General Terms of Sale and Delivery

1. Certain Definitions

Rosta USA Corp., a Delaware corporation, is the “Seller” for all transactions referenced herein.  Any person or entity buying or offering to buy Goods from Seller is herein referred to as the “Buyer.” The goods delivered or to be delivered by Seller to Buyer, including spare parts, are herein referred to as the “Goods.”

2. Acceptance of Terms

These terms and conditions of sale and delivery (these “Terms”) are the only terms governing Seller’s sale of Goods and delivery of Goods. No purchase is effective unless Seller has confirmed such purchase in writing and issued a corresponding confirmation of sale (the "Sales Confirmation"). The Sales Confirmation and these Terms (collectively, this "Agreement") comprise the entire agreement between Buyer and Seller, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Mere issuance of Buyer’s form containing different or additional provisions shall not constitute a specific objection to these Terms. Seller’s acceptance of Buyer’s order shall not constitute an acceptance of printed provisions on any form Buyer has supplied which are different from or additional to any term hereof, unless specifically accepted in writing by an authorized officer of Seller, and such different or additional provisions are hereby expressly rejected. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. Notwithstanding anything herein to the contrary, if a written contract signed by both Seller and Purchaser is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.

3. Specifications of Goods

All specifications, drawings and descriptions of Goods set forth in catalogues, proposals, websites or other materials furnished by Seller to Buyer are subject to modification by Seller and are not binding unless Seller so states to Buyer in writing.  Seller reserves the right to modify, improve or discontinue Goods, or to change specifications, at any time, without notice.

4. Prices

All prices listed in any catalogues, advertisements, price lists or other materials furnished by Seller to Buyer are subject to modification by Seller and are not binding unless Seller so states to Buyer in writing. Unless Seller previously agrees writing thereto, all prices shall exclude freight, insurance, packaging and any such other costs incurred in respect of the Goods. All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.

5. Payment Terms

Buyer shall pay all invoiced amounts due to Seller thirty (30) days from the date of Seller’s invoice either by check or by wire transfer in immediately available funds (all banking and related charges being payable by Buyer) without offset or reduction to an account identified by Seller. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In the event of Buyer’s bankruptcy, insolvency or failure to make one or more timely payments to Seller, Seller may suspend or terminate any pending orders and/or refuse to accept any future orders and/or declare all Seller’s other pending invoices to Buyer immediately due and payable and/or may require advance payment for future orders and/or may require security for any future payment. If Seller so requests, Buyer shall give Seller evidence, as Seller deems satisfactory, of Buyer’s solvency and financial wherewithal. Seller’s receipt and acceptance of any partial payment shall not constitute a waiver of any of Seller’s rights set forth herein or provided by law. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.

6. Delivery

(a) The Goods will be delivered within a reasonable time after the transmittal of the Sales Confirmation, subject to the availability of finished Goods.  Any delivery dates Seller may furnish to Buyer are estimates only and do not bind Seller to deliver or ship the Goods on the dates indicated unless specifically so stated by Seller to be binding. Seller shall not be liable for any delays, loss or damage in transit. (b) Unless otherwise agreed to in writing between Seller and Buyer, the Goods will be delivered to Buyer at Seller’s address at 797 Ferguson Dr., Benton Harbor, Michigan 49022 (the “Delivery Point”), using Seller’s standard methods of packaging and shipping such Goods. (d) Buyer must take delivery of the Goods no later than five (5) business days after receipt of Seller’s written notice that the Goods have been delivered to the Delivery Point. (d) Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point. (e) If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered to the Delivery Point, or if Seller is unable to deliver the Goods to the Delivery Point, or any other agreed upon address, on such date because Buyer has not provided to Seller appropriate instructions or documents (e.g., any approvals, authorizations, permits, licenses, customs certificates, insurance coverage, letters of credit): (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered to Buyer; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). (f) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. (g) As a result of operational circumstances, Seller may ship, and Buyer hereby agrees to accept, up ten percent (10%) more or fewer Goods than set forth in the relevant Sales Conformation. If so, Buyer agrees to pay the purchase price stated in the Sales Conformation as adjusted pro rata to account for the surplus or shortfall. (h) If Seller ships Goods to Buyer the quantity of any installment of Goods that Seller recorded on dispatch from Seller’s place of business is conclusive evidence of the quantity Buyer has received by delivery unless Buyer provides conclusive evidence proving the contrary. (i) Seller is not, and will not be, liable for any non-delivery of Goods unless Buyer gives written notice to Seller of the non-delivery within five (5) business days of the date when the Goods would in the ordinary course of events have been received. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.

7. Shipping Terms

Delivery shall be made FOB Benton Harbor, Michigan.

8. Title and Risk of Loss

Title and risk of loss passes to Buyer upon delivery of the Goods to the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Michigan Uniform Commercial Code.

9. Drawings and Plans

Seller shall retain all title to and rights in any drawings included with the Goods, and Buyer shall not reproduce any drawings or provide to third parties any drawings.

10. Inspection and Rejection of Nonconforming Goods

Buyer shall inspect the Goods within five (5) business days after receipt ("Inspection Period"). Buyer will be deemed to have accepted the Goods unless Buyer notifies Seller in writing of any Nonconforming Goods during the Inspection Period and Buyer furnishes such written evidence or other documentation as reasonably required by Seller. "Nonconforming Goods" means only the following: (i) Good shipped is different than identified in Buyer’s purchase order; or (ii) Good's label or packaging incorrectly identifies its contents. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in Seller’s sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at Seller’s expense and risk of loss, the Nonconforming Goods to a location specified by Seller. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Seller, at Seller’s expense and risk of loss, the replaced Goods to the Delivery Point. (c) Buyer acknowledges and agrees that the remedies set forth in this Section 10 are its exclusive remedies for the delivery of Nonconforming Goods. Except as provided under this Section 10, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under these Terms to Seller.

11. Limited Warranty

(a) Seller warrants to Buyer that for a period of twenty four (24) months from the date of delivery of the Goods ("Warranty Period"), such Goods are free from material defects in material and workmanship. (b) EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 11(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, AND DISCLAIMS ANY SUCH WARRANTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii) IF GOODS WERE MANUFACTURED TO BUYER’S SPECIFICATIONS, WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. (c) Products manufactured by a third party, except any affiliate of Seller ("Third Party Product"), may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Products. Third Party Products are not covered by the warranty in Section 11(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, AND DISCLAIMS ANY SUCH WARRANTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.(d) Seller shall not be liable for a breach of the warranty set forth in Section 11(a)  unless: (x) Buyer gives written notice of the defect, reasonably described, to Seller no later than five (5) business days of the time after Buyer discovers or ought to have discovered the defect; (y) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Buyer’s cost for the examination to take place there; and (z) Seller reasonably verify Buyer’s claim that the Goods are defective.(e) Seller shall not be liable for a breach of the warranty set forth in Section 11(a) if: (i) Goods are damaged by improper storage, improper installation, non-compliance with fitting guidelines or failure to follow Seller’s installation instructions; or  (ii) Buyer cannot prove any deficiencies in the Goods originated in bad material or poor workmanship.  The Warranty Period shall expire immediately upon any of the following events: (x) Buyer or a third party undertakes any modification or repairs of the Good; or (y) Buyer does not take immediate and appropriate steps to mitigate damage caused by any defect and Buyer does not provide Seller with a commercially reasonable opportunity to eliminate any defect. (f) Subject to Section 11(d) and Section 11(e) above, with respect to any such Goods during the Warranty Period, Buyer may request that Seller replace defective Goods or the elimination any defective Good’s defects during the Warranty Period set forth in Section 11(a).  If Seller is unable to replace or eliminate any defective Good within a reasonable period, Buyer will be entitled to request an abatement of the purchase price for such Goods. (g) THE REMEDIES SET FORTH IN SECTION 11(f) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(a).

12. Limitation of Liability

(a) IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.(c) The limitation of liability set forth in Section 12(b) above shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.

13. Compliance with Law

 Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that Buyer needs to carry out its obligations under this Agreement.  Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.

14. Termination

In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against Buyer proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

15. Waiver

No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in a writing signed by Seller. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

16. Confidential Information

All non-public, confidential or proprietary information of Seller, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section 16. This Section 16 does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party.

17. Force Majeure

Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

18. Assignment

Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without Seller’s prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

19. Relationship of the Parties

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

20. No Third-Party Beneficiaries

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

21. Governing Law

All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Michigan.

22. Indemnification

Buyer shall indemnify, defend, reimburse and hold Seller and its direct and indirect shareholders, directors, officers, employees, advisors and other agents and representatives harmless from and against any actual or threatened claims, demands, actions, proceeding, damages, losses and liabilities, including attorneys’ and other professionals’ fees and expenses incurred in connection therewith, which arise as a result of or in connection with (i) any breach or violation of, or default under, any provision of this Agreement by Buyer, or (ii) any negligent, reckless or intentional action or omission of Buyer, or (iii) if the Goods were manufactured pursuant to Buyer’s specifications, any claim (y) that the Goods infringe upon the proprietary or other rights of any third party (except as may have been caused by a modification by Seller) and (z) loss or damage resulting from the Goods and the use thereof.

23. Submission to Jurisdiction

(a) Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Michigan in each case located in, or exercising jurisdiction over the City of South Haven and the County of Kalamazoo and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. (b) BUYER HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY TRANSACTION HERUNDER. (c) In connection with any controversy hereunder, each party shall be responsible for its attorneys’ fees and disbursements and all court and related costs and expenses; provided that, if Seller shall be the prevailing party in any such controversy, Seller shall be entitled to reimbursement of attorneys’ fees and disbursements and all court and related costs and expenses from Buyer.

24. Notices

All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 24.

25. Amendment and Modification

These Terms may only be amended or modified in a writing that specifically sets forth that said writing amends these Terms and is signed by an authorized representative of each party.

26. Severability

If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

27. Survival

Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Compliance with Laws, Confidentiality, Governing Law, Submission to Jurisdiction and Survival.

 

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