Terms & Conditions
Terms and Conditions
Acceptance of OrdersAll of the following terms and conditions of sale ("Terms") apply to all transactions with Encore Commercial Products, Inc., its divisions, subsidiaries and/or affiliates (collectively "Seller"), except those specific terms relating solely to -1- Seller's pricing and resale guidelines (if applicable), and -b- quantities, shipping instructions, or descriptions of the products which may be set forth in a Buyer's Purchase Order(s) if accepted in writing by Seller (hereinafter collectively "Purchase Order Terms"). Purchase Orders, whether written or otherwise, are accepted by Seller only, subject to the Terms set forth herein. Seller hereby specifically rejects any additional inconsistent, contrary or different terms, provisions, or conditions proposed by Buyer, whether communicated by Buyer in any manner, contained in any of Buyer's business, purchase and/or other order forms or referenced in any other documentation, unless evidenced by a specific written acceptance signed by an authorized representative of Seller. Buyer's order of special, customized or non-stock products, as well as Buyer's initial acceptance of any products or services (collectively "Products") whether called for in said Purchase Order or other Buyer order documentation or communication (even if Products are subsequently revoked or rejected), shall constitute Buyer's acceptance of the Terms and Conditions set forth herein ("Terms"). Any proposed changes to these Terms must be in writing clearly identifying the change and signed by a duly authorized representative of Seller.
(a) All sales are made subject to Buyer's prompt payment of all amounts owing to Seller, including applicable State, County, City and Federal use sales, excise and other applicable taxes and/or other governmentally required charges, payments and/or fees (collectively, "Tax"). Any such Tax Seller is required to collect may be billed to the Buyer as part of the selling price, or may be separately billed at any time by the Seller, where Seller is required by any taxing or governmental authority to collect or pay such Tax.
(b) All sales are F.O.B., Seller's specified point of shipping or origination, and all Risk of Loss shall pass to Buyer the earlier of -i- Seller's identification of stock (catalog) Products to Buyer at Seller's plant, depot or other designated shipping or origination location, -ii- three (3) days after receipt of an order for special, custom or non-catalog Products, or -iii- Seller's tender of Products to Buyer.
(c) Buyer shall have sole and exclusive responsibility to arrange and pay all shipping transportation, insurance, demurrage, storage, and other related costs and charges, including any charges for special packaging which the Buyer requests, all in accordance with Seller's Terms.
(d) All sales are expressly conditioned upon Buyer's immediate Products delivery acceptance (when tendered by Seller) and timely payment; Products order Terms, prices and quantities of Products to be manufactured or shipped are subject to Seller-directed changes as to unfinished or future Product orders, with notice, at any time. Seller may cancel an order at its discretion.
(e) We accept Visa & MasterCard
Shipping Schedules and Deliveries
Shipments and deliveries by Seller are:
(a) Subject to Seller's Terms in Seller's written confirmation or acknowledgement upon acceptance of Buyer's order, or in Seller's invoices.
(b) Subject to unavoidable delays caused by strikes, accidents, force majeure(s) (broadly construed) or any other cause(s) beyond Seller's direct and immediate control, whether or not foreseeable, including but not limited to acts and/or omissions by the Federal, State or local government, and/or third persons or entities.
(c) All shipping and/or delivery dates are approximate only and are subject to delays as provided in subsection 2(b) above.
(d) All risk of loss of the Products passes to Buyer the earlier of the stated events set forth in subsection 2(b) above.
(e) Shipment of Products may be made in separate installments, and if separately invoiced, shall be paid when due per invoice, without regard to multiple deliveries. Delay in delivery on any scheduled installment shall not relieve Buyer of the obligations to accept remaining deliveries.
(f) Claims for shortages, errors or non-conforming Products must be communicated to Seller in writing within ten (10) days after each after delivery.
To be valid and binding, all quotations from Seller must be in writing, and unless otherwise specified in writing, are good for 30 days from the date of the quote.
Return or Cancellation of Product Orders
Orders placed with Seller for custom, special or non-stock Products cannot be cancelled except with Seller's prior express written consent. In the event of such consent, unless otherwise specified by Seller in writing, Buyer shall promptly pay to Seller as follows:
(a) The full contract price plus all design, testing, prototyping and all other pre-manufacturing costs for all custom, special and/or non-catalog Products which shall have been completed prior to Seller's issuance (if applicable) of written consent in response to Buyer's written request for cancellation.
(b) All other actual costs or expenses made or incurred by Seller in connection with the cancellation and the uncompleted portion of the order, plus Seller's normal profit margin relative to the cancelled Products, as partial liquidated damages.
(c) Cancellation processing charges are to equal to fifteen (15%) percent of the total amount payable for the cancelled Products sales price (including any other charges paid or incurred by Seller).
(d) Regular stock (catalog) Products order cancellation requests received before shipment of all Products in an order, or return requests following delivery of Products will be considered, shall be subject to payment of the charges set forth in subsections 6(b) and (c) above.
Waiver by Seller of a breach of any of the Terms of this or any other document or memorialized communication sent by Seller to Buyer shall not be interpreted or construed as a wavier of that, or any other breach. These Terms, together with the provisions contained on the reverse side hereof, and any related Seller-generated Offer/Quotes together constitute the entire agreement between Seller and Buyer and such agreement shall not be modified or amended except by a writing executed after the later of the date of acceptance and/or acknowledgement hereof by an authorized representative of the Seller.
Terms for payment, unless otherwise provided on the reverse side hereof, are net fifteen (15) days. Any account unpaid after date due is subject to a service charge of 1-1/2 percent per month on the unpaid balance.
Title and Security Agreement
Seller retains ownership and title to all Products until receipt of the full purchase price. In addition, Buyer grants Seller a continuing (purchase money) security interest, in and to, all Products, and a first priority security interest in and to all Products ordered by, identified to, delivered (wherever located) and sold to Buyer. The security interest includes Buyer's sale proceeds, contract rights, rights to Buyer's receivables, insurance proceeds, and all other proceeds or rights relative to the Products to secure all past, present, and future payment obligations of Buyer to Seller for satisfaction of all monetary obligations which may become owing by Buyer. Seller has the absolute right to perfect any and all security interests, at any time, and from time to time, including the filing of one or more writings or documents, financing statements, and other forms, whether any and all such claims, rights, documents, writings, forms, notices, or other things are intended to perfect, continue, modify, amend or expand Seller's perfected security interest. Also, Seller has a security interest in, and the right to review and/or take possession of, Buyer's books and records in any way related to Products, and shall have the right to contact, and request payment for sales of Product from third person or entities, indebted to Buyer for sale(s) of Products. When Products are in the actual or constructive possession or control of Buyer or a third person or entity obtaining possession directly or indirectly from Buyer, Seller has the absolute right to recover any and all Products, including property containing or comprised of any Products, whether completed or not, including, but not limited to, collection or recovery of any proceeds of or from the sale or other disposition of Products.
Non-Use and Disclosure of Confidential Information
(a) Seller's Confidential Information includes but is not limited to Trade Secret Information, Proprietary Information, patents, trademarks, service marks, copyrights, technical information, designs, descriptions, specifications, samples, models, bulletins, drawings, diagrams, engineering sheets, catalogs, mock-ups, photographs, illustrations and customer Products information, improvements, changes, and modifications relative to Seller's Products. All specialized information and knowledge to conceptualize, design, refine, manufacture, improve, modify and/or create Seller's Products, including Seller's sources of raw materials, manufacture, production, components, integration and all other business sources, relationships and methods. Identities and locations of sources furnishing goods, materials, products and/or services to Seller, the identity of Seller's customers, past, present or future, and all customer-related information.
(b) Buyer shall not use, permit the unauthorized use of, disclose, release or permit access to any Seller Confidential Information during the term of this Agreement, and so long thereafter as the information remains Confidential Information. This covenant shall operate to prevent Buyer (or persons or entities gaining access to Confidential Information) from manufacturing, fabrication, production, marketing and/or selling the same or similar Products in any manner or form, directly or indirectly in competition with Seller.
Limited Warranty, Liability and Damages
(a) Seller warrants only that the Products will conform to Seller's specifications and will be free from substantial defects in material and workmanship under normal use and environmental conditions, given proper transport, installation, care and maintenance of Products, for a period of three (3) months from the date of delivery to the carrier. As remedy for a breach of warranty and provided Buyer makes a written claim for breach of warranty within ten (10) days after discovery, Seller shall have the absolute right, at its sole option and discretion, to either -i- replace or repair any defective Products, -ii- to refund the purchase price (or a portion thereof) upon return of the defective or non-conforming Products or -iii- to grant a reasonable allowance or credit to Buyer on account of such defects; Seller's only liability and Buyer's exclusive remedy for defective or non-conforming Products shall be limited solely to replacement, repair, refund, credit or allowance as Seller may deem appropriate. Seller shall be given a reasonable opportunity of time to investigate all claims of defective and/or non-conforming Products, and no Products shall be returned to Seller until after inspection and prior approval by Seller through issuance of a written return authorization number (hereinafter "RA").
(b) The limited warranty above is the only warranty applicable to this transaction or Seller's Products. All other warranties, express or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose, are completely disclaimed and rejected.
(c) Seller shall not be liable, and buyer specifically waives all claims against Seller, for incidental, special, punitive, exemplary and/or consequential damages, lost profits or any and all other indirect and/or consequential damages or losses whatsoever, regardless of cause. Seller will not be liable to Buyer for loss, damage, or injury to persons or property resulting from the Buyer's handling, storage, transportation, sale, resale, installation, maintenance, improper or misuse of Products. In no event will Seller's liability to Buyer under these terms and conditions or in connection with the sale of Products by Seller, exceed the purchase price of the specific Products as to which the claim is made.
Buyer shall indemnify, protect, save, hold harmless and defend Seller from and against any and all claims, demands, liabilities, costs, monetary damages, expenses, lawsuits, awards, judgments, attorney fees and legal costs, paid or incurred by Seller, or fines, arising out of, or in any way involving third party claims made against Seller in any way related to Products.
In the event Seller sues to collect part or all of Product purchase price and related charges to recover part or all of the Products, or in any litigation relative to the sale of Products, and/or other monetary obligations owed, Seller is entitled, in addition to such legal or equitable relief that is sought and/or granted to a judgment, order or award of a reasonable monetary sum as and for attorney's fees and related costs and expenses paid or incurred in such litigation (including pre and post litigation related fees, costs and expenses).
Governing Law and Venue of Disputes
This Agreement is to be construed and governed by the laws of the State of Michigan and federal laws of United States applicable therein. The United Nations Conventions on Contracts for the International Sale of Goods and any legislation enacted for same do not apply. All litigation involving the Seller and Buyer shall take place in courts with appropriate jurisdiction located in the State of Michigan, United States of America.
Except for subsequent changes in Terms memorialized in a written document signed by both parties, the Terms constitute the final expression of this Agreement, regardless of any prior oral or written agreements, understandings or discussions, relative to the subject matter hereof.