Howard Miller Terms of Sale
All sales by HOWARD MILLER CLOCK COMPANY are made on the following terms and conditions. “We”, “us”, and “our” refer to Howard Miller Clock Company and “you”, “your” and “yours” refer to the Buyer. “Goods” refer to the product or products to be sold by us to you.
1. Agreement. If you have not otherwise agreed to these terms of sale, including any terms set forth on the INVOICE or in any attachments hereto, your acceptance of delivery of, or payment for, the goods will indicate agreement to these terms. WE OBJECT TO AND WILL NOT AGREE TO ANY ADDITIONAL OR DIFFERENT TERMS THAT MAY APPEAR ON ANY PURCHASE ORDER OR OTHER PAPER YOU SEND TO US. You have not made any promises or representations to us, and we have not made any to you,that are not part of this Agreement. Any addition of, change in, or waiver of, any provision of this Agreement must be made in a writing signed by our authorized representative.
2. Notice. Any notice required hereunder shall be given in writing to us at our office in Zeeland, Michigan and to you at your home office, unless you designate in writing another address for such notices.
3. Price and Payment Terms. The price and terms of payment are indicated on the front of the INVOICE. All prices and any discounts are subject to change without notice and we reserve the right to charge the prices in effect at the date of shipment. Our stated price does not include any privilege, occupation, personal property, value-added, sales, excise, use, or other tax, and you shall be liable for all applicable taxes, whether or not invoiced by us. If you claim an exemption from such taxes, you must furnish an appropriate exemption certificate to us. Orders are invoiced at the time of shipment or at the time of partial shipment in the case of multiple shipments and payment is due in accordance with the terms specified on the front of this invoice. A service charge of one and one-half percent (1-1/2%) per month (eighteen percent (18%) annual rate) will be charged on all past due accounts.
4. Shipment and Risk of Loss. We may ship all of the goods at one time or in portions from time to time. All shipments will be F.O.B. our factory. We will select the method of shipment and routing unless otherwise specified by you. If we incur added cost because we complied with your special shipment request, the added cost will be invoiced to you. Risk of loss shall pass to you at the time we place the goods in the possession of the original carrier.
5. Delivery. Shipping dates are estimates only, and time is not of the essence. All deliveries are subject to modification or cancellation due to (a) events beyond our control including, but not limited to, storms floods, acts of God, fires, strikes, walkouts or other labor difficulty, riots or other civil disturbances, war, acts of civil or military authority, or unavailability of raw materials or transportation, (b) our insolvency or other inability to perform, or (c) commercial impracticability. In the event of any such delay, the estimated date of delivery shall be extended for a period equal to the time lost because of the delay. In addition to any other right which we may have under this Agreement or under any law, we may suspend shipment of any goods for which we have not already received payment whenever you are in default under this or any other contract of sale between us.
6. Changes in the Goods. We may make design or engineering changes in the goods and in our processes and methods of manufacture at any time.
7. Warranties and Limitations. We warrant that the goods shall be free from defects in materials or workmanship when they leave our factory. For purposes of this paragraph, defective goods are goods which are found by us to have been defective in materials or workmanship at the time they left our factory if the defect materially impairs the value of the goods to you. THE WARRANTY HEREIN IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, IN PARTICULAR, WE MAKE NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE SHALL HAVE NO LIABILITY TO YOU FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, OR OTHER ECONOMIC INJURY.
8. Resale. On any resale of the goods, you shall not make any warranty or representation concerning the goods to the consumer other than the warranty we offer to the consumer in our published product literature.
9. Claims. We are not responsible for damage to goods which occurs in transit or storage. It is your responsibility to examine goods upon receipt and to file any claims with the carrier. If you believe you have any claim against us for apparent defects, errors, or shortages in the goods, you must make your claim in writing within five (5) working days after delivery of the goods in question. If you fail to make any claim against us within five (5) days after the goods in question are delivered, you shall be deemed to have accepted the goods and waived any apparent defects, errors, or shortages.
10. Remedy for Defective Goods. If, upon examination of your claim, we determine that the goods in question were defective as defined in paragraph 7, we will negotiate a reasonable settlement of your claim. You must obtain our consent before you return any goods. When we give our authorization for return, the goods must abe shipped prepaid at your expense. Only unused goods in their original shipping containers will be accepted.
11. Our Rights. We shall have all rights and remedies given to sellers by applicable law. Our rights and remedies shall be cumulative and may be exercised from time to time. We shall not lose any right because we have not exercised it in the past.
12. Indemnity. If you do not perform any obligation under this Agreement, you will indemnify and hold us harmless as to all resulting damages, losses, claims and expenses, including attorney fees. We will not be liable to you for any claim by or damage to any third party, including any employee of yours, that you incur in connection with the goods.
13. Applicable Law. We agree that this Agreement shall be governed by, and interpreted to, Michigan law. Any lawsuit arising out of this Agreement or the goods may be handled by any federal or state court in Grand Rapids, Michigan, and you consent that the court shall have personal jurisdiction over you and that the mailing of any process by registered mail to your last known address shall constitute lawful and valid service of process.
14. Severability If any provision of this Agreement is invalid or unenforceable under any law, the provision shall be ineffective to that extent for the duration of the illegality, but the remaining provisions shall be unaffected.