Terms & Conditions For Sales Of Products
ENCORE COMMERCIAL PRODUCTS, INC.
TERMS AND CONDITIONS FOR
SALES OF PRODUCTS
EFFECTIVE MAY 1, 2017
Binding Effect of Terms; Notice
These are the exclusive, mandatory, terms, provisions and conditions (“Terms”) applicable to all sales, involving the purchase of goods and/or services (“Products”) from Encore Commercial Products, Inc., (a Michigan Corporation), its subsidiaries, affiliates and assigns (“Seller”) to any and every purchaser, howsoever named, referenced and/or characterized (“Purchaser”). The Terms control all purchase, sale, and related transaction issues (“Purchaser Documentation”), and all e-commerce transactions. Under the Terms, to be effective and legally binding, Seller writings must be executed by a duly authorized officer of Seller, with the requisite legal authority to do so (hereinafter “Seller Documentation”).
No additional, different, modified, supplemental Terms or exclusions, deletions, additions, or other changes of or to the Terms (“Modifications”), shall be applicable or effective to change (“Modify”) any Terms, without the express prior written consent of Seller clearly evidenced in Seller Documentation. Any attempt by Purchaser to modify the Terms shall be deemed to be material, is/are objected to, and rejected, and will be of no effect, now or in the future.
All transactions (broadly construed) between or involving Seller and all Purchasers shall be deemed to include and be governed only by these Terms, and the Seller-provided, Product-related information, including, but not limited to, Seller’s Product identifications, specifications, quantities, prices, other included Product, shipping, delivery, and other transactional Terms (“Order”).
Orders to Purchase Products
Purchaser accepts and agrees to be governed by these Terms for all sales of Products by Seller. Purchaser documentation received by Seller for stock catalog Products (“Purchaser Documentation”) are requests for quotations and must contain, at minimum, references to Seller-specific Products using Seller’s stock/catalog names and/or identifying Product numbers, at definitive prices and requested in order for Seller to provide a valid quote or offer of sale, quantities, Seller quotes, sales Orders or similar Seller Documentation, as well as references to Seller catalog, website, e-commerce, posted or advertised prices while in effect, together with these Terms may constitute a Seller quote which may be accepted by Purchaser. No purchase order or other Purchaser Documentation shall be binding unless and until Seller’s formal recognition of Purchaser’s acceptance of Sellers quote, sales order or Seller offer, whether set forth or referenced in Seller Documentation.
All non-prepaid Orders are subject to credit approval by Seller, as well as rejection or modification due to circumstances affecting Seller’s ability to meet requested delivery date(s), raw material availability, and current ability to provide minimum order quantities.
No quoted or requested lead times are guaranteed unless otherwise stated in writing executed by a duly authorized representative of Seller.
Prices in Seller quotations/offers of sale (“quote(s)”) are dated, and are effective for up to 30 days from date, unless otherwise specifically set forth in the quote or in Seller Documentation dated after the quote.
For subsequent orders referencing or incorporating past or existing Orders, Seller may change its prices at any time upon prior written notice, unless otherwise agreed to in writing, signed by Seller. Any temporary or applicable surcharge imposed on Seller will be passed on to Purchaser as to all Orders, shipments, and other sales of Product during the period the surcharge is in effect.
Unless otherwise stated in a writing signed by Seller, quoted, catalog, posted or advertised prices do not include:(i) freight or shipping-related costs, fees and/or expenses (“Fees”); (ii)warehousing, storage and/or handling Fees; (iii) any applicable excise, value-added, sales, use or similar taxes; (iv) insurance; or (v) any custom, special or non-catalog related Fees expended or incurred by Seller for ancillary goods, supplies, or material necessary to create, acquire, repair, maintain, replace, and use necessary tooling, dies, molds, forms, tools or equipment of any kind (hereinafter collectively “Equipment”).
Shipping and Delivery
Any dates quoted by Seller for shipment or delivery of any Products are estimates only, and unless specifically stated in a Seller-signed writing, Seller will not be liable for any Fees or damages resulting from either late or early delivery of Products from the date quoted, no matter the cause. Seller reserves the right to ship overruns and underruns, but in the absence of specific Terms, no more or less than the greater of ten (10%) percent of scheduled shipment quantities, or amounts that are customarily and commercially reasonable and acceptable in the industry, and to invoice Purchaser corresponding amounts.
Unless otherwise specifically agreed in a writing signed by all parties, all shipments are F.O.B. Seller’ designated shipping point for each shipment, pursuant to an Order.
Risk of loss passes when the Products arrive at the designated shipping point; Products in transit are always at Purchaser’s risk. Purchaser shall be fully responsible to pay directly or to reimburse Seller for carrier detention Fees incurred because of delays not caused solely by Seller. If purchase prices include a freight component, prices will be adjusted, with notice, in the event of a change in freight rates or the imposition of any surcharge.
In the case of international sales, unless otherwise agreed in writing, Purchaser shall be fully responsible: (i) to provide Seller the ultimate destination and identity of the end-user (if other than Purchaser) in writing, prior to shipment; (ii) to timely pay all duties, taxes, Fees and other charges imposed by any government or local authority; and (iii) for compliance with applicable legal requirements for exportation and importation of Products.
Quantities and Products shipped to Purchaser are presumed to be the Products identified in the quantities set forth in the corresponding Bill of Lading (BOL). In the event of a dispute involving the number or type of Products actually in a shipment, Purchaser has the burden of conclusively establishing the number and type of Products claimed to be a variance with the information set forth in the BOL and otherwise, satisfying the Terms, including, but not limited to, those set forth in the Section entitled “Claims,” as a condition of, and to conclusively establish Products and/or quantities at variance from the BOL.
Time is of the essence relative to all Purchaser-payments to Seller. Payment Terms are net Fifteen (15) days from date of invoice in United States currency. All Purchaser-requested Terms, other than pre-payment, are based primarily on credit approval, and past course of dealing, if any. Any non-credit card sales must be paid in advance by Purchaser (at present, only Visa and MasterCard are accepted).
As collateral security for satisfaction of all amounts owing (or which may become owing) by Purchaser to Seller, title to the Products does not pass to Purchaser until such time as the Products arrive at the Seller’s designated shipping point. In addition, Purchaser grants Seller a purchase money security interest in, and to, all Products sold to Purchaser on credit, until Seller’s receipt of all amounts owing to Seller for such Products. The purchase money security interest is expansive, and is to be broadly construed. By way of illustration, and not limitation, the security interest continues in and to the proceeds resulting directly or indirectly from Purchaser’s sale, or other disposition of Products (including in Purchaser accounts receivables resulting from Purchaser’s sales, or other dispositions of Products to Customers and all third persons or entities (collectively “Customers”) indebted to Purchaser for sales or other disposition of Products sold to Purchaser. Immediately upon request, Purchaser shall execute and deliver to Seller all documents, instruments, and writings requested and/or as required to enable Purchaser to perfect its security interest and/or to execute upon, collect, and receive, all amounts owing to Seller, as and when from time to time, requested. Purchaser shall have the right to demand and receive directly from parties owing or paying amounts to Purchaser relative to the sale, disposition, loss, damage, or destruction of any Product, including amounts paid or payable by insurance companies, and/or other third persons or entities, for all loss covering the Products.
If Purchaser renders payment to Seller in amounts less than amounts owing to Seller set forth in Seller’s invoices or statements, in a manner purported, which Purchaser intends, or may reasonably be construed as an attempt to purchase the Products for less than amounts owing and/or in violation of the Terms, to serve as payment in full, Seller’s acceptance of such less than full payment shall be on account only, and without Seller’s prior written consent and agreement, shall not act as or constitute an accord and satisfaction, amendment, modification, or other reduction in amounts owing, and may be retained by Seller and applied to reduce any and all amounts owing by the Purchaser to Seller. Any such acceptance and retention of any such payment(s) which Purchaser intends to fully satisfy a specified charge or invoice, shall be without prejudice to Seller’s right to pursue additional amounts owing in relation to such charge or invoice, and/or exercise rights to recover the full amount of the of such invoice, including Seller’ exercise of Seller’s purchase money security interest on any and all collateral, or as otherwise provided or permitted by the Terms or applicable law.
Purchaser shall not have a right of set off amounts of money unless Seller first agrees in a separate writing. All indebtedness outstanding after the due date shall be subject to a service fee of 1.5% per month, unless such rate exceeds the highest rate permitted by law, in which event the rate shall be highest interest rate permissible by law.
Purchaser agrees to pay, when due, all Seller’s cost of collection, including, but not limited to, legal Fees, expenses and other costs of, or related to collection in the event Seller pursues collection, directly or indirectly, acts to exercise Seller’s rights as a creditor with a purchase money security interest, and/or engages in other debt collection acts, practices, procedures, and efforts. Among the various remedies under the Terms and/or law, Seller shall have the right to terminate the Order, sale, to stop production of Products, terminate shipments (and if applicable, delivery of Products), stop and/or take possession of any Products in transit, and suspend further performance as Seller under every Order in the event Purchaser fails to make any payment when due (without liability to Purchaser and/or third persons or entities, as more fully set forth in the Limitation of Liability provision).
Purchaser agrees that each Order and/or release issued by Purchaser constitutes an express representation that Purchaser is both solvent and not a debtor in any insolvency, bankruptcy, composition for the benefit of creditors. or debt restructuring proceeding. In the event of insolvency, Seller’s invoice, at Seller’s option and discretion, shall constitute a demand for reclamation of the Products identified on the invoice under the Terms, UCC section 2-702, and United States Bankruptcy Code section 546(c). Purchaser agrees to promptly notify Seller in case of actual or impending Purchaser insolvency, waives any defenses to Seller’s right of reclamation to the Products identified in Seller’s invoice and shall promptly satisfy Seller’s instructions to facilitate and return possession of such Products to Seller. Nothing herein is intended to limit any other rights or remedies available to Seller under these Terms or afforded by law.
Prices of Products are exclusive of all applicable federal, state, local, sales, use, VAT, GST and all other taxes of every type and nature. Buyer agrees to pay (or reimburse Seller) for all taxes however designated, arising out of, or related to, the sale of Products imposed under the authority of any federal, state, local or foreign taxing jurisdiction, immediately upon receipt of a Seller invoice for, or which includes the amounts owing for such taxes.
Cancellation or Return of Product Orders
1. Regular (Catalog) Products in Stock
(a) Full or partial cancellation request for any Order, which is received prior to shipment of any part of the Order, will generally be permitted, provided all cancellation/return processing and service Fees equal to fifteen (15%) percent of the total sales price, plus Seller’s normal profit margin, are received by Seller within ten (10) days following Purchaser’s request for cancellation or return;
(b) Full or partial cancellation requests or returns following delivery of any Products will be considered. If permitted, in addition to the fifteen (15%) processing and service fee defined in the paragraph immediately above, Purchaser shall be required to pay the full amount of all monies owing prior to the request for cancellation or return, plus One-Third (1/3) of all unbilled costs and expenses paid or incurred by Seller as of the cancellation or return request date, plus amounts incurred which Seller is contractually required to pay relative to fulfillment of the Order, plus Seller’s normal profit margin relative to the cancelled or returned goods as partial liquidated damages.
(c) Returns of Products of completed or partial orders shipped to Seller’s shipping point will be considered subject to the following and other Seller guidelines:
1. All returns must be approved in advance, and must be provided by a provided return authorization issued by Seller (RMA). Returns without a RMA will not be accepted by Seller.
2. Return of stock Products requires that all Products to be returned must be
i. In new condition (no damage or wear);
ii. Manufactured within the past ninety (90) days
iii. Shipped back to Seller’s designated returns locations within times specified by Seller at Purchaser’s sole cost and expense; and
iv. Subject to a fifteen (15%) percent restocking fee, plus an amount equal to Seller’s normal profit margin, relative to the entire Purchase Price of the returned Products.
(d) No credit will be given for returns based on any Purchaser claims of defective Product, following consumption by Purchaser, and/or Products used or sold commercially, or otherwise used in any commercial applications
Custom, Special and Non-Catalog Products
While a Purchaser has no right of cancellation or return relative to Orders for custom, special or non-catalog Products, any request for return, or purported cancellation by Purchaser is a technical a breach of the Terms, for which Seller is entitled to receive, and Purchaser is obligated to pay damages. The amount of damages equals all amounts referenced in the 2 paragraphs immediately above, plus one-third (1/3) of the unpaid portion of the entire Order, plus payment for all design, testing, prototyping, and all other pre-manufacturing costs and expenses (regardless whether or not originally specifically invoiced), in accordance with the Terms, Product condition, and satisfaction of all conditions specified by Seller, and prompt payment of any such other or further amounts the cancellation will cause Seller to pay in amounts beyond the scope of, and in greater sums than the expenses set forth in the paragraph immediately above for which Purchaser shall remain liable and obligated to pay.
Customer Products returned after inspection and substitution of claimed defective or non-conforming Products will result in credit for amounts received by Seller only where the Product sare returned following Seller’s issuance of an RMA. The amount of the credit will not be determined until after verification of quantity received.
Purchaser agrees to promptly inspect all Products as and when received at the designated shipping point, and any rejection or claim based on shortages or any patent defects or nonconformity, reasonably discoverable on inspection, must be made in writing received by Seller no later than ten (10) days after delivery, immediately discoverable in the course of a commercially-reasonable inspection, no later than within the sixty (60) day Limited Warranty period for such latent defects and non-conformities. If Purchaser fails to give such written notice within the applicable time, the Products will be deemed accepted, will not be subject to rejection or revocation of acceptance, and Purchaser shall be deemed to have absolutely waived all claims for defects and non-conformities.
If Purchaser gives written notice within the applicable time, Seller shall have commercially reasonable time periods following its receipt of samples shipped to Seller’s Farmington Hills, Michigan facility, and Purchaser’s cost at expense, to inspect and test the Products that are the basis for any claim. As a condition for replacement, refund or credit, Seller will be entitled to the return of the nonconforming and/or defective Products in the same condition as when they were received. No claim against Seller shall be made or allowed for Products returned without Seller’s prior written consent.
All claims for loss or damage during transit must be made against the carrier by notation on the freight bill or delivery receipt.
All returns must be approved, in advance, in writing in the form of an authorization number (either RGA or RMA). Shipments without an approved authorization number will be refused upon delivery.
For returned stock Products, the Products must be: (i) in new condition (no damage or wear); (ii) manufactured within the past 90 days; (iii) shipped at Purchaser’s expense; and (iv) subject to a 15% restocking charge.
Custom goods can only be returned for credit following inspection with prior approval from Seller in the form of an authorization number; credit determination will be made after verification of quantity received.
No credit will be given for Products claimed to be defective that were consumed by Purchaser and commercially sold or otherwise used in commercial applications.
Return authorizations can be issued by Seller’s customer service representative.
Confidential Information - Limitations
Seller’s Confidential Information includes, but is not limited to, Trade Secrets, all proprietary and nonpublic information of Seller relative to Seller’s ownership and operation of its business(es), including Seller’s prices, costs, discounts, inventions, discoveries, planned and existing Products (which may also be subject to Seller’s intellectual property rights), Product packaging information, information about dealings with third persons and entities related to the creation, manufacturing and production of Products; business-related information about dealings by and between Sellers, its customers, reseller, customers and distributors. Information regarding Seller’s business or finances and production methods, know-how and concepts created, owned, or used by Seller. Seller’s owned or used patents, patent applications, trademarks, service marks, commercial symbols, copyrights; technical information, and data embodying proprietary information existing, owned, or otherwise used by Seller; designs, descriptions, specifications, samples, models, bulletins, drawings, designs, engineering information, catalogs, mock-ups, photographs, drawings, illustrations, graphics; information relative to custom, special, non-catalog Products; information relative to Product ideas, concepts, improvements, changes, and modifications; all information and knowledge used to conceptualize, design, invent, refine, manufacture, improve, modify and/or create Seller’s Products, past, present, or future, including Seller’s sources of raw materials, manufacture, production components, integration sources used and/or procedures employed in manufacturing, finishing, packaging and sales of Product.
Purchaser agrees that without Seller’s prior written consent, it shall not use or disclose any such Confidential Information to others and will advise its employees and agents of the secrecy of such Confidential Information and take all other steps necessary to protect the Confidential Information. Purchaser shall not copy, decompile, reverse engineer or otherwise duplicate the Products or any part of any Products or copy, misuse or misappropriate any Confidential Information belonging to Seller. Seller’s logo, designs, commercial symbols, identifying marks, and Product names belong to Seller and are protected by trademark and other laws; Purchaser agrees that it shall not use or permit any other person to use such logos, designs, commercial symbols, identifying marks, or Product names without Seller’s prior written consent which may be withheld by Seller for any reason. Seller shall be entitled to all legal and equitable rights and remedies available under state and federal law and otherwise to protect its Confidential Information, trademarks, trade secrets and intellectual property of all kinds (all of which may be referred to collectively hereafter as Intellectual Property or “IP”). Confidential Information shall not include information that: (i) was known to Purchaser before obtained from Seller; (ii)is or becomes publicly available through no fault of Purchaser; (iii) is rightfully received by Purchaser from a third person not bound by a duty of confidentiality; or (iv) is disclosed by Purchaser with Seller’s prior written approval.
Limited Warranty/Limitation of Liability Damages
For sixty (60) days following shipment to Seller’s designated shipping point, and provided Purchaser complies with all the Terms herein, or as may be promulgated in the future, Products are warranted only to: (i) be substantially free from defects in material and workmanship when sold and (ii) comply with Seller’s published specifications within stated tolerances, but it shall be Purchaser’s responsibility to assure that such specifications and tolerances will fulfill Purchaser’s requirements regardless of whether Seller has notice or knowledge of such requirements.
SELLER MAKES THIS LIMITED WARRANTY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. THERE ARE NO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE OR NONINFRINGEMENT OR OTHERWISE ASIDE FROM THE LIMITED WARRANTY IMMEDIATELY ABOVE AND THE DESCRIPTION OF THE GOODS.
Seller’s absolute limitation of liability, whether for liability for breach of contract, breach of warranty, strict liability, product liability, recall liability, negligence or any other cause or theory is limited to replacement of defective goods or refund of the purchase price upon timely receipt of notice regardless of whether Seller has or has not been advised of the possibility of such damages or other damages. Under no circumstances will Seller be responsible for costs of loss of use, lost profits, interruption of business, cover or for any special, incidental or consequential damages regardless of cause.
This limited warranty is void with regard to any goods altered, misused or subject to neglect or accident. Seller shall not be responsible to Purchaser under this limited warranty for fit or other compatibility problems when the Products are used with Products of another source or manufacturer. All oral and written advice provided by Seller relating to the goods is subject to the foregoing disclaimer of warranties and limitation of damages provision. The essential purpose of the Limited Warranty is at Seller’s option and discretion, to replace or refund the Purchase price paid to Seller for defective or non-conforming Products.
Purchaser shall defend, protect, save, hold harmless and indemnify Seller from and against any expenses, costs and fees relative to claims or causes of action (including Seller’s attorney’s Fees and expenses) as a result of (i) death, bodily injury, personal injury or property damage arising out of Purchaser’s marketing, advertising, sale, distribution or use of the Products (including any claims or causes of action based on items for which or with which the Products are used) except to the extent caused solely by Seller’s gross negligence; (ii) Purchaser’s violation of any applicable law or standard in the marketing, advertising, labeling (or improper or inadequate labeling), sale, distribution or use of the Products or the items with which or for which the Products are used; (iii) any alleged patent, trademark, trade dress, copyright, trade secret or other IP infringement based on Purchaser's samples, mock-ups, models, prototypes, or specifications; (iv) any unauthorized, illegal, false, misleading or deceptive information that Purchaser instructs Seller to print on or otherwise apply to or use with the Products; and (v) any environmental pollution, contamination or damage (including, in addition to the above, fines and penalties to the extent allowed by law, clean-up and other remedial or containment costs and legal, technical or similar Fees and expenses) arising out of such pollution, contamination or damage to the environment or natural resources occurring in connection with Purchaser’s use or disposition of any Products regardless of cause, including Purchaser’s negligence, strict liability, or other act or omission. Purchaser warrants that custom Products ordered based on Purchaser's samples, mockups, prototypes, or specifications do not infringe any trade dress, copyright, trade secret or other IP rights of others or any letters patent granted by any country. Seller reserves the right (but shall have no duty) to discontinue deliveries of any Products, the manufacture, sale or use of which might: (i) infringe any trade dress, copyright, trade secret, patent or other IP rights; or (ii) violate any foreign, federal, state or local law, regulation or order.
If Seller is prevented from, or delayed in, performing by a force majeure (broadly construed) event, or any circumstances beyond the direct and immediate control of Sellers, in no event or circumstance shall Seller be liable or responsible for its failure to timely perform in any respect, but shall perform as soon as possible after the force majeure event ceases, or circumstances beyond Seller’s direct and immediate control. Force majeure includes, but is not limited to, events beyond Seller’s control that affect production or transportation, such as acts of God, acts of war, acts of government, terrorism, riots, labor strikes, labor lockouts, interruption in telecommunication transmissions or Product transportation, materials shortages, delays or sudden severe increases in materials prices or other costs, accident, fire, water damage, flood, earthquake, windstorm, other natural disasters or catastrophes, and compliance by Seller with any order, action, direction or request of any governmental officer, department, agency, authority, or committee thereof. A force majeure event or circumstance shall also include suspension of operation or closure of a facility that produces part or all of Seller’s Products because the operation of, or Products from, that facility fails to comply with, or becomes uneconomical because of compliance with, any applicable law or governmental regulation, order, decree or request. This provision is intended to be interpreted to expand rather than limit the application of the Uniform Commercial Code (“UCC”) section 2-615, as adopted by the law of the applicable jurisdiction set forth in the governing law provision in the Terms or if there is no such agreement or provision, as adopted in the State of Michigan.
Laws and Venue
The Terms shall be interpreted under the laws of the State of Michigan and shall not be governed in whole or in part by the United Nations Convention on Contracts for the International Sale of Products. As allowed by the United Nations Convention on Contracts for the International Sale of Products, the parties specifically disclaim its application. Purchaser consents to the jurisdiction of state and federal courts in Michigan and the venue of Oakland County, to resolve any dispute between the parties in the federal court with requisite jurisdiction closest to Oakland County, Michigan; provided, however, that Seller may institute an action for relief in a different jurisdiction at Seller’s option and discretion.
Other Important Provisions
Seller may terminate the Order immediately on the earlier of Purchaser filing for bankruptcy or other insolvency, or by actions of creditors as provided by law. The Order shall be binding upon and inure to the benefit of the parties and their successors and assigns, but is non-assignable by Purchaser without Seller’s express written consent. Nothing contained in the Order shall be construed to make the parties partners or joint venturers. Any waiver(s) of Purchaser’s noncompliance with these Terms shall not be binding on Seller with respect to any continuing or subsequent noncompliance. Seller reserves the right to display samples of any Products it produces, sells, decorated or undecorated. To the extent necessary to preserve Seller’s rights, all Terms of the Order shall survive acceptance of and payment for Products sold as well as cancellation, termination or expiration of the Order. There shall be no third party beneficiaries of the Order unless the parties specifically identify such beneficiaries in writing executed by Seller and Purchaser. Section headings are inserted for convenience only, and do not add to or detract from the Order. The Order may be amended or altered only in a separate written document executed by both parties. Seller shall not be contractually bound to any provision in any Purchaser or third party organization documentation, except as agreed in a separate writing executed by a duly authorized officer of Seller. The invalidity of any provision of the Order, or any of the Terms shall not affect the force or validity of the remaining provisions. Except as may be otherwise provided in the Terms, Seller shall be entitled to recover its reasonable attorney’s Fees and expenses, in the event it is the prevailing party in any litigation whereby enforcing the Terms or an Order.