All sales by H. Eikenhout & Sons, Incorporated (“Eikenhout”) are subject to the following terms and conditions of sale (“Terms and Conditions”). “Goods” refers to any products sold by Eikenhout, and “Customer” refers to the person or entity purchasing Goods from Eikenhout as may be identified on Customer’s order or Eikenhout invoice.
1.Offer & Acceptance Agreement. Eikenhout’s acceptance of Customer’s order is subject to Customer’s acceptance of these Terms and Conditions. Any modifications proposed by Customer are not part of the parties’ agreement in the absence of Eikenhout’s written acceptance thereof. Eikenhout does not agree to and rejects any terms contained in Customer’s purchase order or other documents that are additional to or different from these Terms and Conditions, and such terms shall have no force or effect. Customer’s acceptance of delivery of, or full or partial payment for, the Goods will constitute Customer’s acceptance of these Terms and Conditions.
2. Orders; Payment. All price quotes and list prices are subject to change without notice unless specifically stated in writing by Eikenhout, and 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 agrees to pay all applicable taxes or charges levied by any tax authority, excluding any taxes based upon Eikenhout’s income. The purchase price for the Goods shall be paid in accordance with the terms set forth on Eikenhout’s invoice. In the absence of such terms, payments terms for Goods shall be net thirty (30). Eikenhout may condition any sale on the receipt of full or partial payment or letter of credit. Invoices not fully paid by the specified payment date are deemed overdue and unpaid balances will accrue interest at the rate of 1.5% per month, or at the highest rate permitted by law, if lower. Eikenhout will be entitled to suspend performance of any order or obligation to Customer until the Customer’s account is current. If at any time Eikenhout determines that Customer’s financial condition, payment practices or credit rating does not justify a sale on credit, Eikenhout may require advance payment. Customer will reimburse Eikenhout for all expenses, including reasonable attorneys’ fees, incurred in the collection of any delinquent account or enforcing its rights under these terms and conditions.
3. Delivery. Eikenhout will deliver Goods to Customer EXW (Incoterms 2010) Eikenhout’s facility, 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.
4. Acceptance; Returns. Upon receipt of the Goods, Customer agrees to inspect and/or test the Goods. The Goods shall be deemed accepted by 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 regarding nonconforming Goods, shortages, rejection or revocation of acceptance must be made in writing and received by Eikenhout no later than twenty (20) days from receipt of the Goods by Customer, which Customer agrees is a reasonable time frame within which to diligently inspect and provide notice to Eikenhout. Customer waives any right to reject the delivery or revoke acceptance thereafter. Upon receipt of an authorized return, Eikenhout will credit Customer’s account with the price initially charged for the non-conforming Goods unless Customer returns non-damaged or conforming Goods to Eikenhout without first obtaining Eikenhout’s written authorization, in which case such return will be refused by Eikenhout and returned to Customer at Customer’s expense. All sales are final and no return of non-damaged or conforming Goods will be accepted without prior written authorization from Eikenhout.
5. 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, AND 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.
6. 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.
7. 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.
8. Applicable Law. These Terms and Conditions shall be governed by and interpreted according 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.
8. 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.