These terms and conditions apply to all TPI subsidiaries, affiliates and locations. All references herein to TPI shall also include TPI subsidiaries and affiliates.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
THERE ARE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY REGARDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS MAY BE EXPLICITLY STATED ON TOTAL PLASTICS, INT’L ACKNOWLEDGMENT.
LIABILITY FOR THE BREACH OF ANY WARRANTY IS LIMITED TO REPAIR OR REPLACEMENT OF DEFECTIVE OR NONCONFORMING GOODS OR TO THE REFUND OF THE PURCHASE PRICE UPON RETURN OF THE GOODS TO TOTAL PLASTICS, INT’L (“TPI”) AT THE OPTION OF TPI. TPI IS NOT LIABLE FOR ANY OTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, REVENUE, OR DATA, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF TPI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUSTOMER ASSUMES ALL RISKS AND LIABILITY FOR LOSS, DAMAGE, OR INJURY TO PERSONS OR PROPERTY OF CUSTOMER OR OTHERS ARISING OUT OF THE USE OR POSSESSION OF THE GOODS.
LIMITED WARRANTY: TPI WARRANTS ONLY THAT THE GOODS SUPPLIED TO YOU UNDER THIS SALES AGREEMENT CONFORM TO THE SPECIFICATIONS AND DESCRIPTION OF THE TYPE AND QUALITY SPECIFIED IN THE ACKNOWLEDGMENT AT THE TIME OF DELIVERY, SUBJECT TO TOLERANCES AND VARIATIONS CONSISTENT WITH THE USUAL TRADE PRACTICES. ALTHOUGH EMPLOYEES OF TPI ARE AVAILABLE FOR CONSULTATION CONCERNING THE SELECTION OF GOODS AND REQUIRED SPECIFICATIONS, THEY ARE NOT AUTHORIZED TO WARRANT THE SUITABILITY OF ANY GOODS FOR ANY PARTICULAR USE OR APPLICATION. FINAL DETERMINATION OF THE SUITABILITY OF THE GOODS FOR THE USE CONTEMPLATED BY YOU, TPI’S CUSTOMER, IS YOUR SOLE RESPONSIBILITY, AND TPI HAS NO RESPONSIBILITY AND MAKES NO WARRANTY OR REPRESENTATION IN CONNECTION WITH THAT DETERMINATION. IN CASES OF GOODS MANUFACTURED BY COMPANIES WITH WARRANTY POLICIES DIFFERING FROM TPI’S, THE APPLICABLE WARRANTY OF THE ORIGINAL MANUFACTURER WILL APPLY. THIS WARRANTY GIVES YOU, OUR CUSTOMER, SPECIFIC RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE.
ADDITIONAL LIMITATIONS: EXCEPT FOR PERSONAL INJURY CAUSED BY TPI’S SOLE NEGLIGENCE, TPI’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT PAID TO TPI UNDER THIS AGREEMENT, EVEN IF A TERM OF THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. THE REMEDIES OF YOU, OUR CUSTOMER, SPECIFICALLY STATED IN THIS AGREEMENT CONSTITUTE YOUR EXCLUSIVE REMEDIES FOR BREACHES BY TPI TO WHICH THEY RELATE.
RIGHT OF INSPECTION: Should any of the goods supplied fail to conform to the specifications and the description stated on the Acknowledgment , TPI’s ONLY LIABILITY will be to make replacement or repair or to refund the purchase price, at TPI’s sole option, provided that (a) you, our customer, notify TPI in writing within ten (10) days from receipt of the goods, (b) TPI’s inspectors determine that the goods do not conform to the specification or description, (c) upon TPI’s request, you, our customer, return the goods to TPI’s facility within ten (10) days after being requested to do so, and (d) terms of payment have been fully met. Your failure to comply with the terms of this paragraph and as otherwise provided in this document shall constitute an irrevocable acceptance of the goods as conforming to the type and quality specified and bind you, our customer, to pay the contract price for the goods. All claims must be made prior to the installation or other use of the goods. If you have accepted the goods tendered under this document in any manner provided in the Uniform Commercial Code, you, our customer, shall have no right to revoke its acceptance.
PRICES: All prices are quoted F.O.B. TPI’s shipping point unless otherwise stated. All prices are subject to adjustment to reflect TPI’s prices in effect at the time of shipment, including increases in packaging, storage, shipping charges, or taxes. Cash discounts, if any, are as allowed by TPI at the date of shipment and apply only to TPI’s selling price f.o.b. the shipping point exclusive of all packing, storage, shipping, insurance, or taxes. You are not entitled to any cash discount if you owe TPI any uncontested past due balances.
TERMS OF PAYMENT: Payment for all goods is due and shall be paid according to the terms appearing on the face of the invoice from TPI. The invoice amount cannot be paid in any other manner than in full when due. On any amount not paid within one (1) day of the date it is due, liquidated damages will accrue and be payable. Liquidated damages shall be interest on the amount due at the maximum rate allowed by law.
TAXES: The prices quoted do not include sales, use, value-added, excise or other taxes unless otherwise stated. These taxes and any other measured in whole or in part by gross receipts applicable to this transaction shall be paid by you, our customer, in addition to the quoted purchase price. If you, our customer, claim exemption from any of these taxes, you shall furnish satisfactory proof of such exemption.
PACKING AND SHIPPING: Unless you, our customer, have furnished shipping instructions to TPI prior to the time TPI has completed packaging or tagging the goods, all orders will be shipped by common carrier selected by TPI. Unless otherwise agreed in writing, signed by TPI, you shall pay freight charges from TPI’s shipping point. TPI shall also be entitled to make additional charges for special packaging if, in TPI’s discretion, special protection is necessary to insure safe delivery.
TITLE RISK OF LOSS OR DAMAGE: Title shall pass to you, our customer, upon delivery of the goods to the common carrier. Customer bears the risk of loss or damage to or the destruction of the goods from the time of their delivery by TPI to the common carrier. All claims for loss, damage, or destruction attributable to shipping should be made directly to the carrier. TPI shall not be responsible for any such loss, damage, or destruction. The common carrier, although selected by TPI, shall be deemed your agent.
CLAIMS AND CREDITS: TPI is not responsible for shortages or errors unless written claims are made to TPI within five (5) days of customer’s receipt of the goods. In any event, claims of shortages or damage should be noted immediately upon receipt of the goods on the bill of lading and/or delivery ticket. If there is a shortage or the goods have been damaged in transit, a notation to that effect must be made by you upon delivery on the carrier’s bill of lading and/or delivery ticket (receipt). Damaged goods should not be unloaded until they have been thoroughly inspected and all damages noted on the delivery ticket and/or bill of lading. TPI will not insure the goods unless specifically instructed to do so. All charges relating to insurance of goods will be made to the customer’s account and are due and payable upon receipt of TPI’s invoice unless they are billed directly to you by the insurance carrier.
DELAY IN DELIVERY: TPI assumes no responsibility for failure to ship on a particular date, and when an order is placed for shipment on a specific date, if, for any reason, you will not accept the ordered goods if shipment is made earlier or later than the date specified, TPI must be notified to that effect in writing when the order is placed. All orders are accepted subject to strikes, riots, wars, labor troubles, floods, fires, accidents, delays, contingencies of transportation, governmental acts, orders and regulations, and any other causes beyond the control of TPI, and if any such cause prevents or interferes with the delivery of the goods ordered, customer shall accept as full, and complete fulfillment of the order the portion of the goods covered by the order which TPI is able under the circumstances to procure and deliver in accordance with the order; and a time for delivery shall be extended for such time as shall be reasonably required.
RETURNS: No goods shall be accepted for return without the prior written authorization of TPI. There will be a twenty-five percent (25%) restocking charge on all returned goods (non-processed, original shipped condition) accepted by TPI. No returns will be accepted after thirty (30) days from the date of delivery to you, our customer. Goods which have been processed or fabricated may not be returned.
SUSPENSION OF PERFORMANCE: If you, our customer, fail to pay any amount owing to TPI, or, if in TPI’s judgment there is reasonable doubt concerning your financial responsibility, TPI may suspend performance or terminate this contract without liability and without prejudice to other remedies, as to further delivery and work, and no forbearance or course of dealing affects this right of TPI. Notwithstanding any previous shipment on credit TPI may, at any time, demand payment on delivery, require payment in advance or upon tender of shipping documents.
RIGHT OF RESALE: If you, our customer, breach or repudiate a provision of this contract or fail to comply with this contract, TPI may resell the goods which have not already been delivered to you, together with any goods reclaimed by TPI or to which TPI may agree to accept return. The sale may be public or private, wholesale or retail, and TPI may hold more than one (1) sale. In addition, you, our customer, shall pay TPI the amount by which the price established in this contract exceeds the amount received from the public or private sale, together with all incidental damages occasioned by your default. You, our customer, and TPI agree that five (5) days written notice of resale at public sale or private sale which TPI conducts as a result of your default is reasonable notice to you of the sale.
VERBAL ORDERS: TPI telephone desks are maintained and staffed for immediate service. If shipment of your order is made before written confirmation from you is received, such orders must be considered as accurate as recorded by TPI’s inside sales personnel. To avoid duplication of verbal orders please mark confirming orders prominently and clearly “confirmation”. Otherwise, duplications will result, and the charges involved will be at your expense. Acceptance of all verbal orders is expressly limited to these terms and conditions as stated herein. A minimum order amount is Fifty Dollars ($50.00) on standard products, it may be higher on certain items or special products.
CHANGES OR CANCELLATIONS: Should you, our customer, find it necessary to change the specifications of your order while work is in progress, TPI will make every effort to accommodate you. However, it will be necessary for TPI to charge you, our customer, and you agree to pay for any services, labor, or material which are discarded or unusable because of such changes requested by you. Should you, our customer, for any reason, desire to cancel an order, you agree to reimburse TPI for any and, all costs and expenses which TPI may have incurred as a result of its performance under the order prior to your notification of cancellation. You also agree to pay for any material which has been cut or fabricated to your order and which is unusable. TPI agrees to credit you with the value of the scrap value of the material which is discarded.
INDEMNIFICATION: Customer shall indemnify, defend, and hold TPI, its officers, and agents harmless from and against all loss, liability, cost, damage, or expense whatsoever incident to any claim, action, or proceeding against TPI (i) arising out of (a) the negligent design of goods furnished per your, our customer’s, specifications, (b) installation, (c) maintenance, (d) use, (e) fabrication, and (f) operation of the goods by you, our customer, or on your behalf; or (ii) based on the allegation that any of the goods or any part thereof sold hereunder pursuant to your, or your customer’s design or specification infringe any patents applied for or issued as of the date of this order.
ATTORNEYS’ FEES: In the event it becomes necessary for TPI to retain legal counsel, or to utilize its in-house counsel to implement collection procedures, or to undertake litigation, or to otherwise protect TPI’s rights under this Agreement, or to defend itself against claims which are your responsibility, you, our customer, shall pay TPI a reasonable sum for the attorneys’ fees and related costs, whether or not such litigation proceeds to final judgment.
WAIVER: No waiver of any breach or default of yours, under these terms and conditions, operates as a waiver of any future default, whether of a like or different character, except as otherwise provided in these terms and conditions.
SEVERABILITY: If any provision of these terms and conditions as applied to any party or to any circumstance shall be found by a court to be void, invalid, or unenforceable, it shall not affect any other provision of these items and conditions, the application of any such provision in any other circumstance, or the validity of enforceability of those terms and conditions.
ENTIRE AGREEMENT: The terms and conditions set forth here constitute the entire agreement between TPI and you, our customer, the parties relating to the sale of the goods, and this Agreement prevails over any and all terms contained in your, our customers’, purchase order or acknowledgments unless explicitly stated to the contrary in a writing executed by both you and TPI. This agreement cannot be modified except by a writing signed by both of us.
LAW: Any sale of goods or services by TPI shall be governed by and construed in accordance with the laws of the State of Michigan without regard to Michigan’s conflict of law provisions.