TERMS AND CONDITIONS OF SALE
These terms and conditions that form this “Contract” shall apply to all sales of products, goods, or services (“Products”) by Marquis Industries, Inc., dba MB Division (“Seller”) to the purchaser of the Products (“Buyer”) and to any quotation by the Seller for sales of Products. Buyer hereby buys and Seller hereby sells those Products set forth on the front of this Contract and the terms of any documents, specifications or standards attached hereto, or which are otherwise hereby expressly incorporated and made a part of this Contract. Buyer is deemed to have accepted this offer when Seller begins performance of this Contract or by delivery. Buyer’s acceptance is solely limited to the acceptance of the terms expressly set forth in this Contract. These terms and conditions shall not be superseded by any other terms or conditions in Buyer’s purchase order. This Contract merges and supersedes all prior negotiations or agreements of the parties, either written or oral, made either prior to or contemporaneous with this Contract. This Contract cannot be modified or amended except by a subsequent written instrument executed by the parties which expressly supersedes the provisions of this Contract. This Contract, together with any attachments, constitutes the complete, exclusive and final agreement between Buyer and Seller. Any additional or different terms provided by Buyer in subsequent purchase orders or other documents shall not be binding.
1. PRICE. The price of the Products, as set forth on the front of this document, does not include sales, use, excise, or any other taxes or assessments levied by any federal, state, municipal, or other governmental authority, unless Seller expressly agrees otherwise. In case of dispute between verbal or faxed quotations or invoices and this written quotation or invoice, this quotation or invoice shall be the controlling document. If during the performance of this Contract, the price of materials increases, through no fault of Seller, the price of Products under this Contract shall be equitably adjusted by an amount reasonably necessary to cover any such price increases. Such price increases shall be documented through quotes, invoices, or receipts.
2. DELIVERY. Buyer shall give Seller reasonable prior notice of the desired timing of deliveries and all delivery schedules shall be mutually agreed to. All quantities are subject to Seller’s reasonable production capabilities. Seller may have Products manufactured or tooled by others. Unless otherwise agreed in writing by the Parties, shipment of all Products will be F.O.B. Seller’s facilities (“Delivery Point”) in Spring Lake, Michigan, at which time title and risk of loss of such Products will pass directly to Buyer.
3. WARRANTIES; LIMITATION OF LIABILITY; REMEDIES; DAMAGES. THE PARTIES TO THIS TRANSACTION HEREBY ACKNOWLEDGE THAT SELLER IS NOT THE MANUFACTURER OF THE PRODUCTS AND ACKNOWLEDGE AND AGREE THAT THE PRODUCTS ARE BEING OFFERED FOR SALE FROM SELLER TO BUYER IN “AS IS, WHERE IS” CONDITION, WITH NO EXPRESS OR IMPLIED WARRANTIES WHATSOEVER. SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY THAT THE PRODUCTS SOLD HEREUNDER ARE NON-INFRINGING, ARE OF MERCHANTABLE QUALITY, OR THAT THE PRODUCTS SHALL BE FIT FOR ANY PARTICULAR PURPOSE. THERE ARE NO WARRANTIES OF SELLER EXPRESSED OR IMPLIED BY OPERATION OF LAW OR OTHERWISE. SELLER SHALL NOT BE LIABLE TO BUYER OR ANYONE ELSE FOR ANY SPECIAL, INDIRECT, ECONOMIC, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS, THIS CONTRACT, OR ANY BREACH THEREOF.
4. INDEMNIFICATION OF SELLER. Buyer shall indemnify, defend, and hold Seller, its shareholders, directors, officers, agents and employees harmless from all claims, causes of action, liabilities, penalties, personal injuries, and expenses, including but not limited to actual attorney fees, sustained by Seller or its agents or employees that are caused by any action or omission of Buyer relating to the Products sold by Seller to Buyer.
5. INDEMNIFICATION FOR BUYER SPECIFICATIONS. For Products manufactured and produced according to Buyer’s specifications or based on Buyer’s samples, Buyer acknowledges that Seller is relying on Buyer’s specifications, and Buyer shall indemnify, defend, and hold Seller, its shareholders, directors, officers, agents and employees harmless from all claims, causes of action, liabilities, penalties, and expenses, including but not limited to actual attorney fees, arising out of any claim of infringement of a patent, copyright, trademark, trade name, or other proprietary right, or claim of unfair trade or of unfair competition in connection with the manufacture, sale, or use of the Products sold to Buyer.
6. MISCELLANEOUS PROVISIONS.
(a) If any term or condition or a part contained herein is held invalid, the remaining terms and conditions of this Contract shall not be affected thereby.
(b) No claim or right arising out of a breach of this Contract may be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciations is in writing, signed by aggrieved party.
(c) In the event of a breach by Buyer, Seller may terminate the Contract upon giving ten days’ written notice of termination. If the Contract is terminated by Seller because of Buyer’s breach, Seller is entitled to reasonable reimbursement for any labor, material or other expenses incurred in connection with the Contract, plus a reasonable amount for overhead.
(d) Buyer shall not assign any of its rights or delegate any of its obligations under this Contract without the prior written consent of Seller, and any assignment or delegation otherwise attempted shall be wholly void. No assignment or delegation relieves Buyer of any of its obligations under this Contract.
(e) All rights available to Seller under the Uniform Commercial Code in force in Michigan, even though not specifically enumerated herein, are expressly reserved to Seller as remedies available to it in case of Buyer’s breach.
(f) Seller shall not be liable to Buyer for failure or delay in performing its obligations in whole or in part when performance is delayed or prevented by flood, drought, fire, or any other casualty or riot, insurrection, acts of God, restrictions or interference by any government or governmental agency, strike, labor action, or any similar cause beyond the control of Seller for the period during which such cause exists.
(g) This contract shall be governed by and construed in accordance with the laws of the State of Michigan, U.S.A., without regard to its conflict of laws principles.
(h) Seller and Buyer agree that any action arising out of the sale of goods or services in accordance with this document will be brought, heard, and decided exclusively in the courts of the State of Michigan located in Ottawa County, Michigan or in any federal court within the jurisdiction of the United States District Court for the Western District of Michigan.
(i) In the event that Seller is the prevailing party in any action, proceeding, or arbitration between the Buyer and Seller concerning the interpretation or enforcement of any of the terms or provisions of the Contract, the Buyer shall be liable to Seller for all costs, including reasonable attorney’s fees, incurred by Seller with respect to such action, proceeding, or arbitration.