General
These Terms and Conditions apply to all goods and/or services ( Products ) sold by Koppert Biological Systems, Inc. ( Seller ) to the customer identified below ( Buyer ) and shall be deemed to be incorporated into any purchase order or other document between the parties, whether currently in effect or hereafter issued. These Terms and Conditions supersede and replace any additional or conflicting terms and conditions in any such documents and constitute the complete and exclusive statement of the agreement between Seller and Buyer for the Products. Acceptance is expressly limited to these Terms and Conditions. Any performance by Seller under any order for Products shall not constitute acceptance of any terms and conditions of Buyer to the extent such terms or conditions are inconsistent with or in addition to these Terms and Conditions. These Terms and Conditions may only be modified by a written agreement signed by Seller
Prices; Shipping; Delivery; Payment
Unless otherwise expressly stated, prices for Products do not include storage, handling, packaging or transportation charges or any applicable federal, state, local or foreign duties or taxes and Buyer shall pay to Seller or reimburse Seller for all such charges, duties and taxes that Seller may pay or be required to pay with respect to the Products. Seller reserves the right to increase Product prices in the event of increases in its costs or expenses, including, without limitation, increases in shipping costs. Shipping and delivery dates are approximate only and subject to change. All sales of Products are F.O.B. Seller s facility. Responsibility of Seller shall cease upon delivery to and receipt of the Products by a common carrier at which point Buyer will bear all risk of loss for the Products. Seller s quantities and weights govern unless proved to be in error. Unless otherwise expressly stated, all accounts are payable in U.S. currency thirty (30) days from the date of Seller s invoice. In the event Buyer defaults under its payment terms or Seller otherwise deems itself insecure for any reason, Seller may, without notice, charge a late fee of 18% per annum, cancel all credit available to Buyer, require that any invoices outstanding be immediately due and payable in full, and refuse to make any further credit advances. Buyer is prohibited from and shall not setoff against or recoup from any invoiced amounts due or to become due from Buyer or its affiliates any amounts due or to become due to Seller or its affiliates, whenever and however arising.
Limited Warranty
Seller warrants that at the time of delivery to Buyer the Products will conform to Seller s standard specifications for the Products. Any claim that Buyer may have with respect to the Products shall be presented to Seller by Buyer in writing within twenty four (24) hours from the date and time of receipt of the Products by Buyer. Failure by Buyer to provide Seller with written notice of any claim within such twentyfour (24) hour time period shall be deemed an absolute and unconditional waiver of Buyer s claims. Buyer shall hold and make available for inspection and testing by Seller all Products claimed by Buyer to be defective. Any claim for defective Products must be verified by Seller and, in such a case, Seller s liability shall be limited, at Seller selection, to a refund (not to exceed the purchase price) for or replacement of such part of the Products in question as Seller may determine is actually defective based on a failure to conform to Seller s warranty hereunder. THE FOREGOING WARRANTY IS EXCLUSIVE AND SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER SPECIFICALLY, BUT NOT BY WAY OF LIMITATION, DISCLAIMS ANY AND ALL LIABILITY FOR THE USE OR PERFORMANCE OF THE PRODUCTS IN THE APPLICATION(S) SELECTED BY BUYER. SELLER FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR PRODUCTS THAT ARE FURTHER PROCESSED BY BUYER OR ANY THIRD PARTY OR IN ANY WAY CHANGED BY BUYER OR ANY THIRD PARTY FROM THE PRODUCTS DELIVERED BY SELLER OR IN ANY WAY USED WITH OR SUBJECT TO INTERACTION WITH ANY OTHER ITEMS NOT SUPPLIED BY SELLER FOR SPECIFIC USE WITH SUCH PRODUCTS. ANY ADVICE OR SUGGESTIONS BY SELLER AS TO THE USE AND/OR SUITABILITY OF ANY PRODUCTS SHALL NOT CONSTITUTE A REPRESENTATION OR WARRANTY BY SELLER AND BUYER ASSUMES FULL RESPONSIBILITY FOR ACCEPTING AND/OR USING SUCH ADVICE AND/OR SUGGESTIONS.
Liability Limitation
Specific performance shall not be available to Buyer as a remedy in connection with Seller s providing of the Products. Monetary damages against Seller for any claim by Buyer shall be limited to the dollar amount charged to Buyer for the Products alleged to be the cause of any loss or damage, whether founded in contract, tort (including negligence), strict liability or otherwise. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF ANTICIPATED PROFITS, LOSS OF USE, LOSS OF REVENUE AND COST OF CAPITAL) ARISING OUT OF OR RELATING TO THE PRODUCTS.
Excusable Delay
Seller shall not be liable for any delay or failure to perform caused by circumstances beyond its reasonable control, including without limitation acts of God or public authority, power failures, or the change in cost or availability of materials, components or services based on market conditions, supplier actions or contract disputes. During any such delay or failure to perform by Seller, Seller s obligations under any order shall be suspended or, at Seller selection, terminated, and Seller shall not have any obligation to provide Buyer with Products from other sources or to pay or reimburse Buyer for any additional costs to Buyer of obtaining substitute Products. Seller may, during any period of shortage due to any of the above circumstances allocate its available supply of Products among itself and its customers in any manner that Seller deems fair and reasonable in its sole discretion.
Miscellaneous
These Terms and Conditions and all orders for Products shall be governed by the laws of the State of Michigan without regard to any applicable conflict of law’s provisions. The United Nations Convention on the International Sale of Goods is expressly excluded. Buyer consents to the exclusive jurisdiction of the courts of the State of Michigan and the United States District Court for the Eastern District of Michigan for any legal or equitable action or proceeding arising out of, or in connection with these Terms and Conditions or any order for Products. Buyer specifically waives any and all objections to venue in such courts. Buyer shall not have the right to assign any of its rights or obligations under these Terms and Conditions or any order for Products without the prior written consent of Seller. Waiver by Seller of any of these Terms and Conditions shall be effective only if in writing and signed by Seller, and shall not constitute a waiver of such Terms and Conditions as to any subsequent events or conditions, whether similar or dissimilar. No course of dealing or custom in the trade shall constitute a modification or waiver by Seller of any right. These Terms and Conditions shall survive delivery of the Products and the expiration, cancellation or termination of any order for Products.
