ND’S TERMS AND CONDITIONS OF SALE
1. Background. ND Industries, Inc. (“ND”) develops, manufacturers, markets, sells and distributes various coatings and other products for the fastener and other industries, including bottled adhesive products that are user applied, as well as the equipment utilized to apply such coatings. The Buyer (as identified in the related quote or Purchase Order) is interested in purchasing from ND those goods and/or services as more fully described in the Buyer’s Purchase Order or ND’s quote, as applicable (the “Products and/or Services”). These Terms and Conditions shall be deemed incorporated into Buyer’s Purchase Order for the Products whether or not specifically referenced therein.
2. Offer & Acceptance; Agreement. Buyer’s acceptance of ND’s quote and/or ND’s acceptance of Buyer’s written Purchase Order is limited to acceptance of the express terms and conditions contained herein. Once accepted, ND’s quote or Buyer’s Purchase Order, as the case may be, together with these Terms and Conditions, and any supplementary written information incorporated by reference herein, shall be the complete and exclusive statement of the parties’ agreement and supercedes any prior discussions, negotiations, agreements, and understandings. Any modifications proposed by Buyer are not part of the parties’ agreement in the absence of ND’s written acceptance thereof. Any terms or provisions in the Purchase Order which are in any way inconsistent with those herein shall be null and void and the Terms and Conditions herein shall control. The placing of a Purchase Order or the shipping of goods to ND to be processed shall constitute acceptance of the Terms and Conditions contained herein.
3. Purchase Price And Payment Terms . The price quoted by ND for the Products and/or Services is in U.S. dollars for the quantity shown, less any taxes, freight, duty, and custom’s charges. The purchase price for the Products and/or Services shall be paid net thirty (30) days unless otherwise specified by ND in writing. If, in ND’s judgment, the financial condition of the Buyer at the time processed goods are ready for shipment does not justify the terms specified, ND reserves the right to change these terms or to require full payment or partial payment in advance. All sales are subject to the approval of ND’s credit department.
4. Warranty. ND warrants the Products and/or Services to be free from defects in material and workmanship under normal and recommended use and that the Products and/or Services will conform to ND’s published specifications or, if applicable, Buyer’s specifications accepted by ND in a separate writing. ND’s obligation under this warranty shall be limited to providing replacement products to the extent of any defective Products and/or Services, or at ND’s election, to the repayment or crediting of Buyer with an amount equal to the purchase price of such defective Products and/or Services whether such claims are for breach of warranty, breach of contract, or negligence. This warranty shall extend for twelve (12) months from date of the original purchase by the original buyer only, and shall apply only to those goods which upon ND’s examination disclose to its satisfaction that the Products and/or Services in question were in fact defective. THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE AND OF ALL OTHER OBLIGATIONS OR LIABILITIES ON ND’S PART. THIS WARRANTY SHALL NOT APPLY TO ANY PART WHICH HAS BEEN SUBJECT TO ACCIDENT, NEGLIGENCE, ALTERATION, ABUSE OR MISUSE OR WHICH IS DEFECTIVE. ND MAKES NO WARRANTY WHATSOEVER IN RESPECT TO ACCESSORIES OR PARTS OR CHEMICALS NOT SUPPLIED BY ND. Notwithstanding the foregoing, any parts purchased by ND from its vendors shall only carry the vendor’s specific warranty, to the extent transferable to Buyer. No representation or warranty, expressed or implied, made by any sales representative or other agent or representative of ND, which is not specifically set forth herein, shall be binding upon ND.
5. Standards. Many countries have adopted laws relative to standardization and product certification applicable to various products, including equipment such as that produced by ND. ND warrants that its products are compliant with standards required under United States law, but it cannot and does not warrant conformity with the standardization and product certification requirements of any other country except to the extent, if any, set forth in a separate writing delivered to Buyer by ND.
6. Inspection And Rejection. Final inspection of the Products and/or Services purchased pursuant to the terms hereof shall be at Buyer’s premises unless otherwise agreed in writing. The Products and/or Services (or parts) rejected as not conforming to the Purchase Order, or as otherwise defective, shall be returned at Buyer’s initial expense, including transportation and handling costs, but subject to reimbursement by ND upon confirmation of the defect claimed. Acceptance by Buyer of shipment of the Products and/or Services rendered by ND shall be deemed to have occurred no later than ten (10) days following receipt of such shipment by Buyer or Buyer’s customer, unless a timely rejection has been made by that date.
7. Shipment And Delivery. Except as provided in Paragraph 5, above, as it relates to returned processed goods, shipment of the processed goods shall be F.O.B. ND’s place of business. Buyer shall be responsible for all transportation and delivery costs and shall bear the risk of any loss or damage in transit. Delivery dates, if specified by ND, are estimates only and are not guaranteed and are not binding on ND.
8. Confidentiality And Non-Disclosure. Buyer recognizes that ND is the owner of certain confidential and proprietary information relating to the development and application of the Products and/or Services, which includes specifications, technological know-how and other types of information or data, including certain patents related thereto (the “Technical Information”). Buyer agrees not to, directly or indirectly, disclose, disseminate or otherwise publish to any third-party any of the Technical Information. Buyer further agrees to protect from disclosure ND’s Technical Information to the same extent which Buyer seeks to protect its own Technical Information from disclosure (but in no event will Buyer exercise less than reasonable measures). The confidentiality obligations herein shall not apply to any Technical Information which (a) at the time of disclosure is in the public domain, (b) after disclosure becomes part of the public domain other than through a breach of a non-disclosure obligation, or (c) was received from a third-party who acquired such information through lawful means and without any breach of a non-disclosure obligation. Tooling and gages, if any, for which Buyer is invoiced shall remain property of ND unless otherwise indicated and shall be maintained by ND only as long as reasonable usage warrants, as determined by ND in its sole discretion.
9. Patents. ND shall indemnify and save Buyer harmless from any judgments for damages and their costs which may be rendered against Buyer in any suit brought against Buyer on account of the infringement of any United States patent by any goods supplied by ND hereunder, provided that Buyer promptly notifies ND of the commencement of any such suit and authorizes ND to settle or defend such suit as ND may see fit, and provided further that Buyer renders every reasonable assistance which ND may require in defending any such suit. This indemnity shall not apply if Buyer has furnished the specifications for the Products and/or Services, or if Buyer has altered or modified in any way such Products and/or Services. In that event, Buyer shall indemnify and hold ND harmless for any claim of patent infringement.
10. Taxes. Buyer shall be responsible for all taxes, duties, assessments and other governmental charges related to the sale and shipment of the Products and/or Services; provided, however, ND shall be responsible for U.S. income taxes related to amounts received by ND in connection with its sale of the Products and/or Services to Buyer.
11. Termination. The Purchase Order and these Terms and Conditions may be terminated in any of the following ways:
- A. By mutual agreement of ND and Buyer;
- B. By ND, on thirty (30) days prior written notice, in the event that:
- (i) Buyer breaches or otherwise fails to comply with any provision contained herein, and such breach is not cured within that time period;
- (ii) ND reasonably believes that Buyer’s financial condition places it in a position of being unlikely to be able to meet its contractual obligations;
- (iii) Buyer defaults under any other material contract to which it is a party; or
- (iv) Buyer sells all or substantially all of its assets, a majority of its voting stock or merges with another entity.
- C. By Buyer, upon thirty (30) days prior written notice, in the event that:
- (i) ND breaches or otherwise fails to comply with any provision contained herein, and such breach is not cured within that time period;
- (ii) Buyer reasonably believes that ND’s financial condition places it in a position of being unlikely to be able to meet its contractual obligations;
- (iii) ND defaults under any other material contract to which it is a party; or
- (iv) ND sells all or substantially all of its assets, a majority of its voting stock or merges with another entity, unless ND is the surviving corporation in any such merger.
12. Currency. All payments shall be in U.S. currency. Payments not made within the time period required herein shall bear interest at the rate of one (1%) percent per month on the unpaid amount. In the event that ND finds it necessary to take action to collect any unpaid amounts, Buyer shall be responsible for all costs and attorney fees incurred by ND in connection therewith.
13. Limitation Of Damages. ND shall not be liable for any special, incidental or consequential damages, losses or expenses directly or indirectly arising from the sale, inspection, handling or use of the goods or from the Products AND/OR SERVICES provided by ND or from any other cause relating thereto, and ND’s liability hereunder, in any case, is expressly limited to providing replacement Products AND/OR SERVICES for those Products AND/OR SERVICES not complying with the terms hereof or, at ND’s election, to the repayment or crediting of Buyer with an amount equal to the purchase price paid by Buyer for the non-complying Products AND/OR SERVICES. If Buyer brings any action at law or equity in connection with the Purchase Order or these Terms and Conditions, no cause of action by Buyer shall include a claim, nor may recovery be had against ND, for any punitive, incidental, special or consequential damages of any kind, including but not limited to, damages to property OR PERSONS (INCLUDING DEATH), for loss of use, loss of time, loss of profits or income, or otherwise. ND’s liability shall be specifically limited as provided herein.
14. Labeling. If Buyer purchases bottled products for resale by Buyer and to which Buyer is to apply its own label, Buyer shall include on its label the following language, unless ND consents, in writing, to alternative language:
“DIRECTIONS: Shake well before use. Make sure parts are clean and free from dirt, oil and grease. Apply product to one surface only. Assemble using normal tools in usual manner. Full cure 24 hrs. CAUTION SKIN IRRITANT. Contains Methacrylate Esters. Irritates skin & eyes, prevent contact. Wear gloves, goggles, protective clothing. May be harmful if inhaled. Avoid prolonged or repeated breathing of vapor. Use only in well ventilated areas. Harmful if swallowed. Keep container closed. Contamination may cause polymerization. No inhibitor required. For industrial uses only. Not recommended for plastics. If contact occurs, flush skin or eye with water. For eyes, get medical attention. KEEP AWAY FROM CHILDREN”
15. Force Majeure. Except for payment obligations of Buyer hereunder, neither party shall be liable under the purchase agreement for delays in performance or failure to perform its obligations caused by circumstances beyond its control, including but not limited to, acts of God, wars, riots, strikes, floods, labor disputes, accidents, and governmental restrictions.
16. Miscellaneous. The following miscellaneous terms and Conditions shall apply:
A . These Terms and Conditions may be executed in counterparts (including counterpart facsimiles) and each counterpart shall be deemed to be an original instrument, but all counterparts shall together constitute one agreement.
B . In case any one or more of the provisions contained in these Terms and Conditions shall for any reason be held to be invalid, illegal or unenforceable in any respect, that disability shall not affect any other provision herein and these Terms and Conditions shall be construed as if that provision had never been contained herein.
C . Captions to paragraphs of in these Terms and Conditions have been included solely for the sake of convenient reference, and are entirely without substantive effect.
D. These Terms and Conditions shall be binding upon, and its benefits shall inure to, the parties hereto and their respective heirs, representatives, successors, and assigns.
E. The Purchase Order and these Terms and Conditions shall be governed by and construed in accordance with the laws of the State of the Michigan with the courts sitting in either Oakland County, Michigan or the United States District Court for the Eastern District of Michigan having exclusive jurisdiction.
F. The Purchase Order and these Terms and Conditions embody the entire understanding between the parties with respect to the transaction contemplated herein. All prior or contemporaneous agreements, understandings, representations, warranties, and statements, oral or written, are merged into these Terms and Conditions. Neither these Terms and Conditions nor any of its provisions may be waived, modified, amended, discharged, or terminated except by an instrument in writing signed by the party against which that enforcement is sought and then only to the extent set forth in that instrument.
17. Assignment. Buyer may not assign its rights under the Purchase Order or these Terms and Conditions without the prior written consent of ND. Any assignment made without ND’s written consent shall be null and void.