UNIVERSAL BEARING COMPANY
TERMS AND CONDITIONS OF PURCHASE
As used in these Terms and Conditions of Purchase (the “Terms”): “Buyer” means Universal Bearing Company together with any of its affiliated companies; “Order” means Buyer purchase orders and other associated purchase documents transmitted to Seller in hard copy, via facsimile, email or via any other mode of transmission; “Seller” means the person or entity shown on the face of the Order; “Goods” means the products, goods or services Buyer desires to purchase from Seller.
1. Terms Apply to and Are Incorporated into Buyer’s Orders. THESE TERMS APPLY TO AND ARE INCORPORATED BY REFERENCE TO ALL ORDERS ISSUED BY AND/OR TRANSMITTED BY BUYER TO SELLER OR AGENT OF SELLER.
2. Seller’s Acceptance. SELLER WILL BE DEEMED TO HAVE ACCEPTED THIS ORDER WHEN SELLER ACKNOWLEDGES THIS ORDER OR BEGINS PERFORMANCE UNDER THIS ORDER. SELLER’S ACCEPTANCE IS LIMITED TO ACCEPTANCE OF BUYER’S TERMS. BUYER HEREBY OBJECTS TO AND REJECTS ANY PROPOSAL BY SELLER FOR ADDITIONAL OR DIFFERENT TERMS. IF SELLER PROPOSES ADDITIONAL OR DIFFERENT TERMS WHICH RELATE TO THE DESCRIPTION, QUANTITY, PRICE OR DELIVERY SCHEDULE OF THE GOODS, SELLER’S PROPOSAL WILL OPERATE AS A REJECTION OF BUYERS OFFER; IN ALL OTHER CASES, SELLER’S PROPOSAL WILL BE DEEMED A MATERIAL ALTERATION OF BUYERS TERMS, AND BUYER’S TERMS WILL BE DEEMED ACCEPTED BY SELLER WITHOUT SELLER’S ADDITIONAL OR DIFFERENT TERMS. IF THIS ORDER IS DEEMED AN ACCEPTANCE OF SELLER’S PRIOR OFFER, BUYER’S ACCEPTANCE IS EXPRESSLY CONDITIONAL ON SELLER’S ASSENT TO BUYER’S TERMS.
3. Entire Agreement. The Order and Terms contain all the agreements, representations, and understandings of the parties and supersedes any previous understandings, commitments, or agreements, oral or written, with respect to the subject matter hereof. Buyer and Seller agree that, notwithstanding the prior or subsequent use by Seller of any order form, invoice or other document containing printed terms or conditions, they are contracting solely on the basis of this Order, which contains the entire understanding of the parties and is intended as a final expression of their agreement and a complete statement of the terms thereof, and may not be modified or amended except in a writing signed by a duly authorized officer of each party that expressly states the provision(s) to be modified; no other act, usage, or custom shall be deemed to amend or modify the Order and Terms. Each party hereby waives any right to claim that the Order and Terms have been subsequently modified other than in accordance with this section.
4. Payments. Buyer will pay the prices stipulated on this Order for Goods delivered and accepted, less deductions, if any, as herein provided, but only (i) upon submission by Seller of an invoice or (ii) pursuant to other mutually agreed-upon arrangements. The prices for Goods will not be subject to any variation without the prior written consent of Buyer. At Buyer’s discretion, Buyer will pay for partial deliveries accepted by the Buyer.
5. Packing. An itemized list of contents must be placed in each package bearing Buyer's purchase order number and facility location. No charge will be allowed by Buyer for cartage or packing unless agreed upon beforehand in writing. All expenses incurred by Seller's failure to furnish necessary shipping documents shall be charged to Seller. Seller agrees to prepare and properly box or crate goods for shipment so as to prevent damage in transit, to comply with Buyer's shipping instructions and/or routings.
6. Taxes. If Seller determines that any federal, state or local sales, use or excise taxes levied upon, or measured by, the sale, the sales price, or use of the Goods is applicable to this Order, Seller will inform Buyer prior to purchase of any such tax and list separately on its invoice any such tax lawfully applicable to the Goods and payable by Buyer with respect to which Buyer does not furnish to Seller lawful evidence of exemption.
7. Inspection and Acceptance of Goods. Notwithstanding any acts of Buyer which may be deemed under applicable law to constitute acceptance of the Goods, payment for delivered Goods will not constitute acceptance thereof. Buyer may reject any Goods, which do not meet the specifications set forth in this Order. Buyer may return any such Goods to Seller for reimbursement, credit, replacement or correction as Buyer may direct, or Buyer may correct and/or replace such Goods at Seller’s cost. Any Goods rejected by Buyer will be at Seller’s risk and expense and Seller will not thereafter tender such Goods for acceptance unless the former rejection or requirement of correction is disclosed. Seller will reimburse Buyer for any packaging, handling and transportation costs Buyer incurs with respect to rejected Goods. Buyer may revoke its acceptance of Goods at any time, whether or not a substantial modification to the Goods has been made, if a defect in the Goods which could not have been discovered during Buyer’s normal inspection procedures or which is not normally discoverable until the Goods are used substantially impairs the value of the Goods to Buyer. Neither Buyer’s exercise of nor its failure to exercise, any rights provided hereunder will relieve the Seller from responsibility for such Goods as are not in accordance with the order requirements or impose liability on Buyer therefor.
8. Warranties. Seller warrants that the Goods: (i) will be fit and sufficient for the purpose intended (if Seller knows or has reason to know the particular purpose for which Buyer intends to use the Goods); (ii) will be of merchantable quality and free from all defects, including defects in material and workmanship; and (iii) will conform with all representations, descriptions, samples, drawings, plans, specifications, designs and other data supplied by Seller or listed on the front side of this Order. The foregoing warranties are in addition to those available to Buyer by law. All warranties hereunder will survive Buyer’s acceptance, use and/or payment and will run to Buyer and its customers.
9. Indemnification. Seller will indemnify, defend and hold harmless Buyer, its officers, employees, agents, successors, assigns, customers, and users of its products from and against any and all losses, expenses, damages, claims, suits and liabilities (including recall, repair and replacement expenses and other incidental and consequential damages; court costs and attorneys’ fees) arising as a result of actual or alleged breach of any warranties or other terms contained herein or arising under any strict tort or negligence claims premised on either an actual or alleged defect in the Goods. At Buyer’s request, Seller will assume promptly full responsibility for the defense of any action described in this paragraph which may be brought or threatened by a third party against Seller and/or Buyer.
10. Infringement Indemnification. Seller will indemnify and hold harmless Buyer, its officers, employees, agents, successors, assigns, customers and users of its Goods from and against any and all losses, expenses, damages, claims, suits and liabilities (including incidental and consequential damages, court costs and attorneys’ fees) arising as a result of any claim that the manufacture, use, sale or resale of any Goods infringes any patent, utility model, industrial design, copyright, trademark or other intellectual property right in any country. Seller will, when requested by Buyer, defend any action or claim of such infringement at its own expense. If the sale and/or use of the Goods is enjoined or, in Buyer’s sole judgment, is likely to be enjoined, Seller will, at Buyer’s election and Seller’s sole expense, either procure for Buyer the right to continue using such Goods, or replace same with equivalent noninfringing goods, or modify such Goods so they become noninfringing, or remove same and refund the purchase price, including transportation, installation, removal and other charges incidental thereto.
11. Risk of Loss and Title. Title and risk of loss shall pass from Seller to Buyer upon the physical delivery of the Goods to Buyer’s facility as identified on the Order. Seller assumes the following risk: (a) all risks of loss or damage to all Goods and other things until the delivery thereof as herein provided; (b) all risks of loss or damages to third person and their property until delivery of all Goods as herein provided; (c) all risks of loss or damage to any property received by Seller from or held by Seller or its supplier for the account of Buyer, until such property has been delivered to Buyer or Buyer’s customer as the case may be, and (d) all risk of loss or damage to any of the Goods or part thereof rejected by Buyer, from the time of shipment thereof to Seller until redelivery thereof to Buyer. Seller will follow Buyer's shipping instructions.
12. Termination. Buyer may terminate this Order or any part of it for its convenience by written notice to Seller. Upon receipt of notice of termination, Seller will immediately stop all work hereunder and refund any payment(s) made by Buyer for Goods not already shipped and in Buyer’s (or its customer’s) facility. Buyer will not pay for any work done after Seller’s receipt of notice of termination, nor for any costs incurred by Seller and/or its agents, which Seller could reasonably have avoided.
13. Compliance with Laws. In the performance of this Order, Seller will fully comply with all applicable laws and will hold Buyer harmless from any liability resulting from Seller’s failure to so comply.
14. Setoff. In addition to any right of setoff or recoupment provided by law, all amounts due to Seller shall be considered net of indebtedness or other obligations of Seller to Buyer and Buyer shall have the right to set off against or to recoup from any amounts due to Seller from Buyer.
15. Assignments and Subcontracting. No part of this Order may be assigned or subcontracted without the prior written approval of Buyer. If Seller is authorized to use subcontractors, Seller will obtain from each such subcontractor rights and obligations no less favorable to Buyer than the provisions of this Order.
16. Remedies. The rights and remedies provided Buyer herein will be cumulative and in addition to any other remedies provided by law or equity. Buyer’s waiver of a breach of any provision hereof will not constitute a waiver of any other breach.
17. Law and Dispute Resolution. Any and all disputes arising out of, or relating to, the Order, the Terms and/or the Goods, including performance, or lack thereof, by either Seller or Buyer, is subject to the laws of the State of Michigan without regard to any conflicts of laws provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Any and all disputes against Buyer arising out of, or relating to, the Order, the Terms and/or the Goods, including performance, or lack thereof must be commenced within one year from the earlier of the accrual of the claim or the delivery of the Goods giving rise to the claim. Any dispute, controversy, or claim arising out of, or relating to, the Contract, the Terms and/or the Goods, including performance, or lack thereof, brought by Seller, shall be brought in the state or federal courts located in Oakland County, Michigan. However, Seller agrees that, in the event Seller seeks relief in a court of competent jurisdiction against Buyer, Buyer may, at any time within 60 days of the service of Seller’s complaint upon Buyer, regardless of whether responsive pleadings have been filed, at its sole option require all or part of the dispute to be arbitrated. Seller further agrees that any disputes brought by Buyer against Seller may be commenced either in the state or federal courts located in Oakland County, Michigan or may be commenced through the same arbitration process described herein at Buyer’s discretion. Any arbitration commenced between Seller and Buyer shall be in Oakland County, Michigan before a single neutral arbitrator, which arbitrator shall be selected by the Buyer, subject to Seller’s approval, which approval shall not be unreasonably withheld. In the event the parties cannot agree on such an arbitrator, such arbitration must be commenced by the filing of an arbitration demand with the American Arbitration Association ("AAA") and utilize the AAA's arbitrator selection process. In any event, such arbitration will be conducted in accordance with and pursuant to the rules of the AAA, although a demand for arbitration need not be filed with AAA in order to proceed (unless the parties cannot agree on an arbitrator as described previously). Seller agrees that the option to arbitrate any dispute is governed by the Federal Arbitration Act, and fully enforceable. Buyer understands and agrees that, if Buyer exercises its option, any dispute arbitrated will be heard solely by the arbitrator, and not by a court. Further, in any dispute that Buyer exercises its right to arbitration, the arbitration will be confidential, binding, and the decision of the arbitrator will be final and not subject to appeal or reconsideration. The costs and arbitration fees of such arbitration are to be borne by the losing party, or if there is no losing party, the arbitrator may determine how to apportion such costs. Upon the rendering of a decision by the arbitrator, a proceeding to enter judgment upon or reject such decision may be commenced in the Courts of Oakland County, Michigan, which shall be the sole and exclusive forum for any such proceeding.
18. Changes to the Terms and Buyer Acceptance of Changes. Buyer may change these Terms by notice to Seller at any time or by publishing changes on Buyer's website accessible by the link provided to Seller. Any change to these Terms will apply to and be incorporated in any Order that has not been shipped prior to the date of the changes to the Terms, regardless of whether Seller received notice of such changes. If Buyer orders additional Goods after notice or publication of changes to these Terms, Seller will be deemed to accept all changes to the Terms.
19. Waiver. Failure or delay in the exercise of any right or remedy under this Order or Terms will not waive or impair such right or remedy. No waiver given will require future or further waivers.
20. Severability. Any portion of this Order or Terms determined to be contrary to any controlling law, rule or regulation shall be revised or deleted and the remaining balance of this Order or Terms will remain in full force and effect.
21. Priority. Notwithstanding anything to the contrary herein, if any of the terms or conditions set forth herein conflicts with any terms or conditions set forth in the Buyer’s Order or any other Buyer generated purchasing documentation that incorporates the Terms by reference, then the conflicting terms and/or conditions in such Order and/or any other Buyer generated purchasing documentation quotation shall control with respect to the Order.