All sales of products by Angstrom Supply, LLC, a Michigan limited liability company (“Angstrom”) are made on the following terms and conditions (the “Terms of Sale”). In these Terms of Sale, any products, accessories, furnishings, equipment, components, supplies, or materials sold by Angstrom to the Customer named in Angstrom’s quotation, Customer’s purchase order, or Angstrom’s acknowledgment (“Customer”) are referred to as “Products.” In consideration of Angstrom agreeing to provide Products to the Customer, the Customer agrees as follows:
- Formation of Contract. These Terms of Sale, together with the terms and conditions of any other credit application, quotation, confirmation, acknowledgement, and/or invoice prepared by Angstrom, constitute the agreement between the parties (the “Contract”). Customer agrees to each and every term contained in the Contract as a precondition to Angstrom’s performance. Any term or condition in any purchase order or other form or document issued by Customer, regardless of the materiality of the term or condition, that differs from or is contrary to the terms and conditions contained in the Contract are objected to and excluded unless expressly agreed to in a written acknowledgment issued by Angstrom. No other terms or conditions not set forth in the Contract shall apply unless expressly agreed to in a written acknowledgment issued by Angstrom.
- Price. Prices will be as stated in Angstrom’s quotation, acknowledgement, and/or invoice, and are subject to change without notice. Unless otherwise acknowledged in a quotation, acknowledgement and/or invoice, prices do not include freight or transportation related charges.
- Quotations. Quoted terms shall remain in effect for thirty (30) days or such other time as is stated on Angstrom’s quotation. Angstrom’s quotations may require Angstrom’s interpretation of the materials required if plans or specifications are provided by Customer or Customer’s representatives. Angstrom makes no representations or warranties as to the accuracy or appropriateness of Angstrom’s quotation. Typographical and clerical errors in quotations, including errors in mathematical computation, are subject to unilateral correction by Angstrom. Customer shall be solely responsible for determining the materials and quantities required for a particular project or order. Angstrom’s quotation is based on various business factors and considerations and may not be used by any other contractor or any other person or entity without Angstrom’s written consent. All orders placed pursuant to a quotation are subject to approval by Angstrom and will not be binding upon Angstrom unless and until they are accepted in writing by an authorized representative of Angstrom.
- Payment. Unless otherwise specified in Angstrom’s quotation or acknowledgment, payment in full of the price is due at the location, and in the method, designated by Angstrom thirty (30) days after shipment of the Products, without setoff, discount, or other deductions or charges, as evidenced by Angstrom’s signed or unsigned delivery tickets or delivery records. Any payment that is not made when it is due shall accrue a finance charge of 1-1/2% per month or the maximum rate permitted by law, whichever is less. The accrual or payment of any interest as provided above is cumulative and will not constitute a waiver or election by Angstrom of any rights and remedies in connection with a default by Customer. If the shipment of Products is delayed by or at the request of Customer, payment will remain due in full thirty (30) days from the date of Angstrom’s invoice. In such event, Angstrom may impose, and Customer shall pay, storage charges and other incidental expenses incurred by Angstrom as a result of the delay, in addition to any interest on late payments as described above and any other remedies to which Angstrom may be entitled. Angstrom may require payment in advance or withhold future deliveries upon any late payment or reasonable uncertainty as to Customer’s ability to pay. Angstrom may change its quoted prices upon an unusual or unforeseen increase in Angstrom’s costs. Customer agrees not to send Angstrom payments marked “paid in full”, “without recourse”, or similar language. If Customer sends such a payment, Angstrom may accept it without losing any of Angstrom’s rights and Customer will remain obligated to pay any further amount owed to Angstrom. Title to the Products shall remain with Angstrom until the price owed to Angstrom is paid in full. If Customer fails or refuses to pay any part of the price when due, then title to the Products will not pass to Customer, and Angstrom can repossess the Products.
- Taxes and Other Charges. The purchase price does not include sales, use, excise, or similar taxes. Consequently, in addition to the purchase price for the Products, the amount of any present or future sales, use, excise, or other tax applicable to the sale or use of the Products sold hereunder shall be paid by Customer.
- No Damages for Delay. Although Angstrom will attempt to meet shipment and delivery schedules, Angstrom will not be liable to Customer for any damages resulting from late shipment or delivery, including but not limited to direct, indirect, economic, incidental, or consequential damages, including without limitation lost profits or income, loss of use, downtime, cover, and employee or independent contractor wages, payments, and benefits.
- Delivery and Risk of Loss. Unless otherwise agreed in writing, the risk of loss, theft, destruction, or damage to the Products shall pass to Customer F.O.B. Angstrom’s applicable facility or applicable shipping point. Any delivery dates or other schedule of performance by Angstrom are approximations, and the sole obligation of Angstrom with respect to the schedule of delivery or performance will be to use reasonable commercial efforts to meet scheduled shipping, delivery and performance, but time is not of the essence. Angstrom may ship all the Products at one time or in portions from time to time. Angstrom shall have the right, but not the obligation, to determine the method of shipment and routing of the Products, unless otherwise stated in Angstrom’s quotation or acknowledgment. Customer or its carrier shall be responsible for supervising the loading and unloading of Products and for securing all loads for safe transport, and shall indemnify and hold Angstrom harmless from any liability for personal injury, death, property damage, or other loss resulting from the loading, transport, delivery or unloading of the Products.
- Unavoidable Delay. If Angstrom is not able to finish and deliver the Products to Customer on time because of anything Angstrom cannot control (including, without limitation, typical “force majeure” events such as casualty, labor trouble, accidents, unavailability or delays of supplies or transportation), then the estimated delivery or performance time shall be extended accordingly, and Angstrom shall not be liable to Customer for any damages caused by the delay.
- Limited Warranty; Defects; Remedies. The limited warranty set forth herein applies only to Products that Angstom manufactures. All other Products are sold AS-IS, without warranty; provided, however, that Angstrom assigns to Customer any warranties provided by third party manufacturers of such Products, to the extent that they are assignable. Angstrom warrants that the Products that it manufactures have been manufactured in accordance with the specifications supplied by the Customer in writing, if any, subject to any changes agreed to, in writing, between Angstrom and Customer. Subject to the terms and conditions set forth herein, Angstrom warrants such manufactured Products to be free from defects in materials and workmanship for a period of ninety (90) days beginning from the date of delivery.
Customer agrees to inspect the Products immediately upon receipt of such Products from Angstrom. If any item of Products that is manufactured by Angstrom and is not subject to alteration, improper installation, abuse or misuse proves to be defective (as defined below), and if Customer gives written notice to Angstrom of such defect within ninety (90) days after the date of delivery, and does not alter, improperly install, abuse, or misuse the Products, then Angstrom shall, at Angstrom’s sole option, either repair or replace the defective item, at Angstrom’s expense. Angstrom will have no liability for any claims arising from use that is not in accordance with Angstrom’s instructions and specifications. Similarly, Angstrom will have no liability for any claims arising from Products that have been altered, improperly installed, abused, or misused by any person other than Angstrom. Angstrom shall not be responsible for the expense of locating or removing any defective Products or re-installing any repaired or replacement Products. Notice of a breach of Angstrom’s warranty must be made in writing addressed to Angstrom, setting forth sufficient details to permit identification by Angstrom of the claimed defect. Samples should accompany such notification. If Customer alters, improperly installs, abuses, or misuses the Products or fails to notify Angstrom within the applicable warranty period following shipment of the Products, then any claim for breach of warranty shall be conclusively deemed to have been waived by Customer with respect to the alleged defect. In the event of a defect in any Products constituting a breach of the warranty provided herein, Customer must comply with Angstrom’s instructions for the disposition of the defective Products. Customer will not have any warranty claim unless it has timely provided to Angstrom return of the defective Products, transportation prepaid (if required by Angstrom), and proof that the Products were not altered, improperly installed, abused, or misused. No Products shall be returned to Angstrom without Angstrom’s prior consent. The acceptance of any Products returned to Angstrom shall not be deemed an admission that the Products are defective or in breach of any warranty, and if Angstrom determines that the Products are not defective, Angstrom may return them to Customer at Customer’s expense.
If Angstrom fails to repair or replace any defective item manufactured by Angstrom within a reasonable time, then Angstrom shall be liable to Customer for the lesser of (i) the reasonable costs of repair or replacement by a third party, or (ii) that part of the purchase price of the defective Products that Customer shall have paid, but Customer shall not obtain repair or replacement by a third party without giving Angstrom at least fifteen (15) days prior written notice, during which time Angstrom may repair or replace the defective item. In no event will Angstrom’s aggregate liability exceed the amount actually paid by Customer to Angstrom for the defective Products. An item shall be considered “defective” only if it is found by Angstrom to have been defective in materials or workmanship and if the defect materially impairs the value of the Products, except that the Products shall not be defective to the extent that (i) they conform with drawings of or specifications for or a sample of Products that have been approved by Customer, (ii) they are inspected and not rejected by Customer, (iii) they conform with Products, testing results, dimensional layouts or manufacturing methods that have been submitted and approved by Customer, (iv) they are improperly installed and such improper installation causes the claimed defect or damage, or (v) they are damaged due to the method or length of storage or in the course of installation. Angstrom does not warrant the workmanship or any components supplied by third parties who have provided component parts for, performed work on, or installed the Products. If Customer’s representative agrees, either orally or in writing, to a change in or waiver of the specifications for any item of Products, then such Products shall not be considered defective to the extent they conform to the specifications as so changed or waived. This Section sets forth Customer’s sole and exclusive remedies for any defect in the Products. The warranty provided to the Customer herein is non-transferable. Neither Customer nor any other person may modify or expand the warranty provided herein, waive any of the limitations, or make any different or additional warranties with respect to the Products. Any statements to the contrary are hereby rendered null and void unless made in a writing signed by an authorized officer of Angstrom. Except as stated herein, Customer shall not have any right of rejection or revocation of acceptance of Products.
- Limitations. EXCEPT AS STATED IN SECTION 9, CUSTOMER PURCHASES ALL PRODUCTS “AS IS” AND ANGSTROM DOES NOT MAKE ANY OTHER WARRANTY AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED AS TO THE PRODUCTS AND, IN PARTICULAR, DOES NOT MAKE ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING THE PROPER APPLICATION AND USE OF THE PRODUCTS. Angstrom’s warranty applies only to Products that it manufactures. All other Products are sold AS IS, without warranty; provided, however, that Angstrom assigns to Customer any warranties provided by third party manufacturers of such Products, to the extent that they are assignable. Customer must take reasonable steps to mitigate any loss and, regardless of any other obligation Angstrom may otherwise have to the Customer, Angstrom is not responsible for any losses that Customer failed to reasonably mitigate. Angstrom shall not have any tort liability to Customer or any other person with respect to any of the Products. ANGSTROM SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, INDIRECT OR PUNITIVE DAMAGES ARISING FROM ANY PRODUCT DEFECT, DELAY, NONDELIVERY, RECALL OR OTHER BREACH. If Products are sold by Customer, Customer will include in its agreement for resale provisions that limit recoveries in accordance with these Terms of Sale. In case of Customer’s failure to include in any agreement for resale the Terms of Sale providing for such limitations, Customer will indemnify and hold Angstrom harmless against any liability, loss, cost, damage, or expense (including reasonable attorney fees) arising out of or resulting from the failure.
- Solvency and Security Interest. Customer represents and warrants that Customer is solvent. Customer grants and Angstrom retains a security interest in the Products (and any proceeds thereof) to secure payment of the price and all other indebtedness that Customer now and in the future owes to Angstrom, and Angstrom will have all rights of a secured party under the Uniform Commercial Code with respect to the Products. Customer hereby authorizes Angstrom to create and file a financing statement to perfect its interest in the Products. Customer agrees to execute and deliver such other documents as requested by Angstrom to create, perfect, preserve or enforce such security interest, and appoints Angstrom as its attorney-in-fact with authority, at Angstrom’s option, to take actions as Angstrom deems reasonable in the circumstance to perfect the above security interest in any one or more jurisdictions. Customer shall pay (or reimburse Angstrom) for any and all applicable filing fees.
- Changes. With respect to any Products manufactured by Angstrom, Angstrom shall have the right to make design or engineering changes in its parts, equipment, processes and methods of manufacture, but Angstrom will not, without Customer’s approval, make a change in operational or dimensional specifications submitted by Customer and agreed to by Angstrom.
- Quantities. Customer agrees to inspect the quantity of Products immediately upon receipt of such Products from Angstrom. Any claim by Customer that Angstrom failed to deliver the agreed-upon quantity of Products must be submitted to Angstrom in writing upon the receipt and immediate inspection of the Products. If Customer fails to do so, then it shall be conclusively presumed that the quantity provided in the packing list was delivered and any claim to the contrary shall be irrevocably waived.
- Permits and Compliance. Angstrom is not responsible for obtaining any permits, inspections or licenses required for use, installation or operation of the Products. Angstrom does not make a representation or promise that the Products will conform to a law, ordinance, regulation, code or standard. Customer will be responsible for compliance with any and all federal, state, or local laws or regulations respecting safety or respecting use of the Products and shall indemnify and hold Angstrom harmless from and against any and all claims of violations of laws or regulations or other claims of personal injury or property damage directly or indirectly related to the installation, maintenance, or operation of the Products.
- Components of Another Product. If any of the Products constitute parts or components that are to be incorporated or installed in a product that is manufactured or assembled by or for Customer, then (a) Customer shall obtain, or cause the end-user of the product to obtain, all permits, inspections and licenses that are required for installation or operation of the product, (b) Customer shall cause the product to conform to all applicable laws, ordinances, regulations, codes and standards and (c) Customer shall place on the product all safety devices and warnings, and shall furnish to its customer all operating instructions, that are necessary or desirable to prevent death, personal injury or property damage from being caused by use or operation of the product.
- Safety Features. Customer shall install and operate the Products properly and according to Angstrom’s instructions, if any, and shall not remove or change any safety device, warning or instruction that Angstrom placed on or included with the Products.
- Tooling. With respect to Products manufactured by Angstrom, unless Angstrom and Customer expressly agree otherwise, in writing, tooling used by Angstrom in the manufacture of the Products will be Angstrom’s sole and exclusive property. If Angstrom and Customer expressly agree that tooling will be owned by the Customer, then Angstrom will impose and Customer must pay a separately-identified charge for tooling to be used in the manufacture of the Products, and, upon payment in full for such tooling, the tooling shall be the property of Customer, subject to the following: (a) risk of loss of the tooling shall at all times remain with Customer; (b) Angstrom retains a security interest in the tooling to secure all obligations that Customer at any time owes to Angstrom; (c) Customer shall not have any right to possess the tooling as long as Angstrom has any outstanding obligation to sell to Customer Products whose manufacture requires use of the tooling; (d) Customer shall reimburse Angstrom on demand for all costs of modifications of the tooling that are made reasonably necessary by changes in the specifications for the Products; and (e) upon Angstrom’s demand, Customer shall immediately remove the tooling from Angstrom’s premises, at Customer’s expense, and if Customer fails to do so within ten (10) days after that demand, then Angstrom may use, possess, destroy or otherwise dispose of the tooling, without further notice or liability to Customer.
- Support. Unless otherwise specifically provided in a quotation, acknowledgment, or invoice, authorized by Angstrom, the Contract does not include any services of Angstrom in connection with the installation of the Products.
- Cancellation; Returns.
(a) Cancellation. Customer does not have any right to cancel its agreement to buy the Products from Angstrom. If, however, Angstrom agrees in writing to permit cancellation, then Customer shall immediately pay to Angstrom a cancellation charge in an amount equal to:
(i) with respect to Products manufactured by Angstrom, the purchase price (including any tooling charge) less allowances (in amounts that Angstrom determines in its sole discretion) for (1) the realizable value to Angstrom of any standard components that Angstrom purchased or ordered before cancellation, (2) the realizable scrap value to Angstrom of the remaining material and tooling that Angstrom purchased, fabricated or ordered before cancellation and (3) any direct labor costs that Angstrom saved by reason of the cancellation;
(ii) with respect to all other resaleable and undamaged Products, a processing fee and/or restocking fee as determined by Angstrom in its sole discretion.
(b) Returns. Customer may not return any custom or labeled Products. All other resaleable and undamaged Products are subject to return only for credit and only with Angstrom’s prior written consent, which consent may be withheld in Angstrom’s sole discretion. Angstrom may condition a return on Customer providing certain information, paying a restocking fee and/or processing fee, and paying for the Products to be shipped back to Angstrom or an applicable distribution center. To the extent a return is permitted by Angstrom, all Products must be returned in “as new” condition in their original packaging and with all ancillary components and manuals included. Any packaged Products returned which have previously been opened will not be accepted. (c) Cancellation by Angstrom. If Customer fails to pay or perform any indebtedness or obligation that Customer at any time owes to Angstrom, then Angstrom may consider Customer’s failure to be an anticipatory repudiation of any or all outstanding contracts that provide for Angstrom to sell Products to Customer, and Angstrom may, without liability to Customer, cancel any or all of those outstanding contracts.
- Insecurity and Adequate Assurance. If Angstrom ever believes in good faith that it has grounds for insecurity as to Customer’s performance under any contract between Customer and Angstrom to purchase Products (including but not limited to the Contract), then Customer shall provide adequate assurance of due performance within ten (10) days after Angstrom demands the assurance, which shall be considered to be a reasonable time. Customer’s failure to do so shall be considered to be a repudiation by Customer of all then-existing contracts (including but not limited to the Contract), that provide for Customer to purchase Products and/or services from Angstrom (“Outstanding Contracts”). “Grounds for insecurity” include, without limitation: (a) Customer’s failure to make a payment to Angstrom or to perform another obligation under any one or more Outstanding Contracts, (b) Customer’s insolvency, or (c) a deterioration in Customer’s financial condition after an Outstanding Contract was entered into. “Adequate assurance of due performance” includes, without limitation, providing a letter of credit or comparable security for all obligations of Customer that then exist or that will arise in the future under all Outstanding Contracts.
- Intellectual Property and Confidentiality. All inventions (whether or not patentable), devices, technologies, ideas, improvements, processes, systems, software and other works and matters that Angstrom creates or develops in the course of Angstrom’s design, development or manufacture of the Products (if any) and all drawings and specifications that Angstrom provides to Customer (if any) (collectively, the “Intellectual Property”) shall be Angstrom’s sole property, and Customer assigns, and agrees to assign, to Angstrom all right, title and interest that Customer now has or in the future acquires in the Intellectual Property. Customer shall not disclose or use any of the Intellectual Property or any information about Angstrom’s business, operations or activities, or any quotation or acknowledgment except to the extent necessary for Customer to use the Products.
- Indemnity. Customer shall indemnify and hold harmless Angstrom with respect to any and all costs, fees, penalties, damages, losses, claims and expenses, including but not limited to attorney fees, that Angstrom incurs as a result of: (a) Customer’s breach of any of Customer’s obligations under these Terms of Sale, including but not limited to Angstrom’s collection of past-due amounts, (b) Customer’s use or installation of the Products; or (c) any claimed unfair competition or patent, trademark or copyright infringement or any other claim resulting from Angstrom’s manufacture of any Products to Customer’s specifications or design. Angstrom shall indemnify and hold harmless Customer with respect to all damages, losses, claims and expenses, including but not limited to attorney fees, that Customer incurs as a result of Angstrom’s breach of any of Angstrom’s obligations under these Terms of Sale.
- Angstrom’s Rights. Angstrom has all rights and remedies that applicable law gives to Angstrom. Angstrom’s rights and remedies are cumulative and not alternatives, and Angstrom may exercise one or more of them from time to time. Angstrom shall not be deemed to have waived any right unless such waiver is express and written. Further, Angstrom’s waiver of any right on any occasion shall not be a waiver of any future exercise of that right or of any other rights.
- Time For Bringing Action. Any action that Customer brings against Angstrom for breach of the Contract or for any other claim that arises out of or relates to the Products or their design, manufacture, sale or delivery must be brought within one (1) year after the cause of action accrues or such shorter time as provided in the Contract.
- Applicable Law. The Contract between Angstrom and Customer shall be considered to have been made in the State of Michigan, and it shall be governed by and interpreted according to Michigan law. Either party shall bring any action that arises out of or relates to the Contract in any federal or state court in Kent County, Michigan that has jurisdiction of the subject matter, and Customer irrevocably consents that any such court shall have personal jurisdiction over Customer and waives any objection that the court is an inconvenient forum.
- Complete Agreement; Amendment. If Customer has not otherwise agreed to these Terms of Sale, then Customer’s acceptance of, delivery of, or payment for, the Products shall constitute Customer’s agreement to these Terms of Sale. The Contract will not be amended or supplemented by additional or inconsistent terms contained in a purchase order or another standard form. The terms on Angstrom’s quotation and acknowledgment and these standard Terms of Sale contain the entire agreement between Customer and Angstrom. Any change in the Contract must be by a writing signed by an authorized officer of Angstrom.