FAPD Customer Terms and Conditions
- AGREEMENT AND LIMITATIONS. The agreement between Seller and Buyer (the "sales
contract") with respect to the sale of goods (the "goods") described on the other side hereof shall consist of the terms appearing hereon and on the other side hereof together with any additions or revisions of such terms mutually agreed to in writing and signed by Seller and Buyer. Buyer agrees that by submitting an order to Seller for goods, Buyer agrees to the terms and conditions set forth herein. Seller objects to and shall not be bound by any additional or different terms, whether printed or otherwise, in Buyer's purchase order, or in any other communication from Buyer to Seller, unless specifically agreed to in writing and signed by Seller. NO REFERENCE TO BUYERS PURCHASE ORDER OR OTHER COMMUNICATION FROM BUYER SHALL BE DEEMED TO INCORPORATE BY REFERENCE ANY TERMS APPEARING THEREIN. The sales contract shall be for the benefit of Seller and Buyer and not for the benefit of any other person. Prior courses of dealing, trade usage and verbal agreements not reduced to writing signed by Seller, to the extent they modify, add to, detract from, supplant or explain the sales contract, shall not be binding on Seller.
- PACKING, MARKING, AND SHIPPING.
- All equipment, systems and supplies shall be properly packed, marked and shipped in accordance with the requirements of the common carrier transporting such supplies.
- Seller shall route shipments in accordance with the Buyer's instructions.
- All transportation charges paid by the Seller and to which the Seller is entitled to reimbursement shall be added to the Seller's invoice as a separate item.
- All shipments will be insured by the Seller at values established by seller.
- Buyer has the responsibility of all claims due to shipment damage either visible or hidden; damage will be marked and claims made at the time of acceptance by Buyer with the shipping company.
- Each packing slip, Bill of Lading, and invoice shall bear the applicable purchase order number and the location of plant to which supplies are to be shipped.
- TERMINATION OR MODIFICATION. The sales contract may be modified or terminated only
upon Seller's written consent except that clerical errors are subject to correction by Seller or upon Seller's written consent. If Seller shall declare or consent to a termination of the Sales contract, in whole or in part, Buyer, in the absence of contrary written agreement signed by Seller, shall pay a 20% cancellation fee for all services rendered and any additional freight and handling charges incurred with the return of the goods. All orders for customized equipment which are cancelled and where such equipment is not reusable, shall be paid by Buyer in full to Seller. Prices are based on delivery dates scheduled at the time of acceptance of the order.
- PAYMENTS. All Extensions of credit are subject to approval. On projects over $50,000.00 a 10%
down payment is required. A 20% down payment is required for all projects over $100,000.00. Buyer agrees to pay according to the terms on the invoice and pay interest on past due amounts at a rate of 18% per annum of the highest rate permitted by applicable law. Buyer understands that this obligation to pay interest on delinquent payments does not in any way extend the payment terms set forth herein. In the event Seller incurs legal fees or other costs in attempting to collect past due payments, Buyer agrees to reimburse Seller for such fees.
- ENGINEERING CHARGES. Additional engineering charges may be levied by the Seller to the
Buyer in the event a Purchase Order requires a high level of customization of equipment and system.
These charges for engineering, handling or customized purchases may not be evident in the quoting
process, but become apparent during the manufacturing design and final assembly procedures. Buyer
will be advised of such charges prior to invoicing.
- INVOICING AND GENERAL.Invoices will be sent promptly to Buyer in duplicate. The Seller
agrees to ship all goods FOB manufacturing plant to Buyer's place of business. No drop shipments
outside of Buyer's or distributor's agreed trading area will be made. List prices for products are those in effect at the time of shipment and are subject to change by Seller without notice. All orders are received subject to acceptance by Seller and shipment of an order constitutes such acceptance. Unless otherwise agreed in writing, Seller reserves the right to ship goods in a single lot or in several lots. In such event, each shipment will be invoiced to Buyer and paid for separately. Standard payment terms for all products are typically 2%/10 Net 30 days from the date of invoice with credit approval. However, Seller reserves the right to ship products on a COD basis if in Seller's sole opinion it is unwilling to extend standard credit terms. In the event terms are extended and Seller is not paid when due, all overdue payments shall bear interest until paid at eighteen (18%) percent or at the highest rate permitted by applicable law from date payment is due.
- DESIGN MODIFICATIONS.All products are subject to design and/or appearance modifications,
which are production standard at the time of shipment. Products shipped prior to a current production
standard will be modified to current production standards when returned to Seller for any reason if in the sole opinion of Seller such modifications are necessary.
- RISK OF LOSS.The risk of loss of goods or any part thereof shall pass to the Buyer upon
delivery thereof by Seller to the carrier. Buyer shall have sole responsibility for processing and collection of any claim of loss against the carrier.
- TAXES.Prices do not include taxes. Buyer shall pay Seller, in addition to the price of goods,
any applicable excise, sales, use or other tax (however designated) imposed upon the sale, production, delivery or use of the goods ordered to the extent required or not forbidden by law to be collected by Seller from Buyer, whether or not so collected at the time of the sale, unless valid exemption certificates acceptable to the taxing authorities are furnished to Seller before the date of invoice.
- DELIVERY. Product to be delivered from stock is subject to prior sale. Delivery dates are not
guaranteed but are estimated, in part, of the basis of immediate receipt by Seller of all information to be furnished by Buyer. Seller shall in good faith endeavor to meet estimated delivery dates but shall not be liable to Buyer for any damages including incidental, consequential or loss of profits as a result of failure to meet such estimated delivery dates.
- DEDUCTIONS AND RETURNS. Deductions will not be honored unless covered by a credit
memorandum. Goods shipped to the Buyer may be returned to Seller for credit only upon specification of Seller, including prevailing cancellation and handling charges. Buyer assumes all risk of loss for such returned goods until actual receipt thereof by Seller. Agents of Seller are not authorized to accept
returned goods or to grant allowances or adjustments with respect to Buyer's account.
- INSPECTION.Buyer shall inspect the goods immediately upon receipt thereof. All claims for any
alleged defect in Seller's performance under this sales contract, capable of discovery upon reasonable
inspection, must be fully set forth in writing and received by Seller within 30 days of Buyer's receipt of the goods. Failure to make any such claim within said thirty-day period shall constitute a waiver of such claim and an irrevocable acceptance of the goods by Buyer.
- PATENTS. Seller shall hold Buyer harmless, to the extent herein provided against any rightful
claim of any third person by way of infringement of any United States Letters Patent by such goods as are of Seller's manufacture, but if Buyer furnished specifications to Seller, Buyer shall hold Seller harmless against any such infringement claims which arise out of or relate to such specifications. Seller's agreement in this paragraph to hold Buyer harmless shall not apply to any infringement consisting of the use of goods manufactured by Seller as part of any combination with goods manufactured by Buyer or others. in the event that any goods manufactured by Seller are in any suit held to be constitute infringement and their use is enjoined, Seller, if unable within a reasonable time to secure for Buyer the right to continue using such goods, either by suspension of the injunction, by securing for Buyer a license, or otherwise shall, at its own expense, either replace such goods with no-infringing goods or modify such goods so that they become non-infringing, or accept the return of the enjoined goods and refund the purchase price theretofore paid by Buyer less allowance for any period of actual use thereof. Except as in this paragraph provided, Seller makes no warranty that the goods will be delivered free of the rightful claim of any third person by way of infringement or the like and Buyer's remedies will be limited to those provided in this paragraph.
- WARRANTIES. Seller warrants that all equipment, systems, covered by this order will conform
to the specifications, drawing and models considered standard at the time of manufacturing and specified by the Seller subject to all of the limitations and exceptions set forth in Federal APD'S standard published Warranty and policies. No one has any authority to bind the Seller to any warranty beyond that extended herein. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY LOST PROFITS OR ANY INDIRECT OR CONSEQUENTIAL DAMAGES RESULTING FROM THE PURCHASE OR USE OF THE EQUIPMENT.
- LIMITATION OF REMEDIES. Federal APD's entire liability and your exclusive remedy shall be as follows:
- Any remedy published in the warranty and policy statements issued along with the shipment.
- In no event will Federal APD be liable for any lost profits, lost savings, or any incidental damages or economic consequential damages, even if Federal APD, its authorized dealer or its approved supplier has been advised of the possibility of such damages, or for any damages claimed by you based on any third party claim.
- Installation. Equipment performance which is installation dependent, which has not been installed by Federal APD resulting in damage and/or non performance of the equipment due to improper installation, will void warranty and be the sole responsibility of the buyer.
- CLAIMS OR CONTROVERSIES. Any claim arising out of the Warranty and policy statement or
for any other claim whatsoever related to the subject matter of the agreement, shall be filed, tried and/or heard and decided in Michigan which Buyer and Seller agree is the most convenient forum for such purposes.
- STATUTE OF LIMITATIONS. ANY CLAIM FILED FOR BREACH OF AGREEMENT MUST BE
FILED WITHIN ONE YEAR FROM THE DATE OF DELIVERY REGARDLESS OF WHAT ANY STATUTE OF LIMITATIONS MAY OTHERWISE PROVIDE, BUYER SPECIFICALLY AND EXPRESSLY HAVING WAIVED ANY LONGER TIME PERIOD THAT MIGHT BE AVAILABLE BY STATUTE.
- ASSIGNMENT AND DELEGATION. No right or interest in this sales contract shall be assigned
by Buyer without Seller's prior written consent, and no delegation of any obligation owned, or of the
performance of any obligation, by Buyer shall be made without Seller's prior written consent. Any
attempted assignment or delegation shall be void and totally ineffective for all purposed unless made in conformity with this paragraph. Notwithstanding the foregoing, if Buyer is an authorized distributor of the goods for Seller, then Seller's obligations under paragraphs 14 and 15 thereof, subject to all limitations of this sales contract, shall be extended to the original purchaser of the goods from Buyer.
- SEVERABILITY. If any term, clause or provision contained in the sales contract is declared or
held invalid by a court of competent jurisdiction, such declaration or holding shall not affect the validity of any other term, clause or provision herein contained.
- GOVERNING LAW. The laws of the State of Michigan govern this Agreement.
- WAIVER. Seller's failure to insist on performance of any of the terms or conditions herein or to
exercise any right or privilege or Purchaser's waiver of any breach hereunder shall not thereafter waive any other terms, conditions or privileges, whether of the same or similar type.