UNCONVENTIONAL SOLUTIONS, INC. GENERAL TERMS & CONDITIONS
- Conflicting Terms. These General Terms & Conditions and any corresponding quotation (“Quote”) and invoice (“Invoice”) from Unconventional Solutions, Inc. (“USI”) constitute the entire agreement (“Agreement”) relating to USI’s sale of products and/or services to Buyer. Such products and services (“Products & Services”) include, but are not limited to, all “Services” including, but not limited to, all diagnostic, repair and maintenance work, and the sale of all “Products” including, but not limited to, all components, parts, materials, pipe rehabilitation/repair composites, engineered repair composites, corrosion and chemical protections, floor repair and protection, vapor phase corrosion inhibitors and VpCI®. Any terms and conditions contained in Buyer’s purchase order, request for quotation or any other document generated by Buyer which are different from, in addition to, or vary in any way from this Agreement shall not be binding upon USI unless agreed to in a separate, issue specific, written agreement signed by a corporate officer of USI.
- Delivery. Delivery dates are determined from the date of USI’s acceptance of an order by Buyer, are only estimates of approximate delivery dates and not a guaranty of a particular delivery date. If delivery is deferred at Buyer’s request, payment shall become due when Buyer is notified that Products are ready for shipment/pickup.
- Inspection. Buyer shall notify USI within 48 hours of delivery of any products of any damage to such products or of any other complaint whatsoever Buyer may have concerning delivery. Buyer shall also note any damage on delivery tickets and shipping receipts at the time of delivery. The failure of Buyer to make such timely complaints and notes shall be deemed an acceptance of the products and a waiver of any claims concerning delivery.
- Delays. USI shall not be responsible for delays caused by acts or omissions of Buyer, its employees, agents, suppliers or vendors, acts of God, inclement weather, strikes, lockouts, boycotts, or other labor union activities, extra work ordered by Buyer, acts of public enemy, war, terrorism, riots or civil commotion, inability to secure materials through regular recognized channels, imposition of government priority or allocation of materials, failure of Buyer to make payment when due, delays caused by inspections, changes ordered by inspectors, or other causes beyond its reasonable control.
- Cancellation. Buyer may only cancel an order with the written consent of USI at USI’s sole discretion. If such consent is granted by USI, Buyer shall pay USI for (A) all restocking, reshipping and return charges which may be incurred, (B) the actual cost of any components, equipment, parts or materials, if such components, equipment, parts or materials were made to order or otherwise customized for Buyer for the order, or cannot be returned, and (C) all services and work performed by USI as of the date on which cancellation is approved. USI shall have the absolute right in its sole discretion to cancel this Agreement without penalty upon a breach thereof by Buyer, Buyer’s failure to timely make any payment required by this Agreement, the pending or actual insolvency or bankruptcy of the Buyer, if USI determines that any errors in estimating or design have been made, or if any unforeseen hazards or conditions arise or are discovered, or for any other reason whatsoever upon 10-day written notice to Buyer by USI.
- Returns. USI, at USI’s sole discretion, does not accept returns. USI accepts no responsibility for products returned without prior written authorization. If for some reason USI authorizes a return, the products must be returned in saleable condition within 30 days from the date of invoice. Products will not be accepted for return if they are damaged or used, custom manufactured for the buyer, not in their original packaging (i.e., unopened), not purchased from USI or otherwise incapable of being resold by USI. When products are authorized to be returned for any reason other than pursuant to USI’s Repair Warranty, the amount of credit may be subject to a restocking charge of up to 35%. Returned products must be sent freight prepaid to the appropriate address indicated by USI. Any unauthorized returned product will be returned at buyer’s expense. If a product is returned with such consent, it shall thereupon become the property of USI.
- Payment. Buyer must timely comply with the payment terms set forth in the corresponding Quote and/or Invoice. A service charge will be assessed on any past due balances over 30 days at the lower of 7% annual interest rate or the maximum rate allowed by applicable law. Buyer shall be liable for USI’s actual costs, expenses and reasonable attorneys’ fees incurred in collecting any due and unpaid balances.
- Responsibility. It is Buyer’s sole responsibility to insure that all Products & Services related to this sale are compatible and compliant with Buyer’s equipment and systems. USI is not responsible for insuring equipment or system compatibility or compliance of any Products unless expressly stated otherwise in the Quote or Invoice or agreed to in a separate, issue specific, written agreement signed by a corporate officer of USI.
- WARRANTY. All Services sold by USI are warranted to be free of defects in workmanship for a period of one (1) year after such work is performed, provided that: (A) any repaired or serviced equipment or item has been used properly, in conformance with all applicable specifications and for its intended purpose; (B) Buyer provides USI with written notice of any defect within thirty (30) days from the earliest date on which the defect should reasonably have been discovered; and (C) Buyer has complied with all its payment obligations to USI for the parts and/or repairs in question. ALL OTHER WARRANTIES, BOTH IMPLIED AND EXPRESS, ARE EXPRESSLY WAIVED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO OTHER EXPRESS OR IMPLIED, WRITTEN OR ORAL REPRESENTATIONS MADE BY USI’S REPRESENTATIVES, EMPLOYEES OR AGENTS CAN EXPAND THE SCOPE OF THIS WARRANTY OR BE RELIED UPON BY BUYER TO EXPAND THE SCOPE OF THIS WARRANTY UNLESS MADE IN WRITING AND SIGNED BY AN OFFICER OF USI. THIS WARRANTY IS NOT ASSIGNABLE OR TRANSFERABLE AND USI’S OBLIGATIONS HEREUNDER TERMINATE WHEN ANY REPAIRED OR SERVICED EQUIPMENT OR ITEM IS TRANSFERRED OR SOLD TO ANY THIRD PARTY.
- NO WARRANTY FOR THIRD-PARTY PRODUCTS. ANY WARRANTIES ON THE PRODUCTS SOLD OR SUPPLIED BY USI PURSUANT TO THIS AGREEMENT ARE THOSE MADE BY THE MANUFACTURER OF SAID PRODUCTS. USI EXPRESSLY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ON ALL PRODUCTS SOLD OR SUPPLIED BY USI, AND USI NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY LIABILITY IN CONNECTION WITH THE SALE OR USE OF SAID PRODUCTS. ALL WARRANTIES, IF ANY, BY A MANUFACTURER OR SUPPLIER ARE THEIRS, NOT USI’S, AND ONLY SUCH MANUFACTURER OR SUPPLIER SHALL BE LIABLE FOR PERFORMANCE UNDER SUCH WARRANTIES REGARDING SAID PRODUCTS. USI MAKES NO CLAIM, REPRESENTATION, OR WARRANTY OF ANY KIND AS TO THE UTILITY OF THE PRODUCTS FOR BUYER’S INTENDED USES.
- LIMITATION OF LIABILITY. USI’S RESPONSIBILITY OR LIABILITY FOR DEFECTIVE PRODUCTS & SERVICES, BREACHES OF CONTRACT OR ANY OTHER CLAIMS WHATSOEVER IS STRICTLY LIMITED TO THE REPAIR OR REPLACEMENT OF THE DEFECTIVE PRODUCTS & SERVICES OR THE PURCHASE PRICE OF SUCH PRODUCTS & SERVICES, AND NO OTHER CLAIMS OR DEMANDS WHATSOEVER SHALL BE IMPOSED ON USI, IRRESPECTIVE OF FAULT. ALL CLAIMS FOR OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY AND SPECIAL DAMAGES, AS WELL AS BUSINESS INTERRUPTION AND COVER COSTS, ARE EXPRESSLY WAIVED.
- Indemnification. To the maximum extent allowed by law, Buyer must defend and indemnify USI and its employees, agents and contractors against all sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest and other expenses (including attorneys’ fees) that USI may incur as a result of (A) Buyer’s negligence, use, ownership, maintenance, transfer, transportation or disposal of the Products & Services; (B) Buyer’s violation or alleged violation of any federal, state, county or local laws or regulation; (C) Buyer’s breach of the Agreement; and (D) Buyer’s breach of any of the terms, conditions and requirements of the manufacturer of any Products.
- Disputes. This Agreement shall be governed by Michigan law and each provision herein must be interpreted in a manner which is valid thereunder. The Oakland County Circuit Court of the State of Michigan shall be the court of exclusive jurisdiction and venue over any disputes between the parties, any such disputes must be commenced and maintained in the said Circuit Court, and Buyer expressly waives any right of removal to federal court pursuant to 28 U.S.C. §1441. Buyer further waives and agrees not to assert as a defense in any action, suit or proceeding relating to this Agreement any claim that (A) Buyer is not personally subject to the jurisdiction of the state and federal courts of Michigan; (B) the venue of the action, suit or proceeding is improper; (C) the action, suit or proceeding is brought in an inconvenient forum; or (D) that the subject matter of this Agreement may not be enforced in or by the state or federal courts of the state of Michigan. USI may at its sole discretion elect to submit all disputes between the parties to binding arbitration, administered by the Southfield, Michigan office of the American Arbitration Association under its Commercial Arbitration Rules, and heard by a single arbitrator. An award rendered by such arbitrator shall be binding upon the parties and a judgment on such award may be entered by any appropriate Court in the State of Michigan as the exclusive courts of competent jurisdiction. This section shall not prohibit either party from seeking appropriate injunctive relief in the Michigan Circuit Courts. BUYER EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY REGARDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT.
- Photographs. USI may photograph areas where its work is being performed and use same for advertising/promotional purposes.
- Non-Solicitation. Buyer shall not recruit, hire, employ, contract or deal directly with any of USI’s employees, subcontractors or suppliers while USI is providing Products & Services or for a period of 12 months after the termination of the Agreement or conclusion of USI’s providing Products & Services without the prior written approval of USI.
- Taxes. All applicable federal, state or local sales, use, or excise taxes are the sole responsibility of the Buyer and shall be in addition to the price(s) stated on the Quote and/or Invoice unless otherwise stated. USI shall have the right to invoice separately any such tax as may be imposed at a later time.
- Successors and Assigns. This Agreement binds and inures to the benefit of Buyer and USI and their respective successors and permitted assigns. Buyer may not assign any interest in, nor delegate any obligations or rights under this Agreement, without USI’s prior written consent.
- Notices. Any notice or other communication regarding this Agreement must be in writing and delivered both by email and in one of the following manners: (A) personally delivered, (B) transmitted by facsimile (with a receipt acknowledgment), (C) transmitted by a recognized courier service, or (D) mailed in registered or certified form, to the last know business address of the party to which notice or communication is being given.
- Waiver. The waiver by USI of any breach by Buyer of any provision of this Agreement may not be construed to be either a waiver of the provision itself as to subsequent application or any other provision of this Agreement.
- Severability. If any provision of this Agreement is held by a court to be invalid, the remaining provisions shall continue in full force and effect without being invalidated. If any provision is modified by a court, it shall be modified so as to carry out the intent of this Agreement, and any provisions so modified shall be fully enforced as modified.
- Survival. The provisions of this Agreement which by their nature survive the termination of this Agreement or final completion thereof, including, without limitation, all warranty, indemnification and payment obligations, shall remain in full force and effect after final completion, cancellation or termination of this Agreement.
- Headings. The headings used herein are for convenience of reference only and in no way define, limit or describe any provision of this Agreement.
- Entire Agreement. Buyer has not signed this Agreement in reliance upon any promise, condition, or representation not contained within this Agreement, and this Agreement supersedes all prior and contemporaneous agreements, understandings and negotiations. No waivers, modifications, amendments or changes to this Agreement, including, but not limited to the scope of work, parts, products, specifications, pricing or schedules set forth in the Quote and/or Invoice, shall be deemed effective unless in writing and signed by Buyer and a corporate officer of USI.