The Kendall Group Legal Notices
Terms and Conditions of Purchase
- Agreement. These Terms of Purchase, together with Buyer’s purchase order and any exhibits, attachments and other documents incorporated by reference constitute Buyer’s offer to buy the goods and/or services described in the order on these Terms of Purchase, and Buyer rejects any earlier offers to sell those goods and/or services made by Seller. If the order nevertheless is in legal effect an acceptance of an earlier offer by Seller, then Buyer’s acceptance is conditional upon Seller’s assent to all of these Terms of Purchase that are additional to or different from the terms of Seller’s offer and by signing and returning a copy of the order or by accepting the order electronically or by shipping the goods or performing the services, Seller accepts Buyer’s offer, as set forth in the order, and agrees and assents to these Terms of Purchase. Notwithstanding the foregoing, if both Buyer and Seller have signed a separate contract that specifies the terms that will apply to Seller’s sales to Buyer, and Buyer’s purchases from Seller, of the goods and/or the services (“Special Contract”) and if there is ever a direct conflict between a provision of the Special Contract and these Terms of Purchase, then the provision of the Special Contract shall control.
- Modification. Subject to Buyer’s rights to make changes to an order, the Contract or these Terms of Purchase, including without limitation as set forth in Paragraph 12 below or terminate an order or the Contract as set forth in Paragraph 13 below, none of the terms and conditions contained herein may be added to, modified, superseded or otherwise altered except by a written instrument signed by an authorized representative of both Seller and Buyer.
- Price and Payment.Unless Buyer agrees otherwise in writing, Buyer shall not be required to pay any sales, use or other taxes arising because of Buyer’s purchase from Seller. Buyer shall not be required to pay any late charge, interest, finance charge or similar charge. Buyer’s payment of the purchase price does not indicate its acceptance of the goods or services. Payment terms, including discount periods, shall run from the latest of (a) the scheduled date for delivery or performance, (b) the actual date of delivery of conforming goods or performance of conforming services, (c) the date of Seller’s invoice, (d) in the case of capital equipment, completion of Buyer’s final inspection and acceptance after installation and (e) in the case of tooling, Buyer’s approval of production pieces produced by the tooling at Buyer’s facility. Buyer shall have the right to credit toward the payment of any monies that may become due Seller under the Contract, any sums which are now or hereafter may be owed to Buyer by Seller or an affiliate of Seller.
- Delivery and Force Majeure.Unless Buyer agrees otherwise in writing, Seller shall deliver the goods DDP (“delivered duty paid”) (Incoterms 2010) at Buyer’s facility identified in the order, except that if Buyer’s facility and Seller’s facility (from which the goods will be shipped) are both located in the United States, then Seller shall deliver the goods F.O.B. (Uniform Commercial Code term) Buyer’s facility identified in the order, except that Buyer may at its option take delivery of all or any part of the goods at Seller’s facility. Time of delivery or performance is of the essence, and Buyer’s stated delivery or performance date and the date for performance of any other obligation of Seller shall not be extended or excused for any reason, including anything that Seller cannot control. Seller shall not, however, be liable for any non-performance or delay in performance caused solely by a strike, lockout, riot, war, insurrection or act of God or public enemy, or any other event or circumstance that is beyond Seller’s reasonable control, if Seller immediately notifies Buyer of the event and gives Buyer a detailed description of the non-performance or delay that it will cause. Buyer shall then have the right to terminate the Contract, without liability to Seller.
- Excess, Installment and Early Deliveries. If Seller delivers more goods than Buyer ordered, then, unless Buyer agrees otherwise in writing, Buyer shall not have to pay for the excess. Unless Buyer agrees otherwise in writing, Seller shall deliver all of the goods in a single delivery and not in installments. Buyer’s acceptance of a delivery that contains less than the required quantity shall not relieve Seller of its obligation to deliver the balance of the ordered goods at the price and on the other terms that the order specifies. If Seller delivers the goods before the scheduled delivery date, then Buyer may, at Seller’s expense and risk, either store them or return them to Seller. Buyer’s acceptance of an early delivery shall not change the payment terms.
- Export and Import Requirements; Drawback and Refund Rights. Seller shall prepare, maintain and, to the extent that applicable law, regulation or customs authority requires it to do so, submit to the applicable customs authorities, all information and documentation that is necessary to comply with the applicable customs and export and import requirements of each country from which the goods will be exported and each country into which they will be imported, and Seller shall comply with all other applicable customs requirements. Whenever Buyer requests it to do so, Seller shall promptly furnish to Buyer copies of that information and documentation, in addition to any other information required by any government agency to be available with the goods. Seller is solely responsible for complying with all technical compliance and country of origin requirements of each country into which the goods are to be imported. Seller assigns and transfers to Buyer all transferable customs duty and tax drawback or refund rights relating to the goods, including rights developed by substitution and rights that Seller acquires from its suppliers. Seller shall promptly inform Buyer of each such right and, upon Buyer’s request, shall promptly provide to Buyer all documents and information that are required for Buyer to obtain each such drawback and refund. Seller at all times shall maintain, and shall cause each of Seller’s suppliers and logistics providers to maintain, at each facility where the goods are manufactured or located, strict security measures that are reasonably calculated to prevent acts of terrorism with respect to the goods.
- Inspection. Buyer’s employees or agents may at any time enter Seller’s premises to inspect and test the goods, Seller’s process of manufacturing of them and any materials, components or work-in-process that Seller will use in their manufacture.
- Blanket Order.If the order states that it is a blanket purchase order or blanket purchasing agreement, then, except to the extent otherwise expressly stated in the order, (a) Seller is obligated to deliver to or perform for Buyer all goods or services that Buyer orders or releases during the period or in accordance with any delivery or performance schedule specified in the order, (b) Buyer is not obligated to order, release or purchase from Seller any particular quantity or volume of goods or services, regardless of any estimates or projections of future purchases, and (c) Buyer may purchase any or all of the goods or services from others.
- Representations, Warranties and Agreements about Seller. Seller represents and warrants to Buyer, and agrees, that (a) Seller has all necessary experience, qualifications, expertise, authority, licenses and permits to enable it to perform its obligations under the Contract, (b) the Contract is the valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, (c) Seller is and, at the time of each order will be, solvent, (d) Seller has not offered or given, and shall not offer or give, any gratuity or thing of value to any employee of Buyer or of any affiliate of Buyer and (e) Seller is and shall continue to be in compliance with all equal employment and affirmative action provisions of Executive Order 11246, the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”), Section 503 of the Rehabilitation Act of 1973 and all implementing regulations under that Order, VEVRAA and Section 503.
- Representations, Warranties and Agreements about the Goods and Services. Seller represents and warrants to Buyer, and agrees, that (a) the goods shall be new, (b) the goods and services shall be merchantable, of good material, workmanship and quality, fit for the purposes for which Buyer intends them and free from faults and defects, (c) the goods and services shall conform to any samples, drawings, specifications, performance criteria standards or other requirements that are referred to in the order or that Buyer has otherwise specified or agreed to in writing, (d) the goods, their manufacture, packaging, labeling, branding and sale and the services shall comply with all applicable federal, state and local laws, regulations, standards and orders, including, without limitation, the Fair Labor Standards Act of 1938 and the Occupational Safety and Health Act of 1970, as amended, (e) the prices of the goods and services and any discounts, advertising allowances or other merchandising payments or services that the Contract requires Seller to provide to Buyer are as favorable to Buyer as the lowest prices and the highest discounts, advertising allowances or other merchandising payments or services that Seller provides to other buyers of comparable goods or services, (f) Seller shall promptly furnish to Buyer all information and copies of documents (including, but not limited to, complaints, inquiries, test or inspection results and warnings) that Seller receives from an end-user of the goods, a government agency, an employee or agent of Seller or any other person or source and that suggests or indicates that the goods may not conform to the requirements of this paragraph, and (g) Seller has and follows, and will continue to have and follow, adequate quality and security procedures that will assure that the goods and services will comply with the foregoing warranties, representations and agreements. If Buyer requests it, then Seller shall give Buyer certificates of compliance with applicable laws and regulations. Buyer’s approval of a sample, drawing, specification or standard shall not relieve Seller of any of its warranties under this paragraph, including, without limitation, its warranties of merchantability, fitness and compliance with laws. Seller’s warranties extend to future performance of the goods and services and survive inspection, tests, acceptance and payment and shall be considered to have been given not only to Buyer but also to Buyer’s customers and to end-users of the goods. Acceptance or any use of the goods shipped to Buyer or Buyer’s customer hereunder shall not affect Seller’s obligation under the above warranties.
- Indemnity.Seller shall indemnify and hold Buyer and its directors, officers and employees (“representatives”) harmless (and defend Buyer and its representatives if it requests) as to any claims, liabilities, losses, damages and expenses (including, without limitation, attorneys’ fees and other legal expenses) brought against or incurred by Buyer or its representatives because of (a) any breach by Seller of any of its warranties to, or agreements with, Buyer, (b) any claim that any of the goods or services infringes any patent, trademark, copyright or other intellectual property right, anywhere in the world or (c) any death, injury or damage to any person or property alleged to have been caused by the goods or services or by Seller’s manufacture of the goods or performance of the services.
- Changes.Buyer may at any time, by written notice to Seller, change the order or the Contract as to (a) specifications for the goods or services, (b) time or place of delivery or performance, (c) method of packing or shipment or (d) quantity of the goods or extent of the services. If this causes a change in Seller’s cost or time of performance, then an equitable adjustment shall be made in the price or time for delivery or performance, or both, if Seller gives Buyer a written request for an adjustment within 20 days after Buyer notifies Seller of the change.
- Termination at Buyer’s Option. Buyer may terminate the order or the Contract, in whole or in part, at any time by written notice to Seller stating the extent and effective date of termination. When Seller receives notice of termination under the preceding sentence or under Paragraph 4, Seller shall, unless otherwise directed by Buyer, stop work and acquisition of materials under the Contract and protect property in Seller’s possession in which Buyer has or may acquire an interest. Not later than 30 days after the effective date of termination, Seller may submit to Buyer its claim, if any, for reasonable compensation for termination. Buyer shall have the right to audit and inspect Seller’s books, records and other documents that relate to the termination claim. If the parties cannot agree within a reasonable time upon the amount of fair compensation for the termination, then Buyer will pay to Seller, without duplication, (a) the Contract price for conforming goods or services that Seller shall have completed and delivered or performed (as applicable) in accordance with the provisions of the Contract and that Buyer shall not have paid for and (b) the actual costs that Seller incurs and that are properly allocable or apportionable under recognized commercial accounting practices to the terminated portion of the Contract, but not to exceed the Contract price for the terminated portion of the Contract, less (i) any payments that Buyer made and (ii) the value to Seller of any raw materials, work-in-process and finished goods that Seller retains and that are allocable to the terminated portion of the Contract under such practices. Buyer will pay these amounts after Seller delivers to Buyer any completed goods. If Buyer shall have made payments of the purchase price to Seller that in the aggregate exceed the total amounts payable by Buyer to Seller under the preceding provisions, then Seller shall promptly refund the excess to Buyer. Termination under this paragraph shall terminate only Seller’s obligation and right to deliver goods or provide services under any provision of the Contract other than this paragraph and shall not terminate or impair Seller’s other obligations, or any of Buyer’s rights, under the Contract.
- Insecurity and Adequate Assurance. If Buyer ever believes in good faith that it has grounds for insecurity as to Seller’s performance, then Seller shall provide adequate assurance of due performance within 10 days after Buyer demands the assurance, which shall be considered to be a reasonable time. Seller’s failure to do so shall be considered to be a repudiation by Seller of the Contract and of all other then-existing contracts that provide for Seller to sell goods and/or services to Buyer (“Outstanding Contracts”). “Grounds for insecurity” include (a) Seller’s failure to perform an obligation under the Contract or an Outstanding Contract, (b) Seller’s insolvency, (c) a deterioration in Seller’s financial condition after the Contract was entered into and (d) Seller’s failure to provide financial statements and other financial information to Buyer promptly upon Buyer’s request.
- Buyer’s Remedies. Without limiting other rights and remedies available to it, Buyer may, at its option, (a) return goods, for any reason whatsoever, to Seller within one hundred twenty (120) days of receipt, and require Seller to give Buyer full credit against the price subject to a restocking charge not to exceed five percent (5%) of the cost of the returned goods, (b) return nonconforming or excess goods to Seller, at Seller’s risk and expense, and require Seller either to give Buyer full credit against the price or promptly to repair or replace the goods at Seller’s risk and expense, (c) retain nonconforming or excess goods and set off losses against any amount that Buyer owes Seller, or (d) repair or replace nonconforming goods and charge Seller with the expense. If at any time (i) Seller defaults in the performance of any of Seller’s obligations to Buyer under the Contract or under any other agreement between Seller and Buyer, (ii) Seller repudiates the Contract or (iii) a warranty or representation that Seller made to Buyer in or in connection with the Contract is false or misleading in a material respect, then Buyer may terminate the Contract, in whole or part, without liability to Seller, and Seller shall promptly pay to Buyer all damages that Buyer incurred as a result of the termination and as a result of the event or circumstance on the basis of which Buyer terminated. If Buyer does terminate the Contract, then Seller, if and to the extent that Buyer demands, shall immediately deliver to Buyer all finished and unfinished goods and all work-in-process and raw materials that Seller acquired for use in the manufacture or processing of the goods and all designs, drawings, specifications and software that Buyer is purchasing from Seller under the Contract, including all work-in-process, all source, object and pseudo codes, all preexisting programs intended to be incorporated in the software and all intellectual property rights in the foregoing. Buyer’s payment of part or all of the purchase price shall not be a precondition to Seller’s obligation to make the delivery. After Seller has made the delivery and Buyer has determined its damages (including, without limitation, any cost of “cover” or of completing the manufacture or processing of the goods), then Buyer will pay to Seller any excess of (x) any unpaid part of the purchase price properly allocable to any conforming goods, work-in-process and raw materials that Seller delivered to Buyer over (y) Buyer’s damages. Buyer’s termination under this paragraph shall terminate only Seller’s obligation and right to deliver goods or provide services other than as this paragraph requires and shall not terminate or impair Seller’s other obligations, or any of Buyer’s rights, under the Contract. In addition to Buyer’s rights described in these Terms of Purchase, Buyer has all of the other rights and remedies that the law gives to buyers, including the right to recover incidental and consequential damages that result from Seller’s breach. Buyer shall not lose any right just because it does not exercise it. Buyer shall have the full statutory period of limitations to bring any action that arises out of Buyer’s agreement with Seller. A reasonable time for Buyer to notify Seller of any breach is not less than two years from when Buyer discovers the breach.
- Buyer’s Property. Any designs, drawings, specifications, methods of manufacture, intellectual property, documents and other information and any tooling, equipment or other property that Buyer furnishes to, or acquires from, Seller in connection with Seller’s manufacture of the goods or performance of the services (“Buyer Property”) are and shall at all times be Buyer’s sole and exclusive property. Seller shall (a) maintain the Buyer Property in good condition, (b) mark the Buyer Property “PROPERTY OF KENDALL ELECTRIC, INC.” or the applicable Buyer party to the Contract, (c) not commingle the Buyer Property with property of Seller or third parties, (d) allow Buyer to inspect and examine the Buyer Property at any time and (e) return the Buyer Property to Buyer upon its request.
- Government Contracts. If Buyer will use the goods or services covered by the order in connection with a contract with the United States or other government, then all terms and conditions that the government contract or any law or regulation requires to be included in any contract formed pursuant to the order (“Government Terms”) are incorporated in the order by reference. If a provision of the order is inconsistent with a Government Term, then the Government Term shall control. As to material contained in an order, which is for delivery under Government contracts, if any corresponding order from Buyer’s customer is terminated in whole or in part, Seller shall accept termination of that portion of the order upon notice from Buyer. Settlement shall be made pursuant to the provisions of the United States Government’s standard termination clauses then in force.
- Insurance. Seller shall maintain insurance coverage that will fully protect both Seller and Buyer from all claims and liabilities of any kind or nature for property damage, personal injury, death and economic damage, to any person, that arises from the goods or their use or the performance of the services or any activities connected with the services. Seller shall maintain employee’s liability and compensation insurance that will protect Buyer from any and all claims and liabilities that Seller or any employee or agent of Seller makes under any applicable worker’s compensation or occupational disease acts. All insurance that this paragraph requires shall be in amounts and coverages, and shall be issued by insurers, that are satisfactory to Buyer. Upon Buyer’s request at any time, Seller shall furnish to Buyer certificates evidencing required insurance.
- Prepayment. If Buyer pays any part of the purchase price of the goods before Seller delivers them to Buyer, then (a) title (but not risk of loss) to each item of the goods shall pass to Buyer upon identification of the item to the Contract, (b) to the extent necessary to protect Buyer’s title to the goods, Seller grants Buyer a security interest in the goods to secure Seller’s obligation to deliver them to Buyer and all of Seller’s other present and future obligations to Buyer and (c) Seller shall obtain from each person that holds a security interest in or lien upon the goods a written agreement releasing that security interest or lien or subordinating it to Buyer’s interest in the goods.
- Work on Premises. If Seller’s performance of services or delivery or installation of goods involves activity by its employees or subcontractors on Buyer’s premises or the premises of a customer of Buyer, then (a) Seller shall at all times enforce strict discipline and maintain good order among all persons engaged in the activity on the premises and shall cause them to comply with all fire prevention and safety rules and regulations in force at the premises and (b) Seller shall keep the premises free from accumulation of waste materials and rubbish that its employees or subcontractors cause and upon completion shall promptly remove all of Seller’s equipment and surplus materials.
- Services. If the order covers services, then (a) Seller is an independent contractor, and neither Seller nor any of Seller’s employees or agents shall be considered agents or employees of Buyer, and (b) Seller shall furnish, at Seller’s expense, all labor, materials, equipment, transportation, facilities and other items that are necessary to perform the services.
- Confidentiality and Non-Use. Seller shall not sell or offer to sell or otherwise provide to anyone other than Buyer any goods made in accordance with any drawings, designs or specifications that Buyer furnishes to Seller or that incorporate, embody or are made in accordance with any of Buyer’s intellectual property. Seller shall maintain the confidentiality of, and shall not disclose or use or permit to be disclosed or used or to be viewed by any third party (including any of Seller’s suppliers), the goods, any designs of or specifications for the goods, any Buyer Property or any information concerning Buyer’s business, operations or activities, including, without limitation, information concerning Buyer’s present or proposed products, product developments, plans, strategies, finances, know-how, sales, customers and marketing or sales techniques (“Confidential Information”), except that Seller may disclose Confidential Information to a third party (other than a competitor of Buyer or a subsidiary or affiliate of a competitor) to the extent disclosure is necessary in order for Seller to perform its obligations under the Contract. If Seller breaches or threatens to breach this paragraph or Paragraph 16, then Buyer’s remedies at law will be inadequate. Therefore Buyer shall have the right of specific performance or injunctive relief, or both, in addition to any and all other remedies and rights at law or in equity, and Buyer’s rights and remedies shall be cumulative.
- Intellectual Property. All inventions (whether or not patentable), devices, technologies, ideas, improvements, processes, systems, trademarks, trade names, trade dress, service marks, names, software and other works and matters that Seller creates or develops in the course of Seller’s performance of the services or Seller’s design or development of the goods for Buyer, including all proprietary rights in the foregoing (“Intellectual Property”) shall be Buyer’s sole property, and Seller assigns, and agrees to assign, to Buyer all right, title and interest that Seller now has or in the future acquires in the Intellectual Property. All copyrightable works that Seller creates or develops in the course of Seller’s performance of the services or Seller’s design or development of the goods for Buyer shall be considered “works made for hire” within the meaning of the federal Copyright Act of 1976, as amended, and under the equivalent laws of any other country. To the extent that any such copyrightable work is not considered a “work made for hire,” it shall be the sole property of Buyer, and Seller assigns, and agrees to assign, to Buyer all right, title and interest that Seller now has or in the future acquires in it and in all copyright rights in it. Seller shall sign and deliver to Buyer all assignments and other documents, and Seller shall take all other actions, that Buyer requests for the purpose of perfecting Buyer’s ownership of and title to the Intellectual Property and in any copyrightable work that is not considered a “work made for hire” and in all copyright rights in it. If the goods or their design are subject to any pre-existing patent rights or other proprietary rights that Seller holds, then Seller grants to Buyer an irrevocable, non-exclusive, royalty-free license of the patent rights and other proprietary rights to the extent necessary to enable Buyer to modify, repair or rebuild any or all of the goods. This license is in addition to all licenses impliedly granted to Buyer as a purchaser of the goods. Seller shall not use Buyer’s name or any trademark, trade name, service mark or trade dress that Buyer owns or that is licensed to Buyer or to any affiliate of Buyer, without Buyer’s express, written consent, and Seller shall not sell to anyone other than Buyer any goods bearing any such trademark, trade name, service mark or trade dress.
- Governmental Declaration. If a governmental agency declares that any material included in any of the goods is unsafe or unfit for the intended use of the goods, then, without limiting other rights and remedies that are available to Buyer under these Terms of Purchase or applicable law, (a) Seller shall give Buyer written notice of any such declaration and shall furnish to Buyer copies of the declaration and of all relevant notices, documents and correspondence, (b) Seller shall stop including the material in the goods, (c) Buyer may terminate the order or the Contract, without liability to Seller, by giving written notice to Seller, which shall be effective immediately or on any later date that the notice specifies, (d) if Buyer does terminate, then Buyer’s obligations under the Contract shall terminate immediately and Buyer shall not be obligated to pay Seller damages or other compensation by reason of the termination, (e) without limiting other remedies that Buyer may exercise, Buyer shall have the right to recall (i.e. purchase or repurchase) any or all of the goods from its customers and end-users and any others having possession of the goods, and Seller shall reimburse Buyer for all costs that Buyer incurs in doing so and shall assist Buyer in the recall, to the extent that Buyer requires Seller to do so, (f) if Seller demonstrates to Buyer’s satisfaction that there is a safe and fit substitute material that conforms to all of the requirements of the Contract and that Seller can and will use the substitute in the goods, then Buyer shall have the right, but no obligation, in Buyer’s sole discretion, to reinstate the Contract and to require Seller to perform in accordance with the Contract, except that Seller shall use the substitute material, and (g) whether or not Buyer terminates and/or reinstates the Contract, Seller shall pay to Buyer an amount equal to all damages that Buyer incurs by reason of the declaration by the governmental agency and any resulting recall or delay in performance and/or any termination of the Contract by Buyer.
- Other Terms. Seller shall not have and waives any security interest in or lien (including any statutory or common law lien) upon any Buyer Property or the goods. Seller may not delegate or subcontract any of its obligations under the order or the Contract without Buyer’s written consent. Buyer may deduct, recoup and set off any amounts that Buyer at any time owes to Seller under the Contract from and against any damages or other amounts that Seller then owes to Buyer, whether under the Contract or otherwise and whether or not Seller shall have assigned to another (“Assignee”) its rights to receive amounts that Buyer is required to pay under the Contract. All such rights of an Assignee shall be subject to all of the terms of the Contract and to all claims and defenses that Buyer at any time has against Seller, whether arising under the Contract or otherwise. Buyer shall continue to have all of its rights under the Contract even if it does not fully and promptly exercise them on all occasions. Buyer’s failure to exercise, or Buyer’s waiver of, a right or remedy on one occasion is not a waiver of that right or remedy with respect to any future occasion.
- Applicable Law.The order and the Contract shall be governed by, and interpreted according to, Michigan law, excluding the United Nations Convention on Contracts for the International Sale of Goods. Any state or federal court in Kalamazoo County, Michigan, may handle any action based upon or arising out of the order or the Contract, and Seller irrevocably consents that the court shall have personal jurisdiction over Seller and waives any objection that the court is an inconvenient forum.
- Complete Agreement. Seller has not made any promises or representations to Buyer, and Buyer has not made any to Seller, that are not in the order. A change in, or waiver of, a provision of these Terms of Purchase or the order must be contained in a writing signed by Buyer.
Terms and Conditions of Sale
1.1. General. These terms and conditions of sale (the “Terms and Conditions”) shall exclusively govern the provision of Products and Services by Kendall Electric, Inc., which does business as The Kendall Group, Kendall Electric, Kendall Lighting Center, Great Lakes Automation Supply, Galloup, Merlo Energy, Forberg Smith, Forberg Smith Process Solutions, Rumsey, Rumsey Electric, and Relay & Power Systems (“Company”) to the buyer named on Company’s quote, acknowledgment or invoice (“Customer”). Company and Customer are each a “Party” and collectively “Parties” under these Terms and Conditions. Company will provide certain goods, items or equipment (“Products”) or professional, engineering, consulting, or maintenance services (the “Services”), each as may be further described on a quote, proposal, statement of work, acknowledgement, work order, or similar document issued by Company (each, an “Order”). Company’s acceptance of Customer’s purchase order is subject to Customer’s acceptance of these Terms and Conditions, and Customer’s acceptance of an Order, issuance of a purchase order, and/or Company’s receipt of full or partial payment for Services or Products ordered from Company shall constitute Customer’s unconditional acceptance of these Terms and Conditions. Company hereby expressly objects to and rejects any other terms and conditions as may be proposed on any transaction document supplied by Customer.
1.2. Conflict and Amendment. Each Order will be exclusively governed by these Terms and Conditions. If there is any conflict or inconsistency between these Terms and Conditions and any Order, these Terms and Conditions will control, except with respect to terms regarding payment and delivery. No addition or modification to these Terms and Conditions shall be binding unless agreed to in writing and signed by an authorized representative of each Party. If Company and Customer conduct electronic transactions, whether by a portal, electronic data interchange, .xml, or otherwise, Customer agrees that (a) these Terms and Conditions are incorporated into and exclusively govern each and every such transaction; (b) any click-through terms and conditions or terms and conditions otherwise incorporated by reference in any Customer portal, electronic data interchange, or otherwise are hereby rejected by the Parties and shall have no effect; (c) Customer shall not contest any contract of sale resulting from an electronic transaction under the provisions of any law relating to whether agreements must be in writing or signed by the party to be bound thereby; and (d) Customer shall not contest the admissibility of copies of electronic records under the business records exception to the hearsay rule, the best evidence rule or any other similar rule, on the basis that such records were not originated or maintained in documentary form.
- TERM AND TERMINATION; CANCELLATION.
2.1. Term for Each Order. Each Order shall remain in effect until: (a) it is terminated or cancelled as provided in these Terms and Conditions; (b) it has expired on its own terms; or (c) the Order has been fulfilled.
2.2. Termination. Either Party may terminate any Order immediately upon written notice to the other Party if the other Party:
2.2.1. Fails to perform any of its material obligations under these Terms and Conditions (including, but not limited to, Section 3), and fails to correct such failure within twenty (20) days after receipt of written notice. Customer will pay Company for all Services completed and Orders delivered prior to the termination date.
2.2.2. Stops conducting business in the normal course, admits its insolvency, makes an assignment for the benefit of creditors or becomes the subject of any judicial or administrative proceeding in bankruptcy, receivership or reorganization and the proceeding is not dismissed within ninety (90) days after it begins.
2.3. Cancellation. Company reserves the right to cancel any Order prior to shipment for causes beyond the reasonable control of Company without liability to Customer for such cancellation. Except as set forth in Sections 2.2 and 4.1, Customer does not have any right to cancel its agreement to buy the Products or Services from Company. If, however, Company agrees in writing to permit cancellation, such cancellation may be subject to restocking fees. If Customer fails to pay any indebtedness Customer owes to Company, then Company may consider Customer’s failure to be an anticipatory repudiation of any or all outstanding contracts for the purchase of Products or Services, and Company may, without liability to Customer, cancel any or all of those outstanding contracts.
- PRICE AND PAYMENT.
3.1. Fees. Customer will pay Company the amount set forth in the applicable invoice for the Products and Services. Written quotes and proposals are valid for thirty (30) days, unless otherwise stated on the Order. For Services, unless otherwise provided on the applicable Order, Customer will pay the fees on a time-and-material basis based on Company’s then-current rates and charges for the Services. Any estimate provided by Company is not a guarantee and may be decreased or increased to reflect actual hours expended by Company.
3.2. Expenses. Customer will reimburse Company for all reasonable, pre-approved out-of-pocket expenses, including travel and lodging expenses, incurred by Company in connection with the performance of Services.
3.3. Invoices. Unless otherwise set forth in the Order, all invoices shall be paid within thirty (30) days of issuance. If the invoice is not paid in full by the due date, Customer agrees to pay a late payment charge at the rate of one and one-half percent (1-1/2%) per month, or the maximum late payment charge permitted by applicable law, whichever is less, on any unpaid amount. Company may apply any payment received to any delinquent amount outstanding.
3.4. Taxes. Company’s rates and charges do not include any amounts for taxes. Customer will pay all applicable taxes levied by any tax authority based on the Services performed and Products purchased from Company, excluding any taxes based upon Company’s income.
- DELIVERY AND INSPECTION; ONSITE SERVICES
4.1. Delivery and Risk of Loss. Unless Company otherwise agrees in writing, Company shall deliver Products FCA (Incoterms 2020) Company’s facilities, or the point of origin if the Products are shipped directly to Customer from a third party. Risk of loss shall pass to Customer upon delivery of goods to carrier. While dates for shipment, delivery, or performance are estimates only, Company shall make commercially reasonable efforts to meet the dates set forth in the Order. If delivery or performance is delayed by Company for thirty (30) days beyond the original date provided by Company, through no fault of Customer, Customer shall have the right to terminate such outstanding Order without further liability, excluding the price of any Products already delivered and any direct costs actually incurred by Company for Services performed prior to the date of termination.
4.2. Onsite Services. When onsite at Customer’s premise, Company will use all reasonable efforts to comply with Customer’s internal policies, procedures and rules provided to Company in writing, including, those relating to environmental protection, health, safety, work and security.
4.3. Acceptance. Claims for any nonconforming Products or Services must be made by Customer, in writing, within three (3) days of delivery of Product to Customer or ten (10) days after the completion of the Services, after which time Customer will be deemed to have accepted such Products or Services. Customer’s acceptance under this Section 4.3 shall not waive Customer’s rights under any warranty for defective Products or Services set forth in Section 6.
- Product Safety and Permits. Customer is solely responsible for verifying Products conform to Customer’s plans and specifications and are fit for Customer’s intended use. Customer shall comply with any applicable local, state, or national codes, rules, regulations, and laws for approved Product installation and operation. Customer is responsible for obtaining any permits or licensing required for the installation and operation of Products and shall install and operate the Products properly and in accordance with the Products’ operating instructions, if any. Customer shall not remove or change any safety device, warning or operating instructions placed on the Products.
6.1. Products Manufactured by Company. Company warrants that any Products manufactured by Company (as specified in the Order) will be free from defects in material or workmanship under normal and intended use and service for a period of one year from the date of delivery. If a Product manufactured by Company proves to be defective within one year of delivery, then Company shall, at its option, (i) repair or replace the Product at Company’s expense; (ii) permit Customer to repair the Product and reimburse Customer for its direct costs in correcting the defect; or (iii) credit to Customer the price that Customer paid to Company for the defective Product. Products shall not be considered defective to the extent they (a) conform with drawings or specifications provided by Customer; or (b) were damaged due to inappropriate storage, use, or installation by Customer. Company will not pay for Customer’s labor costs or charges in correcting defects nor will Company accept any returned Products for credit unless Company has provided advance written authorization. Company shall have the option of requiring the return of the defective Products, transportation prepaid, and proof that the Products were not used, installed, or altered or subject to misuse or abuse to establish the claim. Returned Products are subject to freight, handling, and restocking charges. If Company determines that a Product is not defective, it may be returned to Customer at Customer’s expense. This Section sets forth Customer’s sole and exclusive remedy for any defect in the Products manufactured by Company. Customer will notify Company in writing of any breach of this warranty within one year after Product delivery.
6.2. Services Performed by Company. Company warrants that any Services performed by Company (as specified in the Order) will be performed in a workmanlike manner. If a Service performed by Company proves to be defective (as defined below) within thirty (30) days after Company performs the Service, then Company shall, at its option, either re-perform the Service at Company’s expense, or refund to Customer the price that Customer paid to Company for that part of the Service that was defective. A Service shall be considered “defective” if it is found by Company to have failed to meet the standards in Company’s industry and if that failure materially impairs the value of the Service to Customer, except that if Customer furnished to Company specifications for the Service, then the Service shall not be considered defective to the extent it conforms to the specifications. This Section sets forth Customer’s sole and exclusive remedy for any defect in Services provided by Company. Customer will notify Company in writing of any breach of this warranty within thirty (30) days after completion of the Services.
6.3. Pass-Through Warranties. Company does not design, manufacture, alter, modify, test, inspect, package or provide labeling, instructions, or warnings for the Products it distributes, nor does Company actually perform the Services it sells, unless otherwise specified in the Order that Company is performing the Services or manufacturing the Products. To the extent transferrable, Company hereby assigns all rights it may have arising out of the warranties given to it by any manufacturer of Products or performer of Services purchased by Company and resold to Customer, and Customer will look solely to such warranty in the event of a claim or action relating to such Products. Company will use all reasonable efforts to assist Customer in making any valid warranty claim to the manufacturer of any Products or performer of Services purchased by Customer from Company. Customer is solely responsible for determining the proper application and use of any Products as well as the actual installation and/or connection of any such Products.
6.4. Disclaimer. The only warranties applicable to any Products or Services provided under an Order are the warranties specified in this Section 6 and the warranties (if any) provided to Customer from the manufacturer of the Products and the performer of the Services resold to Customer by Company, and assigned to Customer under this Section 6. EXCEPT AS TO THOSE WARRANTIES PROVIDED IN THIS SECTION 6, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE AS TO THE PRODUCTS AND SERVICES PROVIDED UNDER THESE TERMS AND CONDITIONS.
7.1. General. Each party shall indemnify and hold harmless (and defend, if the indemnified party requests), the other party and its affiliates, officers, directors, employees, and agents from and against all direct liability, loss, damage, claims, actions, and expenses (including reasonable attorneys’ fees) arising from third-party claims, to the extent caused by the indemnifying party’s gross negligence or willful omissions resulting in property damage or personal injury, including death.
7.2. Custom Products and Services. If Customer has hired Company to provide custom Products or Services, Customer shall indemnify and hold harmless (and defend, if Company requests), Company and its affiliates, officers, directors, employees, and agents from and against all liability, loss, damage, claims, actions, and expenses (including reasonable attorneys’ fees) that Company incurs as a result of infringement of the proprietary rights of a third party or any other claim resulting from the manufacture or sale of Products or performance of Services by Company according to Customer’s specifications.
7.3 Exceptions. Notwithstanding the foregoing, neither party shall be required to indemnify the other party to the extent that such claims or damages are caused by the indemnified party’s negligence or breach of these Terms and Conditions.
- LimitationS. NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF CAPITAL, PRODUCT, PROFITS, USE, OR DATA. EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTION 7.2, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY SHALL IN NO EVENT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO COMPANY FOR THE PRODUCTS OR SERVICES GIVING RISE TO THE CLAIM. ANY ACTION BY EITHER PARTY MUST BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. THESE DISCLAIMERS AND LIMITATIONS WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), INDEMNITY, OR OTHERWISE. THIS SECTION IS NOT INTENDED TO LIMIT OR EXCLUDE A PARTY’S LIABILITY FOR ANY MATTER WHICH LIABILITY CANNOT BE LIMITED OR EXCLUDED BY LAW.
- CONFIDENTIALITY. “Confidential Information” means and includes information regarding either party’s business, operations or activities that is not publicly available and that is: (a) first disclosed in written, electronic, photographic or other tangible form and conspicuously marked “Confidential” or “Proprietary” or the like; or (b) first disclosed in non-tangible form and orally identified as confidential or proprietary at the time of disclosure and is summarized in tangible form and conspicuously marked “Confidential” or “Proprietary” or the like within thirty (30) days of the disclosure. Each party agrees that it will not use or disclose to any third-party any Confidential Information of the other party for any reason, except to its employees and agents who require such knowledge to assist them in the performance of their obligations under an Order or these Terms and Conditions. Each party will take all necessary action to ensure that its employees and agents comply with the confidentiality provisions of this Section 9. Each party agrees to protect the Confidential Information of the other party in the same manner it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care. Upon termination or expiration of any Order, each party shall, upon request, return or destroy all Confidential Information of the other party in its possession or control.
10.1. Ownership by Customer. All information supplied or otherwise made available by Customer to Company under these Terms and Conditions, including custom specifications provided by Customer (“Customer Materials”) shall be and remain the sole property of Customer.
10.2. Ownership by Company. Except as it relates to any Customer Materials, all information, materials, concepts, designs, ideas, inventions, developments, trade secrets, and other work produced or advice given by Company, solely or jointly with others, relating to any deliverables provided under an Order shall belong solely to Company.
11.1. Independent Contractor. Company is an independent contractor and nothing in these Terms and Conditions will be deemed to make Company an agent, employee or joint venturer of Customer.
11.2 Government Contracts. Application of any government contract regulations and clauses to an Order is contingent upon the separate review and express written consent by an authorized representative of Company. In absence of such consent, Company hereby objects to and rejects all such terms and conditions. Products sold hereunder are not intended to be used, nor should they be used, in any nuclear-related application.
11.3. Export. Customer is responsible for complying with all applicable laws and regulations for any Products it exports.
11.4. Force Majeure. Neither party will be liable to the other party for any delay or failure to perform its obligations (excluding payment obligations, which may only be delayed but not excused entirely) if such delay or failure arises from any cause beyond the reasonable control of that party.
11.5. Recovery. In the event of any legal proceeding between the parties relating to these Terms and Conditions or an Order, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs from the non-prevailing party.
11.6. Assignment. The agreement evidenced hereby may not be assigned or delegated by Customer without the prior written consent of Company, which shall not be unreasonably withheld, conditioned or delayed.
11.7. Waiver. No provision of these Terms and Conditions will be deemed waived unless such waiver is in writing and signed by the party providing the waiver. Any such waiver provided will not constitute a waiver of any different or subsequent breach.
11.8. Severability. If any provision of these Terms and Conditions is prohibited or unenforceable by applicable law, the provision will be ineffective only to the extent and for the duration of the prohibition or unenforceability, without invalidating any of the remaining provisions.
11.9. Entire Agreement. The Order and these Terms and Conditions represent the entire agreement between Company and Customer with respect to any Products and Services sold to Customer by Company. All prior agreements, representations, statements, negotiations, and undertakings, whether oral or written, are hereby superseded.
11.10. Governing Law. The agreement evidenced hereby and all disputes arising thereunder will be governed by and interpreted in accordance with the laws of the State of Michigan, excluding the United Nations Convention on Contracts for the International Sale of Goods, without regard to conflict of laws principals. Any action by either party must be brought within the state or federal courts in the State of Michigan. The parties consent to the exclusive jurisdiction of such courts and waive any objection that the court is an inconvenient forum.
Terms and Conditions of Website
Thank you for visiting our website (the “Site”). This Site is owned and operated by Company (“Company”, “our”, “we”, or “us”). All content, information, applications, and services provided on and through the Site may be used only under the following terms and conditions, as they are amended from time to time (the “Terms”). You should carefully read these Terms. Your access to and use of this Site, its content, information, applications, or services, is governed by these Terms, which are a legally binding contract between you and us. In addition, when using a particular service, and/or accessing certain materials on or through this Site, you will be subject to any posted terms, conditions, and rules applicable to the service and/or materials, which are incorporated into these Terms and govern any conflict or inconsistency with these Terms.
IF YOU DO NOT UNDERSTAND OR ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THESE TERMS YOU MUST DISCONTINUE YOUR USE OF THE SITE.
Permitted Use. Subject to these Terms, Company grants you permission to temporarily download one copy of the materials (information or software) on the Site for your personal, non-commercial transitory viewing only. This is the grant of a license only, not a transfer of title, and under this license you may not: modify or copy the materials; use the materials for any commercial purpose, or for any public display (commercial or non-commercial); attempt to decompile or reverse engineer any software contained on the Site; remove any copyright or other proprietary notations from the materials; or transfer the materials to another person or “mirror” the materials on any other server. In these Terms, all references to the “Site” shall be deemed to include all “software,” “materials,” and “services,” unless otherwise expressly indicated. All rights not expressly granted by Company to you are retained by Company, and you may not use the Site and/or any element of the Site in any manner or for any purpose not expressly authorized by these Terms. The rights granted to you do not include, and are not applicable to, the design or layout of the Site, which are protected by trade dress and other laws and may not be copied or imitated in whole or in part.
This license shall automatically terminate if you violate any of these restrictions and may be terminated by Company at any time. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.
Intellectual Property Rights
Copyright. The Site design, text, content, selection and arrangement of elements, organization, graphics, compilation, magnetic translation, digital conversion, and other matters related to the Site are protected under applicable copyright laws, ALL RIGHTS RESERVED. The posting of any such elements on the Site does not constitute a waiver of any right in such elements. You do not acquire ownership rights to any such elements viewed through the Site. Except as otherwise provided herein, none of these elements may be used, copied, reproduced, downloaded, posted, displayed, transmitted, modified, or distributed in any form or by any means, including, without limitation, electronic, mechanical, photocopying, recording, or otherwise, without Company’ prior written permission.
Trademarks. Company, all company names, and all other trademarks and logos, unless otherwise noted, are trademarks of Company, or its affiliates or other companies under common ownership or control or their licensors (the “Marks”). The use or misuse of any Marks or any other materials contained on the Site, without the prior written permission of their owner, is expressly prohibited.
DISCLAIMER OF WARRANTIES. THE SITE, INCLUDING ALL SERVICES, INFORMATION AND OTHER CONTENT AVAILABLE ON AND/OR THROUGH THIS SITE, IS PROVIDED BY COMPANY “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CONTINUED AVAILABILITY, QUALITY, ACCURACY AND/OR SYSTEM COMPATIBILITY. IN ADDITION, NO WARRANTIES SHALL ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. BY USING THIS SITE, YOU ASSUME ALL OF THE RISKS ASSOCIATED WITH SUCH USE, AND YOU EXPRESSLY RELEASE COMPANY, ITS AFFILIATES, ITS DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES, AND ITS THIRD PARTY INFORMATION AND SERVICE PROVIDERS (COLLECTIVELY, THE “COMPANY RELEASED PARTIES”), FROM ANY AND ALL LIABILITY, CLAIMS AND/OR LOSSES ARISING FROM OR CONNECTED WITH SUCH RISKS OR YOUR USE OF THE SITE.
YOU ACKNOWLEDGE THAT: THE SITE COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS; THE SITE MAY BECOME INOPERABLE OR OTHERWISE UNAVAILABLE FOR PERIODS OF TIME; MATERIALS AND/OR SERVICES AT THE SITE MAY BE OR BECOME OUT OF DATE AND COMPANY MAKES NO COMMITMENT TO UPDATE SUCH SERVICES. COMPANY ASSUMES NO RESPONSIBILITY FOR ERRORS OR OMISSIONS IN THE INFORMATION, DOCUMENTS, MATERIALS AND/OR SERVICES WHICH ARE REFERENCED BY OR LINKED TO THIS SITE. ALL REFERENCES TO THIRD PARTIES, THEIR SERVICES AND PRODUCTS, ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.
LIMITATION OF LIABILITY. REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, IN NO EVENT SHALL THE COMPANY RELEASED PARTIES BE LIABLE OR RESPONSIBLE TO YOU IN ASSOCIATION WITH THE SITE, OR YOUR USE THEREOF, FOR ANY: (A) INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF IT IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) LOST PROFITS, LOST REVENUE, LOSS OF DATA, LOST EXPECTANCY OR BUSINESS INTERRUPTIONS. ANY CLAIM RELATED TO THE SITE MUST BE INITIATED WITHIN ONE (1) YEAR OF THE DATE OF THE EVENT THAT GAVE RISE TO THE CLAIM.
THE COMPANY RELEASED PARTIES SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY DELAY OR FAILURE IN THE SITE, OR ANY COMPONENT THEREOF, OR YOUR ABILITY TO ACCESS OR USE THE SITE, RESULTING FROM CAUSES OUTSIDE OF THE DOWNTOWN MARKET’S CONTROL, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, ACCIDENTS, STRIKES, FIRES, WAR OR ACTS OF GOD.
Indemnity. You agree to indemnify and hold the Company Released Parties harmless from any alleged claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of this Site, your connection to this Site, your violation of these Terms or any other applicable policy. You are solely responsible for your actions when using this Site, including, but not limited to, costs incurred for Internet access.
Third Party Information. Please be aware that when you are on the Site, you could be directed to other sites that are beyond our control. Company is not responsible for the content of any linked site or any link contained in a linked site owned or controlled by a third party. Company reserves the right to terminate any link or linking program at any time. We provide such links only as a convenience to you, and we have not endorsed, tested or verified any information, programs, companies, or products on sites to which the Site links. If you decide to access any third party sites linked to this Site and/or provide any personally identifiable information to such, you do so subject to the terms and policies applicable to those sites and entirely at your own risk.
Access and Interference. You agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy the web pages or other content on the Site, or use the content for any other unauthorized purpose without our prior expressed written permission. You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the software and hardware infrastructure relating to the Site.
Termination. Company may terminate your access to this Site at any time and for any reason without prior notification. Additionally, Company may modify this Site at any time, and continuing to use the Site constitutes your agreement to such modifications. We may also, in our sole discretion and at any time, with or without notice, discontinue this Site or any portion of it, restrict the time the Site is available, or restrict the amount of use permitted. You agree that we may terminate or restrict your access to this Site under these Terms or under any other applicable policy without prior notice. You agree that we will not be liable to you or any third party for any termination of your access to this Site. Provisions that survive termination of these Terms are those relating to intellectual property, ownership, limitations of liability, indemnification and others which by their nature are intended to survive.
Amendments. Company reserves the right to change these Terms and and/or any of its other terms, conditions, and rules relating to the Site, at any time in its sole discretion. We will notify you of such changes by posting the changes on the Site. You are responsible for regularly reviewing the Site and these Terms regarding such changes. Continued use of the Site after any such changes have been posted shall constitute your agreement to them.
Applicable Law, Severability and Waiver. In order to ensure consistency in the interpretation and enforcement of these Terms or Company’ rights in the Site, these Terms will be governed exclusively by the law of the State of Michigan and controlling U.S. federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. You expressly agree that any litigation or dispute arising between you and Company related, in any way, to the Site and/or these Terms, and/or any and all disputes, actions, claims, or causes of action related thereto, shall be initiated and maintained only in the U.S. District Court for the Western District of Michigan, and/or the Circuit Court of Kent County, Michigan. You expressly consent and irrevocably submit to the exclusive personal jurisdiction and venue of such courts.
If any provision of these Terms is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be modified to the extent necessary to be valid and enforceable, and all other provisions of these Terms shall remain in full force and effect.
Our failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. No waiver shall be implied from a failure of either party to exercise a right or remedy. In addition, no waiver of a party’s right or remedy will affect the other provisions of these Terms.
Assignment. You may not assign your rights and obligations under these Terms without our prior written consent.
Complaints and Violations. If you have any complaints or wish to report any violation of these Terms, please contact us at firstname.lastname@example.org.
Effective Date: June 25, 2015