All sales of Goods and Services by Hazel Brothers Drainage, LLC, a Michigan limited liability company (“Seller”), are sold and performed, respectively on the following terms and conditions. In these Terms of Sale (“Terms”), products, parts and materials that Seller sells are called “Goods”, labor and services that Seller performs are called “Services”, the purchaser of the Goods and/or Services is called “Buyer”, and the contract between Seller and Buyer with respect to the Goods and/or Services is called the “Contract”. Buyer and Seller may be referred to below individually as a “Party” and collectively as the “Parties”.
1. Agreement. If Buyer has not otherwise expressly agreed to the Terms, then Buyer’s acceptance of delivery, or payment for, the Goods and Services sold or performed by Seller shall constitute Buyer’s agreement to these Terms.
2. Payment Terms. Unless otherwise specified in writing by Seller, payment in full of the price is due fourteen (14) days after the Services are performed, without discount, except that if Seller determines that Buyer’s financial condition or credit rating does not justify a sale on credit or if Buyer is at any time in default in any indebtedness or obligation that Buyer owes to Seller, then Seller may require payment prior to delivery of Goods and/or performance of Services. Any payment that is not made when it is due shall accrue a late charge of 1-1/2% per month. Payment must be made at Seller’s address at 13112 Round Lake Road, Sunfield, Michigan 48890, or at any other address specified in writing by Seller.
3. Delivery, Performance and Risk of Loss. Risk of loss shall be transferred to Buyer upon delivery at Buyer’s address. Delivery of the Goods will be deemed made upon arrival of the Goods at Buyer’s address. Seller may deliver Goods and/or perform Services at one time or in portions from time to time.
4. Unavoidable Delay. If Seller is not able to deliver the Goods to Buyer, or to perform the Services, on time because of anything that Seller cannot control (such as inclement weather, casualty, accidents, or unavailability of supplies or transportation), then the estimated delivery or performance time shall be extended accordingly, and Seller shall not be liable to Buyer for any damages that the delay causes. Delivery and performance dates are estimates only, and time is not of the essence.
5. Changes. Seller shall have the right to make changes in its equipment, processes and methods.
6. Defects; Remedies. If Seller’s Services or Goods prove to be defective (as defined below) within one year after Seller performs the Services, then Seller shall, at its option, either re-perform the Services, at Seller’s expense, or refund to Buyer the price that Buyer paid to Seller for that part of the Service that was defective. If, however, the Seller has to repair the Buyer’s existing tile, this shall be done at the Buyer’s expense. A Service or Good shall be considered “defective” if Seller finds that it fails to meet the standards in Seller’s industry and if that failure materially impairs the value of the Service to Buyer, except that if Buyer shall have approved or furnished to Seller specifications for the Service, then the Service shall not be considered defective to the extent it conforms to the specifications. This paragraph sets forth Buyer’s sole and exclusive remedy for any defect in the Services or Goods.
7. Limitations. EXCEPT AS STATED IN PARAGRAPH 6, SELLER DOES NOT MAKE ANY WARRANTY AS TO THE GOODS OR SERVICES AND, IN PARTICULAR, DOES NOT MAKE A WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND BUYER IS SOLELY RESPONSIBLE FOR DETERMINING THE PROPER APPLICATION AND USE OF THE GOODS. Seller shall not have any tort liability to Buyer with respect to the Goods or Services and shall not be liable for consequential, special, punitive, indirect or incidental damages that arise from a product defect, delay, nondelivery or other breach. Buyer shall not have a right of rejection or of revocation of acceptance of the Goods.
8. Solvency. Buyer represents that Buyer is solvent.
9. Permits and Compliance. HAZEL BROTHERS DRAINAGE, LLC IS NOT RESPONSIBLE FOR OBTAINING PERMITS, INSPECTIONS OR LICENSES THAT ARE REQUIRED FOR INSTALLATION OF THE GOODS. FURTHERMORE, HAZEL BROTHERS DRAINAGE, LLC IS NOT RESPONSIBLE FOR ANY EASEMENTS, PERMISSIONS AND/OR UTILITY LOCATING. BUYER IS SOLELY RESPONSIBLE FOR CALLING MISS DIG. Seller does not make a promise or representation that the Goods will conform to a law, ordinance, regulation, code or standard. Buyer also authorizes (and represents that Buyer has the authority to authorize) Seller, its employees, representatives, agents and/or subcontractors to enter the premises identified by Buyer to deliver the Goods, perform the Services and conduct other incidental activities.
10. Cancellation and Termination.
A. Buyer does not have a right to cancel its agreement to buy the Goods or Services from Seller. If, however, Seller agrees in writing to permit cancellation prior to receiving full payment of the purchase price, then Buyer shall immediately pay to Seller a cancellation charge in an amount equal to the price quoted for the project less allowances (in amounts that Seller determines) for (i) the realizable value to Seller of all Goods that Seller has purchased or ordered to perform Services before cancellation, and (ii) all direct labor costs that Seller saved by reason of the cancellation.
B. Seller may terminate this Contract upon written notice on any of the following grounds: (i) material breach of any of these Terms; (ii) Buyer’s insolvency; or (iii) a deterioration in Buyer’s financial condition after the Contract was entered into. Termination will take effect immediately upon Buyer’s receipt of Seller’s notice. Upon termination of this Contract, Seller’s obligations under this Contract will be extinguished, provided that Buyer will be obligated to pay Seller an amount equivalent to the cancellation charge described in paragraph 10(A) above.
11. Indemnification. Buyer shall indemnify and hold harmless Seller with respect to all damages, losses, claims and expenses, including consequential and incidental damages and attorney fees, that Seller incurs as a result of Buyer’s breach of any of Buyer’s obligations under these Terms or any claimed unfair competition or any other claim resulting from Seller’s sale of Goods, or performance of Services, to Buyer’s specifications.
12. Seller’s Rights. Seller has all rights and remedies that applicable law gives to sellers. Seller’s rights and remedies are cumulative, and Seller may exercise them from time to time. Seller’s waiver of any right on one occasion shall not be a waiver of any future exercise of that right.
13. Time for Bringing Action. An action that Buyer brings against Seller for breach of the Contract or for any other claim that arises out of or relates to the Goods or their design, manufacture, sale or delivery of the Services must be brought within one year after the Goods are delivered and/or the Services are performed.
14. Notices. All notices and other communications required or permitted under the Contract must be given in writing by hand, facsimile (with receipt of electronic confirmation) or reputable overnight delivery service to the addresses specified by the Parties by like notice. Notices will be deemed to be effective two days after they have been sent. A copy of notices and other communications provided by facsimile must also be sent to the notified Party via first class mail by the following business day.
15. Applicable Law. The Contract shall be considered to have been made in the State of Michigan, and it shall be governed by and interpreted according to Michigan law without regard for conflict of law principles. Either Party may bring an action that arises out of or relates to the Contract in a federal or state court in (or within the district governing) Eaton County, Michigan that has jurisdiction of the subject matter, and the Parties irrevocably consent that that court shall have personal jurisdiction over the Parties and waive any objection that the court is not a convenient forum.
16. Amendment. No oral statement or representation not contained in these Terms and/or Seller’s written quotation and invoice forms (“Seller’s Forms”) shall have any force or effect. A change in the Contract must be by a signed writing.
17. Severability. If any of the provisions of the Terms or Seller’s Forms is determined to be invalid or unenforceable by any court of competent jurisdiction, such finding shall not invalidate the remainder of the Terms and Seller’s Forms which shall remain in full force and effect as if the provision(s) determined to be invalid or unenforceable had not been a part of the Terms or Seller’s Forms. In the event of such finding of invalidity or unenforceability, the Parties will work together to provide substitute provisions that will most closely correspond with the original intention of the voided provision(s).