Full Terms and Conditions
Offer and Acceptance: These Terms and Conditions of Sale (these “Terms and Conditions”), together with the terms of any other document to which these Terms and Conditions are attached or are incorporated into (collectively, this “Agreement”), apply to and include (subject to the provisions herein with respect to inclusion): (a) any quotation, proposal, or offer to sell (“Offer”) made by TACK Electronics, LLC or one of its affiliates or subsidiaries (collectively, “Seller”) for the sale of Seller’s products and services, if any, related to such products (collectively, the “Products”); and (b) any purchase order or related attachments, schedules, exhibits, designs and drawings (collectively, a “Purchase Order”) issued by the buyer-party purchasing the Products or that party’s subsidiaries and affiliates (collectively, “Buyer”). Buyer accepts, and will be deemed to be bound by, the terms of this Agreement upon the first to occur of the following: (i) Buyer’s written acknowledgment of this Agreement; (ii) Buyer placing a purchase order with Seller; (iii) delivery of the Products by Seller pursuant to any Purchase Order or similar type of request by Buyer; (iv) acceptance of the Products by Buyer; or (v) payment for the Products by Buyer. All Offers are subject to Seller’s approval if made by a salesperson or sales agent. Buyer’s acceptance is expressly limited to the terms of this Agreement, and this Agreement exclusively governs the sale of Products by Seller. This Agreement supersedes and excludes any terms and conditions set forth in any Purchase Order placed by Buyer, or any other document issued or deemed to be issued by Buyer, to Seller (including, without limitation, Buyer’s general terms and conditions of purchase), each of which are expressly rejected. Any reference in this Agreement to any request for quotation, request for proposal or any other similar bid document made by Buyer is solely for the purpose of incorporating the description and specifications of the Products contained in such document, but only to the extent that such description and specifications do not conflict with the description and specifications contained in this Agreement. Any additional or different terms proposed by Buyer, whether in Buyer’s Purchase Order or otherwise, or any attempt by Buyer to vary the terms of this Agreement in any way, are expressly rejected by Seller, are not part of this Agreement and do not apply to the sale of Products, and are not binding on Seller without the express prior written acceptance of such terms by Seller’s authorized representative. Buyer and Seller expressly agree that these Terms and Conditions are accepted in good faith by both parties as the controlling and final terms and conditions for all sales by Seller to Buyer. None of the terms, provisions or conditions of this Agreement may be modified, altered or added to except by written instrument signed by a duly authorized representative of Seller. Any agreed upon change will be subject to an equitable adjustment in the purchase price and/or time for performance.
Quotes: Quotes are valid for 30 days unless otherwise stated. All pricing quoted may be subject to additional duties, tariffs or surcharges resulting in price adjustments. All pricing and lead times quoted are subject to change based on material availability and cost at time of order. Any clerical and/or computational errors are subject to correction. All quotations are binding and must list the actual quantities involved. All custom cable assemblies and wire harnesses are Non-Cancellable Non-Returnable. Any push-out requests are subject to our supplier’s Terms and Conditions and what they allow. In the event that the drawings, samples and data provided does not contain specific tolerances, we will default to the specified in IPC/WHMA-A-620 “Requirements and Acceptance for Cable and Wire Harness Assemblies.”
Terms of Payment: Unless otherwise agreed upon, in writing, between the Buyer and Seller, terms are Net 30 days from the earlier of (a) Buyer’s receipt of Seller’s invoice or (b) Buyer’s receipt of the Products. In the event an invoice is over 30 days past due, TACK Electronics may charge a service fee of 1-1/2% per month (18% per annum) calculated from the original invoice due date. To avoid delay in filling orders, Customers without previous experience with TACK Electronics should include credit information or references with their first order or remit cash. Each shipment shall be a separate transaction and payment shall be made accordingly. If in the exclusive judgment of TACK Electronics, the financial condition of Customer at any time does not justify the commencement or continuation of shipment on the terms specified herein, in addition to other remedies it may have at law or in equity, TACK Electronics may demand full or partial payment in advance, suspend its performance until such payment is made, and/or cancel Customer’s order if such payment is not received by TACK Electronics within thirty (30) days after delivery in person or mailing of said demand by TACK Electronics. If shipments are delayed by Customer, payments shall become due from the date TACK Electronics is prepared to make shipment. Products held for Customer because of such delay in delivery shall be at the risk and expense of Customer.
Changes and Cancellations: Prices are based on quotes and quantity ordered. Orders accepted by Seller are not subject to changes or cancellation by Buyer, except with Seller’s consent. If a change or cancellation is made, it is agreed that all finished Products be taken at full contract price, that Products in process be paid for at cost plus pro rata profit, and that Seller be protected against loss on materials purchased or on contract for the fulfillment of the Agreement.
Taxes: Prices on the Products specified herein are exclusive of all local, State or Federal excise taxes, including but without limiting the generality of the foregoing taxes on manufacture, sales receipts, gross income occupation, use and similar taxes. Where applicable, such tax or taxes may be added to the invoice as a separate charge to be paid by the Buyer.
Delivery: Excusable Delays: Delivery dates are estimates as to time of shipment only, and are based upon conditions prevailing at the date of quotations or acceptance of orders and are not guaranteed by Seller. Seller shall not be liable, or deemed in default, for unforeseen delays that may be caused by changing conditions, or for any delay in performance of its obligations under the Agreement or in delivery of shipment of material or for any damages suffered by Buyer for reason of any delay if such delay is caused by, or results from, acts beyond Seller’s reasonable control, including fires, floods, accidents, riots, mobilization, war, rebellion, blockages, hostilities, Government regulations, restrictions, interference or embargoes, strikes, lockouts, differences with workmen, inadequate transportation facilities or any other difficulties, shortages of labor, fuel, materials, suppliers or power, or any other cause or causes. The Agreement shall be deemed to be suspended so long as any such causes prevent or delay the execution of Seller’s obligations. Seller agrees to make and Buyer to accept deliveries whenever such causes have been remedied.
Shipments: Unless otherwise specified in writing, delivery of the Products ordered shall be made FOB point of shipment. All packages leaving TACK Electronics are packaged according to commercial standard packaging practices. Title to the Products will pass to Buyer upon Seller’s receipt of full payment. Risk of loss to the Products will pass to Buyer when the Products are placed in the possession of common carrier; provided, however, that Seller shall retain a purchase-money security interest in the Products as security for Buyer’s performance until payment in full is received. TACK Electronics shall not be liable or held responsible for material damaged in transit. In all cases, risk of loss or damage to goods in transit shall fall upon Buyer whose responsibility it will be to file claims with the appropriate transportation carrier. Buyer shall pay or promptly reimburse Seller for all transportation, freight, handling, special handling, delivery and insurance costs and for all federal, state, provincial and local taxes (including sales, use, value-added and excise taxes), assessments, tariffs, duties and any other fiscal contribution of similar import related to the sale, use, shipment, transportation or delivery of the Products.
Returns: Seller will not accept for return or rework any Products more than one year from the date of shipment by Seller.
Warranty: Seller warrants its goods to be free from defects in material and/or workmanship under normal use and service for a period of one (1) year from the date of delivery, subject to the terms and conditions set forth below (the “Express Warranty”). Seller does not warrant its goods against any defect except as set forth above, and Seller is not responsible for, and it does not warrant against, any defect or damage caused by transportation, storage, improper installation, maintenance, internal or external hostile environment, misuse, abuse, negligence, accident, modification, tampering, the attachment of any unauthorized accessory, alteration to the goods, or any other conditions whatsoever that do not constitute a defect in material and/or workmanship. Seller’s sole responsibility under this Express Warranty shall be, at its option, to either repair or replace any Product which fails during the warranty period, provided that Buyer has promptly reported same to Seller in writing and complies with the provisions of this Express Warranty.
EXCEPT FOR THE EXPRESS WARRANTY DESCRIBED HEREIN, SELLER SPECIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL EXPRESS AND IMPLIED WARRANTIES WITH REGARD TO ITS PRODUCTS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR USE, AND FITNESS A PARTICULAR PURPOSE; ALL IMPLIED WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING, COURSE OF PERFORMANCE OR ANY OTHER IMPLIED WARRANTIES; AND THE EXPRESS WARRANTY STATED HEREIN IS IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON THE PART OF SELLER FOR DAMAGES, INCLUDING BUT NOT LIMITED TO, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE PRODUCTS PURCHASED BY BUYER.
SELLER AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AFFILIATE COMPANIES AND AGENTS ARE NOT AND SHALL NOT BE LIABLE TO BUYER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE) FOR DAMAGE TO OR LOSS OF OTHER PROPERTY OR EQUIPMENT, LOSS OF PROFITS, REVENUE OR GOOD WILL, LOSS OF USE OF EQUIPMENT, FACILITY OR DATA, EXPENSES INVOLVING COSTS OF CAPITAL, COST OF PURCHASED OR REPLACEMENT POWER OR TEMPORARY EQUIPMENT (INCLUDING ADDITIONAL EXPENSES INCURRED IN USING EXISTING FACILITIES), CLAIMS OF CUSTOMERS, EMPLOYEES OR ANY OTHER PERSONS AFFILIATED, ASSOCIATED OR IN PRIVITY WITH BUYER, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES BY REASON OF BREACH OF THE EXPRESS WARRANTY STATED HEREIN.
THE REMEDIES OF BUYER SET FORTH HEREIN ARE EXCLUSIVE WITH RESPECT TO BREACH OF THE EXPRESS WARRANTY STATED HEREIN, AND THE TOTAL LIABILITY OF SELLER FOR BREACH OF THE EXPRESS WARRANTY, AND/OR AS A RESULT OF THE MANUFACTURE, SALE, DELIVERY, INSTALLATION OR TECHNICAL DIRECTION OF INSTALLATION, REPAIR OR USE OF ANY GOODS FURNISHED TO BUYER, WHETHER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCTS DETERMINED BY SELLER TO BE DEFECTIVE IN MATERIAL AND/OR WORKMANSHIP.
To obtain warranty inspection on any of the Seller’s Products, contact the Seller for field service or warranty shipping instructions. All Express Warranty claims must be made to the Seller or one of its authorized agents, and the failure to do so shall void the Express Warranty
Limitation of Remedies, Liability and Damages: Buyer’s sole and exclusive remedy and Seller’s sole and exclusive obligation and liability with respect to any Products sold by Seller shall be, at Seller’s sole option: repair or replacement of defective or non-conforming goods; supply of replacement goods of like or equivalent kind; or refund of or credit for the purchase price for defective or non-conforming goods. The remedies set forth in these terms are without regard to whether any claimed defect or non-conformity was discoverable or latent at the time of delivery to the Buyer. The essential purpose of this exclusive remedy is to provide the Buyer with repair or replacement of parts deemed to be defective within the period and under the conditions included in these terms. This exclusive remedy shall not have failed of its essential purpose (as that term is used in the Uniform Commercial Code) if Seller offers to repair, replace, reimburse or credit the cost of any defective or non-conforming goods within a commercially reasonable time after it obtains actual knowledge of the existence of a defect or non-conformity. The Seller’s liability and Buyer’s damages shall not exceed the purchase price paid by the Buyer for the goods or which the claim is made. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY LOSSES DAMAGES, OR ANY OTHER LOSSES DAMAGES, WHETHER BASED UPON EXPRESS OR IMPLIED CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ON ANY BASIS.
Modifications— The foregoing supersedes all previous communications, representations or agreements either oral or written, with respect to the subject matter hereof and no representations or statements of any kind made by any representative, or employee or modifications of any of the foregoing provision, and no representation, promise or guarantee in connection Seller’s Products shall be binding upon Seller unless made in writing and signed by a corporate officer of Seller.
Customer’s Intellectual Property – Buyer shall defend, indemnify and hold harmless Seller and its officers, board of managers, members, and agents from and against any and all liability, costs, expenses (including attorneys’ fees), claims, and relief in connection with any claims or actions arising from or related to any alleged infringements of any patent, design, copyright, trademark, or other intellectual property right of a third party relating to the use, production, or sale of any Products manufactured by Seller hereunder, either as such or as parts or units of complete entities, except for such goods as Seller manufactures under its own patent rights.
Indemnification – Buyer shall indemnify, defend and hold Seller and its officers, board of directors, shareholders, and agents harmless from and against all liability, cost and expense (including attorneys’ fees) for claims and actions of any kind by any third party for injury, death, or property damage arising out of or in any way connected with the use, possession or transfer of the Products manufactured and delivered hereunder, unless caused by the gross negligence or intentional misconduct of Seller.
Technical Advice – Any technical advice furnished by Seller to Buyer before or after delivery of Products in regard to the use of any Products is furnished on the basis that it represents Seller’s best judgment under the circumstances but that it is used at Buyer’s sole risk. Seller makes no representations or warranties relating to such technical advice.
Governing Law — The rights and obligations of Seller and Buyer shall be governed by the laws of the State of Michigan, notwithstanding any choice-of-laws rules that would otherwise dictate application of the laws of any other jurisdiction. Seller and Buyer each irrevocably and unconditionally agree that the sole and exclusive forum and venue for any legal or equitable action or proceeding arising out of or in connection with this Agreement will lie in any federal or state court located in Kent County, Michigan and any appellate court with jurisdiction over such courts. Each party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and Buyer agrees not to bring any action, litigation or proceeding in any other court.
Legal Costs and Attorneys’ Fees – In the event any action or suit is brought by either party by reason of any default under or breach of these Terms and Conditions by the other party, the prevailing party shall be entitled to recover from the non-prevailing party all of its costs and expenses, including reasonable attorney and/or legal fees.
Tooling – Unless otherwise expressly provided in a writing signed by both Seller and Buyer, Seller shall retain title to and possession of any models, patterns, dies, molds, jigs, fixtures, tools, and test equipment made for or obtained for the performance of this order.
NCNR – In any event of termination, cancelation, quantity reduction or other Buyer implemented changes that affect material usage, Buyer will assume full financial liability for all finished Products, work in process (WIP), engineering labor, and materials purchased by Seller to comply with Buyer’s purchase order which Seller’s supplier identifies as non-returnable or non-cancelable. Seller will make its commercially reasonable efforts to return such material to minimize Buyer’s financial liability. Seller’s efforts are considered completed after a period of thirty (30) calendar days from date of cancellation. Buyer will provide payment to Seller for non-returnable, non-cancelable material within sixty (60) days of cancellation of Buyer’s purchase order or portion thereof.
Remedies – Seller reserves and does not waive any claims, rights and remedies that it may have under this Agreement, any other agreements between Buyer and Seller and applicable law, including the right to recover from Buyer any and all damages (including incidental and consequential damages), costs or expenses (including attorneys’ or other professionals’ fees and labor, material and apportionable overhead costs and expenses) incurred by Seller on account of Buyer’s breach of this Agreement (including any cancellation by Buyer of this Agreement or any Purchase Order placed by Buyer pursuant to this Agreement).
Assignment – Buyer may not assign this Agreement or assign or delegate its rights or obligations under this Agreement without Seller’s prior written consent. Any purported assignment in violation of this section will be null and void and of no force or effect.
Survival – To the extent that any provisions of this Agreement are meant to remain valid after this Agreement has terminated, expired or otherwise ended, such provisions have continued validity even after termination.
Consultation with Counsel – BUYER AND SELLER ACKNOWLEDGE THAT THEY HAVE BEEN GIVEN THE OPPORTUNITY TO CONSULT WITH COUNSEL OF THEIR CHOICE BEFORE ENTERING INTO THIS AGREEMENT AND ARE DOING SO WITHOUT DURESS, INTIMIDATION, OR COERCION AND WITHOUT RELIANCE UPON ANY REPRESENTATIONS, WARRANTIES OR COMMITMENTS OTHER THAN THOSE REPRESENTATIONS, WARRANTIES OR COMMITMENTS SET FORTH IN THIS AGREEMENT.
Jury Trial Waiver – BUYER AND SELLER ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH OF BUYER AND SELLER, AFTER CONSULTING (OR HAVING THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS CHOICE, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER DOCUMENT PERTAINING TO THIS AGREEMENT.
