E&R TERMS AND CONDITIONS OF SALE
I. TERMS OF SALE FOR PRODUCTS
A. SALES POLICY FOR PRODUCTS
1. Wholesale Only
E&R Industrial Sales, Inc. ("E&R") sells its complete offering wholesale to business customers, while also serving individuals.
Listed prices quoted are wholesale, do not include freight, handling fees, taxes, and/or duties, and are subject to correction or change without notice. Market sensitive commodity products will be priced according to current market conditions. Customer should contact E&R at (866) 795-2424for current pricing. Export orders may be subject to other special pricing. E&R reserves the right to accept or reject any order.
3. Sales Tax
Customer is responsible for payment of all applicable state and local taxes, or for providing a valid sales tax exemption certificate. When placing an order, customer shall indicate which products are tax exempt.
4. Payment and Credit Terms
E&R accepts checks, money orders, Visa, MasterCard, and American Express. For customers with established E&R credit, payment terms are net thirty (30) days from the date of shipment or pick-up of products. All credit extended by E&R to customer, and the limits of such credit, is at E&R鈥檚 sole discretion, and may be reduced or revoked by E&R at any time, for any reason. As a condition for the continued extension of credit, customer agrees to provide E&R with current credit information and the latest annual financial statement within five (5) business days following request by E&R. E&R reserves the right to charge a convenience fee for late payments. E&R further reserves the right to charge customer a late payment fee at the rate of one and one-half percent (1-1/2%) of the amount due for each month or portion thereof that the amount due remains unpaid, or such amount as may be permitted under applicable law. Anticipation and cash discounts are not allowed. Export orders are subject to special export payment terms and conditions identified in Section III. All payments must be made in U.S. dollars. E&R has the right of set-off and deduction for any sums owed by customer to E&R.
If customer fails to make payment within thirty (30) days of shipment or pick-up, or fails to comply with E&R鈥檚 credit terms, or fails to supply adequate assurance of full performance to E&R within a reasonable time after requested by E&R (such time as specified in E&R's request), E&R may defer shipments until such payment or compliance is made, require cash in advance for any further shipments, demand immediate payment of all amounts then owed, elect to pursue collection action (including without limitation, attorneys鈥?fees and any and all other associated costs of collection), and/or may, at its option, cancel all or any part of an unshipped order. Additionally, customer, and each of its subsidiaries and affiliates, agrees to provide to E&R proper authorization necessary for E&R to request any financial information from third parties.
Customer agrees to assume responsibility for, and customer hereby unconditionally guarantees payment of, as provided herein, all purchases made by customer, its subsidiaries and affiliates. Each of customer鈥檚 subsidiaries and affiliates purchasing from E&R are jointly and severally liable for purchases with customer, and customer is also acting as agent for such subsidiaries and affiliates.
6. Credit Balance
Customer agrees that any credit balance(s) issued by E&R will be applied to customer鈥檚 account
within one (1) year of its issuance. IF CUSTOMER HAS NOT REQUESTED THE CREDIT BALANCE WITHIN ONE (1) YEAR, ANY REMAINING CREDIT BALANCE WILL BE CANCELLED, AND E&R SHALL HAVE NO FURTHER LIABILITY.
B. FREIGHT POLICY
Prices stated are F.O.B. origin, freight prepaid to destination specified in the order. E&R charges a shipping and handling fee on each order which is applied at time of order and reflected on customer's invoice. Receipts for shipping and handling charges will not be furnished. COD shipments are not permitted. Other terms and conditions may apply for other than standard ground delivery ("Other Freight Services"), including without limitation, expedited same day delivery, air freight, freight collect, export orders, hazardous materials, customer's carrier, shipments outside the contiguous U.S. or other special handling by the carrier. Any charges incurred for Other Freight Services must be paid by customer. Fuel surcharges may be applied. Title and risk of loss pass to customer upon tender of shipment to the carrier. If the product is damaged in transit, customer's only recourse is to file a claim with the carrier.
C. PRODUCT WARRANTY POLICY
1. SATISFACTION GUARANTEE TO ALL CUSTOMERS
Customer should contact E&R if not satisfied with a product for any reason. E&R will promptly provide an exchange or refund if the product is returned within 30 days of delivery, in its original packaging and with proof of purchase from E&R.
2. WARRANTY DISCLAIMERAND LIMITATIONS OF LIABILITY.
EXCEPT AS SET FORTH HEREIN AND WHERE APPLICABLE, NO WARRANTY OR AFFIRMATION OF FACT OR DESCRIPTION, EXPRESS OR IMPLIED, IS MADE OR AUTHORIZED BY E&R. E&R DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. E&R ALSO DISCLAIMS ANY LIABILITY FOR CLAIMS ARISING OUT OF PRODUCT MISUSE, IMPROPER PRODUCT SELECTION, IMPROPER INSTALLATION, PRODUCT MODIFICATION, MISREPAIR OR MISAPPLICATION. ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES IS EXPRESSLY DISCLAIMED TO THE EXTENT PERMISSIBLE. E&R'S LIABILITY IN ALL EVENTS IS LIMITED TO THE PURCHASE PRICE PAID FOR THE PRODUCT THAT GIVES RISE TO ANY LIABILITY.
4. Product Return.
Before returning any product, customer shall: (i) write or call the E&R branch from which the product was purchased or (ii) call E&R鈥檚 toll-free number at (866) 795-2424, and provide the date, the original invoice number, the stock number, and a description of the suspected defect. Proof of purchase and RGA # is required in all cases prior to returning any product.
5. Manufacturer鈥檚 Warranty.
For information on a specific manufacturer's warranty, please contact the local E&R branch or call toll-free at (866) 795-2424.
6. Product Compliance and Suitability.
Jurisdictions have varying laws, codes and regulations governing construction, installation, and/or use of products for a particular purpose. Certain products may not be available for sale in all areas. E&R does not guarantee compliance or suitability of the products it sells with any laws, codes or regulations, nor does E&R accept responsibility for construction, installation and/or use of a product. It is customer's responsibility to review the product application and all applicable laws, codes and regulations for each relevant jurisdiction to be sure that the construction, installation, and/or use involving the products are compliant.
7. Cross-Reference Information.
Product cross-reference comparisons do not imply that products are available or perfectly comparable. CROSS-REFERENCED PRODUCTS ARE NOT REPRESENTED OR WARRANTED AS FUNCTIONAL OR PERFORMANCE EQUIVALENTS. Customer shall review all cross-referenced product specifications prior to purchase and use to determine suitability of the product for customer's intended use.
D. PRODUCT INFORMATION
1. Catalog/Website Information.
Product depictions in the catalogs and websites are for illustrative purposes only. Possession of, or access to, any E&R catalog, literature or websites does not constitute the right to purchase products. E&R reserves the right to revise publishing errors in its catalogs or any of its websites. Despite our efforts, occasional pricing errors may occur in the E&R catalogs and websites. E&R reserves the right to cancel any and all orders resulting from such pricing errors, even if customer has received an order confirmation from E&R.
2. Product Substitution.
Products and/or country of origin may be substituted and may not be identical to descriptions and/or images published in the catalog or on the website.
3. Material Safety Data Sheets.
Material Safety Data Sheets (鈥淢SDS鈥? for OSHA defined hazardous substances are prepared and supplied by the manufacturers. E&R MAKES NO WARRANTIES AND EXPRESSLY DISCLAIMS ALL LIABILITY TO ANY CUSTOMER OR USER WITH RESPECT TO THE ACCURACY OF THE INFORMATION OR THE SUITABILITY OF THE RECOMMENDATIONS IN ANY MSDS. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY RELIANCE ON OR USE OF ANY INFORMATION, AND FOR USE OR APPLICATION OF ANY PRODUCT.
4. California Proposition 65.
The State of California requires that certain warnings be given concerning products subject to Proposition 65. For products denoted with a or symbol the following warnings apply:
Warning: This product contains a product known to the State of California to cause cancer.
Warning: This product contains a chemical known to the State of California to cause birth defects or other reproductive harm.
5. MSDS and Proposition 65 Regulated Product Requests.
Information on MSDS and Proposition 65 regulated products are available by calling E&R's MSDS Request Line at 1-800-275-6737. A complete list of Proposition 65 regulated chemicals is available by logging on to www.oehha.ca.gov.
6. California, Maryland and Vermont Customers.
Regulations in CA, MD and VT prohibit the introduction into commerce of any solder, flux, pipe, pipe or plumbing fitting, or fixture intended to convey or dispense water for human consumption that is not "lead free". The maximum allowable lead content is 0.25 percent lead in wetted surfaces of pipes, pipe fittings, and plumbing fittings and fixtures, as determined by a weighted average. The maximum allowable lead content is 0.2 percent lead in solder and flux.
7. Important Notice to Federal Customers Re: Country of Origin.
Federal customers are advised that the open market purchases are not GSA schedule purchases. By purchasing any product on the open market, customer represents that it has authority to make such purchase and has complied with all applicable procurement regulations.
8. ARRA Orders.
It is customer's responsibility to advise E&R whether this order is funded in any part by funds from or related to the American Reinvestment and Recovery Act (鈥淎RRA鈥? (Pub. L. No. 111-5) (i.e., Stimulus Funds). Upon request, E&R will provide country of origin information so that customer may determine compliance with any applicable requirements under ARRA Section 1605 or any other applicable regulations.
9. Refrigerant Customers.
In accordance with the Clean Air Act of 1990, as amended, sale of Class 1 (鈥淐FC鈥? and Class 2 (鈥淗CFC鈥? refrigerant will be restricted to resale purchases and/or to certified professional service technicians. To purchase regulated refrigerant products, all customers must present a certification card or sign a statement of resale to complete the purchase.
E. GENERAL TERMS
1. Electronic Data Interchange.
If E&R and customer mutually agree to use an Electronic Data Interchange (鈥淓DI鈥? system to facilitate purchase and sale transactions, customer agrees that it will not contest: (i) any contract of sale resulting from an EDI transaction under the provisions of any law relating to whether agreements must be in writing or signed by the party to be bound thereby; or (ii) the admissibility of copies of EDI records under the business records exception to the hearsay rule, the best evidence rule or any other similar rule, on the basis that such records were not originated or maintained in documentary form. E&R and customer will negotiate and agree on technical standards and methods to use in making EDI purchases, and will use reasonable security procedures to protect EDI records from improper access. In the event of a conflict, the business records maintained by E&R regarding EDI purchases made by customer shall be deemed to be conclusive.
2. Third Party Payment Provider.
If customer elects to use a third party payment system provider (鈥淭hird Party Provider鈥? and E&R is charged fees by the Third Party Provider, E&R reserves the right to seek reimbursement from customer for any and all costs paid to the Third Party Provider for the transfer of funds, retrieval of payment detail, or any other purpose from the Third Party Provider.
3. Intellectual Property.
Customer shall have no right, title, or interest in the trade names, trademarks, trade dress, copyrights, patents, domain names, product names, catalogs or any other intellectual property rights reserved by E&R, or any trademarks or service marks owned by suppliers to E&R. All materials contained on the www.boxnoire.com website are subject to the ownership rights of E&R and its suppliers. Customer shall have no right to copy or use any of the intellectual property of E&R or its suppliers without E&R's permission.
4. Independent Contractors.
E&R and customer are independent contractors and not principal and agent. Nothing contained in these terms and conditions shall be construed to create a partnership, dealership, reseller, agency, employment or joint venture relationship. Customer does not have the right to bind or otherwise obligate E&R in any manner, nor may customer represent to anyone that it has the right to do so.
5. Code of Conduct.
E&R's Business Conduct Guidelines are available by logging on to www.boxnoire.com, and clicking on the Corporate Governance link. Customer agrees to refrain from taking any action that may cause an E&R employee to violate the Business Conduct Guidelines. Customer should report any alleged violations by calling the E&R Toll-Free Hotline at (888)873-3731.
6. Sourced Product.
E&R may procure product not available through the E&R catalog for a customer from other sources (鈥淪ourced Product(s)鈥?. Sourced Product is priced according to current market conditions on a per order basis, and is shipped F.O.B. origin with freight and handling fee paid by E&R and charged to customer. Sourced Product may not be returned without a return goods authorization issued by E&R. E&R, at its sole discretion, may withhold the issuance of such authorization. A restocking fee may apply for any returned Sourced Product. E&R'S LIMITED WARRANTY TERMS INCLUDED IN THESE TERMS AND CONDITIONS DO NOT APPLY TO SOURCED PRODUCTS. THE PRODUCT WARRANTY PROVIDED BY THE MANUFACTURER AND/OR SUPPLIER WILL BE CUSTOMER'S SOLE REMEDY.
7. Custom Product.
E&R may offer products manufactured or assembled to customers specifications (鈥淐ustom Product(s)鈥?. E&R is not responsible for verifying or confirming the accuracy of specifications provided by customer to E&R for Custom Products. E&R'S LIMITED WARRANTY TERMS INCLUDED IN THESE TERMS AND CONDITIONS DO NOT APPLY TO CUSTOM PRODUCTS. THE PRODUCT WARRANTY PROVIDED BY THE MANUFACTURER AND/OR SUPPLIER WILL BE CUSTOMER'S SOLE REMEDY, AND ALL OTHER WARRANTIES ARE DISCLAIMED UNDER SECTION 1.C. ABOVE. All Custom Products are sold on a 鈥淔INAL SALE鈥?basis only, and no cancellations, returns, refunds or credits are allowed.
All product order cancellations, if not prohibited above, must be approved by E&R, and may be denied or subject to restocking fees and other charges.
9. Product Return.
Product returns, if not prohibited above, must be made within 30 days from date of purchase, unless otherwise indicated. Before returning any product, customer shall: (i) write or call the E&R branch from which the product was purchased or (ii) call E&R鈥檚 toll-free number at (866) 795-2424, and provide the date, the original invoice number, the stock number, and a description of the reason for return. Proof of purchase and RGA # is required in all cases prior to returning materials.
Returned product must be in original packaging, unused, undamaged, and in saleable condition. Proof of purchase is required in all cases. Product returns may be denied or made subject to restocking fees and other charges by E&R.
10. Materials of Trade.
Customer represents that if it is purchasing products as its 鈥渕aterials of trade,鈥?as defined in the Hazardous Materials Regulations in Title 49 of the Code of U.S. Federal Regulations, the products shall be used in direct support of its business, such business does not concern transportation, and such products shall not be resold or transported in a vehicle other than one owned by itself.
11. Force Majeure.
E&R shall not be liable for any delay in, or impairment of, performance resulting in whole or in part from any force majeure event, including but not limited to acts of God, labor disruptions, acts of war, acts of terrorism (whether actual or threatened), governmental decrees or controls, insurrections, epidemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to procure or ship product or obtain permits and licenses, inability to procure supplies or raw materials, severe weather conditions, catastrophic events, or any other circumstance or cause beyond the reasonable control of E&R in the conduct of its business.
Customer shall not assign any order, or any interest therein, without the prior written consent of E&R. Any actual or attempted assignment without E&R's prior written consent shall entitle E&R to cancel such order upon notice to customer.
13. No Third Party Benefit.
The provisions stated herein are for the sole benefit of the parties hereto, and confer no rights, benefits or claims upon any person or entity not a party hereto.
14. Waiver, Choice of Law and Venue.
The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent non-performance of any such term or condition by the other party. All transactions shall be governed by the laws of the State of Michigan, excluding its conflict of law rules, and venue shall either be in the state courts in Macomb County, Michigan or the federal courts for the Eastern District of Michigan.
If any portion of these terms and conditions is found to be invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable term shall be severed from these terms and conditions, and the remaining terms and conditions shall be valid and fully enforceable as written.
16. Modification of Terms.
E&R鈥檚 acceptance of any order is subject to customer鈥檚 assent to all of the terms and conditions set forth herein. Customer's assent to these terms and conditions shall be presumed from customer's receipt of E&R鈥檚 acknowledgment, or from customer鈥檚 acceptance of all or any part of the products ordered. No additions or modifications of E&R鈥檚 terms and conditions by customer shall be binding upon E&R, unless agreed to in writing by an authorized representative of E&R. If a purchase order or other correspondence submitted by customer contains terms or conditions contrary or in addition to the terms and conditions contained herein or in E&R鈥檚 acknowledgment, E&R鈥檚 fulfillment of any such purchase order shall not be construed as assent to any of the terms and conditions proposed by customer, and will not constitute a waiver by E&R of any of the terms and conditions contained herein or in E&R鈥檚 acknowledgment.
17. Complete Agreement.
The terms and conditions in: (i) E&R鈥檚 forms; (ii) acknowledgments; (iii) quotations; (iv) invoices; (v) websites; (vi) catalogs; and (vii) extension of credit are incorporated herein by reference, and constitute the entire and exclusive agreement between customer and E&R.
II. ADDITIONAL TERMS AND CONDITIONS RELATED TO THE PERFORMANCE OF SERVICES
IN ADDITION TO THE STANDARD TERMS AND CONDITIONS IN SECTION I, PERFORMANCE OF SERVICES WILL BE GOVERNED BY THE FOLLOWING ADDITIONAL TERMS AND CONDITIONS (鈥淎DDITIONAL SERVICE TERMS鈥?. SERVICES MAY BE PERFORMED BY: (i) E&R, ITS EMPLOYEES AND AGENTS (鈥淓&R PERSONNEL鈥?; (ii) E&R SUBSIDIARIES OR AFFILIATES (鈥淓&R SERVICE ENTITIES鈥?; OR THIRD-PARTY SUBCONTRACTORS ("THIRD-PARTY PROVIDERS"). FOR PURPOSES OF THIS SECTION II, E&R PERSONNEL, E&R SERVICE ENTITIES AND THIRD-PARTY PROVIDERS ARE EACH REFERRED TO AS A 鈥淪ERVICE PROVIDER鈥?AND EACH SERVICE PROVIDER, TOGETHER WITH ITS PERSONNEL, IS REFERRED TO AS 鈥淪ERVICE PROVIDER PERSONNEL.鈥?
THE TERMS AND CONDITIONS CONTAINED IN THS SECTION II ARE EXTENDED SOLELY BY THE SPECIFIC SERVICE PROVIDER PERFORMING SERVICES, AND ANY OBLIGATIONS CONTAINED IN THIS SECTION II DO NOT APPLY TO ANY OTHER SERVICE PROVIDER REFERENCED IN THE FOREGOING PARAGRAPH. DEPENDING UPON THE NATURE OF THE SERVICES PROVIDED, THE APPLICABLE SERVICE PROVIDER MAY REQUIRE CUSTOMER TO EXECUTE ADDITIONAL CONTRACTUAL DOCUMENTS PRIOR TO THE PERFORMANCE OF SERVICES.
IN THE EVENT OF A CONFLICT BETWEEN THE STANDARD TERMS AND CONDITIONS IN SECTION I AND THE ADDITIONAL SERVICE TERMS IN SECTION II, THE ADDITIONAL SERVICE TERMS IN SECTION II SHALL PREVAIL FOR THE PERFORMANCE OF SERVICES.
1. LIMITED SERVICES WARRANTY.
ALL SERVICES WILL (i) BE PERFORMED IN A WORKMANLIKE MANNER; (ii) CONFORM TO THE SPECIFICATIONS (IF ANY) PROVIDED BY THE SERVICE PROVIDER IN A STATEMENT OF WORK; AND (iii) BE WARRANTED FOR A PERIOD OF NINETY (90) DAYS AFTER PERFORMANCE OF SERVICES (鈥淟IMITED WARRANTY PERIOD鈥?. IF SERVICES ARE IMPROPERLY PERFORMED AND CUSTOMER NOTIFIES THE SERVICE PROVIDER OF THE IMPROPERLY PERFORMED SERVICE DURING THE LIMITED WARRANTY PERIOD, THEN THE SERVICE PROVIDER WILL RE-PERFORM THOSE SERVICES, IN WHOLE OR IN PART, AS NECESSARY TO CURE THE PARTICULAR BREACH, OR AT THE SERVICE PROVIDER'S SOLE OPTION, REFUND THE AMOUNT PAID BY CUSTOMER FOR THE SERVICES DIRECTLY ATTRIBUTABLE TO THE PARTICULAR BREACH. THE SERVICE PROVIDER'S RE-PERFORMANCE OR REFUND OF AMOUNTS PAID BY CUSTOMER FOR THE SERVICE DIRECTLY ATTRIBUTABLE TO THE PARTICULAR BREACH SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY.
2. WARRANTY DISCLAIMER AND WAIVER FOR SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION II FOR SERVICES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND THE SERVICE PROVIDER DISCLAIMS, AND CUSTOMER WAIVES, ALL OTHER WARRANTIES FOR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. THE WARRANTIES SET FORTH IN THIS SECTION II ARE EXPRESSLY CONDITIONED UPON THE USE OF THE SERVICES FOR THEIR INTENDED PURPOSE AND SHALL NOT APPLY TO SERVICES WHICH HAVE BEEN SUBJECT TO MODIFICATION BY CUSTOMER OR ANY THIRD PARTY.
3. LIMITATION OF LIABILITY.
THE SERVICE PROVIDER EXPRESSLY DISCLAIMS ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES IN THE PERFORMANCE OF SERVICES. THE SERVICE PROVIDER'S LIABILITY IN ALL CIRCUMSTANCES IS LIMITED TO, AND SHALL NOT EXCEED, THE PURCHASE PRICE FOR THE PERFORMANCE OF THE PORTION OF SERVICES THAT GIVES RISE TO ANY PARTICULAR LIABILITY.
4. Payment and Credit Terms.
Except as otherwise agreed to by the parties, customer will be invoiced upon completion of services. Payment terms are net thirty (30) days from the date of invoice. All other payment terms are as set forth in Section I.A.4.
Either party may terminate the service agreement at any time and for any reason upon thirty (30) days' written notice to the other party. If terminated by customer, customer shall pay Service Provider an amount equal to the greater of (i) Ten percent (10%) of the total project cost quotation thereto (the 鈥淭otal Project Cost鈥?, or (ii) an amount equal to the Total Project Cost multiplied by the percentage completion for such project at the time the notice of termination is given, as determined by Service Provider.
Customer shall defend, indemnify and hold harmless Service Provider and its respective officers, directors, employees, subcontractors and agents (each individually, an 鈥淚ndemnified Party鈥? from and against any and all any claims, suits, liabilities, damages, settlements, charges, taxes and any other losses or expenses (including reasonable attorneys' fees) (collectively 鈥淟iabilities鈥? for physical injury to, illness or death of, any third party regardless of status and damage to or destruction of any tangible property which the third party may sustain or incur, to the extent such Liabilities relate to the services; except for such Liabilities relating to or arising out of a final judgment of gross negligence or willful misconduct of the Indemnified Party. In any action, suit or proceeding brought against an Indemnified Party by reason of any such claim as specified above, customer shall resist and defend such action, suit or proceeding by counsel of its choice, at the sole expense of customer, provided that (i) the Indemnified Party notifies customer promptly in writing of the claim; (ii) customer's counsel does not give rise to a conflict of interest with respect to the Indemnified Party; (iii) customer has the sole control of the defense and all related settlement negotiation but shall keep the Indemnified Party reasonably informed of status; and (iv) the Indemnified Party provides customer with all reasonably necessary assistance, information, and authority to perform the foregoing at customer's expense.
7. Access to Customer鈥檚 Premises.
To the extent access to customer's premises is required, customer shall provide Service Provider Personnel access to customer's premises free of charge as necessary for performance of services supplied by Service Provider. Prior to starting any work at customer's premises, customer will: (i) provide documentation that identifies any existing hazardous materials, or dangerous or potentially dangerous conditions on or about customer's premises; and (ii) allow Service Provider Personnel, at its option, reasonable access to customer's premises to perform or have performed a visual site inspection. Service Provider will have no responsibility or liability for the actual existing conditions; or identifying, correcting or advising customer of existing conditions on customer's premises (鈥淧re-Existing Conditions鈥?, and customer shall be responsible for and shall indemnify each Service Provider and each of the Service Provider Personnel from and against any Liabilities arising out of or relating to any Pre-Existing Conditions, regardless of whether previously disclosed to any Service Provider or Service Provider Personnel. Customer shall not attempt to condition the right of Service Provider Personnel to obtain free access to customer's premises upon the signing of any agreement, waiver, or release which in any way purports to affect the legal rights or obligations of Service Provider or Service Provider Personnel. If any Service Provider Personnel signs such an agreement, waiver, or release, it shall be of no force and effect.
8. Health and Safety Matters.
Customer shall take all precautions, at all times, for the health and safety of Service Provider Personnel at customer's premises, including but not limited to identifying to Service Provider all hazardous materials or safety or health hazards to which Service Provider Personnel on customer鈥檚 premises may be exposed; (i) providing to Service Provider Personnel for review, and instructing Service Provider Personnel regarding customer鈥檚 safety practices; and (ii) proper and safe handling of, and protection of, Service Provider Personnel from exposure to hazardous materials or dangerous conditions. Customer agrees to provide Service Provider Personnel with all safety health and other protections required by law for customer鈥檚 own employees, including, without limitation, all protections required by federal, state and local laws, standards, regulations, orders and other requirements under OSHA, and similar workplace safety and health statutes and programs.
9. Right to Subcontract.
Customer agrees that the Service Provider may subcontract the performance of services to third parties. Customer authorizes the Service Provider to disclose all information to the subcontractor, including confidential information necessary for such performance of services by the subcontractor.
10. No Third Party Reliance.
Customer acknowledges and agrees that any advice, recommendation, information or work product provided to customer by Service Provider in connection with the services is for the sole use of customer and may not be relied upon by any third party; and customer is prohibited from making such advice, recommendation, information or work product available to any third party without prior written consent from E&R.
III. ADDITIONAL TERMS AND CONDITIONS RELATED TO EXPORT OF E&R PRODUCTS
IN ADDITION TO THE STANDARD TERMS AND CONDITIONS IN SECTION I, EXPORT SALES OF E&R PRODUCTS WILL BE GOVERNED BY THE FOLLOWING ADDITIONAL TERMS AND CONDITIONS RELATED TO EXPORT OF E&R PRODUCTS (鈥淎DDITIONAL EXPORT TERMS鈥?. IN THE EVENT OF A CONFLICT BETWEEN E&R鈥橲 STANDARD TERMS AND CONDITIONS IN SECTION I AND THE ADDITIONAL EXPORT TERMS IN SECTION III, THE ADDITIONAL TERMS IN SECTION III SHALL PREVAIL FOR EXPORT SALES OF E&R PRODUCTS.
1. Order Acceptance.
Customer acknowledges that no order shall be deemed accepted unless and until it is verified and accepted by E&R or at a continental U.S. facility. Customer further consents that submission of its order shall subject customer to the jurisdiction of the federal courts of the U.S. and of the State where acceptance occurred in the U.S.
2. Sales Tax and Duties, Import Fees.
E&R is required to charge federal, state, local tax, applicable duties, and import fees on products, or for providing a valid exemption certificate. Customer assumes responsibility for, and unconditionally guarantees payment or reimbursement of, all applicable taxes, fees, licenses, import duties, and expenses as may be applicable. When placing an order, customer shall indicate which products are tax exempt.
3. Payment and Credit Terms.
Payment terms are net thirty (30) days from the date of shipment. All other payment terms are as set forth in Section I.A.4. Customer agrees to inform E&R immediately if it intends to use any import or export financing, or has or will be granting a lien or security interest on its inventory to any third party.
4. Shipping Charges and Freight Policy.
All E&R export orders are shipped under INCOTERMS庐 2010 rules as defined by the International Chamber of Commerce. Unless otherwise stated and agreed, default shipping term is FCA E&R shipping location, excluding export customs clearance. Customer shall be responsible for obtaining insurance. At E&R鈥檚 option, this freight policy may be subject to special terms and conditions for certain export orders.. Title and risk of loss for products shall pass when made available to customer on delivery to carrier in the U.S.; provided that if payment has not been made at the time of shipment, E&R shall retain title (but not risk of loss) until payment has been made. If product is damaged in transit, customer's only recourse is to file a claim with the applicable airline, carrier, vessel and/or insurance company; provided, however, that if E&R has not received payment in full at the time the product is damaged in transit, customer shall be liable to E&R to make payment for the product, and E&R shall also, if customer fails to make payment, have the exclusive right to file a claim with the applicable airline, carrier, vessel and/or insurance company.
5. Export Controls and Related Regulations.
Customer represents and warrants that it is not designated on, or associated with, any party designated on any of the U.S. government restricted parties lists, including without limitation, the U.S. Commerce Department Bureau of Industry and Security (鈥淏IS鈥? Denied Persons List; Entity List or Unverified List; the U.S. Treasury Department Office of Foreign Assets Control (鈥淥FAC鈥? Specially Designated Nationals and Blocked Persons List; or the U.S. State Department Directorate of Defense Trade Controls (鈥淒DTC鈥? Debarred Parties List. Customer shall comply with all applicable U.S. economic sanctions and export control laws and regulations, including without limitation, the regulations administered by OFAC, the Export Administration Regulations administered by BIS, and the International Traffic in Arms Regulations administered by DDTC.
6. Foreign Principal Party in Interest; Freight Forwarder and Documentation.
It is specifically agreed that customer shall be the foreign principal party in interest and/or that its freight forwarder shall act as customer's agent in such capacity for purposes of the Foreign Trade Regulations or other regulatory purposes, and customer and its freight forwarder are responsible for all routed export transactions documentation, including but not limited to the filing of the required Electronic Export Information/Automated Export System records. At E&R鈥檚 request, customer or its freight forwarder shall provide copies of any export, shipping, or import documentation prepared by customer or its freight forwarder related to sales to customer by E&R.
Customer is aware that E&R鈥檚 business practices prohibit bribery and corrupt behavior in any form. Customer agrees that it is an independent contractor and it is and shall remain in compliance with all applicable laws that relate to money laundering, terrorism, commercial or official bribery or dealing with government officials (including the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act). Customer shall not offer or provide anything of value (cash or cash equivalents, gifts, loans, travel, entertainment, or any other similar benefit) either directly or indirectly to any government official for the purpose of influencing any act or decision in connection with the purchase and resale of the products ordered from E&R. Customer shall not pay a gratuity, bribe or inducement to any government official, even if it appears customary or consistent with prevailing business practices.
8. Dispute Resolution.
Actions by E&R for non-payment by customer of the purchase price of products sold by E&R, or for redress of other breaches by customer of these terms and conditions, may be brought by E&R, at its option, before any U.S. or foreign judicial court of competent jurisdiction. At E&R鈥檚 option, disputes between customer and E&R, including all claims for non-performance by E&R, shall be finally settled by arbitration in Macomb County, Michigan, U.S., in accordance with the Commercial Arbitration Rules (鈥淩ules鈥? of the American Arbitration Association, by a single arbitrator appointed in accordance with said Rules, applying these terms and conditions and consistent provisions of the federal and state laws (except conflict of law rules) of the State of Illinois, U.S. The language of the arbitration shall be English.
9. Country of Importation and Anti-diversion.
Customer represents that it is purchasing products from the U.S. and importing them to the country specified in the customer and E&R documentation. Customer agrees that the products will be shipped to the specified destination in compliance with the laws of such destination and the U.S., and that the products will not be directly or indirectly sold, exported, transferred, assigned, used, or otherwise disposed of in a manner which may result in any non-compliance with applicable U.S. laws and regulations relating to the product purchased by customer. Any commodities, technology and software will be exported from the U.S. in accordance with the U.S. Export Administration Regulations and other applicable laws or regulations. Diversion contrary to U.S. law is prohibited. If requested by E&R, customer shall provide documentation satisfactory to E&R verifying delivery at the designated country. Customer further agrees to inform E&R at the time of order of any North American Free Trade Agreement or other special documentation, packaging or product marking or labeling, but E&R shall not be responsible for providing any such documentation, packaging, marking or labeling other than such documents that are necessary under U.S. export laws and regulations for export, unless E&R expressly agrees to do so.
10. Permits, Export, and Import Licenses.
Customer shall be responsible for obtaining any licenses or other official authorizations that may be required by the country of importation and/or under the Export Administration Regulations, International Traffic in Arms Regulations, Toxic Substances Control Act, or other applicable laws or regulations.
11. Governing Law; Limitations.
The rights and obligations of the parties under these terms and conditions shall not be governed by the provisions of the 1980 United Nations Convention of Contracts for the International Sale of Goods or the United Nations Convention on the Limitation Period in the International Sale of Goods. Rather, these terms and conditions shall be governed by the laws of the State of Michigan, U.S., including its provisions of the Uniform Commercial Code, but excluding its conflict of law rules. Notwithstanding the foregoing, any legal action by customer with respect to any transaction must be commenced within one (1) year after the cause of action has arisen.