Terms & Conditions
TERMS AND CONDITIONS OF SALE
1. Entire agreement.
The terms contained herein are intended by Seller and you as a final expression and as a complete and exclusive statement of the terms of our agreement and supersede and replace any prior agreements or understanding relating to the subject matter hereof, including, without limitation, any purchase orders delivered by you to Seller. This agreement may not be modified, rescinded, canceled or any term or breach waived except in writing signed by a duly authorized officer of Seller.
2. Payment.
Terms of payment are shown on the face hereof and shall be effective from the earlier of the date of shipment or invoice.
3. Charges; Taxes.
All prices, whether listed on this Acknowledgement or previously quoted or proposed, may be adjusted to Proos’ price in effect at the time of shipment. If transportation charges from the point of origin of shipment to a desired designated point are included in the price any changes in such transportation charges shall be paid by Customer, and except as otherwise agreed to by Proos in writing, Proos shall not be responsible for any handling or storage fees. Customer shall pay any and all taxes applicable to the sale, purchase, lease, storage, use or ownership of the equipment covered hereby, regardless of whether such taxes are invoiced by Proos.
4. Acceptance and Notification of Breach.
Any goods covered hereby shall be fully inspected by Customer within five (5) days after they are delivered to Customer. Failure of Customer to notify Proos of any non-conformity of the goods to the contract within five (5) days after it is discovered or within ten (10) days after such
goods are delivered to Customer, whichever is earlier, shall constitute irrevocable acceptance of such goods, and shall bar Customer from any remedy with respect to such nonconformity.
It is hereby agreed that the above time periods constitute a reasonable time. Customer shall immediately notify Proos of such non-conformity and afford Proos a reasonable opportunity to inspect or cure the shipment. No materials shall be returned without Proos’ consent. Shortage claims must be accompanied by sworn affidavit.
5. Permissible variations.
Unless otherwise specifically agreed to in writing by Proos, all materials shall be produced in accordance with Proos’ standard practices. All material, including that produced to meet an exact specification, shall be subject to tolerances and variations consistent with the usages of the trade and industry practices.
6. Warranties.
Except for the warranty that the goods are made in a workmanlike manner and in accordance with the written specifications supplied or agreed to by Customer and are made pursuant to Proos’ customary manufacturing procedures,
PROOS MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS OR SERVICES TO BE FURNISHED HEREUNDER, AND PROOS SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
Equipment, parts or other goods which prove defective in material and/or workmanship under normal and proper usage will be repaired and/or replaced, at Proos’ option, for a period of (1) year from the date of the invoice provided Customer has complied in full with terms of payment and the other conditions of the invoice.
7. Cancellation and liability.
Proos reserves the right to cancel its acceptance of of this order, in whole or in part, with or without cause at any time prior to delivery of the goods by written notice to Customer. Under no circumstances shall Proos be responsible for or have any liability for incidental, special or consequential damages incurred by Customer. Proos further specifically disclaims any liability or responsibilities for injuries or damages to person or property arising out of the performance of this
contract by Proos or Customer, and any agreement to the contrary is hereby null and void. Proos also shall have no liability to Customer for any product liability claim and customer shall indemnify and hold Proos harmless as to any personal injury claim relating to the use of the goods provided by Proos. Proos’ maximum liability shall not in any case exceed the contract price to the goods claimed to be defective or unsuitable. An order once placed by Customer and accepted by Proos can be cancelled by Customer only upon the prior written consent of Proos and upon terms that will indemnify Proos against loss.
8. Risk of loss.
Proos assumes no liability for any loss of or damage to merchandise or material while in transit to or from our facility, whether in trucks or vehicles owned by us, the customer or any third party acting in our or on Customer’s behalf, or for any loss of or damage to said merchandise or materials while the same are in our possession for any cause whatsoever, including, but not limited to, theft, fire, casualty, or act of God.
9. Indemnification.
Customer agrees to indemnify and hold Proos harmless, and assume any legal liability to defend Proos, its agents, employees, officers and directors, from any claim or action by any third party arising out of the performance of work pursuant to this transaction except those claims or actions arising out of incidents caused by employees or agents of Proos.
10. Delay.
Proos is not liable for any delay, damage or loss due to acts of God, war, riot, embargoes, acts of civil or military authorities, fires, floods, accidents, plant conditions, strikes, differences with workers, delays in transportation, shortages of vehicles, fuel, labor or materials, or any circumstances or cause beyond the control of Proos in the reasonable conduct of its business.
11. Credit approval.
Shipments, deliveries, and performance of work at all times are subject to approval of Proos’ credit department. Proos may at any time decline to make any shipment or delivery or performance except upon receipt of payment or security upon terms and conditions satisfactory to Proos.
12. Insolvency.
In the event that Customer becomes bankrupt or insolvent, Proos may terminate this agreement upon written notice thereof to Customer. Such termination shall not prejudice Proos’ rights to any amounts then due under the contract.
13. Failure to comply with invoice.
In the event that Customer’s account is beyond invoice terms, Proos, at its discretion, may suspend shipment of product. In such case, Proos shall not be liable for any additional charges related to suspended shipment of the goods.
14. Lien.
All Customer’s merchandise in our possession shall be subject to a general lien for all monies owing by Customer to Proos, whether or not due or payable, and whether or not such monies are owing to Proos for work, labor or services rendered, or materials or equipment used in connection with such merchandise.
15. Equipment.
Special tools, racks and fixtures required for the performance of the work described herein designated and built by Proos shall be and remain Proos’ property whether or not Customer is charged for time and/or material in connection herewith.
16. Time for bringing action.
Any action for the breach of this agreement must be commenced within one year after the date of delivery of the goods from Proos to Customer.
17. Attorney Fees and Costs.
In the event Customer fails to make payment when due or otherwise breach this agreement, Proos shall be entitled to its costs of enforcement or collection proceedings, including, without limitation, reasonable attorneys fees.
18. Severability.
Any portion of these terms and conditions found to be unenforceable by a court of competent jurisdiction will not invalidate the remaining terms and conditions.
19. Interpretation of terms.
Any term of this transaction which is found to be ambiguous shall not be construed against Proos.
20. Governing law.
The parties agree that any controversy or claim arising out of this transaction, or claimed breach thereof, shall be governed by the laws of the state of Michigan and that venue for any such action shall be in a court of proper jurisdiction in the county of Kent, State of Michigan. Proos, if it prevails in any court action, shall be entitled to all reasonable attorneys’ fees, costs and other expenses incurred in such action and in any subsequent efforts to collect the amount awarded.