Terms and Conditions

DETROIT WASHERS & SPECIALS
A Division of MH INDUSTRIES LTD
TERMS AND CONDITIONS

These terms and conditions (the “Terms”) constitute a part of any contractual relationship entered between Detroit Washers & Specials (herein referred to as “DWS”, “Supplier” or “Seller”), and any customer (“Buyer”) of DWS. These terms and conditions shall apply notwithstanding contradictory provisions furnished by Buyer in any purchase order, request for quotation, release, or similar document.

ARTICLE I: OFFER; ACCEPTANCE; EXCLUSIVE TERMS.

Each purchase order (“Order”) issued by a Buyer is deemed an offer or counteroffer to Supplier for the purchase of goods listed in the Order and is governed by these Terms. Supplier accepts the Order, including these Terms, and forms a contract, when Supplier does any of the following: (a) notifies Buyer that it is commencing work under the Order, (b) accepts the Order in writing, or (c) Supplier commences any other conduct that reasonably could be interpreted as its recognition and acceptance of a contract with respect to the subject mater of the Order.

ARTICLE II: TIME PERIOD OF ORDER

Except as specifically stated herein or otherwise agreed to in writing by DWS, the Order period, including its pricing, will be good for no longer than one (1) year from the date the Order is issued by Buyer and transmitted to Supplier.

ARTICLE III: DELIVERY; SHIPPING

Time of delivery is and shall remain the essence of any Order. All items ordered shall be suitably packed and marked for shipping as “F.O.B. Supplier’s Facility,” and as such, Buyer may not hold Supplier liable for any loss or damage to the goods incurred during shipping.

ARTICLE IV: WARRANTIES

Seller makes no express or implied warranties of any kind with respect to the use or performance of goods produced under a contract governed by these Terms, with the exception of those warranties that cannot be waived under applicable state or federal law. Any warranties cease after Buyer accepts the goods.

ARTICLE V: DEFECTIVE GOODS

If Buyer notifies Seller within 3 business days of receipt of goods that Buyer has received defective goods, then Seller will authorize the return of defective goods at Seller’s expense or otherwise make arrangements to take possession of the defective goods. Any notification beyond said 3-day period shall be dealt with on a case-by-case basis. Unless otherwise approved in writing by Seller, Buyer shall not use or employ in-house personnel and/or third-party sorting services for inspecting, re-working or correcting any goods Buyer deems defective. Buyer shall cooperate with Seller by furnishing, as requested, photographs, drawings, and knowledgeable personnel for enabling Seller to understand the reason for the rejection. As its sole remedy for receipt of defective goods, Buyer agrees to accept Seller’s replacement of quality parts. Buyer shall not have the right to charge Seller for administrative expenses, processing fees, specific or consequential damages, lost profits, idle labor time, idle machine time, or similar charges which do not add or create new value with respect to the parts in question.

ARTICLE VI: INDEMNIFICATION

Neither Supplier nor Buyer shall be bound to indemnify or defend the other (including its respective employees, officers, directors, shareholders, agents and assigns) from any lawsuit, claim, demands, causes of action, damages, losses, costs and expenses of any kind arising out of or relating to any contract governed by these Terms, unless the party against whom the indemnification or defense is sought has been grossly negligent. Otherwise, each party represents it has adequate insurance to cover the other from any loss by reason of accidents, injuries, or damages to persons or property that may happen or occur in connection with the use or sale of goods under a contract governed by these Terms. Each party shall attempt to have its insurance carrier waive subrogation rights.

ARTICLE VII: PAYMENT TERMS AND COSTS

Supplier is selling to Buyer, and Buyer agrees to accept the goods ordered, with payment terms required of Net 30 days from the shipment date. This time period is not extended as a result of Supplier’s issuing its invoice at a date subsequent to shipment. Supplier may agree to different payment terms if notified of such request in Buyer’s Order, but any such variation on Supplier’s part shall be in writing in order to be enforceable. Any amounts tendered by Buyer beyond 30 days from the due date of the subject invoice, shall bear interest at an annual rate of 18%. Additionally, Supplier reserves the right to assess Buyer an administrative fee of $250 for each invoice that Buyer does not pay in full within sixty (60) days of its issuance date, or 30 days from the agreed upon payment date, whichever is longer. However, if Buyer is purchasing tooling (as defined in Article X below), then Seller and Buyer shall agree upon a specific payment schedule.

ARTICLE VIII: TERMINATION

Supplier may suspend its required performance or terminate an Order in whole or in part without penalty or extra charge incurred by it by providing written notice to Buyer upon occurrence of any one or more of the following events (“events of default”):
a. A material breach of the contract relationship by Buyer;
b. Buyer’s insolvency or commission of an act of bankruptcy;
c. The filing of a voluntary or involuntary petition of bankruptcy, or general assignment for the benefit of creditors, by or against Buyer;
d. Appointment of a receiver for Buyer (or any portion of its business operations) by any court of competent jurisdiction;

If Supplier suspends or terminates its required performance under an Order due to an event of default, Buyer shall be responsible for prepaying Supplier by wire transfer for all unpaid previously-delivered goods, plus all produced yet undelivered goods, plus all unpaid tooling, plus Seller’s cost of purchased but unused raw materials and work-in-process, prior to any requirement that Supplier ship or otherwise deliver any goods and/or tooling to or for Buyer’s benefit.

ARTICLE IX: INDEPENDENT CONTRACTORS

Supplier and Buyer understand and agree that the relationship between them is that of independent contractors and that Supplier is not an agent or employee of Buyer.

ARTICLE X: TOOLING

Unless otherwise specified in writing between the parties, any tools, dies, fixtures, designs or gauges (collectively referenced as “tooling”) furnished by Buyer to Seller, or any tooling specifically invoiced by Seller to Buyer, shall constitute Buyer’s property. Seller shall hold said tooling as a bailee, but shall maintain a possessory and/or statutory lien (under common law and/or under the Michigan Special Tools Lien Act) until such time as Buyer has satisfied all financial and other obligations due and owing to Seller. Any other tooling used by Seller for furnishing goods to Buyer shall be the property of Seller, and Buyer shall not have any rights, claims, or interests in or to such tooling for any reason. Each party warrants and represents that any tooling used is not in violation of any patents held by third parties. Each party agrees to indemnify the other and otherwise bear the costs for the other party’s defending itself from third-party claims of patent violation or infringement. If Seller may be subject to a claim for indemnification under this provision, then Buyer shall provide written notice to Seller of such claim in a timely manner and Seller, at its unilateral election, shall have the right to defend such action through attorneys of its own choosing.

ARTICLE XI: GOVERNING LAW; JURISDICTION; NON-ARBITRATION

Any contract governed by these Terms shall be governed by and interpreted in accordance with the internal laws of the State of Michigan, including (but not limited to) Michigan’s version of the Uniform Commercial Code. Buyer submits to Michigan jurisdiction in the event of a dispute arising out of a contract or other situation governed by these Terms. Supplier reserves the right, at any time, to opt out of or to decline participating in any form of mediation or arbitration otherwise provided for in any Buyer request for quotation, purchase order, release, standard terms and conditions, or other material furnished by Buyer; and Supplier reserves the right to a jury trial in an applicable court of proper jurisdiction for resolving disputes between the parties.

ARTICLE XII: NON-ASSIGNMENT

Buyer may not, without Supplier’s prior written consent, change, assign or delegate its obligations under the Order (in whole or in part), including the required source for components furnished directly or indirectly by Buyer to Supplier, or the required source of components Supplier is purchasing to fulfill the Order).

ARTICLE XIII: MISCELLAENOUS

Time is deemed of the essence as stated herein. Any changes to an Order or the Terms, to be effective, must be mutually agreed upon in writing.