Terms and Conditions of Purchase

  1. Parties.  “Buyer” means Prinstant, LLC, a Michigan limited liability company.  “Seller” means the party selling Goods (defined below) to Buyer as identified on the Purchase Order (defined below).
  2. Application.  Seller acknowledges and agrees that these Terms and Conditions of Purchase are incorporated in, and are a part of, each purchase order, release, requisition, work order, shipping instruction, specification and other document, whether expressed in written form, by electronic data interchange or other tangible format, relating to the Goods to be provided by Seller to Buyer (such documents are collectively referred to as the “Purchase Order”), and that Buyer’s acceptance of Seller’s offer to purchase Goods is made conditional upon the incorporation of these Terms and Conditions of Purchase into the Purchase Order. Seller’s shipment of goods, products or other materials hereunder (collectively, “Goods”) shall be determined an effective mode of acceptance of all Purchase Orders of Buyer. In no event shall any of the terms and conditions contained in Seller’s acceptance, whether by acknowledgement or otherwise, become a part of the Purchase Order or become binding upon Buyer. Seller’s terms and conditions, to the extent they vary from any of the terms and conditions of the Purchase Order (including these Terms and Conditions of Purchase) are hereby objected to and rejected. Such proposals shall not operate as a rejection of the Purchase Order unless such variances are in the terms of the description, quantity, price or delivery schedule of the Goods.
  3. Price; Payment.  Unless the face of the Purchase Order contains a special notation by Buyer to the contrary, all prices are: (a) firm and not subject to increase or additional charges during the period of the Purchase Order; and (b) in U.S. dollars and F.O.B. Buyer’s facility (with risk of loss and title passing to Buyer at that location).  If, during the term of the Purchase Order, Seller’s net price is reduced below those stipulated, Seller agrees to provide to Buyer the benefit of such reduction, and will notify Buyer on all such changes in price. All invoices must reference the applicable Purchase Order number and must be submitted in duplicate.  Buyer reserves the right to return all incorrect invoices.  Unless otherwise set forth on the face of the Purchase Order, Buyer shall pay all correct invoices within sixty (60) days of the date acceptable invoices are received.
  4. Taxes.  Seller’s prices shall be inclusive of all federal, state and local sales, use, and excise taxes levied upon, or measured by, the sale, the sale price, or use of the Goods.  Seller shall list separately on Seller’s invoice any such tax lawfully applicable to any such Goods, and payable by Buyer, with respect to which Buyer does not furnish to Seller lawful evidence of an exemption.
  5. Delivery.  Time is of the essence of the Purchase Order.  Delivery shall not be deemed complete until the Goods have been actually received and accepted by Buyer, notwithstanding any agreement to pay freight or other related charges.  Seller will promptly notify Buyer in writing if Seller anticipates difficulty in complying with a required delivery date and will use all commercially reasonable efforts to meet the required delivery date.  Buyer may, at its discretion, deem Goods delivered outside of the delivery schedule to be nonconforming and may (i) return such Goods to Seller, at Seller’s expense and risk, for full credit; (ii) agree to a revised delivery schedule; or (iii) cancel the Purchase Order or remainder thereof without liability, purchase the Goods elsewhere, and charge Seller with any loss or expense incurred by Buyer resulting from Seller’s failure to meet the delivery schedule.  Acceptance by Buyer of a later delivery of either the whole or part of the Purchase Order shall not constitute a waiver of Buyer’s claim for any damages which the late delivery may have caused.
  6. Shipping; Risk of Loss.  Shipping instructions furnished by Buyer shall be strictly complied with and shall be considered a part of the Purchase Order.  Seller shall suitably pack, mark and ship the Goods in accordance with such instructions and the requirements of the carrier transporting the Goods, and shall assure delivery free of damage and deterioration.  Risk of loss or damage shall remain with Seller until the Goods are physically received by and are in Buyer’s physical possession, unless otherwise agreed to in a signed writing executed by a duly authorized representative of Buyer.
  7. Inspection; Rejections.  Goods purchased hereunder are subject to Buyer’s inspection and final acceptance within a reasonable time after delivery, which in no event shall be less than ten (10) days. Payment of the full purchase price for such Goods shall not constitute acceptance. If Buyer determines that any Goods provided under the Purchase Order are defective or fail to conform to the requirements of the Purchase Order (including Seller’s warranties and covenants under these Terms and Conditions of Purchase), Buyer may reject or revoke acceptance of such Goods and exercise all remedies available to it, including, without limitation, the remedies set forth in Section 8 below.
  8. Warranty.  Seller warrants to Buyer that (i) Seller has clear title to the Goods, free and clear of all liens and encumbrances; (ii) there are no claims of third parties of any nature whatsoever arising out of or related to the Goods; (iii) all Goods are new and in strict conformance with the specifications, drawings, samples, designs or other descriptions furnished to or by Buyer, and shall be merchantable, of good quality and workmanship, free from defects in material, design, and workmanship, and fit for Buyer’s particular purpose (or that of Buyer’s customer); and (iv) the sale or use of the Gods shall not infringe or contribute to the infringement of any patents, trademarks, copyrights, or other proprietary rights of any third party. If any of the Goods are found to be defective or otherwise not in conformity with the warranties set forth in this Section 8, then, Buyer, in addition to any other rights and remedies it may have, at law or in equity, and in addition to seeking recovery of any and all damages and costs emanating therefrom, at its option and sole discretion and at Seller’s expense, may: (a) require Seller to inspect, remove, ship and repair or replace nonconforming Goods with Goods that conform to all requirements of the Purchase Order; (b) take such actions as may be required to cure all defects and bring the nonconforming Goods into conformity with all requirements of the Purchase Order, in which event all related costs and expenses (including, without limitation, material, labor and handling costs) and other reasonable charges shall be for Seller’s account; or (c) reject and return all or any portion of such nonconforming Goods for a full refund from Seller.  If applicable, Seller will make available to Buyer (by assignment or otherwise) all manufacturers’ warranties provided with respect to the Goods.  The above warranties extend to Buyer and to all customers and users of Buyer’s products.  Further, such warranties shall survive any inspection, acceptance, and payment by Buyer and shall be in addition to any other warranties of Seller, whether express, statutory or implied.
  9. Disclosures.  Unless otherwise agreed to in writing by Buyer, any information disclosed to Seller in connection with the Purchase Order shall be deemed confidential and/or proprietary information of Buyer, and Seller shall not disclose any such information to any other person, or use such information for any purpose other than its performance under the Purchase Order. Seller shall not advertise or publish the fact that Buyer has contracted to purchase Goods from Seller, nor shall any information relating to the Purchase Order be disclosed without Buyer’s prior written permission. Unless otherwise agreed to in writing, in no event shall any commercial, financial or technical information disclosed in any manner or at any time by Seller to Buyer be deemed secret or confidential and Seller shall have no rights against Buyer with respect thereto.
  10. Changes.  Buyer may, at any time, make changes in the Purchase Order, including changes in the quantity, delivery time or place, shipping or packing method, or any drawings, specifications or designs.  If such a change causes a material increase or decrease in the cost of, or the time required for, performance of the Purchase Order, Seller shall promptly notify Buyer in writing.  Any claim by Seller for an adjustment in time for performance or price must be asserted in writing within ten (10) days from date of notification of a change.  Seller will not make any change in the design, processing, packing, marking, shipping or date or place of delivery of the Goods supplied under the Purchase Order unless done pursuant to Buyer’s instructions or with Buyer’s written approval.
  11. Termination of Purchase Order.  Buyer may terminate all or any part of its purchases under the Purchase Order, without liability to Seller, if Seller: (a) fails to deliver Goods within the time and in the quantities and quality required by Buyer or to give adequate assurances requested by Buyer; (b) breaches these Terms and Conditions of Purchase (including Seller’s warranties and covenants); (c) fails to make progress so as to endanger timely and proper performance of the Purchase Order, and such failure is not cured within ten (10) days (or any shorter period which is commercially reasonable under the circumstances) after notice from Buyer; or (d) ceases to conduct its operations in the normal course of business, including its inability to meet its obligations as they mature, or if any proceeding under bankruptcy or insolvency laws is brought by or against Seller or a receiver for Seller is appointed or applied for, or an assignment for the benefit of creditors is made by Seller.  In addition to obtaining a refund or credit and any other remedies provided herein or available at law or in equity, Buyer may, upon such termination, repurchase substitute goods elsewhere, on such terms as Buyer deems appropriate, and charge Seller with any excess costs and losses incurred by Buyer, including consequential and incidental damages.
  12. Compliance with Laws.  Seller represents, warrants, certifies and covenants that it will comply with all laws applicable to the Goods, including, without limitation, those relating to packaging and labeling requirements.
  13. Force Majeure.  Buyer may delay delivery or acceptance of the Goods occasioned by causes beyond its control. In such event, Seller shall hold all relevant Goods at the direction of Buyer and shall deliver such Goods when the cause affecting the delay has been removed. Causes beyond Buyer’s control shall include, but not be limited to, acts of God, government action or failure of the government to act where such action is required, strike or other labor trouble, fire, or unusually severe weather.
  14. Indemnity:  Seller shall defend, indemnify and hold harmless Buyer, its affiliates and their respective directors, managers, officers, members, shareholders, employees, customers, agents, contractors, successors and assigns from and against any and all suits, actions, or proceedings, at law or in equity, and from any and all claims, demands, losses, judgments, fines, penalties, damages, costs, expenses, or liabilities (including attorneys’ fees and other legal expenses) arising from or relating to: (a) any breach by Seller of its warranties, covenants or obligations under the Purchase Order (including these Terms and Conditions of Purchase); (b) any injury (including death), property damage, or economic loss arising out of or related to (i) defective or nonconforming Goods supplied by Seller under the Purchase Order, or (ii) the acts or omissions of Seller or its employees or subcontractors in providing Goods to Buyer, unless resulting from the sole negligence of Buyer; and (c) any infringement or contributory infringement of a patent, trademark, copyright, or other proprietary interest of any third party by reason of the manufacture, delivery, license, use, or sale of the Goods supplied under the Purchase Order, regardless of whether clauses (a) through (c) arise in tort (including negligence), contract, warranty, strict liability, or otherwise.
  15. Infringement.  For any alleged or actual Infringement, Seller shall, at Seller's expense, obtain for Buyer a perpetual, royalty-free license with respect to the affected Goods, or shall replace or modify the Goods in a manner satisfactory to Buyer, so as to avoid any such infringement without any degradation in the form, fit or function of the Goods.  Seller’s obligation shall apply even if Buyer furnishes a portion of the design or specifications of the Goods.
  16. Limitation of Liability.  IN NO EVENT SHALL BUYER BE LIABLE TO SELLER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THE PURCHASE ORDER, WHETHER OR NOT BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, IN NO EVENT SHALL BUYER’S LIABILITY HEREUNDER EXCEED THE PURCHASE PRICE SET FORTH ON THE PURCHASE ORDER.
  17. Assignments and Subcontracting.  No part of the Purchase Order may be assigned or subcontracted by Seller without the prior written approval of Buyer.
  18. Setoff.  All claims for money due or to become due from Buyer shall be subject to deduction or set-off by Buyer against any amounts due to Seller arising out of this or any other transaction with Seller.
  19. Governing Law; Venue. The Purchase Order will be governed by and construed in accordance with the laws of the State of Michigan, without regard to any conflict of laws or choice of law provisions.  The parties hereby agree that any legal or equitable action or proceeding with respect to the Purchase Order shall be brought only in the state or federal courts of the State of Michigan, and each party hereby submits to and accepts generally and unconditionally the jurisdiction of those courts with respect to such party and such party’s property and irrevocably consents to the service of process in connection with any such action or proceeding by personal delivery or by the mailing thereof by registered or certified mail, postage prepaid, to the party’s last known address.  No action, regardless of form, arising out of the transactions relating to the Agreement, may be brought by Seller more than one (1) year after the cause of action has accrued.  The U.N. Convention on Contracts for the International Sale of Goods shall not apply to the Purchase Order.
  20. Waiver of Jury Trial.  EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THE PURCHASE ORDER OR THE SUBJECT MATTER HEREOF.  THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THE PURCHASE ORDER, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.  THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THIS PROVISION WILL NOT BE SUBJECT TO ANY EXCEPTIONS.
  21. Survival.  The respective representations and covenants of the parties, together with any obligations of indemnification, confidentiality and limitations on liability will survive the expiration, termination or rescission of the Purchase Order and continue in full force and effect.
  22. Severability.  If any provision of the Purchase Order is or becomes invalid or unenforceable, that provision (to the extent invalid or unenforceable) shall be deemed amended or reformed to the extent required to render it valid and enforceable, and the remainder of the Purchase Order shall be unaffected and shall continue in effect.
  23. Binding Effect.  The Purchase Order shall inure to the benefit of, and be binding upon, the successors and assigns of Buyer and Seller without restriction.
  24. Waiver; Remedies.  No failure by Buyer to exercise any power given to it under the Purchase Order, or to insist upon strict compliance by Seller of any obligation under the Purchase Order, and no custom or practice at variance with the terms of the Purchase Order (including these Terms and Conditions of Purchase) will constitute a waiver of Buyer’s right to demand exact compliance with the terms of the Purchase Order (including these Terms and Conditions of Purchase).  A waiver of any default under the Purchase Order or of any term or condition of the Purchase Order (including these Terms and Conditions of Purchase) shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition, but shall apply solely to the instance to which such wavier is directed.  The rights and remedies reserved to Buyer are cumulative and in addition to any other or further rights and remedies available at law or in equity.
  25. Entire Agreement.  The Purchase Order, including these Terms and Conditions of Purchase and any documents referred to on the face of the Purchase Order, constitute the entire agreement between the parties.