement or warranty not set forth herein. The parties’ status is that of independent contracting vendor and customer. In the event any provision of these Terms or the Order proves to be invalid or unenforceable, such provision shall be disregarded and the non-conflicting valid provisions shall remain in full force and effect.
– These Terms, the Order, and all claims arising out of or relating to them or the Products are governed by and construed in accordance with the laws of the State of Michigan, without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. If, upon demand for payment in full under Section 12, Customer refuses to pay such amount immediately, then Customer shall return the Products to Seller on demand and at Customer’s sole cost to Kalamazoo, Michigan USA. Any dispute between the parties arising out of these Terms or the Order shall be submitted to final and binding arbitration in the City of Kalamazoo, Michigan under the Commercial Arbitration Rules of the American Arbitration Association then in effect upon written notice and demand of any Party therefor; provided that Seller may, at its option, bring an action for collection of amounts due or for injunctive relief in any court of competent jurisdiction. The arbitration shall be conducted by one (1) arbitrator in the English language. Any arbitration award rendered shall be binding, final and conclusive upon all parties and judgment thereon may be entered in any Court having jurisdiction thereof. The prevailing party shall be entitled to recover reasonable attorney’s fees and costs from the other party, including expert witness fees, the fees of the arbitrator, and costs of the arbitration.
GENERAL TERMS AND CONDITIONS OF PURCHASE
These General Terms and Conditions of Purchase (the “Terms”) govern all purchases of goods (the “Products”) by Gordon Bullard & Company, LLC and its affiliates (“Buyer”) from the manufacturer, vendor or supplier named in Buyer’s purchase order (“Seller”). Each purchase order issued by Buyer (the “Order”), including any Order stating that it is “Subject to the Terms and Conditions of the Purchase Order issued to Seller” or words of similar effect, incorporates these Terms by reference, and the Order and these Terms together constitute the entire agreement between the parties with respect to the Products. Seller’s acceptance is expressly limited to these Terms. Any additional, different or conflicting terms in Seller’s quotation, acknowledgment, invoice or other document are hereby objected to and rejected and shall not bind Buyer, regardless of Buyer’s acceptance of or payment for the Products. Seller’s acknowledgment of an Order, shipment of any Products, or commencement of performance constitutes acceptance of these Terms. These Terms supersede all prior agreements and understandings, whether written or oral, with respect to the subject matter, except any written supply or distribution agreement signed by Buyer, which shall control in the event of conflict.
The prices stated in the Order are firm and are inclusive of all packaging, crating, labeling, handling, freight, insurance and delivery charges, and no additional charges of any kind shall be added without Buyer’s prior written consent. No price increase shall apply to any Order unless agreed in writing by Buyer. Seller represents that the prices charged to Buyer are no less favorable than those Seller extends to any other customer for like quantities of similar Products.
Each Order is an offer by Buyer to purchase the Products on these Terms. Seller shall acknowledge each Order in writing within five (5) business days after receipt. If Seller does not reject an Order in writing within such period, or if Seller ships any Products or commences performance, the Order shall be deemed accepted on these Terms.
Buyer may, by written notice, change the quantities, specifications, delivery schedule or destination of any Order, and any resulting equitable adjustment in price or schedule must be requested by Seller in writing within ten (10) days after such notice or is waived. Buyer may cancel all or any part of an Order for convenience at any time before shipment, in which case Buyer’s sole liability shall be payment for finished Products specially made for Buyer and completed before notice of cancellation, and Buyer shall have no liability for lost profits, unabsorbed overhead or restocking charges. Buyer may cancel any Order without liability if Seller breaches these Terms or the Order. Nonconforming or defective Products may be returned to Seller at Seller’s risk and expense, and Seller shall, at Buyer’s option, promptly replace such Products or refund or credit the full price paid together with all freight and handling costs.
Unless otherwise stated in the Order, shipping terms shall be DDP Buyer’s designated delivery destination (Incoterms® 2020), and risk of loss shall remain with Seller until the Products are delivered to and accepted by Buyer or Buyer’s designee. Delivery dates are:
A)Firm, and time is of the essence for all delivery dates and quantities specified in the Order.
B)Subject to Seller’s obligation to notify Buyer in writing immediately upon becoming aware of any actual or anticipated delay, stating the cause and expected delivery date, in which case Buyer may require Seller to ship by expedited means at Seller’s sole cost. Seller shall be liable for all damages, costs and expenses incurred by Buyer as a result of late, incomplete or nonconforming delivery, including any amounts Buyer becomes obligated to pay its customers. Seller shall not make partial or early shipments without Buyer’s prior written consent, and Buyer may return unauthorized shipments at Seller’s expense. Seller shall ship in accordance with Buyer’s routing instructions and shall include the Order number on all packing lists, bills of lading and invoices.
If Seller fails to deliver any Products by the specified delivery date, Buyer may, in addition to its other rights and remedies, cancel the Order in whole or in part without liability and purchase substitute products elsewhere, and Seller shall reimburse Buyer for any excess cost of such substitute products and all related expenses.
Seller shall not change the design, specifications, materials, components, manufacturing process or place of manufacture of any Product without Buyer’s prior written consent. Seller shall give Buyer at least one hundred eighty (180) days’ prior written notice of any discontinuance of a Product and shall accept last-time-buy orders from Buyer during such period.
Seller shall package, mark and label the Products in accordance with Buyer’s instructions and good commercial practice so as to prevent damage in transit, and shall comply with all applicable carrier and legal requirements. Seller shall be responsible for any loss or damage resulting from improper packaging.
All Products are subject to inspection and testing by Buyer within a reasonable time after delivery, and Buyer may reject any Products that are defective or nonconforming. Neither payment, inspection, nor failure to inspect shall constitute acceptance of the Products or a waiver of any of Buyer’s rights, including with respect to latent defects. Buyer may inspect Seller’s facilities and work in progress upon reasonable notice.
Title to the Products shall pass to Buyer upon delivery, free and clear of all liens, security interests, claims and encumbrances. Seller warrants that it has good and marketable title to the Products. Any specifications, drawings, tooling, molds or materials furnished or paid for by Buyer shall remain Buyer’s property, shall be held by Seller at its risk, shall be used solely for Buyer’s Orders, and shall be returned to Buyer upon request.
Payment shall be due sixty (60) days after the later of Buyer’s receipt of conforming Products or a correct and complete invoice referencing the Order number. Buyer may withhold payment of any disputed amount pending resolution of the dispute. Buyer may set off against any amount owed to Seller any amount owed by Seller to Buyer or its affiliates, under the Order or otherwise. No interest or late charges shall be payable by Buyer unless agreed in a writing signed by Buyer.
In addition to any other remedy available to Buyer, if (I) Seller fails to deliver any Products when due, (II) Seller fails to perform any of its obligations under these Terms or the Order, (III) Seller becomes insolvent or bankrupt or a petition for appointment of a receiver is filed by or against Seller, or (IV) Buyer reasonably deems Seller’s ability to perform to be insecure and Seller fails to provide adequate written assurance within five (5) days after request, then Buyer may terminate any or all Orders without liability, purchase substitute products elsewhere at Seller’s expense, and recover from Seller all resulting damages, costs and expenses, including reasonable attorney’s fees.
Seller warrants that all Products shall (a) conform to the Order, the specifications, drawings, samples and descriptions furnished or approved by Buyer, and Seller’s published specifications; (b) be new, merchantable, and free from defects in design, materials and workmanship; (c) be fit for the particular purpose for which they are intended, of which Seller has knowledge; (d) comply with all applicable laws, regulations and industry standards; and (e) not infringe any third party’s intellectual property rights. These warranties shall continue for twenty-four (24) months after delivery of the Products to Buyer’s customer, or Seller’s standard warranty period, whichever is longer, and shall survive inspection, acceptance and payment. Seller’s warranties shall run to Buyer, its successors and assigns, and Buyer’s customers and end users, and Seller acknowledges that Buyer may pass through such warranties to its customers. Seller shall process and resolve warranty claims made by Buyer or Buyer’s customers directly and promptly. For any breach of warranty, Seller shall, at Buyer’s option, promptly repair or replace the nonconforming Products or refund the price paid, and shall bear all related costs, including removal, reinstallation, inspection, freight and labor.
14. WARRANTIES AND REMEDIES CUMULATIVE. SELLER’S WARRANTIES ARE IN ADDITION TO ALL WARRANTIES IMPLIED BY LAW, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH SELLER DOES NOT DISCLAIM. ANY DISCLAIMER OR LIMITATION OF WARRANTY OR REMEDY CONTAINED IN SELLER’S QUOTATION, ACKNOWLEDGMENT, INVOICE, WARRANTY DOCUMENT OR OTHER DOCUMENT SHALL BE VOID. BUYER’S RIGHTS AND REMEDIES HEREUNDER ARE CUMULATIVE AND IN ADDITION TO ALL OTHER RIGHTS AND REMEDIES AVAILABLE AT LAW OR IN EQUITY.
15. LIMITATION OF BUYER’S LIABILITY. NOTWITHSTANDING ANYTHING IN THE ORDER OR ANY SELLER DOCUMENT TO THE CONTRARY, BUYER’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF THESE TERMS, THE ORDER OR THE PRODUCTS, WHETHER BASED UPON TORT, BREACH OF CONTRACT, OR OTHERWISE, SHALL NOT EXCEED THE UNPAID PURCHASE PRICE OF THE PRODUCTS GIVING RISE TO THE CLAIM, AND IN NO EVENT SHALL BUYER BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS. NOTHING IN THESE TERMS SHALL LIMIT SELLER’S LIABILITY TO BUYER.
Seller shall indemnify, defend and hold harmless Buyer, its affiliates, and their respective shareholders, members, officers, directors, managers, employees, agents and customers (the “Buyer Indemnitees”) from and against any losses, liabilities, damages, demands, obligations, fines or civil penalties, expenses, costs, and fees (including court costs and reasonable attorney’s fees) of any kind and nature whatsoever (collectively, the “Losses”) imposed on, incurred by or asserted against any Buyer Indemnitee, in any way relating to or arising out of (a) any actual or alleged defect in the design, manufacture, materials or workmanship of the Products; (b) any personal injury, death or property damage arising out of the Products; (c) any product recall or field correction relating to the Products; (d) any claim that the Products infringe any third party’s intellectual property rights, except to the extent caused by specifications furnished by Buyer; (e) the negligence or willful misconduct of Seller or its officers, directors, employees, agents or subcontractors; (f) Seller’s breach of these Terms or the Order; or (g) Seller’s violation of any applicable law. Seller shall maintain, at its expense, commercial general liability insurance, including products and completed operations coverage, with limits of not less than $[1000,000 USD] per occurrence, naming Buyer as an additional insured, and shall furnish certificates of insurance to Buyer upon request.
Seller acknowledges Buyer’s exclusive right, title and interest in and to Buyer’s trademarks and intellectual property, including the trademarks Bullard’s BollardsTM and BYIBA TM and the associated logos, which are the sole property of Gordon Bullard & Company, LLC. Seller shall not use Buyer’s name or trademarks without Buyer’s prior written consent. Seller grants Buyer a non-exclusive, royalty-free license to use Seller’s names, trademarks, product images and literature in connection with the marketing, promotion and resale of the Products. All specifications, drawings and designs furnished by Buyer, and any modifications or improvements developed specifically for Buyer, shall be the exclusive property of Buyer.
Seller shall maintain as confidential any information furnished or disclosed by Buyer, whether in writing or orally, relating to the business of Buyer, including its customers, customer projects, end users, pricing, drawings, specifications, know-how, financial and marketing information, and these Terms and the Order. Seller shall use at least reasonable care to protect such information, shall use it solely to perform the Orders, and shall disclose it only to its employees having a need to know such information for that purpose. Such obligations shall not extend to information in the public domain through no fault of Seller, or information required to be disclosed by law or court order, provided Seller gives Buyer prompt prior notice. Seller shall not disclose that Buyer is a customer of Seller or contact Buyer’s customers regarding the Products without Buyer’s prior written consent.
Neither party shall be liable for delay in performance caused by fire, flood, acts of God, war, terrorism, civil riot, embargoes, or pandemics, to the extent such cause is beyond its reasonable control and could not have been avoided by reasonable precautions, provided that the affected party gives prompt written notice and uses diligent efforts to resume performance. Shortages of materials or labor, labor disputes involving Seller or its suppliers, and changes in market conditions or costs shall not excuse Seller’s performance. If any delay in Seller’s performance exceeds thirty (30) days, Buyer may cancel the affected Order without liability and purchase substitute products elsewhere.
Except for sales or use taxes that Seller is legally required to collect and that are separately stated on Seller’s invoice, the prices include all taxes, duties, customs fees, tariffs, export and import charges, permit fees, registration and inspection fees. Seller shall be responsible for obtaining all export licenses, permits and certifications required for the Products and shall provide Buyer with all documentation reasonably requested, including country-of-origin certificates.
The failure of Buyer to enforce at any time any of the provisions of these Terms or the Order shall not be construed to be a waiver of such provisions or of Buyer’s right thereafter to enforce them. No modification of these Terms or any Order shall bind Buyer unless set forth in a writing signed by an authorized officer of Buyer. Seller shall not assign or subcontract any Order without Buyer’s prior written consent. Seller shall comply with all applicable laws, including export control, anti-corruption, labor and product safety laws. The parties are independent contractors. In the event any provision of these Terms or the Order proves to be invalid or unenforceable, such provision shall be disregarded and the remaining provisions shall remain in full force and effect.
These Terms, the Order, and all claims arising out of or relating to them or the Products are governed by and construed in accordance with the laws of the State of Michigan, without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Any dispute between the parties arising out of these Terms or the Order shall be submitted to final and binding arbitration in the City of Kalamazoo, Michigan under the Commercial Arbitration Rules of the American Arbitration Association then in effect, conducted by one (1) arbitrator in the English language; provided that Buyer may, at its option, bring an action for injunctive relief, recovery of property, or indemnification (including joinder in any third-party action against Buyer) in any court of competent jurisdiction. Any arbitration award rendered shall be binding, final and conclusive upon the parties, and judgment thereon may be entered in any court having jurisdiction. The prevailing party shall be entitled to recover reasonable attorney’s fees and costs, including expert witness fees, the fees of the arbitrator, and costs of the arbitration.