Designer's Edge, Inc.
THESE TERMS AND CONDITIONS (“TERMS”) APPLY TO SALES OF GOODS OR SERVICES BY DESIGNERS EDGE INC., A MICHIGAN CORPORATION (“DEI”). ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS OR CONDITIONS ON BUYER’S PURCHASE ORDER, SPECIFICATIONS, OR OTHER DOCUMENTS ISSUED BY BUYER SHALL BE WHOLLY INAPPLICABLE AND SHALL NOT BE BINDING IN ANY WAY ON DEI. ACCEPTANCE OF BUYER’S OFFER IS EXPRESSLY MADE CONDITIONAL ON BUYER’S ASSENT TO THESE TERMS. NO WAIVER OR AMENDMENT OF ANY OF THE PROVISIONS CONTAINED IN THESE TERMS SHALL BE BINDING ON DEI UNLESS MADE IN A WRITING EXPRESSLY STATING THAT IT IS SUCH A WAIVER OR AMENDMENT OF THESE TERMS AND SIGNED BY AN OFFICER OF DEI.
To accept a DEI proposal (“Proposal”), you must print and sign the Proposal in ink and return it to DEI within thirty days after the date shown on the proposal.
The prices for products and services covered hereunder are as provided in the Proposal. Any additional labor costs chargeable to Buyer, under the Proposal or these Terms, are at DEI’s standard engineering labor rates, as they may exist from time to time. If the price of freight, metals, raw materials, purchased components, or other production costs increases significantly, then DEI shall have the right and Buyer shall have the obligation to renegotiate prices on all products. Unless otherwise agreed upon between the parties, the prices stated herein do not include any sales, use, gross receipts, VAT, or similar taxes or customs duties. Buyer shall pay, in addition to the prices stated, the amount of any such present or future taxes and/or customs duties applicable to the sale of products or performance of services, or in lieu thereof, Buyer shall supply DEI with an appropriate tax exemption certificate.
3. TERMS OF PAYMENT
a. All payments are due and payable in full thirty (30) days from the date of invoice, without deduction or offset. DEI may change its payment terms if DEI deems itself insecure. All amounts past due shall incur interest at the rate of 1.5% per month or the highest rate permitted by law, whichever is less, compounded monthly. All payments shall be made to DEI at the address specified on the front of the invoice. Without limiting DEI’s remedies, DEI may suspend performance for late payment. Buyer must make all payments without deduction or offset. DEI is not liable for any backcharges, penalties, liquidated damages, or other charges unless agreed to by an officer or DEI in writing.
b. Unless otherwise specified in the Proposal, the contract price will be invoiced as follows: 30% upon acceptance of Proposal, 30% upon submission of preliminary engineering, 30% upon qualification at DEI’s facility, 10% upon shipment of as-built documentation. If the Proposal is for multiple items of equipment, DEI may invoice separately for each item, and each item will be considered a separate and independent transaction.
c. DEI reserves and Buyer hereby grants DEI a security interest in all products sold to the extent of all invoiced amounts. If Buyer defaults under any obligation hereunder, Buyer agrees to make products available so that DEI can repossess them without a breach of the peace. DEI has the right to file a UCC-1 or similar financing statement evidencing its security interest in such products. Upon DEI’s request, Buyer will execute any documents to perfect DEI’s security interest in any products.
4. TITLE AND DELIVERY
a. All shipments by DEI are FOB DEI’s facility. (Exception: Any shipments sent outside the United States are EXW DEI’s facility, Incoterms 2010.) Title and risk of loss or damage to products shall pass to Buyer upon delivery to the common carrier at DEI’s facility.
b. Buyer acknowledges and agrees that delivery dates are estimates only. DEI will use commercially reasonable efforts to deliver in accordance with the delivery dates in the Proposal or otherwise communicated to Buyer, but DEI is not liable for late delivery.
c. Buyer may not cancel or accelerate delivery of any products ordered from DEI. Buyer may delay delivery, in one or more increments, a total of up to six (6) months or longer with Buyer’s written consent; provided, however, that the unpaid balance of any delayed products will increase by eight percent (8%) for the first month of Buyer-caused delay, and two percent (2%) for each additional month of Buyer-caused delay. This payment is liquidated damages and not a penalty, and is a reasonable estimate of the actual costs of scheduling changes, production downtime, and finance costs of DEI associated with such a delay, which costs would be difficult to determine with exactitude. If Buyer ultimately proceeds, these charges do not include, and Buyer may be additionally liable for, increases in DEI’s actual cost of any purchased third party components.
5. INSTALLATION, SAMPLE TEST PARTS
a. Unless explicitly included in the Proposal, the pricing and scope of work do not include installation, installation supervision, or start-up service. If installation is explicitly included in the Proposal, then DEI will make reasonable efforts to install the products. The price does not include, and DEI may charge additionally for all labor and other costs associated with, any unusual, unanticipated, or changed conditions at the installation site. Buyer is responsible for providing an appropriate space and environment for installation, including electricity and other utilities and inputs.
b. Buyer will provide to DEI, at Buyer’s sole expense, a sufficient number of sample test parts required to test the products, both for runoff at DEI prior to delivery and for the installation process. Sample test parts must correspond to print and be representative of actual production parts. Sample test parts must be clean, dry, and free of foreign matter. Buyer is responsible for shipping. DEI is not responsible for any sample test parts that are lost in shipping or destroyed during testing. Unless Buyer requests return and pays for shipping, DEI may scrap or otherwise dispose of any used or unused sample test parts after installation is complete.
6. ENGINEERING DRAWINGS
a. When required by a Proposal, DEI will submit engineering drawings to Buyer for approval. Buyer will transmit its approval or objection of any drawings within one (1) week after receipt. Any drawings approved by Buyer are considered “Approved Drawings” and constitute authorization to begin fabrication.
b. If Buyer (i) fails to approve or object to drawings within one (1) week after receipt, (ii) rejects drawings, or (iii) requests changes that DEI does not accept; then the project is considered on hold status, and becomes subject to possible price changes described in Section 4.4.c. The project will be removed from hold status once DEI receives Approved Drawings. If Buyer fails to approve drawings in good faith within a reasonable time, then DEI may deem such action a breach of this Agreement.
c. If Buyer approves drawings with requested changes, and DEI accepts those changes, then those drawings are considered “Approved As Noted Drawings.”
i. If Buyer’s comments on Approved As Noted Drawings do not explicitly require resubmittal to Buyer, then DEI is authorized to begin fabrication. Buyer’s changes on Approved As Noted drawings are subject to price and sales term changes as reasonably determined by DEI. Reasonable nomenclature-type changes, which do not require changes to equipment items, will not cause price changes. DEI will notify Buyer of any such change within four (4) weeks after receipt of Approved As Noted drawings.
ii. If Buyer’s comments on Approved As Noted Drawings explicitly require resubmittal to Buyer, then DEI will submit a proposal for price and sales term changes, subject to Buyer’s approval. The project is considered on hold status, as described in Section 8.b, until approved by Buyer. Upon Buyer approval, DEI is authorized to begin fabrication.
d. If DEI rejects Buyer’s changes, then DEI will submit new or amended drawings under Section 5.a above.
7. DESIGN CHANGES
This section applies to changes requested by Buyer after Approved Drawings or Approved As Noted Drawings.
a. Nomenclature-type changes, which do not require changes to components, will be incorporated at a charge reflecting DEI’s other costs involved in changing the drawings, including labor. Changes to equipment items will be incorporated at a charge reflecting DEI’s costs involved in changing the drawings, cancellation of any work-in-progress, and incorporation of Buyer’s changes, including labor, the cost of any nonreturnable components or of added components, and overhead on cancelled elements or added elements of work-in-progress.
8. LIMITED WARRANTY
a. Any product or service sold or provided by DEI shall be deemed accepted by Buyer upon delivery. For a period of one (1) year from the date of delivery, DEI warrants to Buyer that products delivered hereunder will be in accordance in all material respects with agreed specifications and will be free from defects in workmanship when installed, operated, and serviced in accordance with DEI’s instructions and recommendations, including voltage and hydraulic pressures. Samples, prototypes, and similar non production-level products are sold "AS IS," "WITH ALL FAULTS," and with no warranty whatsoever.
b. Notwithstanding the foregoing, DEI does not provide any warranty as to components DEI purchases from third parties for use in its products. Instead, DEI assigns to Buyer all such warranties, without recourse. DEI will provide reasonable assistance to Buyer in pursuing warranty claims against such third party sellers.
c. The run rate and efficiency of any equipment may vary greatly based on many factors, including raw materials, operating conditions, environment, and other equipment in use on the line. Any statement by DEI as to run rate, efficiency, or similar factors is simply an estimate based on operation in optimal conditions, and does not constitute a warranty of any kind.
d. DEI does not warrant that its products comply with any federal, state, local, or foreign laws or regulations regarding the environment, pollution control, or worker health or safety (including the Occupational Safety and Health Act of 1970). Buyer is solely responsible for making any modifications required to DEI’s products required for such compliance.
e. If, during the applicable warranty period, (i) DEI is notified promptly in writing upon discovery of any alleged defect in the products, including a detailed description of such defect; (ii) if requested by DEI, such products are returned to DEI, FOB DEI’s facility accompanied by DEI’s Returned Material Authorization form; and (iii) DEI’s examination of such products discloses to DEI’s satisfaction that such products are defective and such defects are not caused by accident, abuse, exposure to severe weather conditions, misuse, neglect, alteration, improper installation, improper maintenance or repair, improper or inadequate testing, or use contrary to any instructions or recommendations issued by DEI, then DEI shall, at its sole option, either repair, replace, or credit Buyer the purchase price of such products. No products may be returned to DEI without DEI’s Returned Material Authorization form. Prior to any return of products by Buyer pursuant to this Section 5, Buyer shall afford DEI the opportunity to inspect such products at Buyer’s location.
f. The performance of this warranty does not extend the warranty period for any products beyond that period applicable to the products originally delivered.
g. THE FOREGOING WARRANTY CONSTITUTES DEI'S EXCLUSIVE LIABILITY, AND THE EXCLUSIVE REMEDY OF BUYER, FOR ANY BREACH OF ANY WARRANTY OR OTHER NONCONFORMITY OF THE PRODUCTS COVERED BY THESE TERMS. THIS WARRANTY IS EXCLUSIVE, AND IN LIEU OF ALL OTHER WARRANTIES. DEI MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS WARRANTY SHALL BE AS EXPRESSLY PROVIDED IN THIS SECTION 5.
h. IN NO EVENT WILL DEI BE LIABLE FOR ANY COSTS ASSOCIATED WITH THE REPLACEMENT OR REPAIR OF PRODUCT, INCLUDING LABOR, INSTALLATION, OR OTHER COSTS INCURRED BY BUYER AND, IN PARTICULAR, ANY COSTS RELATING TO THE REMOVAL OR REPLACEMENT OF ANY PRODUCT.
9. INTELLECTUAL PROPERTY
a. DEI shall, at its own expense, defend any suit that may be instituted against Buyer for any alleged infringement of any United States patent, trademark, or copyright related to products covered by these Terms (except products covered by Section 9.d. below), provided that, (i) such alleged infringement does not arise from the use of such products as a part of or in combination with any other devices or parts or from DEI’s compliance with instructions issued by Buyer; (ii) Buyer gives DEI immediate notice in writing of any such suit and permits DEI, through counsel of DEI’s choice, to defend such suit; and (iii) Buyer gives DEI all needed information, assistance and authority, at DEI’s expense, to enable DEI to defend such suit. In the case of a final award of damages in any such suit, DEI shall pay such award, but shall not be responsible for any settlement made without its prior written consent. Notwithstanding the foregoing., DEI does not warrant any components or other items purchased from third parties against alleged infringement. See Section 8.b.
b. In satisfaction of Section 9.a., DEI, at its sole discretion, may (i) replace or modify products with non-infringing products that are functionally equivalent; (ii) obtain a license for Buyer to continue to use or sell products; or (iii) accept the return of products and refund the amount paid by the Buyer for such returned products.
c. THIS SECTION 9 STATES DEI'S TOTAL RESPONSIBILITY AND LIABILITY AND BUYER’S SOLE REMEDY, FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, TRADEMARK, OR COPYRIGHT BY ANY PRODUCTS OR SERVICES DELIVERED HEREUNDER, OR ANY PART THEREOF. THIS SECTION 9 IS IN LIEU OF AND REPLACES ANY OTHER EXPRESSED, IMPLIED OR STATUTORY WARRANTY AGAINST INFRINGEMENT. IN NO EVENT SHALL DEI BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR OTHER DAMAGES RESULTING FROM ANY SUCH INFRINGEMENT.
d. Buyer shall, at its own expense, indemnify and hold DEI harmless from and against any liabilities, costs, damages, or losses resulting from any alleged infringement of any patent, trademark, copyright, or other intellectual property right arising as a result of DEI’s compliance with any of Buyer’s designs, specifications, or instructions including infringement arising out of the use of such products as part of or in combination with another device.
e. DEI shall retain all patent, copyright, trade secrets, and other intellectual property rights it possesses with regard to all products and services rendered hereunder. The design, development or production of product hereunder shall not be deemed to be a “work made for hire,” and nothing herein shall be construed to grant to Buyer any right or license in any patent, copyright, trade secret, mask right, or any other intellectual property right.
f. All drawings, documentation, and other data generated by DEI in the performance hereunder shall remain the sole and exclusive property of DEI. All patents, copyrights, or other intellectual property rights related solely to the specifications generated by Buyer shall remain the sole and exclusive property of Buyer. Buyer may only use such drawings, documentation, and other data solely to operate the products in the manner intended. Buyer many not, during the time it owns a product or has possession of any drawings, documentation, or other data generated by DEI, or within two years thereafter, may not use, or allow any third party to use, such product, drawings, documentation, or other data to reverse engineer or create any other product, drawings, documentation, or other data.
g. Any designs, devices, or processes that are developed by DEI concurrently with the work performed hereunder shall be the sole and exclusive property of DEI, and DEI reserves the right to use such designs or processes for other customers, or license the use thereof to others.
Any one of the following acts by Buyer shall constitute a material breach of Buyer’s obligations hereunder:
a. Buyer fails to make payment for any products or services in full when due;
b. Buyer fails to accept conforming products or services supplied hereunder; or
c. The filing of a voluntary or involuntary petition in bankruptcy against Buyer, the institution of any proceeding in insolvency or bankruptcy (including reorganization) against Buyer, or an assignment for the benefit of creditors of Buyer.
If Buyer materially breaches these Terms, then DEI may (in addition to any other rights or remedies provided herein or at law or in equity), by written notice to Buyer, terminate its obligations or any part thereof, without any liability to DEI. If Buyer terminates a project or DEI terminates because of Buyer’s material breach of these Terms, then Buyer shall promptly pay (i) the price determined by the Proposal and these Terms for all milestones completed before termination; (ii) all other work performed before termination at DEI’s cost, including labor, overhead, the cost to return any returnable components, and the entire cost of any nonreturnable components; and (iii) all costs, including reasonable attorneys’ fees, incurred by DEI in any action brought by DEI to collect payments owing or otherwise enforce its rights.
11. FORCE MAJEURE
DEI shall not be liable hereunder due to any cause beyond its control, including but not limited to acts of God, acts of civil or military authority, fires, epidemics, floods, riots, wars, sabotage, terrorism, labor disputes, governmental actions, or inability to obtain materials, components, energy, manufacturing facilities, or transportation. In the event of any such delay, the date of delivery or performance hereunder shall be extended by a reasonable period of time.
12. LIMITATION OF LIABILITY
a. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, DEI SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO BUYER OR ANY THIRD PARTIES FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR OTHER DAMAGES WHETHER IN AN ACTION BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED HEREUNDER, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF DEI IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
b. UNDER NO CIRCUMSTANCES SHALL DEI'S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO ANY TRANSACTION CONTEMPLATED HEREUNDER (INCLUDING BUT NOT LIMITED TO ANY WARRANTY OR INDEMNITY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY BUYER TO DEI HEREUNDER FOR THE PRODUCTS OR SERVICES ACTUALLY GIVING RISE TO SUCH LIABILITY (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN SUCH ACTION). NO CLAIM, SUIT OR ACTION SHALL BE BROUGHT AGAINST DEI IF MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS TRANSPIRED.
a. Each party's confidential or proprietary information may, if required by the parties, be further defined and protected by separate Non-Disclosure Agreement and each party's sole and exclusive obligations with regard to such confidential or proprietary information shall be as set forth in such agreement.
b. DEI and Buyer agree that they shall comply with all applicable laws, regulations, and administrative rules.
c. Government procurement requirements and regulations (including but not limited to, certified cost or pricing data, Cost Accounting Standards, Defective Pricing, and Audit requirements) shall not be binding upon DEI unless specifically agreed to by DEI in writing.
d. Buyer may not assign its rights or delegate its obligations hereunder in whole or in part (including warranty rights) without the prior written consent of DEI and any purported assignment or delegation without such consent shall be of no force or effect. Any merger involving Buyer or the transfer or sale of all or substantially all of Buyer’s assets or stock shall be deemed an assignment. DEI may assign its rights and/or obligations hereunder upon written notice to Buyer.
e. Any waiver by DEI of any default by Buyer shall not be deemed to be a continuing waiver of such default or a waiver of any other default or of any of these Terms.
f. Headings in these Terms are for reference only and have no substantive effect. The word “including” means “including without limitation.” If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, it shall be deemed amended the minimum amount necessary to permit its enforcement.
g. These Terms, Proposal, and DEI’s engineering drawings (but no terms or conditions of Buyer’s purchase order, specifications or any similar document issued by Buyer), together with any Non-Disclosure Agreement, constitute the entire agreement between Buyer and DEI with regard to the products or services sold hereunder, and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to such products or services.
h. The validity, performance and construction of these Terms, and any disputes arising from or relating thereto any transaction governed by these Terms, shall be governed by Michigan law, without reference to conflict of law principles. All disputes shall be subject to the exclusive jurisdiction of the state courts of Monroe County, Michigan (or, if there is exclusive federal jurisdiction, the United States District Court for the Eastern District of Michigan), and Buyer consents to the personal and exclusive jurisdiction and venue of these courts. The United Nations Convention on the Sale of Goods, Uniform Commercial Code, and the Uniform Computer Information Transaction Act shall not apply to these Terms.
STANDARD TERMS AND CONDITIONS OF SALE