These Terms and Conditions of Sale shall apply to all sales, delivery of, or quote for all parts by Modern Engineering Solutions LLC. (hereinafter “Seller”):
CONTRACT
No contract exists until an order is placed by buyer, which is accepted by Seller and confirmed with an acknowledgment of acceptance of the quote. All acknowledgments are a binding contract between buyer and seller, that shall be deemed executed in the State of Michigan, in the County of Grand Rapids. This contract includes the Terms and Conditions of Sale set forth herein, whether the same are incorporated by reference or otherwise and regardless of any provisions contained in any other document relating to the sale. If these Terms and Conditions of Sale do not appear on or conflict with Buyer’s purchase order, the Seller’s Terms and Conditions of Sale will govern and control. Buyer’s acceptance of these Terms and Conditions of Sale shall be conclusively presumed from Buyer’s failure to state expressly his objections in writing at the time Buyer transmits his order or sends a deposit to Seller. This contract shall be construed according to the laws of the State of Michigan. If any subsequent changes are made in methods or designs, the Seller reserves the right to revise prices and delivery if necessary.
SECURED PARTY
“Seller”, as used in the Agreement, is intended to mean “Secured Party”, and “Buyer”, as used in this Agreement, is intended also to mean “Debtor”, as defined in the Uniform Commercial Code.
CREDIT AND TERMS OF PAYMENT
Terms of payment shall be in accordance with the printed or typed terms on face the order acknowledgment.
In general, accounts will be opened only with firms or individuals with approved credit. The Seller reserves the privilege of declining to make deliveries whenever, for any reason, doubt as to the Buyer’s responsibility develops. Terms of Payment are subject to credit approval.
Any delay in receiving payment, whether invoiced or not, will cause Seller to stop work on the order, thus extending the delivery date or subjecting the order to possible cancellation (see CANCELLATION and RETURN POLICY).
The agreed price herein is based upon the Buyer’s agreement to accept the delivery of all the ordered merchandise at the time of completion. Failure of the Buyer to accept delivery at the time of completion will not relieve the Buyer of any obligation for payment. Any calculations of terms for final payment will be calculated from the date the Buyer is advised that the item is ready for shipment. Items held for more than two weeks will subject Buyer to storage charges which are due in full within ten (10) days from the date of the invoice. Failure of the Buyer to make payment within said time shall give Seller the option to cancel any balance of the order, liquidate the material or equipment, and invoice the Buyer for any shortage from that owed.
Any delay in payment of invoices beyond the agreed to terms shall be subject to a service charge of one and one-half percent (1.25%) per month and may result in credit privileges being revoked. In the event Seller is required to employ a collection agency or an attorney to enforce collection, Buyer agrees to pay all of Seller’s fees, costs, and expenses, including attorney’s fees and cost of the collection agency.
QUOTATIONS
Delivery quotes are estimates only, based on actual manufacturing time depending on workloads, available man-hours and the availability of raw materials and supplies. Seller’s typographical and clerical errors, including website pricing, printed price lists, verbal & written quotations are subject to correction. Until an order is accepted by Seller (by acknowledgment), quoted prices are subject to change without notice. All quotations, unless otherwise stated, are for immediate acceptance.
CANCELLATION POLICY
Orders may be canceled by Buyer or deliveries deferred only upon the condition that the Buyer assume immediate liability and make payment to the Seller for all work completed, work in process on the basis of percentage completed, raw material and purchased items whether received by Seller or covered by commitments made by Seller, unamortized tooling, engineering and other cancellation charges incurred on the basis of cost to the Seller plus handling and overhead charges. Cancellation charges will be estimated and billed at the time of cancellation or deferment. Final adjustments for cancellation will be made and invoiced or credited within thirty (30) days of cancellation.
Seller reserves the absolute right to cancel the contract (1) upon breach of contract by the Buyer, (2) upon failure by the Buyer to make any payments required by this contract, (3) upon insolvency or bankruptcy of the Buyer, (4) if the Seller has good faith doubt to the Buyer’s ability to pay in accordance with stated terms of payment.
RETURN POLICY
No items may be returned without prior written authorization from Seller. All items must be returned freight prepaid unless prior authorization has been given by Seller. Tools and dies that are custom and built to order are not returnable.
LIMITED WARRANTY
Seller warrants that the merchandise to be manufactured under the terms of this contract will be free of defects in workmanship and material for twelve (12) months from the date of shipment, provided the defective part is returned to Seller within ten (10) days after failure of the defective part or equipment. This warranty is made in lieu of all other warranties, express or implied including, without limitation, any implied warranty of merchantability or fitness for any particular purpose.
Equipment must have been properly installed, maintained, and used under normal conditions. Warranty is offered to the original purchaser only, and Seller has the sole right to determine whether defective part shall be repaired or replaced. Normal wear on parts such as cutting members is specifically excluded from warranty as is breakage of those parts because of inadequate or improper sharpening or lubrication. Under NO conditions will Seller be responsible for downtime, loss of goodwill, or consequential damages.
Title to goods does not transfer to Buyer until all obligations are paid in full, therefore Seller will be unable to accept any warranty claims prior to full payment being received. Warranty coverage requires payment within Seller’s agreed terms. If payment is not received according to terms, warranty shall be null, and void and any claims will be denied.
NO WARRANTIES, other than those specifically set forth herein or modifications of contract, shall be binding on either party unless in writing signed by the party to be charged, and no acts or conduct on the part of the Seller or any of its representatives shall constitute a waiver of any of the terms of this contract.
CLAIMS
All complaints or claims for nonconformance to specifications or defects in workmanship and material must be made to Seller, in writing, within sixty (60) days after delivery, specifying same in detail. Unless such claim is made within the time set forth, the merchandise shall be deemed to have been delivered in satisfactory condition and in accordance with specifications and the terms of this contract. Buyer shall afford Seller prompt and reasonable opportunity to inspect merchandise as to which any claim is made. The liability of the Seller for any cause whatsoever shall be limited to the repair or replacement of any defective merchandise. If such claim is sustained and material furnished is not as ordered to the satisfaction of both parties, the Seller, at the sole discretion of Seller, shall repair, replace, or credit. Under no circumstances will the Seller be liable for damages or any claims for consequential damages, downtime, loss of goodwill, or expense involved in fabrication done on production products. Seller will not allow claims for defective goods on those parts further processed by the Buyer and resulting in a change of either dimensions or characteristics from parts as ordered.
DELAYS
Seller shall not be liable for failure to deliver or delays in delivery including, manufacturing delays and exceeding estimated completion times, in addition to causes beyond Seller’s control, including without limitation, fire, flood, labor disputes, act of public enemy, act of governmental authority, shortage of delays in receipt of raw materials, acts of God, machinery breakdowns, or delays of carriers or suppliers. In the event of any delay in delivery due to such causes, unless otherwise agreed, the time for delivery shall be deemed extended. Delayed orders may be canceled by Buyer under the terms described in CANCELLATION and RETURN POLICY.
SHIPMENT
In ordering, the Buyer should state explicitly the method of shipment preferred and, in the absence of shipping directions, the Seller will use discretion, normally shipping via United Parcel Service when packages are small, or common carrier, for larger and/or heavier shipments. Shipments will be insured at Buyer’s expense. All prices quoted are FOB shipping point, Grand Rapids, Michigan, unless otherwise noted
RISK OF FREIGHT LOSS & FREIGHT CLAIMS
Risk of loss or damage from the time of shipment is assumed by the Buyer. Unless otherwise specified by Buyer, Seller will select a regular insured commercial freight carrier and arrange for shipment costs to be charged to Seller and added to Buyer’s invoice. Common carrier shipments are “freight collect”, Seller will invoice Buyer for equipment cost, Carrier will collect payment for shipment and insurance direct from Buyer. All packages and shipping containers must be inspected for damage upon arrival at Buyer’s plant. Any damage must be noted on the freight papers and reported immediately to the freight carrier. The damaged container must be kept to make an insurance claim. Taking a photograph of a damaged container is always a good practice. Failure of the Buyer to fully document and report any damaged and/or missing parts at the time of receipt may cause the freight carrier to reject the claim leaving the Buyer fully responsible for the loss.
PACKAGING
Unless specifically stated to the contrary, quotations are made and orders are accepted for delivery as fast as manufactured by partial shipment, packed in suitable crates, or corrugated boxes for tooling parts. Crates, skids, or export packaging is an extra charge and can be quoted.
PATENTS
It is not the intention of the Seller to manufacture any product which is an infringement of a patented article. Where Buyer supplies specifications for parts to be made by Seller, or where Seller makes Tools, Dies or other equipment to produce such parts, it is agreed that the Buyer will defend and save harmless the Seller from any and all expense involved in any claims for damages from infringements of letters patent by the manufacture of such parts or the manufacturer of equipment to produce those parts.
DESIGN
All detailed blueprints of tools are considered proprietary property of Seller and if copies are desired, should be negotiated PRIOR to ordering. Seller GRANTS NO RIGHTS to Buyer for manufacture or reconstruction of proprietary assemblies or components thereof whether or not the assemblies or components are covered by one of Seller’s patents. All prints and drawings furnished at any time by Seller are for maintenance and repair only. Seller reserves all rights in equipment design and methods of utilization thereof, except those granted to Buyer by operation of law.
PRODUCTION ESTIMATES
Production estimates are estimated only, based on our understanding of the material handling and equipment operation. Seller makes NO GUARANTEE that actual production rates achieved in Buyer’s plant will meet the estimates.
TRAINING AND OR INSTALLATION
Unless otherwise stated training and/or installation ARE NOT INCLUDED in prices quoted.
TOLERANCES
All dimensions must be limited by specified tolerance. When not specified, it is understood that commercial tolerances apply. When Buyer purchases pursuant to his own specification, the Seller will not be responsible for the design and fitting of parts: the conforming of the Seller’s product to the specified tolerances is sufficient evidence as to the correctness of the product. Where tolerances on production parts are closer than commercial limits, or when dimensions cannot be readily gauged with micrometers, such gauges may be furnished by Buyer or supplied by Seller at an extra charge. Tooling built to manufacture parts to meet a customer’s blueprints, which produces parts that conform to the tolerances specified, is sufficient evidence as to the correctness of the product.
SAFETY
Seller is concerned about the safety of Buyer’s; however, it is impossible or impractical, in most cases, for Seller to build guards for dies which will be used in a punch press. These require that the press, itself, be guarded.
Note: Federal Law Provides:
“IT SHALL BE THE RESPONSIBILITY OF THE EMPLOYER TO PROVIDE AND ENSURE THE USAGE OF “POINT OF OPERATION GUARDS” OR PROPERLY APPLIED AND ADJUSTED POINT OF OPERATION DEVICES ON EVERY OPERATION PERFORMED ON MECHANICAL POWER PRESS.”
Seller does not warrant that any safety devices or features if supplied with its equipment meet the requirements of any local, state, federal, or foreign laws or regulations, including those issued under OSHA. Should the Buyer require any additional devices or features, they should be specifically identified, and Seller will amend its quotation accordingly.
INDEMNITY
Buyer shall use and shall require its employees to use all safety devices, guards, and proper safe operation procedures as set forth in manuals and instructions furnished by Seller or required by the Occupational Safety and Health Administration (0SHA). Buyer shall not remove or modify any such device, guard, or warning sign. Buyer shall notify Seller promptly, and in any event within seven days, of any accident or malfunction involving Seller’s product which results in personal injury or damages to property and shall cooperate fully with Seller on investigating and determining the cause of such accidents or malfunctions. Buyer agrees to indemnify and save Seller harmless from any claim arising from such accident or malfunction.
COMPLIANCE WITH LAWS
Seller agrees to comply with all applicable State, Federal and Local Laws, Rules and Regulations and Fair Labor Standards Act of 1938 as amended. Executive Order 11246 Equal Employment Opportunity Act as amended.
SEVERALTY
Each provision of this contract is severable from every other provision, and if any provision should be held to be unenforceable or void, it shall be treated as if deleted here from, and the remainder of this contract shall be enforced according to its terms.
CONTRACT
This contract constitutes the entire understanding and agreement between Seller and Buyer with regard to all matters herein. There are no other agreements, conditions or representations, oral or written, express or implied, with regard thereto. This contract may be amended only in writing, signed by both Seller and Buyer.
VENUE
This contract is made in Kent County, Michigan which, at Seller’s option, shall be the stipulated venue for the purpose of any litigation which may arise under its terms.
TAXES
Buyer assumes all responsibility for any required Federal, State and Municipal Taxes required for Buyers located outside of Michigan. We reserve the right to invoice any tax as may be imposed at a later date and the Buyer shall pay this tax to Seller or directly to the government agency levying such a tax.
CHANGES
Whenever possible Seller will try to accommodate details and modifications desired by our customers. However, modifications that are above and beyond those originally quoted will be charged on a time and material basis.
FAIR LABOR STANDARDS ACTS
Seller hereby certifies that these goods were produced in compliance with all applicable requirements of Section 6, 7, and 12 of Fair Labor standards act, as amended, and of regulations and orders of the United States Department of Labor issued under Section 14 thereof.