Terms and Conditions
1. Applicability. These Terms and Conditions of Sale (the “Terms”), together with any valid Sales Order (each an “Order”) and any invoice (each an “Invoice” and, collectively with the Order and the Terms, the “Agreement”), form a legally binding agreement and contain the entire understanding between Service Care Industries Inc., a Michigan corporation (“Seller”), and the buyer of goods (the “Goods”) from Seller (“Buyer”). This Agreement supersedes any and all other agreements, representations and understandings of the parties, if any, whether oral or in writing. Buyer is deemed to have accepted these Terms when it accepts an Order or issues a purchase order or other writing expressing the Buyer’s intent to proceed with the Agreement. The Terms shall be the only terms that shall govern the purchase and sale of the Goods between Buyer and Seller, and no other terms and conditions shall apply and are hereby expressly excluded, including, without limitation, any of Buyer’s general terms and conditions contained in a request for quotation, purchase order, website, or elsewhere. This Agreement prevails over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend the Agreement.
2. Price and Terms of Payment. Buyer shall purchase the Goods from Seller at the prices set forth in the Order; provided that, if Seller experiences any increase in its costs of obtaining the Goods from its suppliers following the date of the Order, then the price for the Goods to be paid by Buyer to Seller shall be increased by the amount of such costs, the Order shall be construed as if the increased prices were originally included in the Order and Buyer shall be invoiced by Seller on the basis of such increased prices. All prices are quoted and payments shall be made in U.S. Dollars and, unless otherwise set forth in the Order, are exclusive of freight, shipping, special packaging or handling, tariffs, duties, sales, excise, use or other taxes arising in connection with the transaction (other than taxes based solely on Seller’s taxable income). Unless otherwise set forth in the Invoice, Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of the Invoice. Payment may be made by wire transfer, check or other form of payment acceptable to Seller. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller.
3. Delivery. Seller shall deliver the Goods to the location set forth in the Order. The Goods will be delivered within a reasonable time after Buyer’s acceptance of the Order, subject to availability of Goods. Seller shall not be liable for any delays, loss or damage in transit. The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. The Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within ten days of the date when the Goods would in the ordinary course of events have been received. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the Invoice related to such Goods to reflect the actual quantity delivered.
4. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods to the carrier. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.
5. Intellectual Property Rights. Any intellectual property used by Seller in connection with the sale and delivery of the Goods is the sole and exclusive property of Seller. In addition, Buyer will not obtain any rights whatsoever in any copyright, patent, trademark, trade secret, mask work or other intellectual property rights pertaining to the Goods.
6. Acceptance of Goods; Returns. Buyer shall inspect the Goods as soon as possible but in any event within three (3) days after delivery (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless, during the Inspection Period, it notifies Seller in writing that the Goods shipped are materially different than the Goods identified in the Order (“Nonconforming Goods”). If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the price for such Nonconforming Goods. Buyer shall deliver, at its expense and risk of loss, the Nonconforming Goods to the location specified by Seller. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, deliver to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the location set forth in the Order. Buyer acknowledges and agrees that the remedies set forth in this Section 6 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods.
7. Warranty. SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (ii) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
8. LIMITATION OF DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, (i) SELLER WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGES, OR FOR ANY LOSS OF PROFITS, SAVINGS, REVENUE, USE, GOODWILL, CUSTOMERS, CAPITAL, REPUTATION, OR BUSINESS INTERRUPTION, IN CONNECTION WITH THIS AGREEMENT, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF THESE LOSSES OR DAMAGES; AND (ii) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD PURSUANT TO THE ORDER GIVING RISE TO LIABILITY DURING THE ONE-YEAR PERIOD PRECEDING THE FIRST ACT GIVING RISE TO LIABILITY. BUYER ACKNOWLEDGES THAT THE PRICES CHARGED UNDER THIS AGREEMENT REFLECT THE OVERALL ALLOCATION OF RISK BETWEEN THE PARTIES, INCLUDING BY MEANS OF THE LIMITATION OF LIABILITY AND EXCLUSIVE REMEDIES DESCRIBED IN THIS AGREEMENT. THESE PROVISIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND A MODIFICATION OF THESE PROVISIONS WOULD AFFECT SUBSTANTIALLY THE PRICES CHARGED BY SELLER. IN CONSIDERATION OF THESE PRICES, BUYER AGREES TO THIS ALLOCATION OF RISK AND HEREBY WAIVES ANY RIGHT, THROUGH EQUITABLE RELIEF OR OTHERWISE, TO SUBSEQUENTLY SEEK A MODIFICATION OF THESE PROVISIONS OR ALLOCATION OF RISK.
9. Termination. Seller may terminate this Agreement by written notice to Buyer if the Buyer: (i) fails to pay any amount when due under this Agreement, (ii) otherwise breaches this Agreement, or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. In the event of termination, Seller reserves the right to invoice Buyer for all goods purchased by Seller to fulfill the Order which Seller is unable to return for a full refund.
10. Indemnification. Buyer agrees to defend, indemnify and hold harmless Seller and its affiliates, officers, directors, employees, representatives, agents and successor and assigns from and against all claims, liabilities, losses, damages, interest, penalties, taxes, customs duties, fines and sanctions of any kind (including, without limitation attorneys’ fees and expenses) relating to or resulting from any claim of a third party arising out of or occurring in connection with the Goods or Buyer’s negligence, willful misconduct or breach of this Agreement.
11. Confidentiality. Buyer is required to keep in confidence and prevent the disclosure to any person all information and data disclosed to Buyer by Seller that is marked “confidential” or that by its nature ought to be considered confidential. Notwithstanding the foregoing, Buyer will not be liable for disclosure of any confidential information if it: (i) is or becomes readily ascertainable by the public by proper means without breach of any obligation of confidentiality owed to Seller; (ii) is disclosed with the prior written approval of Seller; (iii) becomes known to Buyer from a source other than Seller without a breach of any obligation of confidentiality owed to Seller; or (iv) is required to be disclosed by Buyer pursuant to operation of law or authority of any regulatory agency.
12. Force Majeure. Any delay or failure of Seller to perform its obligations shall be excused if, and to the extent, that it is caused by an event or occurrence beyond the reasonable control of Seller and without its fault or negligence. By way of example, this includes acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection and epidemic.
13. Assignment and Delegations. Buyer may not assign any rights or delegate any obligations under the Order without the prior written consent of Seller, and any such consent will not release Buyer from any of its obligations under the Order.
14. Survival. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Section 5 (Intellectual Property), Section 7 (Warranty), Section 8 (Limitation of Damages), Section 10 (Indemnity), Section 11 (Confidentiality), Section 14 (Survival), Section 15 (Notices), Section 17 (Governing Law; Jurisdiction), Section 18 (Severability), and Section 19 (No Third Party Beneficiaries).
15. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the party at the addresses set forth on the face of the Order or to such other address that may be designated by the receiving party in writing. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.
16. Amendments; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by either party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by either party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
17. Governing Law; Jurisdiction. The Agreement shall be governed by and construed in accordance with the laws of the State of Michigan without regard to principles of conflict of law. Any suit, action or other legal proceeding arising out of or relating to this Agreement shall be brought in the courts of the State of Michigan located in Macomb County, Michigan or the U.S. District Court for the Eastern District of Michigan located in Wayne County, Michigan. Seller and the Buyer each consent to the jurisdiction of each such court in any suit, action or proceeding, and waive any objection which it may have to the laying of venue of any such suit, action or proceeding in any such courts and any claim that any such suit, action or proceeding has been brought in an inconvenient forum.
18. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
19. No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.