The following terms and conditions shall apply to sale of any goods (collectively referred to as the “Goods”) by FINIAS ENGINEERING & DESIGN, L.L.C. (“Seller” or “Company”), a Michigan limited liability company, with its offices at 1180 Devin Drive, Unit 100, Norton Shores, Michigan 49441. The “Buyer” is the person or entity to which Seller is providing Goods. Any additional or different terms or conditions of sale set forth in a sales quote, sales order, purchase order, quote, or other communication from Buyer are objected to by Company and shall not be effective nor binding unless assented to in writing by an officer of the Company. These terms and conditions shall replace and supersede any previous terms and conditions entered into by the parties.
1. Pricing. Pricing with respect to the sale of Goods will be negotiated and stated in the sales quote, sales order, purchase order, quote, or agreement between the Buyer and Seller (the “Agreement”). All prices are based on the specifications and quantities quoted and any change in the quantities may affect the price. No discount will be allowed unless specifically agreed to in writing by Company. Until the purchase price and all other sums due pursuant hereto are paid in full, Buyer grants Company and Company retains a security in the Goods and in all proceeds of the Goods.
2. Payment Terms. The payment terms for the Goods as agreed to by the Seller and Buyer is listed on the invoice and may be net 30, net 60, or net 90 days from the date of the invoice. Payment is due on or prior to such due date via check, electronic funds transfer (EFT), or wire transfer arranged through Buyer and Seller’s accounting department. Invoices will be transmitted electronically via email. All delivery discrepancies or errors must be reported and resolved within thirty (30) days of the receipt of the invoice by Buyer. Provided Buyer fails to make the required payment within these terms finance charges will be assessed at a rate of 18% per annum (1.5% monthly) on any unpaid invoices over thirty (30) days past due until such invoices are paid in full. Buyer shall be responsible for providing applicable tax exemption forms in a timely manner. Failure of Buyer to provide such tax exemption forms shall result in Buyer being subject to any applicable sales tax. The Company reserves the right of declining to accept any order or make any shipment whenever, for any reason, there is doubt as to Buyer’s financial responsibility and Company shall not in such event be liable for breach or non-performance, in whole or part. Buyer shall provide checks, remittance advice of EFT, or wire payments of invoices to:
Email: accounting@finiasengineering.com Checks to: Finias Engineering & Design, L.L.C.
1180 Devin Drive, Unit 100
Norton Shores, Michigan 49441
Company shall have the right to charge a service fee for reissuing invoices due to unauthorized discounts taken by Buyer.
3. Delivery and Freight. All shipments are Incoterms 2010 Ex Works to Sellers facility except as stated below. Any product requiring expedited freight arrangements (air freight, express ground, LTL special, etc.), including special orders and /or Buyer emergency requests, may be assessed freight charges. In the absence of written shipping instructions from Buyer, Company may ship the Goods freight collect to the Buyer by any common carrier which it considers satisfactory or, if appropriate, in the opinion of the Company, by parcel post. The Buyer is not responsible for late deliveries. Title and risk of loss passes to the Buyer as provided below.
4. Title and Risk of Loss. Title to and risk of loss or damage to the Goods will pass to Buyer on delivery by Seller F.O.B. (a) Seller’s facility, (b) Seller’s supplier’s facility when Goods is shipped directly from the manufacturer, or (c) as otherwise specifically expressly indicated in the Agreement.
5. Performance. Seller will have no liability to Buyer or any other person for delays in performance due to accidents, fire, floods, acts of God, or actions by governmental authorities; acts, omissions, or delays of Buyer or any other third party; shortages of labor; or for any causes reasonably beyond the control of Seller.
6. Inspection and Acceptance. Buyer must notify Company, in writing, within five (5) days from the date of delivery to inspect the Goods for defects and nonconformance and to notify Seller, in writing, of any defects, nonconformance, or rejection of the Goods. At its sole discretion, Company has the option of re-inspection at Buyer’s plant or its own before allowing or disallowing Buyer’s claim. After this five (5) day period, Buyer will be deemed to have irrevocably accepted the Goods, if not previously accepted. After acceptance, Buyer will have no right to reject the Goods for any reason or revoke acceptance. Defects that do not impair service shall not be a cause for rejection or recovery under any warranty. Buyer assumes full responsibility for the use and application of the product. Buyer accepts Company’s design and material selection and specifications in placing this order unless other specifications are agreed to in writing by both parties prior to the manufacture of Goods by Company.
7. Cancellations and Return of Goods. No purchase order with respect to which Company has issued or indicated a sales confirmation may be cancelled or the manufacture of Goods there under suspended after the date of the sales confirmation without the sole and express written consent of Company. Upon cancellation or suspension at the request of the Buyer, and acceptance by the Company, Buyer shall reimburse the Company promptly for all expenses incurred by Company, including, but not limited to, material used, labor and engineering services, a proportionate share of direct manufacturing, engineering, selling, general and administrative expenses, and profits which would have been earned under the purchase order. In addition, the Buyer shall also reimburse Company for any extraordinary costs and other expenses attributable to such suspension or cancellation. No Goods shall be returned to the Company (whether due to cancellation of a purchase order or for any other reason not the fault of the company) without prior written authorization from company. An inspection and restocking charge on all returned items will, at Company’s option, be required. Any request to return Goods shall include, in addition to other information reasonably requested by Company, a full description of the Goods, the date of the purchase order and Company’s invoice number.
8. Work for Hire. All original designs, plans, specifications, reports, documentation, and other informational materials, whether written or readable by machine, originated or prepared exclusively for the Company pursuant to these Terms and Conditions is “work for hire” under the United States Copyright Act of 1976, Title 17, U.S. Code, as amended (collectively referred to as the “Work”). The Buyer, including its employees, and independent subcontractor(s), shall not assert any common law or statutory patent, copyright, trademark, or any other intellectual proprietary right to the Company for the Work.
9. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR ANY OTHER RELATED DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, INCLUDING WITHOUT LIMITATION, BREACH OF ANY OBLIGATION OR WARRANTY IMPOSED ON SELLER HEREUNDER OR IN CONNECTION HEREWITH. CONSEQUENTIAL DAMAGES FOR PURPOSES HEREOF SHALL INCLUDE WITHOUT LIMITATION, LOSS OF USE, INCOME OR PROFIT, OR LOSSES SUSTAINED AS THE RESULT OF INJURY TO ANY PERSON, OR LOSS OF OR SUSTAINED AS THE RESULT OF WORK STOPPAGE. FURTHER, SELLER IS NOT LIABLE FOR ANY DAMAGES INCLUDE, BUT NOT LIMITED TO BODILY HARM INCURRED DURING THE USE OF ANY CONNECTORS. UNLESS EXPLICITLY STATED IN THE CONNECTOR DESCRIPTION, IT SHOULD BE ASSUMED THAT THE CONNECTOR IS NOT DESIGNED TO BE HANDLED WHILE ENERGIZED. IT IS THE END USERS RESPONSIBILITY TO ENSURE PROPER USE OF THESE PRODUCTS.
10. Indemnification and Release. Buyer defends, indemnifies, and holds harmless Seller, its members, manager(s), directors, employees, and agents (the “Seller Parties”) from and against all losses, liabilities, demands, claims and causes of action for damages and expenses of every kind and character including costs of suit and reasonable attorney’s fees asserted against Company, its agents, servants and employees arising out of or in any manner connected with the Goods, including, without limitation, for injury or death of persons, or damage to property arising out of or in connection with the sale, use, or application of the Goods. This includes, but is not limited to, all claims and causes of action resulting from patent or trademark infringement, which are based, in whole or in part, from Goods manufactured to Buyer’s specifications. Buyer acknowledges that unless explicitly stated in the description of the Goods, it should be assumed the Goods are not designed to be handled while energized or under power. Buyer assumes responsibility to ensure that proper safety interlocks are in place (if applicable) when handling the Goods to prevent accidental injury or death. Buyer agrees to waive and release the Seller Parties from all losses, liabilities, claims, or causes of action related to the Buyer’s use or handling of the Goods, including, without limitation, for injury or death of persons, or damage to property arising out of or in connection with the sale, use, or application of the Goods.
11. Confidentiality. All information, including without limitation pricing and volume information concerning products or services, material handling schemes or methodologies, electronic catalogs, reports, data processing configurations and approaches and related information proprietary to the disclosing party, shall be treated as confidential and will be used solely in connection with the work being performed under the Agreement. The Buyer and Seller will provide such information to its employees on a need to know basis and shall reasonably ensure that their employees comply with this provision. The Buyer and Seller shall indemnify the other party for any and all damages (including but not limited to attorney fees) resulting from a breach of this confidentiality clause. This provision will be in effect during the term of the Agreement and will continue for a period of three (3) years after termination. These requirements shall not apply to information which: (a) is within public domain: (b) is known to other parties at the time of receipt: (c) is independently developed; or (d) is rightfully obtained from a third party without breaching the terms of the Agreement.
12. Assignment. Company reserves the exclusive right to assign the proceeds of any order to a third party for any reason whatsoever.
13. Severability. Each provision of these Term and Conditions is intended to be severable. If any term or provision hereof or any portion thereof, or the application thereof to any entity or circumstance shall be determined by a court of competent jurisdiction to be illegal or unenforceable for any reason whatsoever, such term, provision or application thereof shall be severed here from and shall not affect the validity of the remainder of these terms and conditions or the application of such term or provision to any other entity or circumstance.
14. Default. Should Buyer default on any obligation hereunder or become insolvent or make an assignment for the benefit of creditors or be subject to any reorganization or bankruptcy proceeding, or if Company shall deem it to be in its best interest to do so to protect it or the product against loss or damage or upon termination of this order for whatever cause or reason, then Company and its agents or representatives may, in addition to any other rights or remedies it may have under this order or at law or in equity, without notice or demand of liability or legal process, retain or otherwise repossess all or any part of the Goods thereof and/or items furnished by Buyer; and Buyer expressly waives all further rights to possession of said product and all claims for injury suffered through or loss caused by retention or repossession. If Company shall retain/repossess the product or shall institute any proceeding to recover any moneys due hereunder or to recover possession of the product or any part thereof or to enforce any term or condition hereof, Buyer shall pay Company’s cost incurred therein including Company’s reasonable attorney fees and costs to enforce this Agreement. Company’s rights hereunder are cumulative and not alternative.
15. Miscellaneous. None of the terms and conditions herein may be added to, modified, superseded or otherwise altered except by a written instrument, signed by an officer of the Company. Any oral understandings are expressly excluded. Any typographical or clerical error herein is subject to correction. The submission of a quotation by Company in response to Buyer’s request does not constitute an expression of acceptance of any term or condition which may have been set forth in Buyer’s request. The terms and conditions set forth herein are the only terms and conditions applicable to the sale of the Goods described on the face hereof notwithstanding prior or, post sale, references. This document and any Agreement regarding the sale of the Goods described herein shall be construed in accordance with the laws of the State of Michigan. Seller shall not be deemed to have waived these terms and conditions if it fails to object to provisions appearing on, incorporated by reference in, or attached to Buyers purchase order form which provisions are hereby expressly rejected. Buyer silence or acceptance or use of product constitutes its acceptance of these terms and conditions.