TEKNA STANDARD TERMS AND CONDITIONS FOR SALES ORDERS
1. Expiration of Quotation. Any quotation by TEKNA will be held open for acceptance for a period of 30 days from the date of the quotation; however, TEKNA reserves the right to correct clerical and typographical errors within 15 days after acceptance of an order based on a quotation.
2. Acceptance. This order for goods and/or services (the “Work”) is subject to the following terms and conditions. Terms stated by Buyer in any other communication, prior or subsequent hereto, shall NOT be binding on TEKNA if different from or in addition to any of the provisions hereof or the quotation, unless expressly agreed to in writing. Acceptance by Buyer of this order, orally or in writing, or of any Work provided hereunder or payment therefor, shall constitute acceptance of these terms and conditions.
3. Payment. Payment is due on a NET 30 DAYS basis unless otherwise agreed to in writing. All payments not made by the due date shall bear interest at a rate of 1½% per month. If Buyer fails to fulfill the terms of payment, or TEKNA has any doubt at any time as to Buyer’s financial responsibility, TEKNA may either decline to make further deliveries except upon receipt of cash or other satisfactory security, or may terminate the entire agreement. Buyer shall reimburse TEKNA for any costs of collection incurred in collecting any past due sums, including attorneys’ fees. To secure Buyer’s obligation to pay TEKNA the purchase price of the Work, Buyer grants to TEKNA a security interest in the Work and any proceeds thereof, with full rights as a secured party under the Uniform Commercial Code, and Buyer authorizes TEKNA to file any financing statements evidencing such security interest on behalf of Buyer.
4. Shipment and Risk of Loss. Buyer shall take delivery of the Work F.O.B. TEKNA’S FACILITY, Kalamazoo, Michigan, unless otherwise agreed in writing. Method and route of shipment are at TEKNA’s discretion unless Buyer supplies instructions otherwise. All expense and risk of loss or any damage incurred in the transportation of the Work, including any risk of loss in loading or unloading, shall be borne solely by Buyer, unless otherwise specified. All claims for loss, damage, or delay against the carrier must be made by Buyer. Buyer shall accept partial delivery of any order, and any defect therein or failure to make any subsequent partial delivery shall be severable and not constitute a breach of the entire agreement.
5. Delays and Damages. TEKNA shall attempt to make deliveries in accordance with its quotation or production order, but if for any cause TEKNA fails to make such deliveries or to make them within the time stated, or cancels any order, TEKNA shall not be liable for any loss or damage resulting from any such failure or delay in delivery, or from any such cancellation or for loss of use or loss of profits, or for any other consequential, incidental or special damages on account of delay in delivery.
6. Rejection of Non-Conforming Work. Any rejection of the Work as non-conforming must be made by Buyer within 10 days after delivery by delivering written notice to TEKNA confirming the rejection. Such notice shall identify each alleged non-conformity of the Work and describe that portion of the shipment being rejected. If Buyer shall fail to give such notice or if Buyer uses the Work in any manner inconsistent with the rights of TEKNA, the Work shall be deemed to conform to the terms of the order in all respects and Buyer shall be bound to accept and pay for the Work.
7. Cancellation or Modification. Any order accepted by TEKNA may be canceled or modified by Buyer only upon the written approval of TEKNA. Buyer shall reimburse TEKNA for all expenses incurred by TEKNA in connection with such order, including without limitation for time and materials, together with a cancellation fee of 25% of the total remaining cost of the Work. Orders which are at least 75% complete are payable in full if terminated. Payment of any fees resulting from the cancellation or modification of any Order shall be made in accordance with paragraph 3 above.
8. Limited Warranty and Limitation of Remedy and Damages. TEKNA warrants the Work to be free from defects in design, materials or workmanship under normal operating conditions for 90 days from the date of shipment. Any claim under this warranty shall be deemed waived conclusively unless TEKNA is notified within 30 days of the discovery of the defect and given the opportunity to inspect such defect, and, if necessary, the Work is returned to TEKNA, transportation prepaid. TEKNA’s obligation under this warranty shall be LIMITED, at its option, to the modification, repair or replacement of the Work by TEKNA. In no event shall TEKNA be liable for consequential, incidental or special damages, loss of property (other than the Work), profit or production, or for transportation, installation or other costs associated with the Work.
THIS WARRANTY IS EXPRESSLY MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
This warranty shall not apply to any Work which has been subject to abuse, accident, alteration or misuse by Buyer or its agents, including the failure to specifically follow all applicable instructions. This limited warranty shall extend to the Work and components thereof manufactured, supplied or repaired by TEKNA, but shall not extend to products, parts or equipment supplied by other manufacturers and used by TEKNA to manufacture, supply or repair the Work.
9. Limitation of Liability. TEKNA’s liability on any claim of any kind, including negligence, strict or product liability, or breach of warranty or contract, for any loss or damage arising out of or connected with this contract, or the performance or breach thereof, or the manufacture, sale or use of the Work furnished hereunder shall in no case exceed the price allocable to such Work which gives rise to the claim, and shall not include any liability for any consequential, incidental or special damages, loss of production or profits. If, in the preparation of the quotation and the Work, TEKNA has relied on information supplied by Buyer, TEKNA shall not be liable for any claim resulting from inaccuracies, including negligence, strict or product liability, or breach of warranty or contract, with respect to the Work, the performance or breach of this contract, or any defects of design, material or workmanship.
10. Indemnification. To the extent permitted by law, Buyer agrees to defend, indemnify and hold harmless TEKNA and its agents from and against any losses, liabilities, damages, costs, expenses, suits, actions, claims and all other obligations and proceedings whatsoever, including without limitation, all judgments rendered against and all fines and penalties imposed upon TEKNA, and any attorneys’ fees and other costs of litigation (collectively, “Liabilities”) arising out of injuries to persons, including disease or death, or damage to property caused by Buyer, its employees, agents, other contractors, or in any way attributable to the acts or omissions of Buyer under the Contract, including without limitation any asserted defects in any Work produced for Buyer by TEKNA caused by any alteration thereof with or without TEKNA’s consent made by Buyer, the improper handling, maintenance, storage or installation by Buyer, any action taken by Buyer which voids any ASME certification or actual or claimed liabilities from infringement of patents or trademarks arising from compliance with any oral or written specifications or instructions provided by Buyer or its agents, except that Buyer’s obligation to indemnify TEKNA shall not apply to any Liabilities arising from TEKNA’s sole negligence, or that portion of any Liabilities that arise out of TEKNA’s contributing negligent acts or negligent omissions.
11. Reliance Upon Buyer’s Information. In the preparation of this order, TEKNA has relied on information supplied by Buyer. Further, Buyer is responsible for obtaining all permits including with the Food and Drug Administration, for the production of the goods or services covered by this order, unless otherwise specifically agreed to by TEKNA. In the event such information is inaccurate or such permits have not been obtained, TEKNA shall not be liable for any claim resulting from such inaccurate information or failure to obtain permits.
12. Non-Performance. Neither party shall be liable to the other for failure to perform its obligation in whole or in part when performance is prevented by flood, drought, fire or any other casualty, war, terrorism, riot, insurrection, acts of God, restrictions or interference by any government or governmental agency, strike, labor action, or any similar cause beyond the control of the party failing to perform, for the period during which such cause of failure exists.
14. Choice of Law and Forum. This contract shall be governed by the laws of the State of Michigan, notwithstanding any state’s choice of law or rules to the contrary. Buyer consents and agrees that any action brought to enforce this contract, or for any breach hereof, or for any defect or deficiency of the Work to be delivered hereunder, whether on warranty, contract, negligence, or strict or products liability, shall be brought solely in a state or federal court sitting in the State of Michigan, and Buyer consents and submits to the jurisdiction of such court.
13. Limitation Period for Bringing Action. No action may be commenced to enforce this contract or for any breach hereof, or for any defect or deficiency of the Work to be delivered hereunder, whether on warranty, contract, negligence, or strict or products liability, unless such action is brought within 12 months after accrual of such cause of action.