These terms and conditions govern the sale of Products (“Products”) by ESS Universal USA, LLC (“Seller”), as well as by third party vendors and/or service providers of Seller. These terms and conditions, together with any other documents which Seller has attached or referenced as part of the contract (the “Agreement”), are the sole and complete contract between Buyer and Seller regarding the Products and supersede all prior oral and written understandings. Seller rejects those provisions of any previous order, offer, or other communication from Buyer, which are additional to or different from these terms and conditions. Neither Seller’s delivery of the Products nor any other action at any time on the part of Seller shall constitute acceptance of any additional or different terms. Buyer shall be bound by all of the terms of this Agreement when Buyer accepts this Agreement by any statement, act or course of conduct which constitutes acceptance under applicable law, including failure to object in writing within a reasonable time and acceptance of delivery of the Products. Seller’s failure to object to conflicting or additional terms will not change or add to the terms of this Agreement.
- Orders. All orders placed by Buyer are subject to acceptance by Seller. All orders require a signed purchase order to Seller, prior to shipment. If a purchase order has not been accepted and signed by Seller within thirty (30) days from the quote date, the terms and conditions of the issued quote are subject to change. Orders may not be cancelled or rescheduled without Seller’s written consent. All orders must identify the products, unit quantities, applicable prices and requested delivery dates of the Products being purchased. Seller may designate certain Products as non-cancelable, nonreturnable, and the sale of such Products shall be subject to Seller’s special terms and conditions which shall prevail and supersede any inconsistent terms and conditions contained herein or elsewhere. Specifications are subject to change at any time with advance notice.
- Prices. The prices of the Products are those prices specified on the front of the invoice. Fees and permits are Buyer’s responsibility, unless stated otherwise in the invoice. Pricing for undelivered Products may be increased in the event of an increase in Seller’s cost, freight, change in market conditions, or any causes beyond Seller’s reasonable control. Price quotations shall automatically expire in thirty (30) days from the date issued, unless an expiration date is stated in the quote. Unless otherwise agreed to in writing by Seller, all prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including federal, state, and local sales, excise and value added, goods and services taxes, and any other taxes. When applicable, transportation and taxes shall appear as separate items on Seller’s invoice.
- Payment. All orders require 100% payment prior to shipping. This includes orders shipping outside the United States. Seller reserves the right to change or amend payment terms in its sole discretion. Payment may be made by check, money order, credit card, or wire transfer (all fees are borne by the Buyer). All credit card payments shall be charged a two percent (2%) convenience fee. Where Seller has extended credit to Buyer, terms of payment shall be given in- writing at time of signed Purchase Order. On any past due invoice, Seller may cancel and revoke any discounts, and charge interest at the rate of one and a half percent (1.8%) per month on the unpaid balance. If Buyer fails to make each payment when it is due, Seller reserves the right to change or withdraw credit, and suspend or cancel performance under any or all purchase orders in which Seller has extended credit to Buyer. In the event of default by Buyer, Seller shall be entitled to costs, fees, and expenses, including but not limited to recovery of attorney fees, court costs and fees, and collection costs, whether or not litigation is commenced.
- Title and Delivery. Title and risk of loss pass to the Buyer upon delivery of the Product to the carrier. Seller’s delivery dates are estimates only and Seller is not liable for delays in delivery, or for failure to perform due to causes beyond the reasonable control of the Seller. If delivery dates change, Seller will endeavor to inform the Buyer as soon as possible of the new estimated ship date. The carrier will not be deemed an agent of the Seller. A delayed delivery of any part of an Order does not entitle Buyer to cancel other deliveries.
- Inspection. Buyer shall inspect for defects or shortages and must notify Seller in writing no later than sixty (15) days after the shipment date stated on the packing slip. Buyer shall inspect a shipment for damage. If the package is damaged, Buyer shall not sign for the delivery prior to inspection. In the event of damage to the package, Buyer shall make a claim directly with the carrier. Failure to follow this procedure will result in no refund or repair of the damage to the shipment. Products must be in original condition to be returned, unless there is a manufacturer defect. If the Product is approved for return, Seller will issue a Return Authorization Number (RAN). Once the RAN is received, Buyer must return the item within 14 days of receiving a RAN. All authorized returns must arrive at Seller with shipping cost prepaid, unless otherwise agreed. Seller will provide Buyer with specific instructions on where to return Products with the RAN.
- Limited Warranty. Seller will transfer to Buyer any Product warranties authorized by the manufacturer. Seller warrants to the original Buyer only that Products purchased from Seller will conform to the applicable manufacturer’s specifications for such Products for a period of one (1) year. Buyer shall notify Seller of any covered defect within the
warranty period. If Seller breaches this warranty, Buyer’s remedy is limited to (at Seller’s election) (1) refund of Buyer’s purchase price for such Product (without interest), (2) repair of such Product, or (3) replacement of such Product; provided that such Product must be returned to Seller, along with acceptable evidence of purchase, within 30 days from date of delivery, transportation charges prepaid. This is the original Buyer’s sole and exclusive remedy under this limited warranty. This warranty does not cover defects which result from causes beyond Seller’s control, including, without limitation, (a) misuse, abuse, neglect, accident, abnormal use, or modification; (b) normal wear and tear; (c) repairs or attempted repairs by an unauthorized person. THE FOREGOING IS THE COMPLETE WARRANTY FOR THE PRODUCTS AND SUPERSEDES ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER ORAL OR WRITTEN. EXCEPT AS STATED IN THIS LIMITED WARRANTY, SELLER MAKES NO WARRANTIES OR PREPRESENTATIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, QUALITY, CAPABILITY, OR ANY OTHER WARRANTY IMPLIED AT LAW OR EQUITY. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE MINIMAL PERIOD ALLOWABLE BY LAW.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SELLER’S TOTAL LIABILITY TO BUYER OR ANY OTHER PERSON OR ENTITY, FOR ANY CAUSE OR COMBINATION OF CAUSES, WHETHER ARISING OUT OF CLAIMS BASED UPON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, IS IN THE AGGREGATE, LIMITED TO AN AMOUNT NO GREATER THAN THE PURCHASE PRICE PAID FOR THE PRODUCT.IN NO EVENT SHALL SELLER, ITS OFFICERS, EMPLOYEES, AFFILIATES, CONTRACTORS, SUPPLIERS, AGENTS, AND REPRESENTATIVES, BE LIABLE TO BUYER, OR ANY OTHER ENTITY OR PERSON, FOR ANY DAMAGES, EXPENSES, LOSS OF PROFITS OR REVENUE, PROMOTIONAL EXPENSES, OVERHEADS, BUSINESS INTERRUPTION COST, REMOVAL OR REINSTALLATION COSTS, INJURY TO REPUTATION OR LOSS OF CUSTOMERS, OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, PUNITIVE, CONSEQUENTIAL, OR OTHER DAMAGES ARISING OUT OF A DEFECTIVE PRODUCT, USE OR INABILITY TO USE A PRODUCT, OR ANY OTHER MATTER WHATSOEVER, REGARDLESS OF (a) THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, OR (b) WHETHER SELLER HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LIBILITIES OR CLAIMS.
- Force Majeure. Seller is not liable for failure to fulfill its obligations for any accepted order or for delays in delivery due to causes beyond Seller’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, protest, delay by carrier, acts or omissions of other parties, acts or omissions of civil or military authority, changes in law, fire, floods, acts of terrorism, delays in transportation or inability to obtain labor or materials through its regular sources, any of which shall be considered as an event of force majeure excusing Seller from performance and barring remedies for non-performance. In an event of force majeure condition, the Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining delivery, without any liability, by giving notice of such cancellation to the Buyer.
- Security Agreement. To secure Buyer’s obligations to pay the purchase price in full, Buyer grants to Seller a lien and security interest on the Products, wherever located, and all proceeds, accessories, and additions now or hereafter placed in or on the Products. The Products shall be and remain subject to such lien and security interest of Seller for payment of all unpaid sums owed by Buyer to Seller. The provisions of this section relating to said lien and security interest shall constitute a security agreement under the Uniform Commercial Code so that Seller shall have and may enforce a security interest on all Products received by Buyer from Seller, now or hereafter acquired. Buyer hereby irrevocably appoints Seller as its attorney-in-fact to execute any and all documents which Seller deems reasonably necessary to effectuate the terms hereof, including filing a financing statement in the appropriate jurisdiction. This appointment is coupled with an interest, and is irrevocable.
- General. The laws of the State of Michigan will exclusively govern any dispute between Seller and Buyer. The state courts of Michigan and federal courts sitting in Michigan have exclusive jurisdiction to determine any dispute arising between Seller and Buyer. The parties irrevocably stipulate to personal jurisdiction in the state courts of Michigan and federal courts sitting in Michigan, and to the venue and convenience of the Circuit Court for Ottawa County, for resolution of disputes between Seller and Buyer, and waive any objection to the exercise of such jurisdiction and venue. An action for breach of these terms and conditions of sale must be commenced within two (2) years after the cause of action has accrued. A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. These terms and conditions of sale are binding on Buyer and Buyer’s successors and assigns, if permitted.
