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 firstname.lastname@example.org 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, brought by Buyer, shall be brought in the state or federal courts located in Oakland County, Michigan. However, Buyer agrees that, in the event Buyer seeks relief in a court of competent jurisdiction against Seller, Seller may, at any time within 60 days of the service of Buyer’s complaint upon Seller, regardless of whether responsive pleadings have been filed, at its sole option require all or part of the dispute to be arbitrated. Buyer further agrees that any disputes brought by Seller against Buyer 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 Seller’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 Seller, subject to Buyer’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). Buyer agrees that the option to arbitrate any dispute is governed by the Federal Arbitration Act, and fully enforceable. Buyer understands and agrees that, if Seller exercises its option, any dispute arbitrated will be heard solely by the arbitrator, and not by a court. Further, in any dispute that Seller 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.
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.