TERMS AND CONDITIONS FOR THE SALE OF GOODS
(a) These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) by Universal Components (US), Inc. (“Seller”) to the person or entity purchasing the Goods from Seller (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of these Terms shall prevail in the event of any conflict between such documents.
(b) The notice of delivery provided by Seller (the “Delivery Notice”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its order or any terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
(c) Notwithstanding anything to the contrary contained in this Agreement, Seller may, from time to time change the Goods without the consent of Buyer provided that any changes made after such Goods have been ordered but not yet delivered do not materially affect the nature of the Goods and further provided that Buyer may make any change required to comply with applicable law. Goods may be subject to any tolerances specified in the quotation, order and/or Delivery Notice. Buyer will provide Seller with any information that Seller requires to fill an order, and any delay in providing requested information may delay the date of delivery.
2. Delivery of Goods.
(a) The Goods will be delivered within a reasonable time after transmission of the Delivery Notice, subject to availability of finished Goods. Seller shall not be liable for any delays, loss or damage in transit.
(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to Buyer’s location in the continental United States specified in the Delivery Notice or, subject to an additional charge in Seller’s discretion, such other location specified in the Delivery Notice (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within three (3) days of Seller’s written notice that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s order.
(d) If for any reason Buyer fails to accept delivery of any of the Goods on the date set forth in subsection (b) above, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate facilities, instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
(a) The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
(b) Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within three (3) days of the date when the Goods would in the ordinary course of events have been received.
(c) Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
(d) Buyer acknowledges and agrees that the remedies set forth in Section 3 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 3(c), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
4. Risk of Loss; Title; Bailment.
(a) Risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point.
(b) Seller shall retain title to the Goods ordered by and/or delivered to Buyer (the “Inventory”) until it receives payment therefor. From the delivery time until title to the applicable Inventory passes to Seller in accordance herewith (the “Bailment Term”), the following provisions shall apply:
- (i) Buyer acknowledges and agrees that, prior to payment therefor, Buyer shall hold all Inventory received hereunder, as a bailee, at the location specified in the Buyer’s credit application or account information (the “Inventory Location”) for Seller’s benefit without cost, charge or expense to Seller. Buyer shall hold and care for any and all Inventory delivered by Seller as the property of Seller.
- (ii) Buyer shall: (a) bear the responsibility and risk of loss for any shortages, loss, damage or destruction of or to the Inventory; (b) pay for all shortages, losses, damages or destruction of and to the Inventory, based upon the physical inspections made by Seller or Buyer, immediately upon demand being made by Seller; (c) not sell, lease, mortgage, pledge, encumber, remove, transfer or otherwise dispose of the Inventory; (d) not represent the Inventory to be property of Buyer in any way; and (e) at Buyer’s own cost and expense, keep the Inventory free and clear of all taxes, license fees, liens, security interests, claims and encumbrances whatsoever.
- (iii) Buyer shall (i) maintain at its own expense all risk of loss property insurance in an amount equal to the full replacement value of the Inventory and such coverage shall name Seller as an additional named insured and (ii) report to the Seller all incidents of damage or loss with respect to the Inventory as soon as practicable after such incident becomes known to Buyer.
- (iv) FURTHERMORE, BUYER SHALL NOT CHANGE ITS NAME, STATE OF LEGAL FORMATION OR RESIDENCE, CORPORATE STRUCTURE (IF APPLICABLE) OR FORM OF BUSINESS ORGANIZATION WITHOUT GIVING SELLER THIRTY (30) DAYS’ PRIOR WRITTEN NOTICE OF SUCH CHANGE.
- (v) Buyer shall at all times maintain a true and accurate record of the Inventory in Buyer’s possession. Seller may review and reconcile the Inventory at any time. Seller may audit and inspect the Inventory at the Inventory Location(s) or wherever else it may be located, at any time upon reasonable notice during normal business hours. Upon Seller’s request, Buyer shall assist Seller in performing an inspection of the Inventory and of the related books and records. If Seller’s audit or inspection turns up a shortage, loss, damage or destruction of or to the Inventory, Buyer shall immediately replace the missing, lost, damaged or destroyed Inventory or remit payment to Seller of an amount equal to the invoiced price of the missing, lost, damaged or destroyed Inventory. In no event whatsoever shall the failure or inability to perform any review or reconciliation of the Inventory, for any reason whatsoever, relieve Buyer from any of its obligations hereunder.
- (vi) The Inventory shall be delivered to Seller, or its designee, at the time and to the location as Seller may direct in writing to Buyer. Risk of loss shall pass from Buyer upon delivery of the Inventory to Seller, or its designee, in accordance with such instruction.
- (vii) Seller shall be responsible for and shall pay all personal property taxes attributable to the Inventory, if any. Buyer shall pay any such other taxes which may be assessed.
- (viii) The relationship of the parties hereto is that of a bailor (Seller) and bailee (Buyer) with respect to the Inventory and there is no intent hereunder for title to Inventory to transfer to Buyer prior to receipt of payment therefor. It is understood and agreed that Buyer is not the agent of Seller and has no power to bind or contract for Seller in any way whatsoever. While the intent of the parties hereto is to create a true bailment and not a consignment intended as security, to the extent any court views this Section 4(b) as one intended as security, Buyer hereby grants to Seller a security interest in the Inventory and all present and future attachments, exchanges, replacement parts and additions, all finished goods and products made from any Inventory, and all cash and non cash proceeds of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Missouri Uniform Commercial Code.
- (ix) Seller and Seller’s lenders may, at any time, prepare, file or otherwise deliver all financing statements and other documents, instruments, notices and agreements as Seller or its lenders may determine, including, but not limited to, Uniform Commercial Code financing statements, amendments and continuation statements, as well as correspondence notifying other persons and entities as to Seller’s and its lenders’ right, title and interest in and to the Inventory and the security interest described in clause (viii) above.
- (x) Upon termination of this Agreement, whether by default or otherwise, all Inventory held by Buyer shall immediately be returned by Buyer to a place designated by Seller at Seller’s cost and expense. Buyer acknowledges that any failure by it to promptly deliver or return the Inventory could result in irreparable harm to Seller beyond the value of the Inventory itself, such that damages would be difficult to measure. Therefore, Buyer agrees that Seller shall be entitled to injunctive relief of any form to prevent any damage or loss to the Inventory, or its delay in return to Seller.
- (xi) Upon termination of this Agreement or upon the occurrence of any of the events listed in Section 13(a) through (h), Seller may exercise all its rights and remedies under any applicable law, or in equity or bankruptcy, including, but not limited to, the right to enter the premises of Buyer and take possession of any and all Inventory. In the event Seller incurs costs, fees or expenses, including, but not limited to, any legal or collection costs, associated with the enforcement of the terms and provisions of this Agreement, Buyer shall immediately reimburse Seller for such costs, fees and expenses.
- (xii) If the Inventory is commingled or physically united with inventory of other parties, the rights and priorities of the parties shall be determined in accordance with the provisions of the applicable Uniform Commercial Code.
- (xiii) If Buyer receives payment, distribution or proceeds from the sale of or on account of the Inventory, Buyer, as trustee, shall hold such payment, distribution or proceeds in trust as the property of and for the benefit of Seller, and shall forthwith deliver same to Seller.
5. Buyer’s Acts or Omissions.
If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods within three (3) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s order; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility specified by Seller. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 6(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 6(b), all sales of Goods to Buyer are made on a one-way basis, and Buyer has no right to return Goods purchased under this Agreement to Seller.
(a) Buyer shall purchase the Goods from Seller at the prices (the “Prices”) set forth in Seller’s published price list in force as of the date of order.
(b) All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
8. Payment Terms.
(a) Buyer shall pay all invoiced amounts due to Seller within thirty (30) days from the date of Seller’s invoice. Buyer shall make all payments hereunder in US dollars.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 4% per annum or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
9. Limited Warranty; Disclaimer.
(a) Seller provides to Buyer that for the period of time during which the manufacturer’s warranty is valid (“Warranty Period”), such Goods will be free from material defects in material and workmanship.
(b) EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 9(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY, (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(c) Seller shall not be liable for a breach of the warranties set forth in Section 9(a) unless: (i) Buyer gives written notice of the defective Goods, reasonably described, to Seller within ten (10) days of the time when Buyer discovers or ought to have discovered the defect; (ii) if applicable, Seller is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 9(a) to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Buyer’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.
(d) Seller shall not be liable for a breach of the warranty set forth in Section 9(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s or the manufacturer’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
(e) Subject to Section 9(c) and Section 9(d) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
(f) THE REMEDIES SET FORTH IN SECTION 9(E) SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 9(A).
10. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS AND SERVICES SOLD HEREUNDER or $500,000, WHICHEVER IS LESS.
In the event that Buyer requests that the Goods be manufactured in accordance with specifications provided by Buyer, Buyer shall indemnify, defend and hold harmless Seller from and against all claims, losses, demands, suits, penalties, fines, attorney’s fees and expenses arising or resulting from such manufacture, including, without limitation, any claim of intellectual property infringement and any claim that any defect arose, in whole or in part, from any specification provided by Buyer. Buyer shall indemnify, defend and hold harmless Seller from and against all claims, losses, demands, suits, penalties, fines, attorney’s fees and expenses arising or resulting from any breach of this Agreement by Buyer.
12. Compliance with Law.
Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer:
(a) fails to pay any amount when due under this Agreement;
(b) has not otherwise performed or complied with any of these Terms, in whole or in part;
(c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors;
(d) otherwise ceases to do business;
(e) makes any material misrepresentation to Seller or any third party;
(f) any of the Inventory or Buyer’s assets are seized, attached, subjected to a writ or distress warrant, or are levied upon, or come within the possession of any receiver, trustee, custodian or assignee for the benefit of creditors;
(g) Buyer is enjoined, restrained or in any way prevented by court order from conducting any part of Buyer’s business; or
(h) a notice of a lien, levy or assessment is filed of record with respect to the Inventory or any of Buyer’s assets. No termination of this Agreement shall impair the rights or obligations of any party arising prior to such termination. All provisions of this Agreement that expressly or would reasonably be interpreted as surviving the termination of this Agreement shall so survive, including, without limitation, all provisions regarding indemnification and limitations of liability.
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15. Confidential Information.
All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
16. Force Majeure.
Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
18. Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
19. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
20. Governing Law.
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Missouri without giving effect to any choice or conflict of law provision or rule (whether of the State of Missouri or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Missouri.
21. Submission to Jurisdiction.
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America located in St. Louis, Missouri or the courts of the State of Missouri located in the County of St. Louis, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Delivery Notice or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
24. Amendment and Modification.
These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
Information in our sales literature and other documentation may be subject to clerical and/or typographical errors. Before submitting an order to Seller, Buyer shall request written confirmation of any verbal or printed information that it intends to rely upon in relation to the Goods or this Agreement.