These terms and conditions ("Terms and Conditions") shall govern the sale, delivery, and distribution of all products manufactured, sold, or marketed ("Products") by Tyndell Photographic and Art Supplies, Inc., a Michigan corporation ("Seller"), and purchased by a customer ("Purchaser").
1. Offer and Acceptance. These Terms and Conditions, along with any Seller's quote, purchase order (whether submitted in writing, over the phone, by facsimile or electronically), and order confirmation issued by Seller, together form the parties' final agreement as to the purchase and sale of the Products ("Contract"). Seller's proposal, offer or acceptance is conditioned on Purchaser's acceptance of these Terms and Conditions. Any additional or conflicting terms in Buyer's request for proposal, specifications, Seller's quote, purchase order or any other written or oral communication are not binding on Seller unless separately signed by Seller. Seller's failure to object to Purchaser's additional or conflicting terms does not operate as a waiver of any terms contained in this Agreement. The purchase price for Products purchased by Purchaser shall be the price contained in the Contract. Any required deposit is due and payable upon issuance of an order confirmation and is non-refundable, but shall be applied to all amounts due under the Contract.
2. Products. If quantities or delivery schedules are not specified in the Contract, they will be as reasonably determined by Seller taking into account factors including, without limitation: (i) any capacity limitations specified in the Contract or otherwise agreed to by Purchaser and Seller in writing; and (ii) unusual volume or timing fluctuations that are inconsistent with customary lead time requirements or any lead time requirements specified in the Contract or otherwise agreed to by Purchaser and Seller in writing. To the extent that Purchaser has provided custom specifications for the production of the Products, Purchaser agrees and acknowledges that Purchaser is solely responsible for providing correct information regarding any custom specifications, and Seller is not responsible for any error or omission in said specifications. Purchaser agrees to purchase any and all products assembled in accordance with Purchaser's specifications, even if said specifications include one or more errors or omissions. Moreover, Purchaser agrees to indemnify Seller and hold Seller harmless for any damages resulting from any error or omission in said specifications.
3. Delivery and Acceptance. Seller will pack and ship Products in accordance with sound commercial practices and the Contract terms. The terms of delivery are F.O.B. Seller's business in Michigan. Seller reserves the right to make delivery in installments, unless otherwise agreed to by the Seller and Purchaser in writing. Delay in delivery of any installment shall not relieve Purchaser of its obligation to accept remaining deliveries. Purchaser shall inspect and accept or reject acceptance of the Products immediately upon their arrival, and shall, within ten (10) working days after their arrival, give written notice to the Seller of any claim that the Products do not conform with the terms of the order. If Purchaser shall fail to give such notice, the Products shall be deemed to conform to the terms of the order, and Purchaser shall be deemed to have accepted and shall pay for the Products in accordance with the terms of the order. Purchaser expressly waives any right Purchaser may have to revoke acceptance after such ten-day period.
4. Taxes. Unless otherwise stated in the Contract, the Contract price does not include applicable federal, state, provincial, and local taxes other than sales taxes.
5. Payment. Unless otherwise expressly agreed to in writing, all of Seller's invoices shall be payable upon receipt of invoice. Seller will accept payment by cash, check, credit card, PayPal, or electronic funds transfer. Purchaser will pay Seller in U.S. funds. Unless Seller consents in writing, Purchaser may not setoff or deduct amounts owed to Purchaser by Seller.
6. Seller’s Limited Warranties. Seller warrants (i) that the Products will, when delivered, substantially conform to the respective written Product description furnished to Purchaser, and (ii) all Products will be free from defects in material and workmanship within a ninety (90) day period from date of purchase. Should a Product be defective within such period, Purchaser shall submit its claim (stating the defects) and the defective Product to Seller in which case Seller will examine, and upon establishing Purchaser's validity of claim, at Seller's sole discretion (i) repair the Product, (ii) exchange the Product, or (iii) refund the purchase price, which shall fully satisfy and discharge any and all warranty claims. This warranty does not extend to any Product which has been subjected to misuse, neglect, accident, or improper installation. THE WARRANTIES SET FORTH HEREINABOVE ARE IN LIEU OF ALL OTHER WARRANTIES. THIS SALE IS MADE ON THE EXPRESS UNDERSTANDING THAT WITH RESPECT TO THE PRODUCTS THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT SHALL SELLER BE LIABLE FOR (1) CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, OR (2) DAMAGES ARISING OUT OF THE PURCHASE, UPLOADING, HANDLING AND USE OF ANY PRODUCTS, ALL OF WHICH ARE WAIVED BY PURCHASER AND, IN ANY EVENT, ALL DAMAGES HEREUNDER SHALL BE LIMITED TO A MAXIMUM OF THE PURCHASE PRICE OF THE RESPECTIVE PRODUCT. PURCHASER ACKNOWLEDGES THAT THE REMEDIES SET FORTH IN THIS SECTION 6 ARE PURCHASER'S SOLE REMEDIES WITH RESPECT TO THE PRODUCTS AND THIS CONTRACT. THE LIMITED WARRANTIES IN THIS SECTION 6 ARE NON-TRANSFERRABLE AND SHALL BE NULL AND VOID UPON THE SALE OR OTHER TRANSFER OF POSSESSION BY PURCHASER TO A THIRD-PARTY.
7. Intellectual Property Rights. Seller does not transfer to Purchaser any intellectual property rights of Seller related to the Products.
8. Default. Time is of the essence and either party will be in "Default" under the Contract if it (1) fails to perform any obligation under the Contract and, if the non-performance can be cured, fails to cure the non-performance within 15 business days after notice from the other party specifying the non-performance, (2) admits in writing its inability to pay its debts as they become due, commences a bankruptcy, insolvency, receivership, or similar proceeding, or makes a general assignment for the benefit of creditors, (3) becomes a debtor in a bankruptcy, insolvency, receivership, or similar proceeding commenced by a third party that is not dismissed within 30 days after commencement, or (4) fails to provide adequate assurance of performance under the Contract within three business days after written demand by the other party. Purchaser agrees that, in the event any legal action should be deemed necessary by Seller to recover any sums due hereunder or under any promissory note, trade acceptance, or invoice, or, if applicable, to recover possession of property, there shall be added to the sums due from Purchaser to Seller the costs of collection, including actual attorneys' fees.
9. Assignment and Subcontracting. Purchaser may not assign this Contract without the prior written consent of Seller.
10. Excusable Non-Performance. Performance of this Contract is subject to war (declared or undeclared), an act of God, government regulation, terrorism, threat of terrorism, disaster, strikes, civil disorder, hurricanes, snow accumulation, tornadoes, high winds or other weather events, curtailment of transportation facilities, medical epidemic, or any other emergency, beyond the control of Seller, which makes it illegal, impossible or inadvisable, in the reasonable judgment of Seller, to perform hereunder. In such case, Seller reserves the right to cancel the Contract.
11. Waiver. The failure of either party to enforce any right or remedy provided in the Contract or by law on a particular occasion will not be deemed a waiver of that right or remedy on a subsequent occasion or a waiver of any other right or remedy.
12. Entire Agreement. The Contract constitutes the entire agreement between Seller and Purchaser with respect to its subject matter, and supersedes all prior oral or written representations or agreements by Seller and Purchaser with respect to the subject matter of the Contract. No subsequent terms, conditions, understandings, or agreements purporting to modify the terms of the Contract will be binding unless in writing and signed by both parties. When used in these Terms and Conditions, "including" means "including without limitation" and terms defined in the singular include the plural and vice versa.
13. Severability. A finding that any provision of the Contract is invalid or unenforceable in any jurisdiction will not affect the validity or enforceability of any other provision of the Contract or the validity or enforceability of that provision in any other jurisdiction.
14. License to Use Marks. Purchaser may, from time to time, request that Seller use certain names, trade names, logos, marks, slogans or other intellectual property (collectively, the "Marks") in the manufacture and production of the Products. Purchaser grants Seller a perpetual, non-exclusive, royalty-free license to use the Marks in connection with the marketing, promotion, advertisement of Seller's business, products and services. Purchaser represents and warrants that it has the authority to grant such license to Seller and Purchaser shall indemnify Seller from all claims, losses, damages, liabilities and costs (including reasonable attorney fees, expert and consultant fees, and other costs of defense), whether threatened or actually incurred by Seller, arising from or in any way related to Seller's or Purchaser's use of the Marks.
15. Notices. Any notice or other communication required or permitted in the Contract must be in writing and shall be deemed effectively given (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day, (c) seven (7) days after having been sent by certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt.
16. Limitations. Any arbitration or judicial proceeding arising out of a dispute relative to this Contract shall not be brought by Purchaser unless the same is commenced within a period of one (1) year following delivery of the Products. Purchaser hereby acknowledges that failure to commence such a proceeding within the one (1) year period shall result in the extinguishment of any rights Purchaser may have to prosecute such claims or actions.
17. Dispute Resolution, Governing Law and Forum Selection. Any and all disputes arising out of this Contract shall be resolved solely and exclusively by means of private arbitration in accordance with the procedures and policies of the American Arbitration Association. Any arbitration proceeding shall take place in Oakland County, Michigan. THE PARTIES HEREBY WAIVE ANY RIGHT TO A JURY TRIAL. The Parties hereby agree that the determination of the arbitrators shall be binding and final upon all Parties. The award of the arbitrator may be filed with the Clerk for the Circuit Court for the County of Oakland, Michigan, and judgment may be rendered by the court upon the arbitration award and execution may be issued upon the judgment. Purchaser and Seller consent to the exercise of jurisdiction over them by such courts. The Contract will be governed by and interpreted according to the laws of the State of Michigan. This contract shall be deemed to have been entered into in the State of Michigan, USA.