North American Terms and Conditions of Sale
1. Bleichert, Inc’s (“Bleichert”) sale of products or services (“Products”) to the respective customer (“Customer”) is expressly limited to Customer’s acceptance of these general terms and conditions of sale. These general terms and conditions of sale and the final quotation or proposal (“Quote”) provided to Customer for the respective Products, together with any other documents expressly accepted by Bleichert, constitute the full and final understanding between Bleichert and Customer (the “Contract”). Unless expressly accepted by Bleichert in writing, Bleichert rejects any additional or alternative terms or conditions proposed by Customer.
2. Prices quoted by Bleichert shall remain firm for a period of thirty (30) days from the date of a Quote; provided, however, that Bleichert reserves the right, at any time prior to the written acceptance of a Quote by Customer, to adjust any prices by providing written notice to Customer regarding any such adjustment. Quotes provided are priced based on Customer’s purchase of the entire scope of goods identified in a Quote. If less than the entire scope of goods identified in a Quote is ordered by Customer, prices may vary. Unless otherwise stated in a Quote, installation, commissioning, supervision, and start-up services are not included in the price of Products to be provided by Bleichert. Customer shall pay Bleichert to the extent of Products provided should Bleichert be unable for any reason to provide or ship the entire scope of Products identified in a Quote. Unless otherwise expressly noted in a Quote, prices quoted by Bleichert are exclusive of all taxes (except taxes levied on Bleichert’s income) including federal, state, provincial, and local use, sales, property or similar taxes, and Customer shall pay all such taxes in full or shall reimburse Bleichert for any such taxes paid by Bleichert.
3. Modifications, additions, or deletions to or from the scope referenced in a Quote shall only be effective if evidenced in writing by Bleichert and the sale of any and all Products affected by such modification, addition or deletion shall be subject to the Contract whether or not referenced therein. All Product sales are final, except as provided in Section 12 or the warranty provided in the Quote.
4. Any approval drawings provided by Bleichert and signed by Customer shall constitute exclusive proof regarding Customer’s acceptance of such drawings and verification of the dimensions and other information described therein. Customer hereby assumes any and all responsibility for any inaccurate or incomplete information contained in any accepted approval drawings. To the extent that Customer provides the design for any Products, Customer shall indemnify, defend, and hold harmless Bleichert against all claims, suits, and causes of action and from all costs, expenses, damages and liabilities (including but not limited to attorneys’ and consultants’ fees) for actual or alleged infringement of any United States or foreign patent, copyright, trademark, intellectual property rights, or proprietary rights of third parties by reason of the use, sale, manufacture, or design of the Products.
5. Unless otherwise provided in the Quote, all Bleichert invoices shall be paid by Customer within thirty (30) days of the date of invoice. If Customer fails to timely pay an invoice, Bleichert shall be entitled to suspend all work and deliveries and issue a late charge equivalent to the lesser of one and one half percent (1 1/2%) per month (eighteen percent (18%) per annum) or the maximum rate allowed by applicable law on all unpaid invoices or invoices not paid in accordance with the Contract. Customer shall reimburse Bleichert for all expenses, regardless of their nature or type (including attorneys’ fees), related in any way to Bleichert’s collection of invoices not paid in accordance with the Contract or otherwise incurred by Bleichert in the enforcement of the Contract. Customer shall have no right to offset any amounts due Bleichert by any payment or other obligation which Bleichert or any of its affiliates may owe to Customer.
6. A Contract may be cancelled by Bleichert at any time if (a) Customer fails to strictly comply with the Contract, (b) Customer becomes insolvent or makes an assignment for the benefit of creditors, (c) a petition in bankruptcy or insolvency is filed by or against Customer, or (d) amounts due Bleichert by Customer are unpaid when due. Upon cancellation of a Contract, Customer shall be obligated to pay to Bleichert all of Bleichert’s costs, expenses, and a 20% profit for work in process as of the date of cancellation.
7. All orders are subject to Customer credit approval by Bleichert. Bleichert reserves the right to refuse shipment of any and all Products, to modify the payment terms identified the Contract, or to cancel without penalty or charge any Contract if, Bleichert requests and is unable to secure acceptable payment assurances from Customer for Products.
8. Customer hereby grants Bleichert a security interest in the Products (if the Products are goods) to secure the unpaid balance of the price and all other obligations of Customer to Bleichert however arising. Customer authorizes Bleichert to file all necessary financing statements and other similar documents required to perfect the security interest granted herein and irrevocably grants Bleichert a power of attorney to execute any documents on behalf of Customer relating thereto.
9. Unless otherwise identified in a Quote, all shipments of goods are FCA (Incoterms 2020) Bleichert’s Shelby Township, Michigan facility, and all risk of loss with respect to any Products shipped shall pass to Customer when such Products are tendered to the carrier. Title to Products shall transfer to Customer upon Bleichert’s receipt of payment in full for all Products provided pursuant to the Contract. Bleichert will not be liable for any delays, breakage, loss, or damage after having made delivery in good order to the first transportation carrier. All claims for loss or damage in transit are to be made by Customer directly to the transportation carrier and the appropriate insurance carrier retained by Customer. No deductions of any kind from the invoice amount shall be made.
10. All dates for the shipment or delivery of goods are approximate. Bleichert shall not be liable for delay in or failure to make shipment or delivery of goods by any identified date for any reason whatsoever. In the event of any delay, regardless of the cause, the parties shall agree upon a new date for the shipment and/or delivery of the applicable goods. In the event a delay in delivery is caused by Customer, Customer shall pay Bleichert for reasonable warehouse costs.
11. Bleichert shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached the Contract, for any failure or delay in fulfilling or performing any term of the Contract when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Bleichert 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, epidemics, pandemics, lockouts, 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.
12. Customer shall inspect all goods within 10 days of receipt (the “Inspection Period”). Customer will be deemed to have accepted the goods unless it notifies Bleichert in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Bleichert. “Nonconforming Goods” means only the following: (a) that the goods shipped are different than those identified in Customer’s purchase order; or (b) the goods’ label or packaging incorrectly identifies its contents. If Customer timely notifies Bleichert of any Nonconforming Goods, Bleichert shall, in its 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 Customer in connection therewith. Customer shall ship, at Customer’s expense and risk of loss, the Nonconforming Goods to Bleichert’s facility located in Shelby Township, Michigan. If Bleichert exercises its option to replace Nonconforming Goods, Bleichert shall, after receiving Customer’s shipment of Nonconforming Goods, ship to Customer, at Bleichert’s expense and risk of loss, the replaced goods to a location to be agreed upon by Customer and Bleichert. Customer acknowledges and agrees that the remedies set forth in this Section 12 are Customer’s exclusive remedies for the delivery of Nonconforming Goods.
13. If Bleichert is required to deliver or install Products under the Contract, Customer warrants that the site where Products are to be delivered or installed shall be ready and adequate for Bleichert’s delivery or installation of the Products. Customer’s obligations in this regard include, but are not limited to, the removal of all obstructions and the institution of adequate safety measures to protect Bleichert’s property, employees, agents, and contractors. Customer shall be responsible for all costs and expenses associated with Bleichert’s delay and/or inability to deliver and/or install any Products related to Customer’s failure to comply with this provision. Bleichert in no way warrants the sufficiency of the site for the goods referenced in a Quote.
14. Any and all information concerning the Products or the transaction covered hereunder which Bleichert discloses to Customer, or which Customer otherwise obtains knowledge of hereunder, remains the exclusive property of Bleichert and shall not be disclosed by Customer to third parties without Bleichert's express written consent. Customer shall have no right whatsoever to such information other than to use it for evaluation for the purpose of the transaction covered under the Contract. Bleichert will not disclose information submitted to it by Customer which is confidential and proprietary to Customer and clearly designated as such without Customer's consent.
15. Bleichert shall have no liability to customer or any end user for lost profits or for special, consequential, exemplary, or incidental damages of any kind whether arising in contract, tort, product liability or otherwise, even if Bleichert was advised of the possibility of such lost profits or damages. In no event shall Bleichert be liable to Customer for any damages whatsoever in excess of the total price paid by Customer for the respective Products.
16. The warranty set forth in the Quote represents the sole and exclusive warranty given by Bleichert to Customer with respect to Products and is in lieu of and excludes all other warranties, express or implied arising by operation of law or otherwise, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose. Customer hereby waives any claim that any exclusions or limitations of any warranty provided by Bleichert deprive it of an adequate remedy or cause its agreement with Bleichert to fail of its essential purpose. Customer shall be entitled to no other remedy regardless of the form of claim or cause of action, whether based in agreement, negligence, strict liability or otherwise.
17. Customer shall be responsible for ensuring Products are used in accordance with the applicable purposes, specifications, manuals, instructions, and standards. Bleichert shall not be liable for any injury or damages, whether to persons or property, caused by the misuse of Products or the failure to follow any applicable Product instructions.
18. Customer shall comply with all applicable laws, regulations and ordinances. Customer shall maintain in effect all licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Contract.
19. Each section hereof intended for the benefit of Bleichert shall survive the delivery of the Products. A waiver of a breach of any terms in the Contract will not be considered (a) a waiver of a further breach of the same term, or (b) a waiver of a breach of any other terms, or (c) a waiver of Bleichert’s right to declare an immediate or a subsequent default.
20. The Contract will be governed and interpreted by Michigan law. Any claim arising directly or indirectly out of the Contract will be litigated in the Circuit Court for Macomb County, Michigan, or, if original jurisdiction can be established, in the United States District Court for the Eastern District of Michigan.
21. Each provision of the Contract must be interpreted in a way that is valid under applicable law. If any provision is held invalid, the rest of the Contract will remain in full effect and the offending provision shall be deemed modified so as to be enforceable.
22. In the event of a conflict between provisions in documents comprising the Contract, the documents shall prevail in the following order: (1) the Quote, (2) these general terms and conditions of sale, (3) Customer’s purchase order (if any and if expressly accepted by Bleichert), and (4) any other documents comprising the Contract.
23. Customer shall not assign any of its rights or delegate any of its obligations under the Contract without the prior written consent of Bleichert. Any purported assignment or delegation in violation of this section is null and void. No assignment or delegation relieves Customer of any of its obligations under the Contract.
24. The relationship between the parties is that of independent contractors. Nothing contained in the Contract 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.
[End of North American General Terms and Conditions of Sale]