ALLIED BLENDING L.P. (“AB-LP”) TERMS ON PURCHASE ORDER
1. Formation of Contract. The terms set forth in this Purchase Order are the sole terms for the purchase of seller goods and services by AB-LP, and shall apply to the exclusion of any inconsistent or additional terms contained in seller’s quotation, proposal or acknowledgment, or otherwise proposed by seller. Seller’s acceptance of these terms shall be conclusively presumed by seller’s shipment of the goods or performance of the services requested under this Purchase Order, or by seller’s return to AB-LP of an acknowledgment of this Purchase Order. Any contract made for the purchase of goods or services by AB-LP is expressly conditional on seller’s assent to the terms stated in this Purchase Order. Notification of objection to any additional or inconsistent terms is hereby given to seller.
2. Price. The price to be paid by AB-LP and stated on the attached shall not be increased unless specifically authorized in writing by issuance of a revised Purchase Order signed by AB-LP. In the absence of specific terms agreed upon among the parties, payment terms shall provide for a 3% discount if paid within 10 days or net 30 days.
3. Packing and Cartage. No charge for packing or cartage will be allowed except as stated on this Purchase Order. If AB-LP agrees to pay charges for cartage, as indicated on this Purchase Order, and, if seller’s acts or omissions result in seller’s failure to meet AB-LP’s delivery requirements and AB-LP requires a more expeditious method of transportation for the goods than the transportation method originally specified by AB-LP, seller shall ship the goods as expeditiously as possible at seller’s sole expense.
4. Taxes. No sales, use, excise or other taxes, whether federal, state or local, shall be added to the purchase price unless otherwise stated on the attached.
5. Delivery. Delivery shall be made in the quantities and at the times specified by AB-LP to seller. AB-LP may from time to time change delivery schedules. AB-LP shall not be liable for payment for goods delivered in excess of the quantities or after the times specified in AB-LP’s delivery instructions to seller. Unless otherwise stated on this Purchase Order, all shipments shall be F.O.B. AB-LP’s plant. Each delivery shall be accompanied by a packing slip with AB-LP’s contract number marked thereon.
6. Inspection. All goods and services described in this Purchase Order shall be subject to AB-LP’s inspection and approval. AB-LP reserves the right to reject any items not conforming to the terms of this Purchase Order. Any goods rejected shall be held for seller’s instruction at seller’s risk and if seller so directs, will be returned. All costs of returning nonconforming goods shall be at seller’s expense. Payment for goods shall not constitute acceptance. Acceptance of any goods shall not relieve seller from any of its obligations and warranties under this Purchase Order.
7. Changes. AB-LP reserves the right at any time to direct changes, or cause seller to make changes, to drawings and specifications of the goods or to otherwise change the scope of the work covered by this Purchase Order including work with respect to such matters as inspection, testing, or quality control, and seller agrees to promptly make such changes.
8. Warranty. Seller expressly warrants to AB-LP, its customers and assigns, that all the goods and services provided under this Purchase Order will conform to the specifications, drawings, samples, representations and other descriptions of the goods and services furnished or specified by AB-LP, or made by seller, will be of good material and workmanship, free from defects in material, design and workmanship, and that they will be merchantable and fit for the particular purposes of AB-LP. This warranty shall be in addition to any other warranty stated in this Purchase Order or available to AB-LP under applicable law.
9. Indemnification. SELLER AGREES TO INDEMNIFY AND HOLD AB-LP, ITS AGENTS AND EMPLOYEES, HARMLESS from and against any and all claims and causes of action brought against AB-LP and from any and all damages, losses, expenses, attorneys fees, costs and liabilities sustained by AB-LP arising out of any claimed defect in the goods and services supplied by seller and any claimed improper manufacture, design, design drawings, specifications, materials or repairs provided by seller pursuant to this Purchase Order.
10. Confidentiality of Furnished Information. Any technical information disclosed by AB-LP to seller is confidential and seller agrees not to use or disclose any such information without prior written consent of AB-LP.
11. Insurance. Seller shall maintain insurance coverage with carriers acceptable to AB-LP and in the amounts sufficient to reimburse AB-LP for all casualty losses relating to the goods.
12. Defective Goods/Services. If any of the goods and services fail to satisfy any warranty given by seller under this Purchase Order or otherwise imposed on seller by law, seller shall, upon notice from AB-LP, promptly correct or replace the goods and services at seller’s expense. If seller fails to promptly correct or replace the goods, or if seller breaches any other duty under this Purchase Order or applicable law, AB-LP may cancel the order for those goods and services and may cancel all or any part of the balance of the contract evidenced by this Purchase Order and seller shall promptly refund any payments made for the nonconforming goods.
13. Special Warnings and Instructions. Prior to and with the shipment of the goods, seller agrees to furnish to AB-LP sufficient warnings and notice in writing (including appropriate labels on the goods, containers and packaging) of any hazardous material that is an ingredient or a part of any of the goods, together with such special handling instructions as may be necessary to advise carriers, AB-LP, and their respective employees of how to exercise that measure of care and precaution that will best prevent bodily injury or property damage in the handling, transportation, processing, use or disposal of the goods, containers and packing shipped to AB-LP.Product must meet any governmental constraints with regard to restricted, toxic, and hazardous materials. Consideration also to be given to the applicable origin of manufacture and sale.
14. Termination. AB-LP may terminate the contract evidenced by this Purchase Order at any time as to all or any part of the undelivered goods, for any reason. If seller is not at fault, AB-LP agrees to pay termination charges limited, however, to the cost of labor and materials for producing goods under this Purchase Order incurred by seller prior to the time AB-LP notifies seller of termination, less any net recovery to seller on disposition or other use of the goods. Seller shall use its best efforts to mitigate its damages under this paragraph. AB-LP shall not be liable in any event for any incidental, consequential, indirect or any other special damages of seller ,including lost profits.
15. Remedies. If seller breaches any provision in the contract evidenced by this Purchase Order, seller agrees to reimburse AB-LP for all damages suffered, including but not limited to incidental, consequential and other damages, attorney fees and expenses as well as lost profits. The remedies in this Purchase Order shall be cumulative and in addition to any other remedies allowed to AB-LP under applicable law. No waiver by AB-LP of any breach or remedy shall be a waiver of any other breach or remedy.
16. Compliance with Laws. Seller warrants that it is in compliance and will remain in compliance with all federal, state and local laws, regulations and ordinances relating to the manufacture, sale and delivery of the goods and services sold to AB-LP under this Purchase Order.
17. Setoff. AB-LP has the right to setoff any sums due to seller under this Purchase Order against any sums due from seller to AB-LP for damages, refunds or otherwise.
18. Assignment. Seller shall not assign its rights or delegate its duties under this Purchase Order without AB-LP’s prior written consent.
19. Amendment. The contract evidenced by this Purchase Order may be amended only by a writing signed by seller and AB-LP.
20. Risk of Loss. Risk of loss or damage to the goods shall remain on seller until those goods have been delivered to and accepted by AB-LP.
21. Severability. If any provision of this Purchase Order is invalid or unenforceable, all other provisions of this Purchase Order shall remain in full force and effect.
22. State Law. The sale of goods and services in accordance with this Purchase Order shall be governed in all respects by the laws of the State of Michigan.
23. Jurisdiction. Seller and AB-LP agree that any action arising out of the sale of goods or services in accordance with this Purchase Order will be brought, heard and decided in the State of Michigan.
24. Successors. The terms of the contract evidenced by this Purchase Order shall inure to the benefit of and be binding on the successors and assigns of the parties.
25. Entire Agreement. There are no other agreements, warranties, terms or conditions relating to the goods or services to be provided under this Purchase Order.
Allied Blending L.P.
Standard Terms and Conditions of Sale
All goods and services furnished by Allied Blending L.P. (“Supplier”) are governed by these standards and conditions, and every
agreement or other undertaking by Supplier is expressly conditioned on assent hereto by the buyer, and any end-user with whom Supplier undertakes to deal, of Supplier’s goods and services (“Customer”). These standard terms and conditions may be varied only by a typed or legible handwritten notation on the face of Supplier’s quotation or order acknowledgement or by a separate, signed distributorship agreement, service agreement, or other individually negotiated agreement in writing expressly varying one or more of these standard terms and conditions. Product and sales policy sheets and the like published from time to time by Supplier shall supplement but not supersede theses standard terms and conditions.
1. Price/Delivery. Unless otherwise specified on Supplier’s order acknowledgement, price and delivery terms are FOB place of shipment (Supplier’s or consignee’s plant or warehouse as selected by Supplier in its reasonable discretion), and such prices do not include sales, use or other taxes or transportation, freight handling charges or the like, all of which shall be paid and/or absorbed by Customer, who shall indemnify Supplier against all claims and liabilities therefor. Supplier may, at its option, make partial shipment, and where reasonable or customary, ship overages and underages of weight, length, size and/or quantity and may invoice for same. Unless specified on Supplier’s order acknowledgement as “firm”, delivery dates are estimates only.
2. Payment/Security. Payment terms are net 30 days from date of invoice. Invoices not paid within 30 days shall have a service charge added to the amount due of one and one half percent (1 ½%) per month. Whenever Supplier in good faith deems itself insecure, Supplier may cancel any outstanding contract with Customer: revoke any extension of credit to Customer: reduce any unpaid debt by enforcing its security interest, created hereby, in all goods (and proceeds therefrom) furnished by Supplier to Customer: and take any other steps necessary or desirable to secure Supplier fully with respect to Customer’s payment for goods and services furnished or to be furnished by Supplier.
3. Inspection/Acceptance/Return. In the absence of appropriate written notice sent to Supplier after Customer’s inspection of the goods, Customer shall be conclusively deemed to have inspected and accepted the goods within 60 days after receipt. Any Deficiency in the quality or quantity of such goods must be reported within 30 days after such deficiency is or should have been discovered during the inspection period. Where the parties agree to inspection by Customer at Supplier’s plant, such inspection, acceptance, and deficiency report must be made prior to delivery. Customer’s claims regarding any such deficiency not discovered or discoverable during the inspection period shall be barred if not reported within the reporting period, except and to the extent that such claims are valid under Supplier’s warranty. Customer may not return any goods, under warranty claim or otherwise, without first reporting to Supplier the reasons for such return and first obtaining and then observing such reasonable instructions as Supplier may give in authorizing any return.
4. Warranty. Supplier warrants that all new and unused goods furnished by Supplier are free from defect in workmanship and material as of the time and place of delivery by Supplier and that all services furnished by Supplier are performed properly under applicable industry standards as of the time and place of performance.
As a matter of general warranty policy, Supplier honors an original purchaser’s warranty claims in the event of failure, within 12
months from the date of shipment by Supplier, of warranted goods which have been used under normal conditions and in accordance with generally accepted industry practices. The foregoing are general policies only and may be expanded or limited for particular categories of products or customers by written agreement signed, or warranty policy announcement published, by Supplier from time to time.
THE EXPRESS WARRANTIES PROVIDED ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSES ARE EXCLUDED WITH RESPECT TO ANY AND ALL GOODS AND SERVICES FURNISHED BY SUPPLIER. THIS WARRENTY IS THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER AGAINST SUPPLIER.
In the case of Supplier’s breach of warranty or any other duty with respect to the quality of any goods, the exclusive remedies therefor shall be: (1) repair, (2) replacement, or (3) payment of or credit for the purchase price (less reasonable depreciation based upon actual use) upon return of the goods. In the case of Supplier’s breach of warranty or any other duty with the respect to the quality of any services (including repair under warranty), the exclusive remedies therefor shall be payment or credit for Supplier’s actual charge therefore or, in the absence of an actual charge, the customary or reasonable charge for such services, and, if such breach also involves impairment of Supplier’s goods, the remedies available for breach of warranty with respect to the goods. Selection among the exclusive remedies described above shall in each case be at Supplier’s reasonable discretion and subject to Supplier’s reasonable return procedures.
5. Force/Majeure. Supplier and Customer assume the non-occurrence of the following contingencies which, without limitation, might render performance by Supplier impractical: ACTS OF God. Governmental actions, terrorist acts, utility interruptions, strikes, riots, fires, war, assertions by third parties of infringement claims, late or non-delivery by suppliers to Supplier, and all other contingencies beyond the reasonable control of Supplier.
6. NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES WHATSOEVER SHALL SUPPLIER AND CUSTOMER BE LIABLE TO EACH OTHER FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR
UNFORESEEABLE AND WHETHER BASED UPON LOST GOODWILL, LOST RESALE PROFITS, LOSS OF USE OF MONEY, WORK STOPPAGE, IMPAIRMENT OF OTHER ASSETS, OR OTHERWISE AND WHETHER ARISING OUT OF BREACH OF WARRANTY, BREACH OF CONTRACT, STRICT LIABILITY IN TORT, NEGLIGENCE, MISREPRSENTATION, OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL INJURY WHERE APPLICABLE LAW REQUIRES SUCH LIABILITY.
7. Governing Law/Limitations. Michigan law shall govern all transactions to which these standard terms and conditions apply. Any legal action with respect to any such transaction must be commenced within one year and one day after the cause of action has accrued. All limitations herein on Supplier’s liability and remedies for breach of any duty of Supplier to any buyer or user of Supplier’s goods or services are extended to Supplier’s affiliates, suppliers, distributors, and service providers, insofar as they may have any duties to any buyer or user of Supplier’s goods or services, except only in the event and to the extent they may expressly and in writing waive the benefits of this provision.