Terms & Conditions
TERMS AND CONDITIONS OF SALE
1. Agreement: In consideration of Noisefighters (“Seller”) agreeing to provide goods or services to the Buyer, the Buyer agrees as follows: These “Terms and Conditions of Sale” together with the terms and conditions of any credit application, quotation, order acknowledgement and/or invoice prepared by Seller, not inconsistent herewith, constitute the agreement between the parties (the “Agreement”). Buyer’s acceptance is limited to the terms of this offer. Buyer agrees to each and every term contained in the Agreement as a precondition to Seller’s performance. Any term or condition in any purchase order or other form or document issued by Buyer, regardless of the materiality of the term or condition, that differs from or is contrary to the terms and conditions contained in the Agreement are objected to and excluded unless expressly agreed to in a written acknowledgment issued by Seller. No other terms or conditions not set forth in the Agreement shall apply unless expressly agreed to in a written acknowledgment issued by Seller. To the extent any conflict exists between these Terms and Conditions of Sale and the conditions of any credit application, quotation, order acknowledgement and/or invoice prepared by Seller, then the terms of the invoice will control.
2. Payment: Payment shall be made within 30 days of the date of Seller’s invoice. A time-price differential charge equal to 1.5% per month (18% per annum) will be charged on all balances not paid in full within 30 days of the date of Seller’s invoice. If Buyer’s financial responsibility shall become unsatisfactory to Seller at any time and for any reason, Seller shall have the right, in addition to whatever other rights Seller may have at law or equity, to require payment in cash or to obtain satisfactory security from Buyer before making any further deliveries. In case any payment is not made when due, Seller shall have the right, in addition to its other remedies, to seek specific performance of this Agreement, to suspend any further deliveries, alter payment terms, or terminate this Agreement. Approval of credit for one or more deliveries shall not be deemed a waiver of this provision.
3. Limited Warranty. SightLines™ ear pads are warranted to be free from defects in material and workmanship for one (1) year from date of Seller’s invoice. Notice to Seller of any defect must be made within 13 months of Seller’s invoice or this warranty is waived. On receipt of timely notice, Seller will remedy any defect within a reasonable time. This warranty does not cover normal wear and tear nor damage caused by Buyer’s misuse, neglect, or abuse. Seller shall determine, in its sole discretion, whether the alleged defect is normal wear and tear or caused by Buyer’s misuse, neglect, or abuse.
4. Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTY SET FORTH HEREIN, SELLER DISCLAIMS ALL OTHER WARRANTIES IN CONNECTION WITH THE GOODS AND/OR SERVICES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION DESCRIPTION, QUALITY, DESIGN, PERFORMANCE, SPECIFICATIONS, CONDITION, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. BUYER ACKNOWLEDGES THAT BUYER IS NOT RELYING ON SELLER’S SKILL OR JUDGMENT TO SELECT OR FURNISH GOODS AND/OR SERVICES SUITABLE FOR ANY PARTICULAR PURPOSE. NO PERSON, INCLUDING BUYER, IS AUTHORIZED BY SELLER TO MAKE WARRANTIES OR ASSUME ANY LIABILITY FOR SELLER WITH RESPECT TO THE GOODS AND/OR SERVICES. ORAL STATEMENTS DO NOT CONSTITUTE WARRANTIES AND SHALL NOT BE RELIED ON BY BUYER AND ARE NOT PART OF THE AGREEMENT. SELLER’S WARRANTY OBLIGATIONS, AND BUYER’S REMEDY, ARE SOLELY AS STATED IN THIS AGREEMENT.
5. Notice of Claims. Buyer shall inspect the goods or services provided by Seller immediately upon delivery. Notice of any claim for shortage or defects discoverable on such inspection (a “Claim”) shall be made to Seller within ten (10) days thereafter. Buyer shall, upon Seller’s request, furnish reasonable proof of any Claim, and Seller shall be given an opportunity to investigate. Failure of Buyer to give notice of any Claim within the specified period shall be deemed an irrevocable acceptance of the good and an unconditional waiver of any Claim.
6. Shipping/Title/Risk of Loss: The goods sold pursuant to this Agreement are sold F.O.B. Seller’s place of business. Title to the goods passes to Buyer when the goods are tendered to any carrier at any of Seller’s places of business or other loading point. All risk of loss or damage in transit shall be borne by Buyer. Buyer assumes responsibility for all costs of transportation.
a. Domestic (U.S.) Returns: Buyer may return for any reason any product sold hereunder for 30 days following the date of Seller’s invoice and receive a full refund; provided, however, that to be entitled to the refund, Buyer must contact Seller prior to returning the product. Seller agrees to pay for return shipping. Refunds are typically issued within 30 days after the product is returned to Seller.
b. International Sales. Buyer may return for any reason any product sold hereunder for 30 days following the date of Seller’s invoice and receive a full refund; provided, however, that to be entitled to the refund, Buyer must contact Seller prior to returning the product. Buyer will pay for return shipping. Refunds are typically issued within 30 days after the product is returned to Seller.
c. Cancellation/Restocking Fee: After 30 days from the date of Seller’s invoice, Buyer may not cancel any aspect of this Agreement without the prior, written agreement of Seller. All returns after 30 days from the date of Seller’s invoice are subject to a restocking fee/handling charge, which may change from time to time. Contact Seller to determine the exact amount.
8. Force Majeure: Seller shall not be liable for any delay or impairment of performance resulting in whole or in part from any cause beyond Seller’s control including, without limitation, fires, floods, explosions, accidents or other catastrophes, acts of God, strikes, lockouts or labor disruption, wars, riots or embargo delays, government allocations or priorities, shortages of transportation, fuel, labor or materials, inability to procure the goods or raw materials, severe weather conditions, changes of law or regulation, or any other circumstance or cause beyond Seller’s control. Such excuse from performance shall extend so long as the event continues to delay or impair Seller’s performance.
9. Security Interest: Seller shall retain a purchase money security interest in the goods sold to Buyer, the accounts receivable related to the goods and the proceeds from the sale of the goods as security for Buyer’s performance of its obligations hereunder. Buyer hereby authorizes Seller to create and file a financing statement. Buyer agrees to execute and deliver such other documents as necessary to create, perfect, preserve or enforce such security interest.
10. Miscellaneous Provisions Regarding Price and Delivery:
a. Unless specifically noted otherwise, prices do not include present or future federal, state or local taxes. All taxes shall be the responsibility of Buyer.
b. Prices do not include the cost of any independent laboratory inspection if such should be required.
c. Quoted deliveries are based on estimates at the time of quotation. Seller will devote its best efforts to meeting the delivery schedules but assumes no liability for additional costs or damages resulting from later deliveries.
11. Limitation of Liability:
a. Exclusive Remedy. The exclusive remedy for the Buyer for any damages incurred as a result of or relating to this Agreement and/or the goods or services sold hereunder is limited to the return of the price paid for such goods and/or services. In no event shall Seller be liable to Buyer or any other person or entity for any other damages of any kind, including, without limitation, indirect, special, incidental, consequential or punitive damages, arising from the goods or services or in connection with the use or inability to use the goods or services for any purpose whatsoever, irrespective of whether the claims or actions for such damages are based upon contract, tort, negligence, strict liability, warranty or otherwise. In no event shall Seller incur any liability whatsoever for damages of any kind arising out of or relating to delay in delivery.
b. Purchase Price: The disclaimer of warranties and limitation of liabilities set forth herein shall apply even if the remedies set forth herein fail of their essential purpose. Buyer acknowledges and agrees that Seller has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties. No other remedies shall be available to the Buyer other than as set forth herein
12. Indemnification: Buyer or any guarantor of Buyer’s obligations (“Guarantor”) shall indemnify, defend and save Seller harmless from any liability, loss, cost, penalty, damage or expense, including attorneys’ fees, which Seller may incur as a result of any claim, damage, injury, cause of action, proceeding, citation, or work stoppage arising out of or in any way connected with Buyer’s purchase, installation, modification, or use of any goods or services provided by Seller. This indemnity includes all costs and attorneys’ fees, regardless of whether litigation is filed or arbitration demanded. This indemnity survives the termination or completion of the sales transaction at issue. This indemnity also includes all claims for patent infringement or any intellectual property claims.
13. Costs of Collection: In the event Buyer or any Guarantor shall default in any way on Buyer’s or Guarantor’s obligations under this or any other Agreement, including without limitation the failure to make a timely payment, Buyer and Guarantor shall be jointly and severally liable to Seller for all of Seller’s costs of collection including, but not limited to, attorney’s fees and expenses.
14. Intellectual Property Rights: Buyer acknowledges and agrees that it is not acquiring any right, title or license in or to any of Seller’s intellectual property or other proprietary rights associated with any of the goods or services provided hereunder.
15. Governing Law/Jurisdiction-Venue/Statute of Limitations: This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan without regard to its conflict of law doctrine. BY ENTERING INTO THIS AGREEMENT, BUYER WAIVES ANY RIGHT TO A JURY TRIAL. By entering into this Agreement Buyer agrees to submit itself to jurisdiction in Michigan and to venue in any state or federal court located in Kent County, Michigan. BUYER WAIVES ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR ANY GOODS OR SERVICES SOLD HEREUNDER IN ANY WAY IF NOT BROUGHT WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION FIRST ACCRUED TO BUYER.
16. Waiver. No waiver by Seller of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by Seller. No waiver by Seller shall operate or be construed as a waiver regarding any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, or partial exercise of any right or remedy arising under this Agreement shall operate or be construed as a waiver, nor shall it preclude any other or further exercise of the waiver or the exercise of any other right or remedy.
17. Entire Agreement. This Agreement constitutes the parties’ entire understanding with respect to the subject matter hereof. All prior or contemporaneous agreements whether oral or in writing, not included or incorporated herein by reference, are hereby disavowed and canceled. Modification or amendments of this Agreement must be in writing and signed by the party to be charged in order to be effective.