Terms and Conditions
1. Parties. “Seller” means BW Manufacturing, Inc. “Buyer” means any entity or individual purchasing goods from Seller.
2. Terms and Conditions of Sale. These Terms and Conditions of Sale define the relationship of Buyer and Seller and apply to all sales of equipment (including, but not limited to Shotblasters, Scarifiers, Diamond Grinders/Polishers, Concrete Dust Collection Systems, and Trailers), components incorporated into equipment, parts, supplies, materials or other personal property (individually and collectively, “Equipment”) by Seller to Buyer. Buyer acknowledges and agrees that these Terms and Conditions of Sale are incorporated in, and are a part of, any contract of sale and each quotation, purchase order, invoice, and any other document relating to the sale of Equipment by Seller to Buyer (these documents are collectively referred to as the “Agreement”).
3. Quotation Expiration. Written quotations signed by Seller are valid for a period of 30 days unless otherwise noted by Seller.
4. Pricing. Prices for Equipment and other related information shown in any Seller product publication, including but not limited to catalogs, brochures, and websites, are subject to change without notice. Prices do not include related freight charges, use tax, sales tax, excise tax, value-added tax, or similar taxes, or charges of any nature whatsoever imposed by any governmental authority unless otherwise expressly noted by Seller.
5. Taxes. Prices quoted do not include (and Buyer shall pay) all taxes and fees of any kind that may be levied or imposed on either party by federal, state, municipal, or other governmental authorities in connection with the sale or delivery of the Equipment by Seller.
6. Terms of Payment. Unless Buyer has obtained credit approval from Seller, payment is due and payable to Seller in cash on completion of Seller’s delivery obligation (COD). For Buyers with credit approval, any amounts due by Buyer to Seller that are unpaid on or after 30 days of Seller’s invoice will bear interest at the simple interest rate of 2 percent (2%) per month or the maximum rate permitted by law, whichever is less. The accrual or payment of any interest as provided above will not constitute a waiver by Seller of any rights and remedies in connection with a default by Buyer. Buyer will pay all court costs, attorney fees, and other costs incurred by Seller in collecting past-due amounts, including interest. If shipment or delivery of Equipment is delayed by or at the request of Buyer, payment will remain due in full on the original delivery date for Buyers without credit approval or 30 days from the date of Seller’s invoice for Buyers with credit approval. In either such event, Seller may impose, and Buyer shall pay, storage charges and other incidental expenses incurred by Seller as a result of the delay in addition to any interest on late payments as described above.
7. Security Interest. As security for payment of all amounts due to Seller, Buyer grants to Seller a security interest in all Equipment sold by Seller to Buyer, and Seller will have all rights of a secured party under the Uniform Commercial Code with respect to the Equipment. Buyer appoints Seller as its attorney-in-fact with authority, at Seller’s option, to take actions as Seller deems reasonable in the circumstance to perfect the above security interest in any one or more jurisdictions, and Buyer shall pay all applicable filing fees.
8. Limited Express Warranty. For a period of ninety (90) days from the completion of Seller’s delivery obligation under this Agreement, Seller warrants that a limited selection of components manufactured by Seller and incorporated into the Equipment will be free of defects in material and workmanship. In the event Buyer has a claim related to the components covered under this warranty, Buyer shall be bound by the then-current Warranty Breakdown. Buyer’s sole remedy for breach of this warranty is limited to repair and replacement, within the warranty period, of defective components manufactured by Seller and covered under this warranty pursuant to the Warranty Breakdown. Buyer is responsible for all shipping costs arising out of any warranty service provided by Seller. SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH REGARDS TO THE EQUIPMENT AND/OR COMPONENTS MANUFACTURED BY SELLER AND INCORPORATED INTO THE EQUIPMENT, WHICH ARE NOT INCLUDED IN THE ABOVE REFERENCED WARRANTY, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BUYER ASSUMES FULL RESPONSIBILITY THAT THE EQUIPMENT PURCHASED UNDER THE AGREEMENT MEETS THE SPECIFICATIONS AND/OR INTENDED USE OF BUYER, AND SELLER MAKES NO REPRESENTATION WITH RESPECT THERETO.
9. Disclaimer of Third-Party Component Warranties. THE SOLE REMEDY AVAILABLE TO BUYER WITH RESPECT TO DEFECTS IN THE COMPONENTS MANUFACTURED BY THIRD PARTIES WILL BE AGAINST THE THIRD PARTY MANUFACTURER UNDER ANY APPLICABLE MANUFACTURER’S WARRANTY TO THE EXTENT AVAILABLE TO BUYER. WITH REGARDS TO COMPONENTS MANUFACTURED BY THIRD PARTIES AND INCORPORATED INTO THE EQUIPMENT, SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, RELATING TO THE COMPONENTS, WHETHER BASED ON BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. No Consequential Damages. IN NO EVENT WILL SELLER BE LIABLE OR RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR EXPENSE OCCASIONED BY THE USE OF DEFECTIVE EQUIPMENT.
11. Delivery. Any delivery dates or other schedule of performance by Seller are approximations, and the sole obligation of Seller with respect to the schedule of delivery or performance will be to use commercially reasonable efforts to deliver the Equipment, or otherwise to perform, consistent with the reasonable demands of its business. In any event, Seller will have no liability to Buyer or any other person for delays in performance due to strikes or labor disputes of any type; accidents, fire, floods, acts of God, or actions by governmental authorities; acts, omissions, or delays of Buyer or any other third party; shortages of labor; or without limitation of the above, for any causes reasonably beyond the control of Seller.
12. Title and Risk of Loss. Title to and risk of loss to the Equipment will pass to Buyer on delivery by Seller F.O.B. Seller’s place of business, located at 3706 Mill Creek Dr. NE, Comstock Park, Michigan, 49321.
13. Inspection and Acceptance. Buyer will have two (2) days from the date of delivery to inspect the Equipment for defects and nonconformance and to notify Seller, in writing, of any defects, nonconformance, or rejection of the Equipment. After this period, Buyer will be deemed to have irrevocably accepted the Equipment. After acceptance, Buyer will have no right to reject the Equipment for any reason or to revoke acceptance. Seller is not responsible for damage to the Equipment arising out of the shipment of the Equipment to Buyer. Claims for damage due to shipping must be made by Buyer to the freight carrier.
14. Return of Equipment. All returns will be pursuant to Seller’s instructions. Buyer must contact Seller for a Return Material Authorization (RMA) before returning any Equipment. All returns must reference the RMA number along with the original invoice number and the reason for return.
15. Cancellation or Termination. In the event of cancellation of the Agreement by Buyer, or in the event of default under the Agreement by Buyer that is not cured within 30 days after notice by Seller, Buyer will pay to Seller on demand all direct and indirect costs (including, without limitation, all applicable restocking or cancellation charges, including reimbursement for direct costs assessed by the manufacturer) incurred directly or indirectly by Seller in connection with the Agreement, all as reasonably determined by Seller, plus any lost profit. In no event, however, will any amount payable by Buyer under the Agreement exceed the total price payable by Buyer for the Equipment.
16. Modifications and Waiver—Entire Agreement. The Agreement contains the entire agreement between Seller and Buyer and can be modified or rescinded only by a writing signed by both parties. If any term of the Agreement is held invalid or unenforceable, all other terms of the Agreement shall remain in effect. Any document submitted by Buyer to Seller confirming its intention to purchase Equipment described in the Agreement will be deemed to constitute a confirmation and acceptance of the Agreement, even if the document states terms in addition to or different from those in the Agreement. All agreements between Seller and Buyer will be solely under the terms and conditions of the Agreement and Seller objects to any and all additional or different terms contained in any document submitted to Seller by Buyer. Any execution by Seller of any other document submitted by Buyer in connection with the purchase of Equipment does not constitute acceptance of or agreement to any terms and conditions in addition to or different from those contained in the Agreement, but will constitute only acknowledgment of receipt of the document. In addition, Buyer’s acceptance of these terms shall be conclusively presumed by Buyer’s (i) acceptance of delivery of or (ii) payment for Equipment covered under the Agreement.
17. Compliance with Laws. Buyer will be responsible for compliance with any and all federal, state, or local laws or regulations respecting safety or respecting use of the Equipment and shall indemnify and hold Seller harmless from and against any and all claims of violations of laws or regulations or other claims of personal injury or property damage directly or indirectly related to the installation, maintenance, or operation of the Equipment.
18. Export Control. Equipment supplied by Seller may be subject to various export laws and regulations. It is the responsibility of the exporter and Buyer to comply with all laws and regulations. If any required export authorization is denied, Seller will be relieved of any further obligation related to the sale and delivery of the Equipment.
19. Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Michigan. Buyer submits to personal jurisdiction in Michigan. Seller and Buyer agree that any action arising out of the sale of goods or services in accordance with this document will be brought, heard, and decided in a court located in Kent County, Michigan and that this venue is convenient.
20. Authority. Each signatory represents that it has all requisite authority to execute the Agreement on behalf of its principal and that the Agreement is fully enforceable against the principal in accordance with its terms.