TERMS AND CONDITIONS OF SALE AND WARRANTY
: These Terms and Conditions, together with any additional terms or conditions set forth in the contract, acknowledgment or other document to which these Terms and Conditions are attached or are incorporated by reference, and any other documents attached to or incorporated therein by reference (collectively, this “Agreement”) exclusively govern the sale by Blissfield Manufacturing Company (“Seller”) to the buyer-party identified in this Agreement (“Buyer”) of the goods identified in this Agreement (“Products”). This Agreement contains the final, complete and exclusive statement of the terms of the agreement between Buyer and Seller relative to the purchase and sale of Products and expressly supersedes and excludes the application of Buyer’s general terms of purchase as well as any purchase orders, documents, representations, or agreements, whether in writing or oral, issued by Buyer in relation to the Products, unless specifically agreed to in writing by Seller. Any proposal for additional or different terms or any attempt by Buyer to vary this Agreement in any degree is rejected and such additional and/or different terms will not become a part of any agreement between the parties related to the Products.
: None of the terms, provisions or conditions of this Agreement may be modified, altered or added to except by written instrument signed by a duly authorized representative of Seller. Any agreed upon change will be subject to an equitable adjustment in the purchase price and/or time for performance.
: Prices for Products will be as agreed by Seller in a signed writing or, if not agreed, the price set out in Seller’s price list as of the date of this Agreement. Seller may adjust prices for Products at any time to reflect Seller’s prices in effect at the time of shipment to Buyer.
: Seller may at any time require payment in advance or satisfactory security or guaranty that invoices will be promptly paid when due. If Buyer fails to comply with any terms of payment or requirements to secure payment, Seller reserves the right to withhold deliveries or terminate this Agreement, and any unpaid amount shall thereupon become immediately due. Subject to the foregoing, all Seller invoices shall be paid by Buyer within 30 days from Buyer’s receipt of the relevant Products or as otherwise agreed by Seller in a signed writing. Buyer will not be entitled to any discount for early payment. Buyer acknowledges that it will have no right, under this Agreement, any order, any other agreement, document or law, to offset, recoup or debit any amounts owed (or to become due and owing) to Seller or its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by Seller or Seller’s affiliates.
: Seller shall not be held liable, or deemed in default, for any failure or delay in fulfilling or performing any of its obligations under this Agreement (including failure to deliver Products) if such failure or delay is caused by, or results from, acts beyond Seller’s reasonable control, including fire, flood, drought, acts of nature, war, hostilities, terrorist threats or acts, riot or other civil unrest, strikes, lockouts, slowdowns or other labor unrest, delay in transportation, shortage of power, unavailability of raw materials, embargo, government action, earthquake, explosion, national or regional emergency, or by acts or omissions of Buyer, including Buyer’s failure to promptly comply with the terms of payment (collectively, the “Excusable Delays”). At Seller’s option, either (i) the date of delivery shall be extended for a period equal to the time lost by
reason of any Excusable Delay, or (ii) any quantity of Products affected by an Excusable Delay shall be deducted from the total quantity sold to Buyer. Seller, during any period of shortage due to an Excusable Delay, may allocate its available supply of Products among itself and its customers on whatever basis it deems desirable.
: Seller shall not be responsible for the accuracy of shipping weights, if any, listed on any document provided by Seller to Buyer. Such weights are given only for the purpose of enabling Buyer to estimate transportation cost.
: To the extent legally permissible, all present and future taxes or duties imposed by any federal, state, foreign or local authority, including sales, use, manufacturer’s, excise, value-added and/or similar taxes, which Seller may be required to pay or collect upon or with reference to the sale, purchase, transportation, delivery, storage, use or consumption of Products (except income taxes) shall be added to the purchase price of such Products and shall be paid by Buyer to Seller promptly (but in no event exceeding 10 days) after Seller’s receipt of an invoice from Buyer for such amounts
: Delivery dates are approximate. Seller will deliver Products EXW Buyer’s carrier at Seller’s facility (Incoterms 2010), and all risk of loss and damage with respect to Products will pass to Buyer upon tender. Seller shall retain a purchase-money security interest in Products as security for Buyer’s performance until payment in full is received.
: Buyer will inspect Products immediately upon receipt. Unless Buyer provides Seller with written notice of any claim for shortage or defects in Products within ten days after receipt, such Products will be deemed fully and finally inspected, checked and accepted by Buyer, and any such claims for shortage or defect will be waived by Buyer. Any written objection and/or rejection must state with specificity all defects and non-conformities upon which Buyer will rely to support its rejection of the Products. All defects and non-conformities that are not so specified will be waived by Buyer. No attempted revocation of acceptance will be effective, and Buyer will be limited to any available remedies under the warranty set forth in the following Section 11.
Seller Warranty. Subject to the limitations set forth in this Agreement, Seller warrants to Buyer (and not to any third party) that the Products will be free of significant defects in material and workmanship (the “Seller Warranty”). THE SELLER WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EITHER EXPRESS, STATUTORY OR IMPLIED, WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY SELLER, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ALL OBLIGATIONS OR LIABILITIES ON THE PART OF SELLER FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE, REPAIR, OR PERFORMANCE OF THE PRODUCTS. The Seller Warranty does not apply if the alleged defect was caused or contributed to by (i) failure of, or any defect in, any goods into which the Products were installed not attributable solely and exclusively to such Product; (ii) system processing, design or installation, (iii) failure to follow any directions, manuals and precautions provided by Seller; (iv) transportation, storage or handling of the Product; (iv) misuse, mishandling, misapplication (including improper maintenance), accident, neglect, improper installation (including use of unauthorized parts or attachments), wear and tear, abnormal use (including overloads or any application not originally specified by Seller for the Products); or (v) adjustments or repair performed by anyone other than Seller or one of Seller’s expressly authorized agents.
: The Seller Warranty will be expire and no longer be of any force or effect at the earlier of the following times, as applicable: (a) for condensers, evaporators, hydraulic oil coolers, automotive oil coolers, grease filters, and ASME and U.L. receiver tanks, the later of (I) twelve months from date of manufacture, or (II) twelve months from date of sale by Buyer to its customer, provided a copy of Buyer’s invoice, including the date of sale, is returned to Seller with the defective Product, not to exceed twenty four months from date of manufacture; (b) for closed-loop systems and compressors, the later of (I) twenty months from date of manufacture, or (II) twenty months from date of sale by Buyer to its customer, provided a copy of Buyer’s invoice, including the date of sale, is returned with the defective Products; or (c) for PRO2 Series wastewater equipment products, the later of (I) twelve months from date of manufacture, or (II) twenty months from date of sale and installation by Buyer, provided a copy of Buyer’s invoice, including the date of sale, is returned with the defective Product.
: Notwithstanding any other provision of this Agreement, the Seller Warranty is valid only if: (a) Buyer notifies Seller, in writing, of an alleged claim or defect within ten business days from the date Buyer discovered, or upon reasonable inspection should have discovered, such alleged claim or defect; (b) the allegedly defective Products are returned to Seller for inspection and testing by Seller before expiration of the applicable warranty period described above; (c) Seller’s inspection and testing reveals, to Seller’s reasonable satisfaction, that the Seller Warranty applies to the alleged defect; and (d) the Seller serial number or Seller code plate/serial label is attached to the Product and remains legible. If Seller determines that any Products returned to Seller pursuant to the Seller Warranty are not covered by the Seller Warranty, Buyer will, within five days after receipt of Seller’s claim, reimburse Seller for Seller’s costs and expenses incurred in inspecting such Product.
: BUYER’S EXCLUSIVE REMEDY AGAINST SELLER, AND SELLER’S SOLE OBLIGATION, FOR ANY AND ALL CLAIMS, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO SELLER’S REPLACING OR REPARING THE APPLICABLE PRODUCTS OR, AT SELLER’S OPTION, REFUNDING THE PURCHASE PRICE PAID BY BUYER TO SELLER FOR THE APPLICABLE PRODUCTS. IN NO EVENT SHALL SELLER HAVE ANY LIABILITY FOR DAMAGES IN AN AMOUNT EXCEEDING THE PURCHASE PRICE OF THE APPLICABLE PRODUCTS.
: If Seller determines that any Products sold to Buyer may be defective, at Seller’s request, Buyer will withdraw all similar Products from sale and, at Seller’s option, either return such Products to Seller or destroy the Products and provide Seller with written certification of such destruction.
: IN NO EVENT SHALL SELLER BE LIABLE, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY DIRECT OR INDIRECT LOST PROFITS OR REVENUE REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
: Seller may terminate all or any portion of this Agreement for cause prior to expiration of the Term by providing written notice to Buyer specifying the applicable date of termination, upon the occurrence of any one or more of the following events (or a comparable event): (i) Buyer materially breaches this Agreement, and such breach is incapable of cure without risk of future losses or damages to Seller, or with respect to a material breach capable of such cure, Buyer does not cure such breach within 10 days after receipt of written notice of such breach; (ii) Buyer fails to make any payment due to Seller under this Agreement on or before the due date; (iii) Buyer (a) becomes insolvent or is unable to pay its debts as they become due; (b) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (c) is dissolved or liquidated or takes any corporate action for such purpose; (c) makes a general assignment for the benefit of creditors; or (d) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or (iv) a direct or indirect change in control of Buyer occurs without Seller’s prior written consent. Any termination under this Section 13 will be effective on the date of Seller’s written notice of termination or such later date as set forth in the notice. Any termination by Seller pursuant to this Section 13 will not give rise to any liability of Seller nor constitute a waiver of any of Seller’s rights or remedies under this Agreement.
: Seller reserves and does not waive any claims, rights and remedies that it may have under any this Agreement, any other agreements between Buyer and Seller and applicable law, including the right to recover from Buyer any and all damages (including incidental and consequential damages), costs or expenses (including attorneys’ or other professionals’ fees and labor, material and apportionable overhead costs and expenses) incurred by Seller on account of Buyer’s breach of this Agreement (including any cancellation by Buyer of this Agreement or any order placed by Buyer pursuant to this Agreement).
: Except to the extent provided in a separate written agreement between Buyer and Seller, Seller will retain all rights, title and interests in and to any idea, invention, concept, discovery, work of authorship, patent, copyright, trademark, trade secret, know-how, or other intellectual property embodied, used in or otherwise related to the Products. Buyer will not cause or permit: (a) the reverse engineering, decompilation or reverse assembly of all or any portion of the Products; or (b) modify, enhance or create derivative works of the Products, except as may be expressly permitted herein or in a separate agreement.
: To the maximum extent allowed by law, Buyer will defend, indemnify and hold harmless Seller and its employees. agents and representatives against all sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest and other expenses (including investigation expenses and attorneys’ and other professionals’ fees) that Seller may incur or be obligated to pay as a result of (i) Buyer’s negligence, use, ownership, maintenance, transfer, transportation or disposal of Products; (ii) any infringement or alleged infringement of the industrial and intellectual property rights of others arising from Buyer’s plans, specifications (including Buyer’s trademarks and brand names) or production of Products ordered by Buyer; (iii) Buyer’s violation or alleged violation of any federal, state, county or local laws or regulations; and (iv) Buyer’s breach of this Agreement.
: Products by their nature and design are components that operate under specific pressures. Seller will not, under any circumstances, leak test or pressurize Products beyond the design specifications. FAILURE TO FOLLOW THESE DIRECTIONS MAY RESULT IN PERSONAL INJURY, DEATH OR PROPERTY DAMAGE.
: The Products may be subject to export controls and regulations of the U.S., the country of manufacture, or the country of shipment and export may require a valid export license. Seller’s acceptance of Buyer’s order and delivery of the Products is conditioned on Buyer’s compliance with applicable export controls. Seller will have no obligation to sell or deliver any Product until all required U.S. and/or other export licenses have been granted and there are no other impediments arising from any applicable export regulations. No goods sold to Buyer may be exported or re-exported unless such export or re-export complies fully with all applicable export regulations.
: Except to the extent Seller has consented in a signed writing, Buyer will not advertise or publish that Buyer has purchased Products from Seller or use any of Seller’s trademarks or trade names in Buyer’s advertising or promotional materials.
: The waiver by Seller of any of the terms, provisions, or condition hereof shall not be construed to be a waiver of any other term, condition or provision hereof, nor shall such waiver be deemed a waiver or subsequent breach of the same condition or provision.
: All rights granted to Seller here-under shall be in addition to and not in lieu of Seller’s rights arising by operation of law.
: If any provision hereof is held invalid, void or unenforceable, this shall not affect the validity of the remaining provisions.
: This Agreement shall be governed and construed in accordance with the laws of the state of Michigan without giving effect to principles of conflicts of law thereof. The U.N. Convention on Contracts for the International Sales of Goods does not apply to the Agreement. Notwithstanding any other provision of this Agreement, Seller reserves the right to enforce the terms and conditions hereof against Buyer in any jurisdiction where Buyer owns assets, is domiciled, is doing business, or where Seller may otherwise determine in Seller’s sole discretion.
: This Agreement binds and inures to the benefit of Buyer and Seller and their respective successors and permitted assigns. The Buyer may not assign any interest in, nor delegate any obligation under this Agreement, without Seller’s prior written consent.
: Whenever the word “including” (or any variation thereof) is used in these Terms and Conditions, it is deemed to be followed by the words “without limitation.” No provision in this Agreement may be construed against Seller as the drafting party. Section headings are for convenience or reference only, and do not affect the meaning of this Agreement. Seller may provide various translated versions of these Terms and Conditions for informational purposes only; the original English language version of these Terms and Conditions will apply in the event of any disagreement over the meaning or construction of any provision of these Terms and Conditions.
*BLISSFIELD RESERVES THE RIGHT TO MODIFY THIS WARRANTY WITHOUT PRIOR NOTICE. ANY MODIFICATION WILL NOT APPLY TO RETROACTIVE SALES AND INSTALLATIONS.