As used herein, “Seller” shall mean Huntego Limited, LLC (“Huntego”), its operating divisions, affiliates and subsidiaries. “Purchaser” shall mean the entity purchasing goods from Seller, or the entity issuing a purchase order to Seller for the purchase of products or services supplied by Seller.
These terms and conditions and any Quotation, Order Acknowledgement and Invoices issued by Seller (collectively, “Purchase Order Terms”) constitute an offer made by Seller to Purchaser to enter into the agreement described herein and shall be the only terms and conditions governing the sale of Seller’s products or services, except for specific terms relating solely to quantities, shipping instructions or descriptions of products or services appearing on the face of Purchaser’s Purchase Order. To the extent that any documents originating from Purchaser contain or refer to terms that differ from the Purchase Order Terms, all such different terms are expressly rejected by Seller and Seller’s Purchase Order Terms shall constitute a counter-offer. Purchaser’s acceptance is limited to the Purchase Order Terms and shall be effective by signing the Purchase Order Terms, by issuing another writing demonstrating acceptance of the Purchase Order Terms, or by accepting the goods or services to be supplied under this agreement. Seller rejects all additional or different terms or conditions proposed by Purchaser. All such additional or different terms and conditions shall be void and of no effect unless expressly and conspicuously agreed to by Seller in a subsequent writing manually signed by Seller’s authorized agent. Seller rejects all inconsistent, different or additional terms in Purchaser’s business forms or appearing on any website, electronic exchange, bidding site or other internet forum (“Internet Media”) whether maintained by Purchaser or by a third party. No employee of Seller has authority to agree to terms and conditions in Purchaser’s business forms or appearing on any Internet Media. No changes may be made to these terms and conditions without Seller’s express written agreement, clearly identifying the change to be made. and signed by Seller. Amendments to the Purchase Order Terms must be in writing and signed by both parties. No course of dealing, usage of trade or custom and practice shall modify, supplement, alter, amend or in any way affect these terms and conditions.
Seller and Purchaser are independent parties and neither party shall be the agent or legal representative of the other for any purpose whatsoever. Neither party has any authority to assume or create any obligation on behalf of or in the name of the other party.
Seller reserves the right to assign this Agreement to any of its subsidiaries or affiliates at any time without further notification or penalty. Purchaser shall not assign, delegate or subcontract any of its substantive obligations under this Agreement without Seller’s written consent.
Seller reserves the right to terminate this Purchase Order, unless prohibited by law by providing at least 60 days’ advance written notice of such termination to Purchaser. Purchaser may not terminate any Purchase Order, suspend releases under a requirements contract, or terminate any Agreement relating to the purchase of Seller’s products or services without Seller’s express written consent and then only upon terms and conditions to be agreed upon which shall protect Seller against all losses or damages. If Purchaser repudiates the contract or notifies Seller to suspend performance, Seller, at its option, shall have the right to deliver all finished goods, work in process and raw materials or supplies procured in anticipation of producing goods or services, and Purchaser agrees to accept and pay for all such items (at the contract price for all finished goods) plus reimbursement, including lost profits, for any work in process, raw materials or supplies. Purchaser agrees that Seller’s pricing included amortization of Seller’s costs and agrees to reimburse Seller for any remaining un-recovered investment for dedicated tooling, capital equipment, or engineering, research or design that was used to manufacture goods for Purchaser. Seller’s payment terms will be altered to C.I.A. (Cash in Advance) for the last scheduled shipment of goods, and Seller’s account must be current prior to the release of the final shipment.
All Prices are stated and payable in U.S. Dollars and are subject to change by Seller without notice to Purchaser. If a raw material, component, or service provider raises its prices, or imposes a surcharge on Seller, Seller reserves the right to increase prices or surcharge Purchaser and Purchaser agrees to accept such price increase or surcharge for so long as such change in conditions persists. Pricing established on the basis of Purchaser’s based anticipated volumes is subject to unilateral change by Seller if such volumes are not met, whether or not prices are stated as firm. Prices shall be subject to adjustment by Seller at the end of a production cycle, if additional goods are required as service parts. Seller shall have no obligation to supply service parts unless revised prices, reflecting decreased volumes and then-current labor and material costs, are mutually agreed to by the parties. Purchaser may not alter pricing without Seller’s express written agreement.
Unless otherwise stated in Seller’s quotation, terms of payment are 30 days net from the date of Seller’s invoice, or, in the event of electronic payments, 30 days from the date of delivery. If Purchaser fails to timely pay Seller’s invoice(s), Seller may, without prejudice to any other rights or remedies: (a) withhold shipments of goods or the performance of additional services, (b) demand the return of previously shipped goods; (c) institute new payment terms; (d) terminate any purchase orders or supply agreements, and/or (e) institute suit for legal or equitable relief. Purchaser agrees to pay interest on overdue invoices at the lesser of 1 ½ % per month or the highest rate permitted by law. If Purchaser fails to make any payment as required, Purchaser agrees to indemnify Seller for all costs and expenses, including reasonable attorneys’ fees, court costs, and associated expenses incurred in connection with Seller’s collection efforts.
All shipments shall at all times be subject to the approval of Seller’s credit department. Seller may invoice Purchaser and recover for each shipment made pursuant to these Terms and Conditions as a separate transaction without regard to any other order or agreement with Seller, or if, in Seller’s sole judgment, Purchaser’s financial situation is or becomes unsatisfactory, Seller may, without prejudice to any of its rights or remedies: (a) defer or decline to make any shipments hereunder except upon receipt of satisfactory security or cash payments in advance, and/or (b) terminate any purchase orders or supply agreements.
Seller grants Purchaser the right to inspect goods or services for non-conformance for a period of 15 business days immediately following delivery (“Reasonable Inspection Period”). Purchaser must notify Seller of any goods or services that do not conform to the Purchase Order Terms within the Reasonable Inspection Period. After notification, Purchaser must provide Seller a reasonable opportunity to inspect such non-conforming goods or services and, at Seller’s option, to repair or replace such non-conforming goods or services. If Purchaser fails to provide Seller with notice of non-conformity within the Reasonable Inspection Period, Purchaser shall be deemed to have accepted the goods or services. Accepted products may not be returned for any reason. Acceptance may not be revoked. Purchaser shall not return any non-conforming goods without Seller’s prior written authorization. All returns authorized by Seller must be made in accordance with Seller’s return policies then in effect. Unless Seller first determines that goods or services are non-conforming and agrees to accept return of such non-conforming goods, Purchaser shall be responsible for all costs and expenses associated with any unauthorized returns and shall bear the risk of loss or damage to such goods. Seller, in its sole discretion may reject any returns that are not made in accordance with this paragraph or that are otherwise returned in a manner inconsistent with Seller’s then current-return policies.
Seller shall pack all goods in approved containers. Unless otherwise specifically agreed, Seller anticipates using common carriers to ship goods. Unless stated in Seller’s invoice, the carrier will bill Purchaser directly, and Purchaser shall pay the carrier directly, for all freight charges and all applicable taxes and duties Seller reserves the right to schedule its production and to make deliveries accordingly. Seller rejects any claim that time is of the essence. In circumstances where Purchaser specifies installment deliveries not in conformity with Seller’s production schedule, and Seller elects to deliver as specified by Purchaser, Seller shall have the right to adjust its price to cover Seller’s additional costs. All goods shall be shipped F.O.B. Seller’s plant, and delivery shall complete upon transfer of the goods to the carrier.
All property rights in goods shall transfer to Purchaser upon delivery to the carrier. Purchaser shall assume all risk and liability for loss, damage, or destruction, as well as the results of any use or misuse by third parties after the delivery to the carrier. Unless mutually agreed upon, shipping dates are approximate and are based upon prompt receipt of all necessary information. Seller reserves the right to ship items in a single or multiple shipments.
Purchaser shall notify Seller and the delivering carrier within 10 business days from date of receipt, of any damage to or shortage in the goods, and afford Seller a reasonable opportunity to inspect such goods. Any loss occasioned by damage or shrinkage in transit will be for Purchaser’s account and claims for such loss shall be made solely against the carrier.
Purchaser acknowledges that Seller must make advance purchases of raw material to fulfill orders. Purchaser authorizes Seller to obtain sufficient raw materials in advance of production to support all open orders submitted by Purchaser. Purchaser acknowledges that material authorizations must allow for normal supply chain lead-times (a minimum of 12 weeks for imported items, 8 weeks for domestic items and 6 weeks for all resins and paints). Seller reserves the right to modify lead-times for unique components or special market conditions. Purchaser shall provide Seller with forecasts of Purchaser’s releases, orders or requirements at least 12 weeks prior to order sufficient to allow for the raw materials. Purchaser shall be liable for any raw material ordered pursuant to its forecasts, but not used by Seller to manufacture good for Purchaser’s account.
14. QUANTITIES, SUBSTANTIAL COMPLIANCE AND DAMAGE TO MOLDS AND TOOLING.
Purchaser shall issue periodic releases to Seller setting forth specific quantities. Unless otherwise agreed in writing, Seller shall supply those quantities requested by Purchaser. Shipments of 10 percent above or below the quantities ordered shall constitute substantial compliance with each order. Purchaser acknowledges that production by Seller at uneven quantities may result in damage to molds and/or tools. Purchaser commits to order approximately equal quantities produced off of the molds or tools and will pay for any mold or tool obsolescence, dressing or refurbishment caused by unbalanced orders.
In the absence of a written agreement specifying the production of service parts at a specific price, Seller shall have no obligation to produce service parts beyond the termination date of this contract.
Purchaser acknowledges that Seller is neither the designer nor the party responsible for testing goods, but merely provides goods to the specifications and physical dimensions provided by Purchaser. Purchaser remains solely responsible for the design, testing, efficacy and approval of the overall product. Seller warrants only that the products or services sold hereunder: (a) will conform to the specifications and physical dimension of the products provided by Purchaser, (b) will be conveyed free and clear of any lien, security interest or encumbrance created by seller or any party claiming by, through or under seller, and (c) will be free from substantial defects in material and workmanship for a period of 3 months from the date of delivery to the carrier. Purchaser shall remain solely liable for any other warranty claim or issue. Seller Makes No Other Warranty Or Representation, Express Or Implied, And Expressly Disclaims Any Warranty Of Merchantability Or Fitness For Particular Purpose Concerning The Goods Or Services Supplied Hereunder.
In no event shall Purchaser seek, nor shall Seller be liable for, any special, indirect, incidental, punitive, exemplary or consequential damages including, but not limited to: personal injury or death, damage to or loss of real or personal property or equipment, environmental response costs, loss of profits or revenues, loss of use of the goods, costs of capital, raw material charges, recall costs, warranty claims and expenses, customer satisfaction or goodwill adjustments, promotional or manufacturing expenses, overhead costs, interruption of Purchaser’s business, reduced market share, damage to brand value, injury to reputation, claims of Purchaser’s customers, loss of actual or prospective customers or sales, litigation expenses, attorneys’ fees or similar items of damage. Seller shall not indemnify or defend Purchaser against any claim or lawsuit, and shall not be required to indemnify or defend Purchaser for any reason. In no event shall Seller’s potential liability exceed the purchase price of the specific goods or services for which any claim is made by Purchaser. Purchaser shall not be allowed to assign any claim or right against Seller to any third party and any such attempted assignment shall be void and unenforceable.
Purchaser is solely responsible for determining whether any goods sold hereunder are fit for a particular purpose and suitable for Purchaser’s method of application or use. Seller shall not be responsible for the results or consequences of any use, misuse or application by anyone of the goods supplied hereunder.
Unless otherwise agreed in a writing signed by Seller, all material, equipment, facilities, and special tooling, (including tools, jigs, dies, fixtures, molds, patterns, special taps, special gauges, special test equipment, and manufacturing aids and replacements thereof), used in the manufacture of the goods shall be and remain Seller’s property. Any material, tooling, or equipment furnished by Purchaser shall be and remain the Purchaser’s personal property with the title to and right of possession remaining in Purchaser, subject to any applicable lien, including but not limited to the Michigan Molder’s Lien Act, MCLA §445.611 et seq., or the Michigan Special Tools Lien Act, MCLA §570.541 et seq. or other applicable laws.
In addition to the purchase price, Purchaser shall pay Seller, all fees, duties, licenses, tariffs, sales, use, privilege, occupation, excise, or other taxes (“Tax Liabilities”) which Seller is required to pay or collect in connection with the goods or services provided hereunder. The Seller’s failure to collect any such fees or taxes shall not affect Purchaser’s obligation hereunder and Purchaser shall defend, indemnify and hold harmless Seller in respect of all such Tax Liabilities.
Purchaser warrants that it owns or has a valid license to any and all drawings, designs, specifications, inventions, devices, developments, processes, copyrights, trademarks, patents and applications therefor, and other Intellectual Property disclosed or otherwise provided to Seller by Purchaser. Purchaser will protect, indemnify, defend and hold the Indemnified Parties harmless from and against all liability, losses, damages, costs or expenses which they may at any time suffer, incur or be required to pay by reason of any claim, action, suit, or proceeding that may be brought for damages or injunctive relief based upon any actual or alleged violation or infringement of any patent, trademark, copyright or other intellectual property right by any Product sold by Seller to Purchaser. All drawings, designs, specifications, inventions, devices, developments, processes, copyrights, trademarks, patents and applications therefor, and other Intellectual Property disclosed or otherwise provided to Purchaser by Seller and all rights therein (collectively, “Intellectual Property”) shall remain Seller’s property and shall be kept confidential by Purchaser. Purchaser shall have no claim to, nor ownership interest in, any Intellectual Property which shall be returned to Seller promptly upon Seller’s written request. Purchaser agrees that no license or rights of any kind are granted to Purchaser hereunder in respect of any Intellectual Property, other than the limited right to use Seller’s proprietary goods purchased from Seller and to re-sell those proprietary goods as components in products manufactured or sold by Purchaser. Unless specifically stated, the sale of goods or services by Seller does not include any design, development or related services associated with any of Seller’s Intellectual Property.
All information furnished or made available by Seller shall be held in confidence by Purchaser who shall not use such information or disclose it to others without Seller’s prior written consent. The obligations of this paragraph will not apply to any information which: (a) at the time of disclosure was, or thereafter becomes, generally available to the public by publication or otherwise through no breach by Purchaser of any obligation herein, (b) the Purchaser can show by written records was in the Purchaser’s possession prior to disclosure by Seller, or (c) is legally made available to the Purchaser by or through a third party having no direct or indirect confidentiality obligation to Seller with respect to such information.
Purchaser agrees to defend, indemnify and hold Seller harmless against all claims (whether groundless or not), liability, costs, damages and expenses resulting from actual or alleged patent, trademark, or copyright infringement, misappropriation of confidential information, or violation of any other Intellectual Property right, domestic or foreign, that may arise from Seller’ manufacture, use or sale of any goods or Seller’s use of any design or process that is specified by the Purchaser. If any claim is made by a third party on the basis of which indemnification may be sought under this paragraph, Seller shall give written notice of such claim to Purchaser promptly after Seller has actual notice of such claim. Purchaser shall have the right and obligation to defend or settle such claim at its expense, provided that it does so diligently and in good faith. Seller shall cooperate with such defense and shall have the right to participate in (but not to control) such defense at its expense. No settlement shall be entered into unless Seller shall be released from all liability for such claim finally and with prejudice to any later claims. Purchaser will protect, defend and indemnify Seller, its parent company, divisions, subsidiaries and affiliated business entities and their respective employees, agents, officers, and directors (together, the “Indemnified Parties”) from and hold them harmless against all liability, losses, damages, costs or expenses of any nature, including without limitation, reasonable attorney’s fees, which they may at any time suffer, incur, or be required to pay resulting from or arising out of (i) any claim that the Products are defective, negligently designed or manufactured in any manner, or otherwise determined to be the cause of injury or death to persons, or damage to property, or both; (ii) any claim that the Products or the manufacture, sale or labeling of the Products fails to comply with any governmental requirement, or the labeling on any Products, or on or within the packaging for any Products (including any instructions or warnings thereon), is inadequate in any manner; (iii) any claim that the Products should have been recalled pursuant to any governmental requirement; (iv) Purchasers negligence or willful misconduct in supplying the Products; or (v) any claim, action, suit or proceeding by any person, firm, governmental agency or corporation resulting from or arising out of (i) through (iv) above.
Neither party shall be liable for a delay in its performance under this Agreement due to causes beyond its reasonable control, such as but not limited to, acts of God, actions by any governmental authority (whether valid or invalid), embargo, fires, floods, windstorms, or other natural disaster, explosions, insurrection, riot, war (whether declared or not), terrorism, national emergency, acts of the public enemy, sabotage, labor problems (including strikes, slowdowns, work stoppages, sick-outs or lock-outs), inability to obtain power, material, labor, equipment or transportation, or court injunction or order; provided that written notice of such delay, its cause and its anticipated duration shall be given by the affected party to the other party as soon as possible after the event or occurrence, but in no event more than 10 days thereafter. If either party is unable to meet its obligations hereunder because of a force majeure event, and such inability continues for a period of 120 days or more, the other party may cancel this Agreement without further obligation.
Seller shall have the right to offset its payables against its receivables related to goods or services sold hereunder. Under no circumstances shall Purchaser have any right of set-off.
Purchaser shall not advertise or publish the fact that Seller has contracted to furnish goods or services to Purchaser, nor shall Purchaser use any trademarks, trade names or copyrighted material belonging to Seller.
Purchaser shall have no right to audit, but may request Seller to produce for inspection at reasonable times ordinary, reasonable and necessary documents and information.
Purchaser shall provide Seller with detailed written explanation of any applicable customs requirements, and shall be responsible for all custom duties, or taxes applicable to the sale of goods under this agreement. Purchaser shall obtain all licenses, clearances, or other requirements for importation into, or exportation from any country into which the goods are delivered.
All notices or other communication required or permitted under these terms and conditions must be in writing and shall become effective on the date of actual receipt if the date of actual receipt is a business day or on the next business day if the date of actual receipt is not a business day.
These Terms and Conditions supersede all prior agreements, understandings, representations and quotations with respect thereto. No modification hereof shall have any force or effect unless made in writing and signed by the Seller.
Seller’s failure to insist upon strict compliance by Purchaser with these terms and conditions or Seller’s failure to exercise any right accruing upon any default by Purchaser shall not impair Seller’s rights in case Purchaser’s default continues or in case of any subsequent default by Purchaser. Sellers waiver of any breach by Purchaser shall not be construed as a waiver of any other existing or future breach.
Before filing suit, Purchaser and Seller agree to first enter non-binding mediation. All disputes arising from or relating to these terms and conditions, their meaning or enforcement shall be governed by and construed according to the laws of the State of Michigan, without giving effect to conflict of laws principles. Any suit must be filed and litigated exclusively in a state or federal court having jurisdiction over Jackson County, Michigan. The parties agree to the exclusive jurisdiction and venue of such courts. The 1980 United Nations Convention on Contracts for the International Sale of Goods, shall not, pursuant to Article 6 thereof, apply to these terms and conditions or any transaction involving these terms and conditions.
Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of contract or other legal theory asserted against Seller shall be barred unless commenced by Purchaser within one year from the accrual of such cause or action, but in no event later than two years after delivery of the goods or services upon which such claim is based.
If any litigation is commenced between Seller and Purchaser concerning these Terms and Conditions or any goods or services provided hereunder, the party prevailing in the litigation shall be entitled to recover a reasonable sum for its attorney fees and litigation expenses (including reasonable expert fees). If both parties prevail in part, such fees and costs shall be allocated equitably by the court in light of the relative merits and amounts of the parties’ claims.
If any provision hereof shall held to be unlawful or unenforceable, the remaining provisions shall continue to be effective and enforceable.
All disputes arising out of any good sold by Seller to Purchaser and governed by this agreement shall be governed by the law of the State of Michigan.