UNIVERSAL BEARING COMPANY
TERMS AND CONDITIONS OF SALE
As
used in these Terms and Conditions of Sale (the “Terms”): “Seller” means
Universal Bearing Company together with any of its affiliated companies and “Buyer”
means the person or entity that is applying to Seller for credit and/or that
wishes to purchase products, goods or services (the “Goods”) from Seller.
1. No
Other Terms Apply. THESE TERMS APPLY TO ALL PROPOSALS AND QUOTATIONS MADE BY SELLER AND
ALL PURCHASE ORDERS ACKNOWLEDGED, ACCEPTED OR CONFIRMED BY SELLER. THESE TERMS AND THE PROPOSALS AND/OR
QUOTATIONS MADE BY SELLER TOGETHER FORM THE CONTRACT BETWEEN SELLER AND BUYER
(THE “CONTRACT”). BUYER'S ACCEPTANCE IS EXPRESSLY CONDITIONED
UPON BUYER'S ASSENT TO ALL OF THE TERMS AND CONDITIONS IN THE TERMS AND THE
QUOTATION. IN THE EVENT THAT BUYER'S
ACCEPTANCE CONFLICTS WITH, AMENDS, MODIFIES AND/OR SUPPLEMENTS THE TERMS,
SELLER HEREBY EXPRESSLY OBJECTS TO AND REJECTS SUCH PROVISIONS AND THE TERMS
SHALL GOVERN, AND THE BUYER'S CONFLICTING, AMENDING, MODIFYING AND/OR
SUPPLEMENTAL PROVISIONS SHALL BE NULL AND VOID.
ANY SELLER ACKNOWLEDGEMENT OR RECEIPT OF A BUYER
PURCHASE ORDER, PROCUREMENT DOCUMENTS OR SIMILAR DOCUMENTS WITHOUT WRITTEN
OBJECTION IS UNDERSTOOD BY BUYER TO BE AN ACCOMMODATION BY SELLER FOR BUYER’S
ACCOUNTING AND ORDERING CONVENIENCE ONLY, AND NO TERMS OF ANY SUCH BUYER
PURCHASE ORDER, PROCUREMENT DOCUMENTS OR SIMILAR DOCUMENTS ARE ACCEPTED BY
SELLER AND IN NO WAY MODIFY, AMEND AND/OR SUPPLEMENT THESE TERMS.
2. Entire Agreement. The Contract and Terms, together with all proposals and/or
quotations made by Seller, 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. The Contract and Terms 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 Contract and
Terms. Each party hereby waives any
right to claim that the Contract and Terms have been subsequently modified
other than in accordance with this Section.
4. Taxes. All prices are exclusive of any sales,
revenue, or excise tax, duties, or other similar charges, all of which will be
paid by, and are the exclusive responsibility of, Buyer.
6. Title and Delivery. Delivery is Ex Works Seller’s facility (as
defined by the most recent release of the International Commercial Terms
published by the International Chamber of Commerce). Title and risk of loss
pass to Buyer upon delivery to the carrier.
Seller will follow Buyer's shipping instructions. Absent such instructions from Buyer, Seller
will ship by the method Seller deems most advantageous.
7. Delivery and Delays. Quoted, specified or requested delivery dates shall be
interpreted as estimated and in no event shall dates be construed as falling
within the meaning of “time is of the essence.”
Seller will make commercially reasonable efforts to meet quoted,
specified or requested delivery dates, but in no event will Seller be liable
for any damages or expenses caused by delays in delivery times.
Buyer’s receipt of the Goods shall constitute a waiver of any claims for
delay.
8. Disclosures
Concerning Unused Surplus Goods. Seller predominantly
sells unused surplus or excess Goods (“Surplus Goods”). Unless otherwise expressly indicated at time
of sale, Buyer should assume that the Goods are Surplus Goods and that all of
the following apply: (1) Buyer
represents and warrants that it will not misrepresent or mislead potential
purchasers concerning the Surplus Goods supplied by Seller; and (2) Seller does
not warrant that any of its Surplus Goods will come with any manual(s) or
accessories that might have been supplied with the goods when first sold to an
end user or to an authorized dealer or distributor; and (3) the Surplus Goods
supplied by Seller may be an older series or version than currently
manufactured or distributed by the original manufacturer or its authorized
distribution channels; and (4) Seller makes no representation or warranty
regarding the date of manufacture of any Surplus Goods; and all Goods and
Surplus Goods is covered by Seller's limited warranty as provided in these
Terms.
9. Inspection of Goods. Buyer is responsible for inspecting all Goods
immediately upon receipt by Buyer (or for drop shipments by Seller, upon
receipt by the third party to whom Seller ships products at Buyer's direction)
to determine their conformance to Buyer's order and to determine their condition
and suitability for their intended end use.
All Goods damaged during shipment and all claims relating thereto must
be made with the freight carrier in accordance with such carrier's policies and
procedures. Claims for Goods damaged
during shipment are not covered under the limited warranty provisions of these
Terms. If defective or nonconforming Goods
tendered by Seller do not fully comply with the provisions of this Agreement,
and those Goods timely are rejected by Buyer, Seller will have the right to
cure within a reasonable time after notice by substituting a conforming tender
whether or not the time for performance has passed. Any rejection of Goods by Buyer must be
within thirty (30) days from date of delivery.
10. Security Interest. With respect to any credit sale, Buyer grants
to seller a purchase money security interest in the Goods sold, and any
proceeds thereof, as security for Buyer's obligation to pay the purchase price
and Buyer agrees to execute any financing statement or other instrument
required to perfect such a security interest.
When Buyer places an order, Buyer represents it is not insolvent. In the event Buyer becomes insolvent before
delivery of the Goods, it will immediately notify Seller. The failure to notify Seller immediately will
be construed as a reaffirmation of Buyer's solvency at the time of
delivery. Seller will have the right to
stop delivery of the Goods by a bailee or other third party transporting the
same if Buyer becomes insolvent, repudiates or fails to make a payment due on
any prior shipment or order, in order for Seller to withhold or reclaim the Goods
under the provisions of the Uniform Commercial Code.
11. Import and Export. Buyer will pay all handling and other similar
costs from Seller's facilities including the costs of freight, insurance,
export clearances, import duties and taxes.
The export and re-export of U.S. items is subject to regulatory
requirements of the Export Administration Regulations (EAR), the Foreign Trade
Regulations (FTR), International Traffic in Arms Regulations (ITAR) and other
U.S. laws and regulations (collectively the "Regulations"). If at any time Buyer chooses to
export/re-export Goods purchased from Seller, Buyer is required to comply with
all the requirements under the Regulations.
Certain goods, including bearings, are highly regulated by the EAR and
ITAR and require export licenses to ship out of the United States. If Buyer is unfamiliar with these
regulations, Buyer should consult an attorney or U.S. government agency for
assistance. Failure to comply with the
Regulations may result in large financial and even criminal penalties. Buyer hereby acknowledges that compliance
with the Regulations is the responsibility of Buyer and not the responsibility
of Seller. These compliance requirements
include, without limitation, the following: (1) not selling, exporting,
re-exporting, transferring or diverting any Goods purchased from Seller to any
person, entity, country to which the export or re-export is prohibited by the
Regulations; and (2) obtaining export licenses when required by the
Regulations. Buyer acknowledges that it
is subject to the Regulations and agrees to indemnify, defend and hold harmless
Seller and its affiliates against all costs or damages that arise out of or
relate to Buyer's failure to comply with the Regulations.
12. Government
Contracts. No government contract
regulations or clauses will apply to the Goods or any order for Goods or act to
bind Seller unless specifically agreed to by Seller separately in writing
signed by Seller's President. Unless
Buyer notifies Seller in writing in advance, Buyer warrants that it will not
submit any request for or order to purchase Goods from Seller that Buyer knows
or has reason to know will be used in the performance of a U.S. government
contract or subcontract which incorporates or is subject to federal regulations
expressly or by reference, including without limitation the Federal Acquisition
Regulation (FAR), Defense Acquisition Regulation (DFAR), Armed Services
Procurement Regulations (ASPR), and Cost Accounting Standards (CAS). Buyer agrees to indemnify, defend, and hold
Seller harmless against any loss, liability, or damage of any kind that Seller
incurs in connection with a breach of that warranty.
13. LIMITED
WARRANTY, LIMITED REMEDIES AND DISCLAIMERS.
A. Seller
Is Not an OEM-Authorized Reseller for Goods. Seller is not the original manufacturer of the
Goods. Seller has not been authorized by
the original manufacturer to act as a reseller of the manufacturer's Goods, and
there is no warranty from the original manufacturer covering the Goods sold by
Seller to Buyer.
B. SELLER'S LIMITED WARRANTY. SUBJECT TO THESE TERMS, AND UNLESS OTHERWISE
SPECIFIED BY SELLER IN WRITING AT THE TIME OF SALE, FOR THE APPLICABLE WARRANTY
PERIOD INDICATED BELOW, SELLER WARRANTS THAT ANY GOODS SOLD BY SELLER TO BUYER,
WHEN PROPERLY INSTALLED, MAINTAINED AND OPERATED, WILL BE FREE FROM DEFECTS IN
MATERIAL AND WORKMANSHIP.
C. WARRANTY PERIOD. UNLESS OTHERWISE SPECIFIED BY THE SELLER IN
WRITING AT THE TIME OF SALE, THE WARRANTY PERIOD FOR GOODS GOVERNED BY THESE
TERMS IS TWELVE (12) MONTHS FROM THE DATE OF PURCHASE.
D. EXCLUSIVE LIMITED REMEDY. AS
BUYER'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF SELLER’S LIMITED WARRANTY,
SELLER WILL, AT SELLER'S SOLE OPTION, MODIFY, REPAIR, OR REPLACE THE GOODS WITH
A FUNCTIONAL EQUIVALENT, OR REIMBURSE THE BUYER FOR ANY PAYMENT MADE BY BUYER
TO SELLER FOR THE PURCHASE PRICE OF THE GOODS, WITH SUCH REIMBURSEMENT BEING
PRO-RATED OVER THE WARRANTY PERIOD.
IN ANY EVENT, REGARDLESS
OF ANY LEGAL THEORY UPON WHICH ANY CLAIM AGAINST SELLER ARISING OUT OF, OR IN
ANY WAY RELATED TO, ANY ALLEGED DEFICIENCY OR DEFECT IN THE GOODS SOLD BY
SELLER, THIS LIMITED WARRANTY IS SELLER'S SOLE AND EXCLUSIVE LIABILITY, AND
BUYER'S SOLE AND EXCLUSIVE REMEDY, EXCEPT FOR THE WARRANTIES SET FORTH IN THE TERMS, WHICH ARE LIMITED
WARRANTIES AND THE ONLY WARRANTIES MADE BY SELLER, THE GOODS ARE PROVIDED
STRICTLY "AS IS," AND SELLER MAKES NO ADDITIONAL WARRANTIES, EXPRESS,
IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO
THE GOODS PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. IN PARTICULAR, ANY AND ALL IMPLIED WARRANTIES
OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE
AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED BY SELLER AND ARE EXCLUDED BY THE
PARTIES.
E. EXCLUDED USES. SELLER DOES NOT WARRANT OR RECOMMEND ITS GOODS FOR USE IN AIRCRAFT. ALSO, SELLER DOES NOT WARRANT OR RECOMMEND ITS GOODS FOR APPLICATIONS WHERE THE EQUIPMENT MANUFACTURER, REGULATORY AGENCY, OR FACILITY OPERATOR SPECIFIES THAT THE REPLACEMENT PRODUCT BE OBTAINED DIRECT FROM THE COMPONENT MANUFACTURER OR THE COMPONENT MANUFACTURER'S AUTHORIZED DISTRIBUTION CHANNEL. IF BUYER HAS ANY QUESTIONS ABOUT EXCLUDED USES, BUYER MUST INQUIRE OF SELLER.
F. WARRANTY CLAIMS. If the Goods do not conform to Seller’s
limited warranty, Buyer must notify Seller within thirty (30) days of discovery
of the defect or nonconformity. Any
warranty claim must be received before the end of the applicable warranty
period, together with return of the claimed defective Goods within this same
period, and must include Seller's return goods authorization (RGA#). (If you need to make a warranty return claim
please contact us at sales@universalbearing.com
or call 313-933-1100 for a return goods authorization (RGA#) prior to any
return). The replacement Goods provided
by Seller may not be manufactured by the same manufacturer that manufactured
the Goods subject to the warranty claim.
At Seller's request and expense, Buyer will return any claimed defective
Goods to Seller.
14. LIMITATION
OF LIABILITY. THE REMEDIES OF CUSTOMER SET FORTH
HEREIN ARE EXCLUSIVE, AND THE TOTAL LIABILITY OF SELLER WITH RESPECT TO THIS
CONTRACT OR THE GOODS SOLD HEREUNDER, IN CONNECTION WITH THE PERFORMANCE OR
BREACH THEREOF, OR FROM THE MANUFACTURE, SALE, DELIVERY, INSTALLATION, REPAIR
OR TECHNICAL DIRECTION COVERED BY OR FURNISHED UNDER THIS CONTRACT, WHETHER
BASED ON CONTRACT, WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR
OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE GOODS UPON WHICH SUCH
LIABILITY IS BASED. SELLER SHALL IN NO
EVENT BE LIABLE TO BUYER, ANY SUCCESSORS IN INTEREST OR ANY BENEFICIARY OR
ASSIGNEE OF THIS CONTRACT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL
OR PUNITIVE DAMAGES ARISING OUT OF THIS CONTRACT OR ANY BREACH THEREOF, OR ANY
DEFECT IN, OR FAILURE OF, OR MALFUNCTION OF THE GOODS HEREUNDER, WHETHER BASED
UPON LOSS OF USE, LOST PROFITS OR REVENUE, INTEREST, LOST GOODWILL, WORK
STOPPAGE, IMPAIRMENT OF OTHER GOODS, LOSS BY REASON OF SHUTDOWN OR
NON-OPERATION, INCREASED EXPENSES OF OPERATION, COST OF PURCHASE OF REPLACEMENT
POWER OR CLAIMS OF BUYER OR CUSTOMERS OF BUYER FOR SERVICE INTERRUPTION WHETHER
OR NOT SUCH LOSS OR DAMAGE IS BASED ON CONTRACT, WARRANTY, NEGLIGENCE,
INDEMNITY, STRICT LIABILITY OR OTHERWISE AND REGARDLESS OF WHETHER SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY ARE
INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY SET FORTH IN THIS
CONTRACT, AND SHALL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL
PURPOSE OF ANY REMEDIES SPECIFIED HEREIN.
15. Indemnification. Except for claims of breach of Seller's
limited warranty, Buyer will defend, indemnify and hold Seller harmless from,
including paying the cost of defense of, any claims by any person (including,
but not limited to, third parties, Buyer's customers, persons further down the
supply chain, end users, and persons affected by use of the goods supplied by
Seller), which claims relate or depend in any way on the sale, resale,
distribution, nature, suitability, use, or function of Goods offered for sale
or sold by Seller to Buyer.
16. Drop
Shipment, No Relationship with Third Party. At Buyer's request and expense, Seller may, in
its sole discretion, ship Goods directly to a third party. Seller's shipment of Goods to a third party
does not create (a) any relationship between Seller and the third party, or (b)
a warranty from Seller to the third party. A third party's remedy (if any) for any
problems or issues with Goods shipped by Seller lies with Buyer and not with
Seller.
17. Termination and Cancellation. Buyer shall not terminate, cancel, suspend performance under, or issue a "hold" order on any orders or requests for Goods made by Buyer to Seller even if Seller has not itself purchased the Goods from a supplier or source. Buyer’s liability for termination, cancellation, suspension, or "hold" shall include the full value of the Goods ordered or requested and any other charges that Seller has already incurred to effectuate the sale of Goods to the Buyer, including any charges that Seller has paid or has agreed to pay any broker or supplier for Seller’s purchase of the Goods ordered or requested by Buyer. Seller may terminate or cancel this Contract for breach and/or threatened breach of any of its provisions by Buyer without giving Buyer advance written notice thereof and/or a reasonable time in which to cure the breach and/or threatened breach. Upon termination or cancellation by Seller, the parties shall be entitled to rights and remedies available under the Contract or Terms, except to the extent excluded or limited by this Contract or Terms. Seller, without terminating or canceling the Contract, may decline to make further deliveries hereunder in the event of a breach and/or threatened breach by Buyer, but should Seller elect to continue delivering despite the breach and/or threatened breach, such action shall not constitute a waiver of Buyer's breach or in any way affect the Seller's remedies.
18. Law
and Dispute Resolution. Any and
all disputes arising out of, or relating to, the Contract, 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
Seller arising out of, or relating to, the Contract, 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, by either Seller or
Buyer, shall be subject to mandatory arbitration administered by the American
Arbitration Association (the “AAA”) under its Commercial Arbitration Rules, and
judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. Arbitration
shall be held in Southfield, Michigan and shall be administered by a single
arbitrator chosen by the standard AAA procedure for choosing a single
arbitrator. Should Seller be the
prevailing party in any dispute, Seller (and Seller only) shall be entitled to
recover its costs to resolve the dispute, including amounts payable to the AAA,
reasonable attorneys’ fees and costs, expert fees and costs, and other dispute
resolution and/or litigation expenses, including all such fees and expenses
incurred in connection with the arbitration, the confirmation and/or vacation
of the arbitration, any trial or appeal.
19. Changes
to the Terms and Buyer Acceptance of Changes. Seller may change these Terms by notice to
Buyer at any time or by publishing changes on Seller's website accessible by
the link provided to Buyer. Any change
to these Terms will apply to the overdue balances on Buyer's account and to new
transactions. If Buyer orders additional
Goods after notice or publication of changes to these Terms, Buyer will be
deemed to accept all changes to the Terms.
20. Waiver. Failure or delay in the exercise of any right or remedy under this Contract or Terms will not waive or impair such right or remedy. No waiver given will require future or further waivers.
21. Severability. Any portion of this Contract or Terms determined to be contrary to any controlling law, rule or regulation shall be revised or deleted and the remaining balance of this Contract or Terms will remain in full force and effect.
22. 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 quotation that incorporates the Terms by reference, then the
conflicting terms and/or conditions in such quotation shall control with
respect to the Contract.