J.H. Bennett & Company, Inc. Terms
1. Terms Binding. The sale by J.H.Bennett & Co., Inc. (“Seller) and the purchase by the Buyer of Seller’s products. (“Products”) are expressly subject to and limited
by the terms and conditions stated on the face and back hereof. Buyer’s submission of a Purchase Order or its acceptance of Products delivered shall be deemed
an acceptance of these terms and conditions. Any acceptance of Seller’s Quotation or of delivery of the Products is limited to acceptance of the terms and
conditions herein. Any proposal for additional or different terms are hereby objected to and rejected. Such proposal, however, shall not operate as a rejection of
Seller’s Quotation unless such variances are in the terms of description, quantity, price or delivery schedule, but shall be deemed a material alteration thereof and
the terms herein shall be deemed accepted by Buyer without said additional or different terms.
2. Shipment, Title and Risk of Loss. Unless otherwise stated on the face of Seller’s invoice or Quotation, all prices are FOB point of manufacturer. If Buyer doesn’t
specify mode of shipment, Seller shall have sole discretion in selecting same. Title and risk of loss or damage to the Products shall pass to Buyer when so delivered
to a carrier and shall be insured at Buyer’s expense. All claims for loss and damage shall be made by Buyer to the carrier, provided, however, that Seller shall assist
Buyer in making such claim to the extent practical.
3. Delivery. Quoted delivery dates are estimated and in no event are to be construed as failing within the meaning of “time is of the essence.” Seller assumes no
liability for delays and may readjust its delivery schedule. If Buyer requests Seller to hold Products past the scheduled delivery date, the Products will be invoiced to
Buyer with additional charges to warehousing, trucking, and other expenses incident to such delay. Seller shall not be liable for any loss or damage as a result of
any delay in performance or delivery due to any cause beyond Seller’s control, including, without limitation, any act of God, act of Buyer, governmental act,
regulation or request, fire, accident, strike, employee differences, slowdown, war, flood, civil unrest, delay in transportation or supplier, inability to obtain necessary
labor, material, power, fuel, supplies or manufacturing facilities or any other action or condition which renders performance impracticable or by the occurrence of a contingency, the non-occurrence of which was a basic assumption on which this contract was made. Acceptance of the Products when delivered shall constitute a
full waiver of all claims for damages caused by any delay within Seller’s control.
4. Price and Payment. Prices quoted by Seller are current prices and Buyer acknowledges and agrees that it shall pay Seller’s prices in effect at the time of
shipment. Seller may adjust prices without notice to Buyer. Payment terms are net thirty (30) days from the date of invoice for Buyers for whom Seller has agreed, in
its sole discretion and in writing, to grant such terms. All other Buyers must pay cash in advance of delivery. Seller reserves the right to refuse delivery except for
cash and stop delivery if, in its sole discretion it doubts Buyer’s responsibility. Buyer shall pay a service charge of one and one-half percent (1-1/2%) per month on all
amounts unpaid after the due date.
5. Security Interest. In consideration of any payment terms extended by Seller herein, Buyer hereby grants to Seller a security interest in the Products, which shall
be deemed collateral, regardless of mode of attachment to realty or other property, until full payment, including service charges, interest and costs has been made.
This security interest shall continue in all proceeds of and/or accessions to the Products and in all insurance proceeds related thereto. Buyer agrees to do all acts
necessary to protect and maintain said security interest and authorizes Seller as its attorney-in-fact to take all such actions, including the filing of a financing
statement or lien without the signature of Buyer. Buyer further agrees that it will not change the location of, sell or transfer the collateral without the prior written
consent of Seller and that it will keep the collateral in good conditional and housed in suitable shelter and sufficiently insured against loss or damage. Buyer grants
Seller all rights of a secured party under the Uniform Commercial Code and the right to recover the collateral upon default in any term of this agreement when
payment has not been made in full, when Buyer is delinquent in making any payment owing to Seller or upon other action by Buyer which impairs Seller’s
expectation of receiving due performance according to commercial standards.
6. Taxes. Any manufacturers’ tax, retailer’s tax, use tax, sales tax, excise tax, duty custom, inspection or testing fee or other tax, fee or charge of any nature
whatsoever imposed by any governmental authority or measured by any transactions between Seller and Buyer, shall be paid by Buyer in additional to the Products
prices. In the event Seller shall be required to pay any such amount, Buyer shall reimburse Seller immediately therefore. Any order by Buyer must state the
existence and amount of any such tax, fee or charge which is Seller’s responsibility to collect from Buyer.
7. Acceptance. Buyer shall inspect the goods immediately on their arrival and shall within five (5) days of their arrival, give written notice to Seller of any claim that
the goods do not conform with the terms of the contract, specifically setting forth such nonconformance. If Buyer shall fail to give such notice, the goods shall be
deemed to conform with the terms of the contract, and Buyer shall be deemed have accepted the goods and shall be bound to pay for the goods in accordance with
the terms of Seller’s invoice. Buyer expressly waives any right the Buyer may have to revoke acceptance after such five (5) day period. In the event Buyer rejects
any shipment of goods, and elects to accept only a part thereof, the portion rejected shall be returned to Seller within seven (7) days, provided, however, no
Products may be returned without first obtaining Seller’s written permission. Such return shall be at the sole expense and risk of Buyer until receipt by Seller in
satisfactory condition. If Buyer accepts only a portion of any shipment, the provision covering credit terms shall not apply and Buyer shall pay in full, in cash or by
certified check, the price stated for the goods so accepted.
8. Revisions. Prices are subject to adjustment if Buyer request changes in specification or delivery schedules. No such changes shall be binding on Seller until Seller
has accepted same in writing.
9. Installation. Buyer shall be responsible for installation and set up unless otherwise specifically set forth on the face hereof. Seller shall not be liable to Buyer for
any loss or damage suffered on account of Buyer’s failure to properly install and/or set up the Products.
10. Seller’s Property. The design, implementation and manufacturing information regarding the Products are proprietary to Seller and are trade secrets of Seller. All
drawings, specifications, tooling, prints, manuals or any other information relating thereto, including copies thereof, are proprietary to Seller, and constitute
confidential information and trade secrets of Seller. Buyer agrees, upon demand by Seller, to return all such items to Seller. Buyer further agrees that its use of any
such material is to be strictly limited to the purposes for which Buyer acquired it from Seller and that is shall not disclose such information to any third party and shall
only disclose such information to those employees of Buyer who are necessary for the purpose for which Buyer has received such information.
11. Express Limited Warranty and Disclaim. Seller warrants that at the time of shipment, the Products manufactured by it and sold hereunder are free from defects in
material and workmanship for a period of 90 days from the date of shipment of the Products, under normal use and service. Components or goods not
manufactured by Seller are expressly excluded from this warranty and Buyer’s recourse shall be under the original manufacturer’s warranty, if any is in effect, on
such components. This warranty shall not apply to: 1) any Product which has been repaired or altered by persons not expressly approved in writing by Seller so as
to, in the sole judgment of Seller affect serviceability; 2) to any Product the identifying symbol of which has been removed defaced or changed, or which has been
subject to misuse, negligence, improper storage, improper maintenance, installation or service, or accident; 3) to any Product made by Seller which as been
operated in a manner contrary to Seller’s instructions; or 4) to any Product used by Buyer after discovery of a defect. This limited warranty is expressly in lieu of all
other warranties and seller hereby expressly disclaims all other warranties, expressed or implied, including the warranties of merchantability, fitness for use and
fitness for a particular purpose and all other obligations or liabilities on seller’s part. Seller neither assumes nor authorizes any other person to assume for it any
other liability in connection with the sale of the product. The buyer acknowledges that no other representations were made to it or relied upon by it with respect to the
quality and function of the goods herein sold. Seller shall have no liability whatsoever for loss, damage, incidental, consequential or indirect damages of any kind, in
any event, whether or not such loss or damage is based on contract, warranty, negligence, indemnity, strict liability or otherwise. There are no warranties that extend
beyond these provisions.
12. Buyer’s Remedy. If, within the warranty period, any Products covered by this warranty are shipped to Seller, charges prepaid, and are determined by Seller to
defective in material or workmanship, Seller will supply, but not install, and identical or substantially similar replacement part FOB the point of manufacturer, or the
Seller, at its option, will repair such Products. The repair or replacement at Seller’s option, shall be Buyer’s sole and exclusive remedy.Any replacement goods
provided hereunder shall be warranted against defects in material or workmanship only for the unexpired portion of the above described warranty period.
13. Seller’s Remedies in General. In the event that Buyer shall wrongfully reject the goods or wrongfully revoke acceptance of the goods or fail to make payment
when due or repudiate with respect to a part or the whole agreement, then with respect to any goods directly affected and with respect to the whole undelivered
balance, Seller may 1) withhold delivery of such goods; 2) stop delivery by any bailee; 3) recover the goods from Buyer pursuant to Seller’s security interest therein;
4) resell the goods and recover damages; 5) recover damages for nonacceptance; 6) recover price for the goods; 7) cancel the agreement; 8) employ any other
remedies, legal, equitable, as may be available to it. If Seller elects to resell the goods and recover damages, sale may be private or public and seven (7) days
notice shall be deemed reasonable notification of such sale. Additionally, Seller may recover any and all consequential and incidental damages, including all
commercially reasonable charges, expenses or commissions incurred in stopping delivery, transportation, care and custody of goods or otherwise resulting from the
breach, including its actual attorney fees.
14. Cancellation. Buyer may cancel this order, in whole or in part, upon both written notice to Seller and payment of cancellation charges, which harges shall be the
sum of 1) the price of all goods that have been delivered and not previously paid for, plus 2) the actual cost incurred by Seller that is properly allocable to the goods
and not delivered at the time of decrease or cancellation, including without limitation, the cost of special components and materials purchased for use in producing
such goods, plus 3) the profit, including reasonable overhead, that Seller would have made from full performance by Buyer, plus 4) the cost of engineering,
prototypes, testing, tooling and similar items produced for Buyer, plus 5) the reasonable costs incurred by Seller in making settlement and effecting collection hereunder. Buyer may require delivery of any material (except special tools, molds, dies, and any other equipment) for which payment is made.
15. Statue of Limitations. Except with regard to an action for nonpayment, any and all claims, causes of action, suits, complaints, petitions, and the like asserting
claim arising out of this agreement must be brought within a period of one (1) year from the date of delivery of the Products to Buyer. Buyers expressly waives the
right to commence a claim after the expiration of this one (1) year period and expressly waives any other statutory or common law limitations periods it may have.
16. Patents. Seller does not warrant that the use by Buyer of the materials or equipment sold, or articles or materials made therefrom, alone or in combination with
other materials will not infringe any patent. Buyer shall promptly notify and report to Seller if making, using, or selling, the products will constitute such infringement
or of any claim of infringement and agrees to indemnify Seller against all liabilities and expenses arising therefrom. Seller expressly reserves the right to discontinue
shipment of any materials, equipment, or other goods and stop the manufacturer, sale or use of any materials or goods, use of which, in the sole opinion of Seller,
could involve a patent infringement.
17. Final Agreement. The terms contain herein supersede all prior written understandings, quotations, assurances and offers. Buyer’s attention is especially directed
to the provisions concerning warranty and limitation of liability of Seller and its claims procedure. These terms shall become binding on both parties upon Buyers’
issuance of its Purchase Order. Seller shall not be bound by any agents or employee’s representation, promise, or inducement not set forth in this agreement. All
orders are subject to Seller’s approval. No course of performance, course of prior ealings or usage of trade shall supplement, explain or vary any of the terms of this
agreement. No representations, understandings or agreements have been made or relied upon in the making of this agreement other than those specifically set forth
herein. This agreement can only be modified in writing, signed by the Seller.
18. Severability. The invalidity of any of the terms contained herein shall not affect the validity of any other term.
19. Assignment. Buyer shall not assign or transfer any rights or obligations arising from any purchase order, quotation, or invoice without the prior written consent of
20. Governing Law and Jurisdiction. The validity, interpretation and performance of these terms and conditions, as well as any contract which may result between
the parties, shall be governed by the laws of the State of Michigan. This Agreement and all agreements arising here from or relating hereto with regard to the
purchase of the Products from Seller to Buyer shall be deemed to be fully and solely executed, performed and/or observed in the State of Michigan. Buyer and
Seller hereby expressly consent to the personal jurisdiction of the State of Michigan and any action or proceeding brought in any Court therein, state or federal,
arising from or alleging, facts arising from the transaction contemplated herein, the sale of the Products by Seller to Buyer or any facts relating to such sale, the
installation of the Products or any other matters between Buyer and Seller relating to the products.
21. Errors and Missions. Seller reserves unto itself the exclusive right