- ACCEPTANCE AGREEMENT – The terms and conditions set forth herein along with the terms and conditions on Eikenhout Inc.’s (hereafter “Eikenhout” or “Seller”) invoice and delivery ticket (which are incorporated by reference) represent the entire agreement (“Agreement”) between Applicant/Customer/Buyer/Purchaser (“Applicant”) and Seller. No other terms, including those on Applicant’s Purchase Order, which are different, may add to, modify, supersede or otherwise alter the terms of the Agreement without express written approval by an authorized officer of the Seller. All contrary or additional terms are specifically rejected unless approved in writing by an authorized officer of the Seller. Customer’s acceptance of delivery of, or full or partial payment for, the Goods will constitute Customer’s acceptance of these Terms and Conditions.
- ORDERS; TAXES – All price lists and quotes by Eikenhout are subject to change without notice unless specifically stated in writing by an authorized agent of the Seller. All orders are subject to final approval of Eikenhout. Orders may not be changed or cancelled without the written approval of Eikenhout. Customer will reimburse Eikenhout for all expenses and losses resulting from any Customer change or cancellation. Customer is responsible for any and all local, state, and federal taxes.
- PAYMENT – Applicant agrees to pay for Goods according to the Agreement. When credit is approved, Applicant agrees that all account terms shall be Net 30 Prox. I (we) understand returned checks will result in a $35 assessment, which must be paid immediately. Payments must be made to Eikenhout, Inc. at PO Box 2806, Grand Rapids, MI 49501-2806. If Applicant fails to make any payment to Seller when due, the Applicant’s entire account(s) with Seller shall become immediately due and payable. Seller may, at its sole discretion, repossess and remove any such Goods without notice or demand or may require Applicant to assemble the collateral, and make it available, to allow Seller to take possession. A service charge of 1-1/2% per month (18% per year) will be assessed on delinquent balances. If Applicant is in default for non-payment, then in addition to other remedies, Applicant agrees to reimburse Seller all costs of collection, including reasonable attorney’s fees.
- If, at any time, Applicant’s financial condition changes from the information provided in the Credit Application, Applicant’s financial condition becomes impaired, Applicant’s credit becomes impaired, or Applicant fails to make a required payment, then Seller has the right to cancel orders, discontinue shipments, and/or require payment in advance.
- Applicant hereby authorizes Seller to apply any payments made by, or on behalf of, Applicant to Seller to any account or accounts then outstanding between Applicant and Seller.
- DELIVERY – Eikenhout will deliver Goods to Customer with freight and handling charges prepaid and added to the invoice, by the method of shipment and routing determined by Eikenhout, except as otherwise specifically agreed in writing between the parties. Customer shall be responsible for all delivery costs and shall bear the risk of any loss or damage in transit. Delivery dates of Goods, if specified by Eikenhout, are estimates only and are not guaranteed and are not binding on Eikenhout. If Customer causes, or requests, a delay in the delivery of any Goods, Customer will reimburse Eikenhout for all resulting damages, including without limitation, payment of reasonable storage expenses for the Goods during the period of delay or interruption. Eikenhout shall not be liable for any loss or damage resulting from any delay in delivery, or failure to deliver, which is due to any cause beyond Eikenhout’s control, including, without limitation, wars, terrorist attacks, acts of nature, unavailability of supplies or sources of energy, riots, fires, floods, epidemics, lockouts, strikes and slow downs, delays in deliveries from our suppliers, or acts or omissions of the Customer. In the event of delay due to any such cause, time for delivery shall be extended for a period equal to the duration of the delay and Customer shall not be entitled to refuse delivery, or otherwise be relieved of any obligations, as a result of the delay.
- ACCEPTANCE OF GOODS; RETURNS – Upon receipt of the Goods, Customer agrees to inspect and/or test the Goods. The Goods shall be deemed accepted by the Customer unless Customer provides Eikenhout a timely written notice specifically noting any defects or discrepancies in the quality, or quantity, of the Goods received. All notices of nonconforming Goods, shortages, rejection or revocation of acceptance must be made in writing and received by Eikenhout no later than thirty (30) days from receipt of the Goods by Customer, which Customer agrees is a reasonable time frame to diligently inspect and provide notice to Eikenhout. Customer waives any right to reject the delivery, or revoke acceptance of Goods, thereafter. Upon receipt of an authorized return, Eikenhout will credit Customer’s account(s) with the price initially charged for the non-conforming Goods. If Customer returns non-damaged or conforming Goods to Eikenhout without first obtaining Eikenhout’s written authorization, such return will be refused by Eikenhout and returned to Customer at Customer’s expense. All sales are final and no return of special-order Goods, damaged, or non-conforming Goods will be accepted without prior written approval from Eikenhout. All returns must be made within thirty (30) days of purchase and are subject to a fifteen percent (15%) nonnegotiable shipping and restocking fee. All returns are subject to final inspection by Eikenhout personnel.
- INSTALLATION – Eikenhout assumes no obligation to install any Goods sold or to place them in working order at any location, property or project.
- RELEASE AND DELIVERY WAIVER – As to any Goods sold and/or delivered hereunder, Customer releases Eikenhout from any liability arising hereunder for personal injuries, known or unknown, and damage to property, real or personal, caused by, or arising from, the Goods sold and/or delivered hereunder and agrees not to sue Seller under any theory of strict liability or tort, negligence, contract or otherwise for any claim or demand for personal injuries and property damage which, in any manner, arises out of the sale, use, application, transportation or otherwise of the Goods sold and/or delivered hereunder. The foregoing disclaimer of liability shall be binding upon Buyer and any successors in title, project owners, product end-users, assigns, transferees, and other third parties. In connection with the delivery of any Goods, Eikenhout expressly disclaims responsibility for damage to driveways, lawns, sprinkler systems, gardens, septic tanks, drain fields and/or existing landscaping as a result of job site deliveries. By executing a delivery ticket and/or accepting Goods delivery, the property owner, contractor, subcontractors, and suppliers, acknowledge that they are authorized both to accept delivery and release Eikenhout from, and against, any damage to any of their property caused by the weight of any truck or equipment, rooftop delivery operations or otherwise. The Buyer hereby waives any and all claims for damages which may be made during the delivery of Seller’s Goods.
- MECHANIC’S LIENS – Buyer shall furnish to Seller, upon request, all information necessary and/or relevant for Seller to evaluate, give notice of, or enforce lien rights, and any other statutorily required information necessary to enable Seller to enforce a lien. Seller’s request for this information shall be construed to create a duty on the part of Buyer to Seller to distribute, publish and supplement this information. It is agreed by Buyer, that should Buyer fail to provide information necessary for Seller to perfect its lien rights, Buyer hereby waives any defenses, substantive or procedural, related to Buyer’s failure to provide to Seller the requested lien information. In the event Buyer fails to provide such information, Buyer agrees to pay Seller’s attorney’s fees and costs should litigation occur and subsequently results in Seller being unable to enforce lien rights due to Buyer’s failure to perform hereunder. To further secure payment of an invoice(s), Seller expressly reserves its rights to deliver any preliminary notices of lien or identification and/or to record or deliver any statutorily required notices of lien in order to create, perfect and/or enforce Seller’s mechanic’s lien rights to secure payment for Goods sold to Buyer.
- SECURITY AGREEMENT – To secure payment and performance of all obligations, Applicant hereby grants Seller a Purchase Money Security Interest in all inventory, equipment, and Goods distributed by Seller, whenever sold, cosigned, leased, rented, or delivered, directly or indirectly, to, or for the benefit of, Applicant (“Collateral”). This security interest extends to all repossessions and returns and all proceeds from the sale, lease or rental; and all existing or subsequently arising accounts and accounts receivable, chattel paper, general intangibles, and supporting obligations. The security agreement is limited to the outstanding obligations owed to Seller from Applicant. Applicant will insure Collateral against all expected risks. Applicant will not subject Collateral to any adverse encumbrances or liens. Applicant authorizes Seller to file financing statements describing Collateral and will assist Seller in taking necessary action to perfect and protect Seller’s security interest.
- DISCLAIMER OR WARRANTIES; INDEMNIFICATION – CUSTOMER acknowledges and agrees that Eikenhout is A RESELLER, not the manufacturer, of the Goods. As such, EIKENHOUT MAKES NO WARRANTIES, EXPRESS OR IMPLIED, RELATED TO THE GOODS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. Any manufacturer warranties related to the Goods are as described in the package inserts accompanying the Goods or as made available on Eikenhout’s website HERE OR WILL OTHERWISE BE MADE AVAILABLE TO CUSTOMER UPON REQUEST. CUSTOMER’S EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY LIES solely WITH THE MANUFACTURER. CUSTOMER AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS EIKENHOUT AND ITS EMPLOYEES, AGENTS, SHAREHOLDERS AND DIRECTORS, FROM, AND AGAINST, ANY AND ALL CLAIMS, LIABILITIES, COSTS OR EXPENSES ARISING FROM, OR OTHERWISE ASSOCIATED WITH, CUSTOMER’S USE OF THE GOODS.
- LIMITATION OF LIABILITY – EIKENHOUT SHALL NOT BE LIABLE FOR ANY DEFECT IN GOODS, REGARDLESS OF KIND, UNLESS SUCH DEFECT RESULTS FROM THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF EIKENHOUT IN THE HANDLING OF SUCH GOODS; RATHER, CUSTOMER SHALL FILE SOLELY WITH THE MANUFACTURER OF THE GOODS ANY CLAIM OR LAWSUIT ARISING OUT OF, OR CAUSED BY, THE USE, SALE, DISTRIBUTION, OR POSSESSION OF SUCH GOODS. EIKENHOUT SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUE. IN NO EVENT WILL EIKENHOUT’S LIABILITY ARISING IN CONNECTION WITH, OR UNDER, THESE TERMS AND CONDITIONS (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT, TORT, MISREPRESENTATION, FRAUD, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LAW) EXCEED THE PURCHASE PRICE, CURRENT MARKET VALUE OR RESIDUAL VALUE OF THE GOODS, WHICHEVER IS LESS.
- FORCE MAJEURE – Except for payment obligations of Customer hereunder, neither party shall be liable under these Terms and Conditions for delays in performance, or failure to perform its obligations, caused by circumstances beyond its control, including, but not limited to, acts of God, wars, riots, strikes, floods, labor disputes, and accidents.
- APPLICABLE LAW – These Terms and Conditions shall be governed by, and interpreted according to, Michigan law, without giving effect to conflict of law principles. Any action arising out of, or relating to, the Agreement may be brought only in a federal or state court in Kent County, Michigan, having jurisdiction of the subject matter, and Customer irrevocably consents that such court shall have personal jurisdiction over Customer and waives any objection that the court is an inconvenient forum.
- MISCELLANEOUS – No signature to the Terms and Conditions is required as a precondition to their enforcement. In case any one or more of the provisions contained in these Terms and Conditions shall be held to be invalid, illegal or unenforceable in any respect, such provisions shall not affect any other provision herein, and these Terms and Conditions shall be construed as if such provisions had never been contained herein. Eikenhout has all rights and remedies given to sellers by applicable law, and Eikenhout’s rights and remedies are cumulative and may be exercised from time to time by Eikenhout. These Terms and Conditions, and any purchase order related thereto, embody the entire understanding between the parties with respect to the transaction contemplated herein. All prior or contemporaneous agreements, understandings, representations, warranties, and statements, oral or written, are merged into these Terms and Conditions. Eikenhout reserves the right to modify these Terms and Conditions at any time with or without notice to Customer. Neither these Terms and Conditions nor any of their provisions may be waived, modified, amended, or terminated except by an instrument in writing signed by the party against which that enforcement is sought and then only to the extent set forth in that instrument.
- CERTIFICATION – Applicant certifies that all information provided is true and correct. Applicant understands that the information provided will be used by Seller to determine whether to extend commercial credit. If information provided by Applicant is incorrect or materially changes, then Applicant must immediately notify Seller of the incorrect information. Applicant authorizes Seller to investigate the information provided herein (including contacting references and reviewing credit) and authorizes Seller to answer questions from others about its experience with Applicant.
Standard Terms and Conditions
Michigan Building Supplier
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