What this agreement applies to
This document applies to the products and services supplied by Plymouth Industries Inc. (hereinafter referred to as “Seller”) to the named Buyer on the Sales Document (hereinafter referred to as “Buyer”). Unless included in the quote or separate contract, these products or services do not include installation and/or integration.
Offer, Governing Provisions, Amendment & Revocation
This document (“Terms”) is an offer or counteroffer by Seller as identified on the applicable quote, order acknowledgement, invoice, or other sales document (“Sales Document”), to sell the goods and/or services to Buyer solely in accordance with these Terms. This is not an acceptance of any offer made by Buyer, even if received elsewhere by a salesperson, selling agent or any representative of Seller. This sale is expressly conditioned upon Buyer’s assent solely to the Terms. Each order from the Buyer shall be deemed to be an offer by the Buyer to purchase the goods and/or services solely pursuant to these Terms.
Acceptance
Acceptance, either by acknowledgment, commencement of services, or shipment of goods of any order does not constitute acceptance by Seller of any of the terms or conditions of those orders or of any request for quotation, except as to the identification and quantity of goods/services. Seller hereby objects to any additional or different terms contained in any order, request for quote or other communication provided by Buyer. No additional or different terms or conditions will be of any force or effect. Seller may revoke its offer at any time before it is accepted by Buyer. The terms contained in or incorporated into these Terms by reference, including the Sales Document(s), any Product Disclaimer, Important Product Notice, Product-specific Warranty statement and Seller’s quotation or proposal comprise the entire agreement between Seller and Buyer on the subject of the transactions described herein. Oral representations are specifically excluded from and overridden by the Terms. No accepted offer may be altered by Buyer and no changes to this document can be made except in writing signed by Seller’s authorized representative. Notwithstanding anything herein to the contrary, if a written contract signed by both parties exists covering the sale of the goods and/or services, the terms and conditions of such contract shall prevail to the extent they are inconsistent with these Terms.
Services
When applicable, Buyer shall:
- Comply with all applicable laws in relation to services before the start date;
- Cooperate with Seller in all matters relating to the services and provide access to Buyer’s premises and other facilities as Seller reasonably requests;
- Respond promptly to Seller requests for direction, information, approvals, authorizations or decisions that are reasonably necessary for Seller to perform services in accordance with the requirements of the Terms;
- Provide such documentation, materials or other information as Seller requests to carry out the services in a timely manner and ensure that Buyer-supplied materials, equipment or information are complete and accurate in all material respects;
- Obtain and maintain all necessary permits, approvals, licenses and consents necessary for the services.
Order Acceptance & Governing Law
No order is binding upon the Seller until accepted and acknowledged in writing by the Seller. Acceptance shall be delivered by mail or electronic communication. Orders may be held or cancelled at Seller’s discretion where local law allows. These Terms shall be governed by and construed according to the laws of the state courts located in Sheboygan County, Wisconsin, or the federal courts located in the Eastern District of Wisconsin, and each party waives any challenge to venue or personal jurisdiction. The rights and obligations of the parties shall not be governed by the 1980 United Nations Convention for the International Sale of Goods.
Shipment, Delivery & Risk of Loss
All delivery dates are approximate. Buyer purchase order must specify preferred carrier or goods will be shipped via Seller selected carrier, pre-paid and added to the invoice. Except as otherwise agreed by Seller in writing, goods are delivered FCA Seller’s point of manufacture or distribution and Buyer assumes both risk of loss and damage to the goods as well as title to the goods on Seller’s dock; and Buyer is responsible for all freight, sales and other taxes, customs duties, insurance costs and other expenses relating to the shipment of the goods. Seller recommends that Buyer insures its goods while in transit. Incoterms 2010 Rules shall apply unless stated otherwise on the Sales Documents.
In the event of a dispute regarding the delivery, quantity or quality of the goods or services, the onus of proving the goods or services were not delivered and/or that the quantity or quality thereof was not in accordance with the order, shall rest with the Buyer. Buyer is responsible for all costs, reporting, and compliance with export control laws related to the goods’ export in the event the purchase order has specified a preferred carrier; this shall constitute a routed export transaction and applicable country-specific regulations will apply. If Seller’s carrier is used, then Buyer must notify Seller, within ten (10) days after Seller’s delivery of the applicable goods to the carrier, of any claim that goods were lost or damaged in shipment, and any claim not so made is waived. Seller will cooperate with Buyer in Buyer’s claims against the carrier for lost or damaged goods. Buyer shall make claims for loss or damage to goods while in transit against the carrier. Additional charges will be incurred by Buyer for special processing for export orders and drop shipments outside of country of manufacture. Seller will not make any “drop shipments” to Buyer’s customers unless Seller, in its sole discretion, deems it necessary and Seller agrees in writing. Unless the Parties agree otherwise in writing, Buyer must take all goods ordered at the time of manufacturing completion or at the purchase order date, whichever is later. If all shipments have not been completed within that time, Buyer shall pay a 1% charge per week until the goods ship. Seller may agree to hold goods for a longer time, with Buyer paying all storage/holding fees as defined by the Seller.
The ship date(s) designated by Seller represent a reasonable estimate of the time required to manufacture the goods from the date the order is accepted by Seller. Such dates do not represent Seller’s promise to ship or deliver goods on such dates unless otherwise expressly agreed in writing. Goods may be tendered in partial shipments at Seller’s discretion. If Buyer or Seller determines it is necessary to modify the design or specifications for the goods, the shipping date shall be extended by the period of time required to achieve the agreed-upon modifications to the design, specifications, or terms of sale. The performance date(s) designated by Seller for services represent a reasonable estimate of the time required to begin and complete the services. Some services are contingent on appropriate environmental or external conditions. Delays in services caused by inappropriate environmental or site conditions, including weather, shall not be a breach of the Terms. Delays due to Buyer site readiness may result in additional Seller labor and installation charges payable by Buyer.
Inspection
Buyer has the right to inspect goods or services upon receipt and run adequate tests to determine whether the goods shipped conform to the warranties. The Buyer bears all expenses incurred in any inspection or testing, whether or not the goods conform.
Insurance
Seller and Buyer shall obtain and maintain insurance coverage with limits sufficient to cover the liabilities outlined in these Terms. Seller or Buyer will provide a basic certificate of insurance evidencing coverage on the other party’s request. Unless a written contract signed by both parties exists to the contrary, Buyer shall not be named an additional insured on Seller’s policies, nor will Seller waive its subrogation rights.
Warranty
Except as otherwise stated in Seller’s published, product-specific warranty or Product Disclaimer, Seller warrants that on the date all products are sold, the products will meet Seller’s standard specifications for all products and will be free from defects in material or manufacture. This warranty is the only warranty given by the Seller and is in place of all others expressed or implied.
This warranty applies only against defects and nonconformities that are discovered within one (1) year from the date the goods shipped from the Seller’s Factory. This one (1) year warranty only applies to items manufactured by the Seller. For any components or subcomponents purchased from other manufacturers, the Seller will pass on the original equipment manufacturer’s warranty or one (1) year whichever is shorter.
The warranty is contingent upon the accuracy of all information provided by Buyer. Any changes to or inaccuracies in any information or data provided by Buyer voids this warranty. Seller does not warrant that the goods will operate in combination with other products selected by Buyer or Buyer’s customer for its use. The warranty does not cover wear parts, consumables, filters, or any other items which have a planned maintenance or scheduled replacement. All warranties are nullified if the product or equipment is improperly used, installed, or improperly maintained.
Waiver of Subrogation
Buyer agrees to waive all rights of subrogation that would otherwise be available to its insurers, regardless of the theory of recovery, relating in any way to the design, testing, manufacture, sale, warnings, use, maintenance, or installation of any goods, any components, or any related services.
Government Sales
Seller objects to the application of any United States Federal Acquisition Regulation (“FAR”) or Defense Federal Acquisition Regulation (“DFAR”) provision or clause to these Terms and any order, and Buyer acknowledges that any such FAR or DFAR provisions contained in any order or other document(s) furnished by Buyer shall be of no force or effect unless otherwise agreed in writing by an officer of Seller.
Credit and Payment
Credit accounts will be opened only with Buyers approved by Seller’s Credit Department. Unless otherwise agreed upon in a written contract signed by both parties or included in the Seller Sales Document, all sales made on credit are due and payable 30 days following the invoice date. All amounts not paid when due shall bear interest at eight percent (18%) per annum (1.5% per month), or the highest rate allowed by law, whichever is lower, until paid. Seller reserves the right at any time, to alter or suspend credit, or to change the credit terms provided herein, when in its sole opinion the financial condition of Buyer so warrants.
Seller may at any time, with or without notice to Buyer, and at its option, suspend work and shipment under this contract if, in Seller’s sole opinion, the financial condition of Buyer so warrants. In such cases, in addition to any other remedies herein or provided by law, Seller may require cash payment or satisfactory security from Buyer before credit is restored or Seller continues performance. If Buyer fails to make payment or fails to furnish security satisfactory to Seller, then Seller has the right to enforce payment of the full contract price of the work completed and in process. If Buyer fails to make payment when due, Buyer shall immediately pay to Seller the entire unpaid amounts for any and all shipments made to Buyer regardless of the terms of the shipments and whether said shipments are made pursuant to these Terms or any other contract of sale between Seller and Buyer, and Seller may withhold all subsequent shipments until Buyer settles its full account. The Seller’s acceptance of less than full payment is not a waiver of any of its rights.
Minimum Order
When appropriate, minimum order quantities are noted on the applicable Sales Document.
Prices & Quotations
Orders for goods will be invoiced at prices in effect at the time of Seller’s acceptance of the order, unless otherwise specified in Seller’s Sales Document to Buyer. Prices do not include transportation, packaging or related costs. These Terms allocate the product risks between the parties, which are reflected in the prices for the goods. Quotations are valid for 30 days, unless otherwise specified, and represent no obligation until the order, issued by Buyer in response to the quote, is acknowledged and accepted by Seller. The prices and Seller’s performance under an order are subject to resource availability and costs within Seller’s control at the time of manufacture of the goods covered by such order. Seller may adjust prices and shipment dates specified in an order before it accepts the order. Seller may change its published prices and other terms of sale at any time, but the change will not affect any order properly accepted by Seller before the change’s effective date.
Packaging, Specialized Packaging/Equipment
Buyer will pay or reimburse Seller for the cost of all packaging necessary to ship the goods to the Buyer. Additionally, Buyer shall pay or reimburse Seller for any specialized packaging beyond Seller’s standard packaging including packing for export and charges assessed for the use of specialized equipment (equipment rental, lift gates, soft-tops, etc.) to ship goods.
Sales Drawing Weights & Dimensions
Sales document or Sales Drawing weights and dimensions are only estimates and are not guaranteed.
Cancellation, Suspension & Rescission
No accepted order shall be modified or cancelled by Buyer except upon Seller’s written agreement, in which case, it shall be subject solely to these Terms, whether or not stated in the change-order. Cancellation of orders is subject to cancellation charges. Buyer will reimburse Seller for all costs and expenses including commitments and internal expenses incurred by Seller in the event of order cancellation. Costs of cancellation may represent up to 100% of the value of the order which is cancelled depending upon the status of work-in-process.
If Buyer fails to fulfil its obligations, is declared bankrupt, is subject to a suspension of payments process, requests a moratorium, proceeds with a liquidation of its business, its assets are attached in whole or in part, or any similar procedures or actions, Seller has the right to suspend any order, cancel or rescind any order, in whole or in part, without prior notice, by written declaration, at its option and without prejudice to any rights to compensation for costs, damages and interest.
Repairs, Alterations & Modifications
If Seller is requested to repair goods not covered by its warranty, such repairs shall be made at the expense of the Buyer (person, company, or company representative) requesting such repair. Any alterations or modifications to the goods made by anyone other than Seller are not permitted without specific prior written authorization by Seller and will void the warranty.
Limitation on Liability
SELLER SHALL NOT BE LIABLE, AND IT HEREBY DISCLAIMS ALL LIABILITY, FOR ANY LOSS OF PROFITS, CONSEQUENTIAL, CONTINGENT, INDIRECT, SPECIAL, LIQUIDATED, PUNITIVE OR INCIDENTAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, BUSINESS OR REVENUE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE LEGAL THEORY ASSERTED, INCLUDING WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY.
SELLER’S LIABILITY TO BUYER FOR DIRECT DAMAGES AND/OR ITS CUSTOMER(S) WILL IN NO EVENT EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC GOODS MANUFACTURED OR SERVICES PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. NO PENALTY CLAUSE APPEARING IN ANY DOCUMENT WILL BE EFFECTIVE AGAINST SELLER UNLESS IT HAS BEEN EXPRESSLY ACCEPTED IN WRITING BY AN OFFICER OF SELLER.
The limitation of liability set forth above shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting directly from Seller’s sole acts or omissions.
Buyer Indemnity
Buyer, at its sole expense, will indemnify, defend, and hold Seller and its affiliates, successors, assigns, officers, directors, employees and agents harmless from and against any claim, demand, proceeding, or action for damages, liability, loss, cost, or expense, including amounts paid in settlement and attorneys’ fees and court costs, arising out of, in connection with or based upon, use of the goods, incorporation of the goods into Buyer’s goods, or resale of goods, the warranties and/or remedies offered by Buyer that are different than those contained in Seller’s warranty regarding the goods.
Taxes & Other Charges
Prices for the goods do not include any taxes, including sales, use, excise, VAT taxes, or any duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature imposed by any governmental authority (“Tax”) on or measured by any transaction between Seller and Buyer. The amount of any present, retroactive, or future Tax, except taxes on or measured by Seller’s net income, shall be added to the prices, and Buyer will pay such Tax, unless Buyer provides Seller tax exemption certificates acceptable to the taxing authorities.
Export Control
Buyer acknowledges that the goods and the purchase of goods may be subject to various customs, import and export control laws and regulations of the United States and potentially other countries. Buyer represents and warrants that it will not export or re-export the goods or technical data related thereto except in conformity with all applicable laws and regulations including those of the country of export and those of the country of origin of the goods.
Errors
All of Seller’s clerical errors are subject to correction without penalty.
Specification, Engineering & Design Changes & Special Tests
Seller may, in its sole discretion and without incurring any liability to Buyer:
- Alter the specifications for or make any design or engineering change to any goods;
- Discontinue the manufacture or sale of any goods;
- Discontinue the development of any new goods, whether or not such goods have been publicly announced;
- Commence the manufacture and sale of new goods having features which make any goods wholly or partially obsolete.
Seller shall be permitted to discontinue the manufacture and/or sale of any goods, including replacement parts without recourse from Buyer. Notwithstanding the above, Seller will fill accepted orders from Buyer for any such altered or discontinued goods to the extent it has such product or is willing to produce such products. Buyer may request Seller to change the specifications for any goods. If Seller accepts such a request, the parties will negotiate any resulting change in price for the goods and Buyer will pay Seller for any raw materials, work in process, and/or finished goods that become obsolete. Any such change will affect only those orders issued after the effective date of such change. Unless otherwise agreed in writing by Seller, all special tests and inspections of the goods required by Buyer shall be performed at Buyer’s expense at Seller’s facilities.
Confidential Information
All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form, and whether or not marked, designated or otherwise identified as “confidential” is confidential, solely for the use of this order and may not be disclosed or copied unless authorized in writing by an authorized representative of Seller. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller.
Seller shall be entitled to seek injunctive relief for any violation of this Section. This Section does not apply to information that is:
- In the public domain;
- Known to Buyer before disclosure;
- Rightfully obtained by Buyer on a non-confidential basis from a third party that was not in violation at the time the information was shared with the Buyer.
Any drawings, models, specifications, or samples submitted by Seller shall remain Seller’s sole property and Buyer shall treat them as Seller’s confidential information unless an authorized representative of Seller has indicated otherwise in a signed contract. No use or disclosure of such items, or any design or production techniques revealed thereby, shall be made without Seller’s prior written consent. Unless the parties agree otherwise in writing, Seller, its designated affiliate or licensor, if any, owns all right, title and interest in and to all intellectual property rights and all other information, technical or otherwise, related to the goods or services and all modifications thereto sold or licensed under these Terms, which were conceived, developed, made or supplied, whether in whole or in part, by Seller even if Buyer reimburses Seller for any costs related thereto. Buyer will not, at any time contribute to, do, or cause to be done any act or thing in any way impairing or intending to impair any such right, title and interest described herein.
Non-compete
For the valuable consideration Buyer shall not in any manner, represent, provide services, or engage in business with Seller’s customers to produce the same or like products or services Seller plans to or is currently producing.
Security Interest
As security for the payment and performance of Buyer under these Terms, Seller may request Buyer to grant an irrevocable standby letter of credit or Buyer grants Seller a security interest in all goods purchased under these Terms, and in the proceeds thereof, including all insurance proceeds, until Seller is paid in full for goods. Buyer hereby authorizes Seller to sign and file financing statements and other instruments required to protect and perfect such security interest as described herein.
Notices
All notices to Seller, to be effective against Seller, must be in writing and sent by certified mail, with return receipt requested or by a nationally recognized overnight delivery service to Seller’s headquarters. The effective date of such a notice is the date of receipt. Seller may designate in writing other individuals to receive notice and may change its notice address.
Assignment
Buyer will not assign, transfer or delegate any order accepted by Seller or any of its rights, duties, obligations, or related interests without Seller’s prior written approval. Seller may at its sole option, as local law allows, terminate or cancel, without penalty, any order accepted by Seller on:
- the sale of all or substantially all of Buyer’s stock,
- the sale or transfer of the entire business or substantially all the assets of Buyer, or
- any significant change in the management or control of Buyer.
Any assignment, transfer, or delegation of orders or any interest therein, without Seller’s prior written consent, is at the Seller’s sole discretion voidable and cause for termination or cancellation of such orders. Nothing in these Terms will be construed to grant any person or entity, a party to any order accepted by Seller, any rights or powers whatsoever. No person or entity will be a third-party beneficiary of any order accepted by Seller.
No Waiver
Any failure or delay by either party in exercising any right or remedy in any instance will not prohibit the party from exercising it at a later time or from exercising any other right or remedy.
Severability
If a court or tribunal of competent jurisdiction holds any provision of these Terms to be invalid, illegal, or unenforceable, the provision will be deemed severable and the invalidity, illegality, or unenforceability will not affect any other provision of these Terms which must be enforced in accordance with the intent of these Terms.
Force Majeure
Seller shall not be liable to Buyer, nor be deemed to have defaulted or breached these Terms or any order or contract, for any failure or delay in performance when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities, terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes, restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or communication breakdown or power outage.
Seller may, in its sole discretion, allocate its inventory of goods among itself, its customers, other channels of distribution and Buyer. If a force majeure event prevents or delays, for a period exceeding 6 months, Seller’s performance under an accepted order, either party may terminate, without penalty, the accepted orders affected by such event, by giving written notice thereof to the other party. Cancellation charges may apply.
Independent Contractors
The parties agree that the relationship created by these Terms is that of independent contractors.
Compliance with Laws
Buyer will comply with all applicable laws and regulations now or hereafter in effect, including but not limited to the anti-corruption laws. In the event Buyer acts as Seller’s agent, distributor or reseller, Buyer certifies that neither it, nor anyone acting on its behalf is an official, agent, or employee of any government or governmental agency or political party or a candidate for any political office on the date of any order Buyer places. Buyer shall not, directly or indirectly, in the name of, on behalf of, or for the benefit of Seller pay, promise to pay, or authorize the payment of any money, or offer, give, promise to give or authorize the giving of anything of value to, any official, agent or employee of any government, governmental agency or government-owned or controlled enterprise, or to any political party or candidate. Buyer shall require each of its directors, officers, employees, and agents to comply with the provisions of this section. Buyer shall promptly notify Seller of any event that may result in a failure to comply with this section. Any breach of the provisions of this Article shall entitle Seller to terminate immediately, without notice and without liability to Buyer.
Property Rights
All tools, equipment, dies, and gauges (“Equipment”) developed for the production of goods shown on the order, are the property of Seller and title shall remain with Seller. Such Equipment, even if paid for in whole or in part by the Buyer, shall not convey to the Buyer and/or others any right, title, or interest in or to Equipment, unless through prior written agreement by Seller.
Survival
These Terms apply to each discrete Buyer order; therefore, these Terms will remain in full force after any acceptance, acknowledgement, shipment, completion, suspension, modification, cancellation, or termination of any order(s) placed pursuant to these Terms.
Buyer Acknowledgment
Buyer acknowledges receipt and acceptance of the applicable Plymouth Warranty Statement.
