EXTREMIS INC - STANDARD TERMS FOR SALES OF GOODS
1. Formation of Contract. The terms set forth in this form are part of each quotation and are the sole terms for the sale of goods by Extremis Inc., a Delaware corporation, or any of its affiliates, whether currently an affiliate or subsequently becoming an affiliate (collectively, “Seller”), unless otherwise specifically provided for by Seller in this document, and shall apply to the exclusion of any inconsistent or additional terms contained in Buyer’s order or acknowledgment or otherwise proposed by Buyer. Buyer’s acceptance of these terms shall be conclusively presumed by Buyer’s signature on this form, by Buyer’s submission of a purchase order in response to this document, or by Buyer’s acceptance of delivery of, or payment for, the goods. Any contract made for the sale of goods by Seller is expressly conditional on Buyer’s assent to the terms stated in this document. Seller objects to any additional or inconsistent terms proposed by Buyer.
2. Price. All price quotations are offered for prompt acceptance. All quotations are valid only for the time period set forth in the applicable quotation and are subject to change at any time prior to acceptance by Buyer. Prices quoted are based on quantities shown and quantity changes may affect price. After receipt of a written order, prices will be held for up to six (6) months from receipt of the order. Changes in quantity or specifications may affect pricing. Pricing includes selections from Seller’s standard color palette; optional and custom colors matches are available for an additional fee and will extend lead-time.
a. Exclusions. The quoted price does not include applicable
taxes such as city, state or federal, sales, use, or excise taxes. Furthermore, the quoted price does not
include any other products, services or work not specifically described in this
document. All taxes and charges, including without limitation exchange rates, tariffs, and
charges relating to customs clearance and/or export duties or charges for goods
delivered to any location outside of the United States, shall be Buyer’s
responsibility and may be added to the invoice as a separate and additional
charge to Buyer unless an acceptable exemption certificate is presented to
Seller. Seller shall also have the right
to separately bill Buyer, at any time, for any taxes and charges, including
without limitation exchange rates, tariffs, and charges relating to customs
clearance and/or export duties or charges for goods delivered to any location
outside of the United States, that are
attributable to this sale that the Seller may be required to pay. Buyer shall reimburse Seller on demand for
all such amounts.
3. Invoicing. All invoices issued by Seller shall be payable according to the terms contained in Paragraph 4, below. Unless otherwise stated by Seller in writing, Seller shall issue invoices to Buyer when deliveries of goods are made to Buyer.
4. Payment Terms. Unless otherwise specified by Seller, payment in full on all invoices shall be due and payable prior to shipment by Seller, and Seller may withhold goods until payment is received in full. For custom orders, Seller reserves the right to require a down payment, in an amount to be determined by Seller in its discretion, prior to beginning manufacturing of the custom goods. Buyer shall reimburse Seller for any and all expenses, including reasonable attorneys’ fees, incurred by Seller in the collection of any delinquent account or enforcing its rights with respect to Buyer.
5. Security Interest. Buyer hereby grants to Seller a continuing security interest in all goods furnished or to be furnished by Seller to Buyer, together with all tooling, parts, attachments, accessories, dies or appurtenances to such goods, all substitutions, improvements and replacements of such goods, all additions to such goods, and all proceeds of such goods and any of the foregoing.
6. Perfection of Security Interest. Buyer hereby authorizes Seller to cause all financing statements or other instruments in respect of the security interest granted hereby, including without limitation all Uniform Commercial Code financing statements, to be filed and recorded or re-filed and re-recorded. Buyer agrees to execute, or otherwise authenticate, and hereby does authenticate, and deliver any statement, instrument or other document requested by Seller for such purpose. Buyer further agrees that it shall execute, or otherwise authenticate, and hereby does authenticate, and deliver to Seller upon Seller’s request such further instruments, assurances and other documents as Seller deems necessary or advisable for the confirmation of perfection of Seller’s rights hereunder. Buyer authorizes Seller to file any such instrument or other document, including without limitation, any Uniform Commercial Code financing statements, without Buyer’s signature and, if the signature of Buyer is required thereon, Buyer irrevocably appoints Seller as Buyer’s attorney-in-fact to execute and file any such statement or other instrument in the name and on behalf of Buyer.
7. Lead Times; Storage. Custom lead times will be determined upon the approved submittal package. Custom lead times may range anywhere from +/- seven (7) months. Changes to orders may extend lead times.
8. Shipping and Risk of Loss. Unless otherwise indicated, all quoted prices are DAP Buyer’s designated location, at which time title shall pass to Buyer. Freight may be prepaid by Seller at its option and added to the invoice. Buyer shall promptly inspect all goods received from Seller and promptly, but in no event more than five (5) business days after delivery to Buyer’s designated location, inform Seller of any defects before using the goods. If Buyer has not notified Seller of any defects in the goods within this timeframe, Buyer shall be deemed to have accepted the goods. Seller shall have the right to determine the method of shipment and routing of the goods, unless otherwise specified by Buyer. Buyer shall pay such delivery charges as Seller may establish from time to time, which will be included on Seller’s invoice. Seller shall not be liable for damages caused by delays in shipping or delivery for any reason whatsoever. Handling fees alone will be charged for third-party or Buyer pick-up orders. Buyer is responsible for offloading and installation of any goods unless expressly stated otherwise in Seller’s quotation.
9. Reasonable Efforts. Seller will use commercially reasonable efforts to supply Buyer with goods offered by Seller and ordered by Buyer. If Buyer causes or requests delay in the shipment of products or the provision of services, Buyer shall pay Seller for all expenses and losses of Seller resulting therefrom. In times of short supply, Seller is entitled to allocate products among its customers as it determines in its sole discretion to be appropriate under the circumstances. Under no circumstances will Seller be liable for any failure to deliver goods ordered by Buyer that is caused by the lack of availability of necessary raw materials.
10. Limited Warranty and Disclaimer. All goods purchased by Buyer will be covered by the terms of Seller’s standard warranty, which can be located at: https://www.extremis.com/en/warranty.
Seller will in no event be responsible for any injury or damage caused by or associated with the installation and/or use of the goods in any manner other than in strict conformance with the instructions set forth in an applicable installation manual and instruction sheets and/or product literature.
NOTWITHSTANDING ANY OTHER PROVISION IN THIS DOCUMENT, SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE NATURE, CONDITION OR QUALITY OF THE PRODUCTS OR ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, SUITABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, CUSTOM OR USAGE OF TRADES.
TO THE FULLEST EXTENT LEGALLY PERMISSIBLE, SELLER EXPRESSLY DISCLAIMS ANY AND ALL PRODUCT LIABIILTY WHICH MAY ARISE FROM PRODUCTS INSTALLED ONTO THIRD-PARTY MATERIALS. SELLER ALSO EXCLUDES AND DISCLAIMS ALL LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR ANY OTHER SPECIAL DAMAGES OF BUYER OR ANY THIRD-PARTY USER OF THE PRODUCTS, INCLUDING LOST PROFITS, FOR BREACH OF WARRANTY OR OF CONTRACT OR OTHERWISE.
THIS LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE REMEDY OF BUYER AGAINST SELLER.
11. Product Design. Seller reserves the right to change product design, engineering changes, specifications, construction and performance for any goods at any time without prior notice, but agrees to obtain Buyer approval prior to changing in operational or dimensional specifications submitted by Buyer. Seller also reserves the right to discontinue products, at any time, without prior notice. All dimensions shown are considered for reference purposes and are approximate.
12. Indemnification of Seller (General). Buyer shall indemnify, defend, and hold Seller, its agents, representatives, employees, and affiliates harmless from any and all claims, liabilities, and expenses, including but not limited to actual attorney fees, sustained by Seller, its agents, representatives, employees, and affiliates that are caused by any action of Buyer relating to the goods sold by Seller to Buyer, including, but not limited to, any death, injury or damage to any person or property caused by the Buyer’s installation of the Seller’s products, or the use of the products in any manner other than in strict conformance with the instructions set forth in an applicable installation manual and instruction sheets and/or product literature..
13. Cure. If a shipment of goods is rejected by Buyer, Seller shall have the right to cure in any reasonable manner the error, defect, shortage or other nonconformity giving rise to the rejection.
14. Force Majeure. Any delay or failure of Seller to perform its obligations will be excused if and to the extent that it is caused by an event or occurrence beyond Seller’s reasonable control, such as: acts of God; governmental actions; embargoes; pandemics; fires; explosions; natural disasters; riots; wars; sabotage; terrorist acts, utility interruptions, failures or delays by Seller’s vendors (including without limitation the lack of availability of necessary raw materials), or court injunction or order.
15. Cancellation or Change. Buyer is responsible for confirming options, materials, and quantities for completeness and conformity to plans and specifications. Except as otherwise agreed by Seller in writing, a sale of goods under this document is not subject to cancellation or change. Changes or cancellations may incur a penalty charge of 30% or more. Special and custom orders may not be cancelled once the purchase order is received and approved. Seller has the right to recover from Buyer all damages for cancellation, including but not limited to incidental, consequential and indirect damages and lost profits.
16. Returned Goods. No goods may be returned by Buyer without the express prior authorization of Seller. Returns may be subject to a disposition fee of 30-100%.
17. Waiver. No right or remedy of Seller shall be deemed to have been waived or renounced, in whole or in part, unless that waiver or renunciation is supported by consideration and is in writing signed by Seller.
18. Confidentiality of Seller’s Information. Any information disclosed by Seller to Buyer is confidential, and Buyer agrees not to use or disclose any of that information without Seller’s prior written consent. Further, Buyer expressly acknowledges and agrees that (a) all intellectual property of Seller of any kind whatsoever, including but not limited to intellectual property related to the design, development, or manufacture of any good(s) sold by Seller to Buyer hereunder, shall remain the sole property of Seller, and (b) Buyer may not, and shall not, under any circumstances either copy, analyze or reverse engineer any intellectual property of Buyer or any good(s) sold by Seller to Buyer hereunder, nor provide any such intellectual property and/or good(s) to any third party for such purposes.
19. Buyer’s Default. Buyer is in default if any of the following occurs:
a. Buyer breaches, repudiates, or threatens to breach any term in the contract evidenced by this document or in any other agreement between Buyer and Seller, including but not limited to a failure to pay all sums when due;
b. Insolvency of Buyer or filing a voluntary or involuntary petition in bankruptcy with respect to Buyer;
c. Appointment of a receiver or trustee for Buyer;
d. Buyer’s credit becomes impaired; or
e. Execution of an assignment for the benefit of creditors of Buyer.
20. Seller’s Remedies. In the event of Buyer’s default, Seller may exercise any remedies available under applicable law, including but not limited to the following remedies:
a. Seller may require payment in advance;
b. Seller may ship goods only via C.O.D.;
c. Seller may suspend performance or cancel all or any part of the balance of any contract with the Buyer;
d. Seller may reduce any unpaid debt of Buyer by enforcing its security interest, created hereby, in all goods (and proceeds therefrom) furnished by Seller to Buyer;
e. Seller may take any other steps necessary or desirable to secure Seller fully with respect to Buyer’s payment for goods and services furnished or to be furnished by Seller to Buyer; and
f. Buyer shall reimburse Seller for all damages suffered due to Buyer’s breach, including but not limited to incidental, consequential, and other damages, as well as lost profits, reasonable attorney fees, and court costs.
The remedies in this document shall be cumulative and in addition to any other remedies allowed to Seller under applicable law. No waiver by Seller of any breach or remedy shall be a waiver of any other breach or remedy.
21. Maintenance, Spare Parts. Unless otherwise agreed by Seller in writing, Seller has no obligation to (a) maintain any inventory of spare or replacement parts with respect to any goods provided to Buyer, or (b) provide ongoing maintenance or service except as otherwise specifically provided in the description of Seller’s warranty described herein.
22. Insurance. Seller shall have no obligation to maintain insurance in excess of Seller’s usual business needs as determined by Seller in its sole discretion. Buyer shall insure all goods during shipment and afterward.
23. Compliance With Laws. Unless otherwise expressly agreed in writing by Seller, Seller shall not be liable to Buyer for, and Buyer agrees to indemnify, defend and hold Seller harmless from, any and all liability arising or alleged to arise out of any failure of the goods sold by Seller to conform to any federal, state or local law, order, regulation or standard.
24. Independent Contractor. Seller shall at all times be deemed to be an independent contractor. Nothing herein shall be deemed to make Seller or its employees or agents an employee, partner or joint venturer of Buyer.
25. Time For Bringing Action. Any action by Buyer against Seller for breach of Seller’s obligations hereunder or for any other claim arising out of or relating to the goods or their design, manufacture, sale or delivery must be brought within one (1) year after the cause of action accrues.
26. No Audit Rights. Unless Seller shall provide its prior written consent, which may be withheld by Seller in its sole discretion, Buyer shall not, under any circumstances, have the right to conduct any audit or review of Seller’s corporate books, records or financial information.
27. General.
a. Compliance with Laws. Buyer warrants that it is and will remain in compliance with all federal, state and local laws, regulations and ordinances relating to Buyer’s ability to perform its obligations under this purchase order.
b. Setoff. Seller has the right to deductions or setoffs of any sums due to Seller from Buyer (whether or not arising from this agreement) against any sums due to Buyer from Seller (whether or not arising from this agreement).
c. Assignment. Buyer shall not assign its rights or delegate its duties under this document without Seller’s prior written consent. Seller may assign to any third party its rights and obligations with respect to Buyer.
d. Entire Agreement and Amendment. This document contains all of the terms of the agreement between Seller and Buyer with regard to its subject matter and supersedes all prior oral or written representations, agreements, and other communications between Seller and Buyer. The contract evidenced by this document may be amended only by a writing signed by Buyer and an officer of Seller.
e. Severability. All terms shall be enforced only to the maximum extent permitted by law. If any term is invalid or unenforceable, all other terms shall remain in effect.
f. State Law. The sale of goods and services in accordance with this document shall be governed in all respects by the laws of the State of Michigan.
g. Jurisdiction and Venue. Seller and Buyer agree that any action arising out of the sale of goods or services in accordance with this document will be brought, heard and decided in Kent County, Michigan. Buyer submits to personal jurisdiction in Michigan.