LINEAR GROUP SERVICES, LLC 1YR TERMS AND CONDITIONS OF SALE
Background. Linear Group Services, LLC (“Linear GS”) develops, manufacturers, refurbishes, markets, sells and distributes certain processing and sorting equipment for the fastener and other industries (‘Equipment”), and performs certain related services. The Buyer (as identified in the related quote or Purchase Order) is interested in purchasing from LINEAR GS the equipment and/or services as more fully described in the Buyer’s Purchase Order or LINEAR GS’s quote, as applicable. These Terms and Conditions shall be deemed incorporated into Buyer’s Purchase Order for the equipment and/or services whether or not specifically referenced therein.
Offer & Acceptance; Agreement. Buyer’s acceptance of LINEAR GS’s quote and/or LINEAR GS’s acceptance of Buyer’s written Purchase Order is subject to acceptance of the express terms and conditions contained herein. Once accepted, LINEAR GS’s quote or Buyer’s Purchase Order, as the case may be, together with these Terms and Conditions, and any supplementary written information incorporated by reference herein, shall be the complete and exclusive statement of the parties’ agreement and supersedes any prior discussions, negotiations, agreements, and understandings. Any modifications proposed by Buyer are not part of the parties’ agreement in the absence of LINEAR GS’s written acceptance thereof. Any terms or provisions in the Purchase Order which are in any way inconsistent with those herein shall be null and void and the Terms and Conditions herein shall control. The placing of a Purchase Order or the payment of funds to LINEAR GS, or other part performance by Buyer, shall constitute acceptance of the Terms and Conditions contained herein.
Purchase Price and Payment Terms. The price quoted by LINEAR GS is in U.S. dollars, less any taxes, freight, duty, and similar charges, which shall be Buyer’s responsibility. The purchase price shall be paid net 30 days unless otherwise agreed by LINEAR GS in writing. If, in LINEAR GS’s reasonable judgment, the financial condition of the Buyer at the time the equipment is ready for shipment does not justify the terms specified, LINEAR GS reserves the right to change these terms or to require full payment or partial payment in advance. All sales are subject to the approval of LINEAR GS’s credit department.
Warranty. LINEAR GS warrants the equipment and any services provided to be free from defects in material and workmanship under normal and recommended use and that the equipment will conform to LINEAR GS’s published specifications, if any, or, if applicable, Buyer’s specifications accepted by LINEAR GS in a separate writing. LINEAR GS’s obligation under this warranty shall be limited to providing replacement services or replacement parts to the extent of any defective Equipment or defective services, or replacing the entire equipment if the replacement of certain parts will not resolve the defect, or repairing the Equipment, or the repayment or crediting of Buyer with an amount equal to the purchase price of such defective Equipment or services, each at the election of LINEAR GS, regardless of whether such claims are for breach of warranty, breach of contract, or negligence. This warranty shall extend for 1 years from date of the original purchase by the original buyer only, and shall apply only to those parts or Equipment or services which upon LINEAR GS’s examination disclose to its satisfaction that the parts or Equipment or services in question were in fact defective. THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE AND OF ALL OTHER OBLIGATIONS OR LIABILITIES ON LINEAR GS’s PART. THIS WARRANTY SHALL NOT APPLY TO ANY PART WHICH HAS BEEN SUBJECT TO ACCIDENT, NEGLIGENCE, ALTERATION, ABUSE OR MISUSE OR WHICH WAS PROVIDED BY A THIRD PARTY. LINEAR GS MAKES NO WARRANTY WHATSOEVER IN RESPECT OF ACCESSORIES OR PARTS OR COMPONENTS NOT SUPPLIED BY LINEAR GS. Notwithstanding the foregoing, any parts purchased by LINEAR GS from an unaffiliated vendor shall carry only the vendor’s specific warranty, to the extent transferable to Buyer. No representation or warranty, expressed or implied, made by any sales representative or other agent or representative of LINEAR GS, which is not specifically set forth herein, shall be binding upon LINEAR GS. Buyer acknowledges that it has inspected the Equipment and agrees to accept it in its current condition. Buyer shall indemnify and hold LINEAR GS harmless from any and all claims, costs, liabilities or expenses (including attorney fees) related to or arising out of the use, operation, transportation, design and construction of the equipment, including claims seeking damages for personal injury or property damage, whether sounding in contract, tort or strict liability. Buyer hereby assumes all risk related thereto.
Standards. Many countries have adopted laws relative to standardization and product certification applicable to various products, including equipment such as that produced by LINEAR GS. LINEAR GS warrants that its Equipment is compliant with standards required under United States law, but it cannot and does not warrant conformity with the standardization and product certification requirements of any other country except to the extent, if any, set forth in a separate writing delivered to Buyer by LINEAR GS.
Inspection and Rejection. Final inspection of the Equipment purchased pursuant to the terms hereof shall be at Buyer’s premises unless otherwise agreed in writing. Buyer shall return the Equipment (or parts) rejected as not conforming to the Purchase Order, or as otherwise defective, at Buyer’s initial expense, including transportation and handling costs, but subject to reimbursement by LINEAR GS upon confirmation of the defect claimed. Acceptance by Buyer of shipment of the Equipment and/or acceptance of the services rendered by LINEAR GS shall be deemed to have occurred no later than 10 days following receipt of such shipment, or receipt of such services, by Buyer or Buyer’s customer, unless a timely rejection has been made by that date.
Shipment and Delivery. Except as provided in Paragraph 6, above, as it relates to returned Equipment, sale of the Equipment shall be F.O.B. LINEAR GS’s place of business. Buyer shall be responsible for all transportation and delivery costs and shall bear the risk of any loss or damage in transit. Delivery dates, if specified by LINEAR GS, are estimates only and are not guaranteed and are not binding on LINEAR GS.
Confidentiality and Non-Disclosure. Buyer recognizes that LINEAR GS is the owner of certain confidential and proprietary information relating to the development and application of the equipment and/or services, which includes specifications, technological know-how and other types of information or data, including certain patents related thereto (the “Technical Information”). Buyer agrees not, directly or indirectly, to disclose, disseminate or otherwise publish to any third-party any of the Technical Information. Buyer further agrees to protect from disclosure the Technical Information to the same extent which Buyer seeks to protect its own technical information from disclosure (but in no event will Buyer exercise less than reasonable measures). The confidentiality obligations herein shall not apply to any technical information which (a) at the time of disclosure is in the public domain, (b) after disclosure becomes part of the public domain other than through a breach of a non-disclosure obligation, or (c) was received from a third-party who acquired such information through lawful means and without any breach of a non-disclosure obligation.
Patents. LINEAR GS shall indemnify and save Buyer harmless from any judgments for damages and other costs which may be rendered against Buyer in any suit brought against Buyer on account of the infringement of any United States patent by any Equipment supplied by LINEAR GS hereunder, provided that Buyer promptly notifies LINEAR GS of the commencement of any such suit and authorizes LINEAR GS to settle or defend such suit as LINEAR GS may see fit, and provided further that Buyer renders every reasonable assistance which LINEAR GS may require in defending any such suit. This indemnity shall not apply if Buyer has furnished the specifications for the Equipment, or if Buyer has altered or modified in any way such Equipment. In that event, Buyer shall indemnify and hold LINEAR GS harmless for any claim of patent infringement.
Taxes. Buyer shall be responsible for all taxes, duties, assessments and other governmental charges related to the sale and shipment of the equipment and/or services; provided, however, LINEAR GS shall be responsible for U.S. income taxes related to amounts received by LINEAR GS in connection with its sale of the Equipment and/or services to Buyer.
Termination. The Purchase Order and these Terms and Conditions may be terminated in any of the following ways:
By mutual agreement of LINEAR GS and Buyer;
By LINEAR GS, on 30 days prior written notice, in the event that:
Buyer breaches or otherwise fails to comply with any provision contained herein, and such breach is not cured within that 30 day time period;
LINEAR GS reasonably believes that Buyer’s financial condition places it in a position of being unlikely to be able to meet its contractual obligations;
Buyer defaults under any other material contract to which it is a party; or
Buyer sells all or substantially all of its assets, a majority of its voting stock or merges with another entity.
By LINEAR GS, on 30 days prior written notice, in the event that:
LINEAR GS breaches or otherwise fails to comply with any provision contained herein, and such breach is not cured within that thirty (30) day time period;
Buyer reasonably believes that LINEAR GS’s financial condition places it in a position of being unlikely to be able to meet its contractual obligations;
LINEAR GS defaults under any other material contract to which it is a party; or
LINEAR GS sells all or substantially all of its assets, a majority of its voting stock or merges with another entity, unless LINEAR GS is the surviving corporation in any such merger.
Cancellation. All orders that have been accepted by LINEAR GS are considered final and binding and may not be cancelled, altered or terminated by Buyer except upon terms and conditions acceptable to LINEAR GS, in its sole discretion, or as permitted by Paragraph 11C of these Terms and Conditions. Notwithstanding the foregoing, purchase orders for “stock” replacement or additional parts only, may be cancelled by Buyer upon written notice to LINEAR GS given at least five (5) days prior to the scheduled shipment date of such replacement or additional parts and upon payment by Buyer to LINEAR GS of a cancellation/restocking fee in the amount of 25% of the purchase order amount. In no event may Buyer cancel any special or custom order. Any deposit or advance payment made by Buyer in connection with a cancelled purchase order may be applied by LINEAR GS to such cancellation/restocking fee. In the event of a cancellation in accordance with this paragraph 12, Buyer shall include the purchase order number and purchase order date in its cancellation notice. All replacement or additional parts that are the subject of a cancelled purchase order shall remain the sole and exclusive property of LINEAR GS.
Currency. All payments shall be in U.S. currency. Payments not made within the time period required herein shall bear interest at the rate of one percent per month on the unpaid amount. In the event that LINEAR GS finds it necessary to take action to collect any unpaid amounts, Buyer shall be responsible for all costs and attorney fees incurred by LINEAR GS in connection therewith.
Limitation of Damages. LINEAR GS SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES DIRECTLY OR INDIRECTLY ARISING FROM THE SALE, HANDLING, SHIPMENT OR USE OF THE EQUIPMENT AND/OR PERFORMANCE OF THE SERVICES PROVIDED HEREUNDER, OR FROM ANY OTHER CAUSE RELATING THERETO, AND LINEAR GS’S LIABILITY HEREUNDER, IN ANY CASE, IS EXPRESSLY LIMITED TO PROVIDING REPLACEMENT EQUIPMENT AND/OR SERVICES FOR THOSE ITEMS OF EQUIPMENT AND/OR SERVICES NOT COMPLYING WITH THE TERMS HEREOF OR, AT LINEAR GS’S ELECTION, TO THE REPAYMENT OR CREDITING OF BUYER WITH AN AMOUNT EQUAL TO THE PURCHASE PRICE PAID BY BUYER FOR THE NON-COMPLYING EQUIPMENT AND/OR SERVICES. IF BUYER BRINGS ANY ACTION AT LAW OR EQUITY IN CONNECTION WITH THE PURCHASE ORDER OR THESE TERMS AND CONDITIONS, NO CAUSE OF ACTION BY BUYER SHALL INCLUDE A CLAIM, NOR MAY RECOVERY BE HAD AGAINST LINEAR GS, FOR ANY PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, DAMAGES TO PROPERTY OR PERSONS (INCLUDING DEATH), FOR LOSS OF USE, LOSS OF TIME, LOSS OF PROFITS OR INCOME, OR OTHERWISE. LINEARGS’ S LIABILITY SHALL BE SPECIFICALLY LIMITED AS PROVIDED HEREIN.
Force Majeure. Except for payment obligations of Buyer hereunder, neither party shall be liable under the purchase agreement for delays in performance or failure to perform its obligations caused by circumstances beyond its control, including but not limited to, acts of God, wars, riots, strikes, floods, labor disputes, accidents, and governmental restrictions.
Miscellaneous. The following miscellaneous Terms and Conditions shall apply:
In case any one or more of the provisions contained in these Terms and Conditions shall for any reason be held to be invalid, illegal or unenforceable in any respect, that disability shall not affect any other provision herein and these Terms and Conditions shall be construed as if that provision had never been contained herein.
Captions to paragraphs in these Terms and Conditions have been included solely for the sake of convenient reference, and are entirely without substantive effect.
These Terms and Conditions shall be binding upon, and its benefits shall inure to, the parties hereto and their respective representatives, successors, and assigns.
The Purchase Order and these Terms and Conditions shall be governed by and construed in accordance with the laws of the State of the Michigan and the courts sitting in either Oakland County, Michigan or the United States District Court for the Eastern District of Michigan shall have exclusive jurisdiction over any dispute arising hereunder or related hereto.
The Purchase Order and these Terms and Conditions embody the entire understanding between the parties with respect to the transaction contemplated herein. All prior or contemporaneous agreements, understandings, representations, warranties, and statements, oral or written, are merged into these Terms and Conditions. Neither these Terms and Conditions nor any of its provisions may be waived, modified, amended, discharged, or terminated except by an instrument in writing signed by the party against which that enforcement is sought and then only to the extent set forth in that instrument.
Assignment. Buyer may not assign its rights under the Purchase Order or these Terms and Conditions without the prior written consent of LINEAR GS. Any assignment made without LINEAR GS’s written consent shall be null and void.