Terms & Conditions
Terms of Use
Thank you for visiting grancoclark.com (the “Site”). This Site is owned and operated by Granco Clark, Inc. (“Granco Clark”, “our”, “we”, or “us”). All content, information, applications, and services provided on and through the Site may be used only under the following terms and conditions, as they are amended from time to time (the “Terms”). You should carefully read these Terms. Your access to and use of this Site, its content, information, materials, applications, or services (collectively, the “Content”), is governed by these Terms, which are a legally binding contract between you and Granco Clark. In addition, when using a particular service, and/or accessing certain materials on or through this Site, you will be subject to any posted terms, conditions, and rules applicable to the service and/or materials, which are incorporated into these Terms and govern any conflict or inconsistency with these Terms. IF YOU DO NOT UNDERSTAND OR ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THESE TERMS YOU MUST DISCONTINUE YOUR USE OF THE SITE.
Permitted Use
Subject to these Terms, Granco Clark permits you to temporarily download one copy of the materials (information or software) on the Site for your personal, non-commercial transitory viewing only. This is the grant of a license only, not a transfer of title, and under this license, you may not: modify or copy the materials; use the materials for any commercial purpose, or for any public display (commercial or non-commercial); attempt to decompile or reverse engineer any software contained on the Site; remove any copyright or other proprietary notations from the materials; or transfer the materials to another person or “mirror” the materials on any other server. In these Terms, all references to the “Site” shall be deemed to include all Content unless otherwise expressly indicated. All rights not expressly granted by Granco Clark to you are retained by Granco Clark, and you may not use the Site and/or any element of the Site in any manner or for any purpose not expressly authorized by these Terms. This license shall automatically terminate if you violate any of these restrictions and may be terminated by Granco Clark at any time, with or without cause. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.
Intellectual Property Notice
The Site design, text, content, selection and arrangement of elements, organization, graphics, compilation, magnetic translation, digital conversion, and other matters related to the Site are protected under applicable copyright laws, ALL RIGHTS RESERVED. The posting of any such elements on the Site does not constitute a waiver of any right in such elements. You do not acquire ownership rights to any such 7298 N. Storey Rd. Belding, MI. 48809 | Phone: +1-616-794-2600 | Fax: +1-616-794-1899 | www.grancoclark.com elements viewed through the Site. Except as otherwise provided herein, none of these elements may be used, copied, reproduced, downloaded, posted, displayed, transmitted, modified, or distributed in any form or by any means, including, without limitation, electronic, mechanical, photocopying, recording, or otherwise, without Granco Clark’s prior written permission.
Granco Clark, all company names, and all other trademarks and logos, unless otherwise noted, are trademarks and/or trade dress of Granco Clark, Inc. in the United States, or its affiliates or other companies under common ownership or control or their licensors (the “Marks”). The use or misuse of any Marks or any other materials contained on the Site, without the prior written permission of their owner, is expressly prohibited.
Your Privacy
Granco Clark takes your privacy seriously. Our use of your personal information is subject to the terms of our Privacy Policy, which can be found at http://www. grancoclark.com/terms-of-use-privacy-policy, and which is hereby incorporated into these Terms by reference. You acknowledge that you have read and understand our Privacy Policy, and consent to the use of any personal information you provide in accordance with the terms of, and for the purposes set forth in, the Privacy Policy.
Third-Party Service Providers
Granco Clark may use third-party service providers to help develop and maintain the Site. You agree that the terms and conditions set forth in these Terms, including all disclaimers of warranties and limitations of liability, inure to the benefit of any third-party service providers engaged by Granco Clark. All references to Granco Clark are deemed to include its agents and service providers. All agents and service providers of Granco Clark will be authorized to use your personal information as stated in our Privacy Policy.
Third-Party Information
Please be aware that when you are on the Site, you could be directed to other sites that are beyond Granco Clark’s control. Granco Clark is not responsible for the content of any linked site or any link contained in a linked site owned or controlled by a third party. Granco Clark reserves the right to terminate any link or linking program at any time. We provide such links only as a convenience to you. We have not endorsed, tested or verified any information, programs, companies, or products on sites to which it links. If you decide to access any third-party sites linked to the Site and/or provide any personally identifiable information to such, you do so subject to the terms and policies applicable to those sites and entirely at your own risk. As part of the Site, we may also provide you information from third parties or contributors to the Site. Unless expressly stated, Granco Clark does not represent, endorse or guarantee the accuracy, completeness, timeliness, reliability or suitability of any such information provided by third parties or contributors. You agree that Granco Clark is not responsible for third-party information accessible through the Site, including opinions, advice, statements, or other information and advertisements, and that you use such information at your own risk.
User Content
In certain portions of the Site, users may be allowed to submit information, content and/or other materials (individually and collectively, “User Content”). All User Content is the sole responsibility of the person by whom the User Content was posted. This means that you, and not us, are solely responsible for all User Content that you upload, post, transmit or otherwise make available through or on this Site. Granco Clark does not control the User Content posted on or through the Site and, therefore, Granco Clark does not guarantee the accuracy, integrity or quality of such User Content. You represent and warrant that (i) you own or otherwise control all of the rights to the User Content that you post; (ii) use of the User Content you supply does not violate this policy; (iv) the User Content does not infringe any intellectual property or other rights of any third party and does not violate any applicable laws or regulation; and (v) the User Content will not cause injury to any person or entity. You agree that you will not: (1) post any User Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (2) impersonate any person or entity, including, but not limited to, any of our employees, company officials, directors, shareholders, agents, representatives or users, or falsely state or otherwise misrepresent your affiliation with a person or entity. Without limiting the foregoing, we have the sole discretion, but not the obligation, to remove any User Content we believe violates these Terms, or otherwise is objectionable to Granco Clark. Further, should User Content be deemed illegal, we will cooperate with the proper authorities, including but not limited to submitting all necessary information to them.
Access and Interference
You agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy the Site, the web pages or other content or materials available through the Site, or use the materials and content available through the Site for any other unauthorized purpose without Granco Clark’s prior expressed written permission. You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the software and hardware infrastructure relating to the Site.
DISCLAIMER OF WARRANTIES
THE SITE, INCLUDING ALL CONTENT AVAILABLE ON AND/OR THROUGH THE SITE, IS PROVIDED BY GRANCO CLARK “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SECURITY, CONTINUED AVAILABILITY, QUALITY, ACCURACY AND/OR SYSTEM COMPATIBILITY. IN ADDITION, NO WARRANTIES SHALL ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. BY USING THE SITE, YOU ASSUME ALL OF THE RISKS ASSOCIATED WITH SUCH USE, AND YOU EXPRESSLY RELEASE GRANCO CLARK, ITS AFFILIATES, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES, AND ITS THIRD PARTY INFORMATION AND SERVICE PROVIDERS (COLLECTIVELY, THE “GRANCO CLARK RELEASED PARTIES”), FROM ANY AND ALL LIABILITY, CLAIMS AND/OR LOSSES ARISING FROM OR CONNECTED WITH SUCH RISKS OR YOUR USE OF THE SITE. YOU ACKNOWLEDGE THAT: THE SITE COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS; THE SITE MAY BECOME INOPERABLE OR OTHERWISE UNAVAILABLE FOR PERIODS OF TIME; MATERIALS AND/OR SERVICES AT THE SITE MAY BE OR BECOME OUT OF DATE AND WE MAKE NO COMMITMENT TO UPDATE SUCH SERVICES.
LIMITATION OF LIABILITY
IN NO EVENT WILL THE GRANCO CLARK RELEASED PARTIES BE LIABLE, NOR DO THEY ASSUME RESPONSIBILITY, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE, OR YOUR USE OF OR INABILITY TO USE THE SITE (OR THE CONTENT), OR OTHERWISE, EVEN IF THEY ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, ANY CLAIM RELATED TO THE SITE, OR YOUR USE OF OR INABILITY TO USE THE SITE, MUST BE INITIATED WITHIN ONE (1) YEAR OF THE DATE OF THE EVENT THAT GAVE RISE TO THE CLAIM.
TERMINATION
IF YOU DO NOT UNDERSTAND OR ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF USE YOU MUST DISCONTINUE YOUR USE OF THE SITE.
We may terminate your access to the Site at any time and for any reason or no reason without prior notification. Additionally, we may modify the Site at any time, and continuing to use the Site constitutes your agreement to such modifications. We may also, in our sole discretion and at any time, with or without notice, discontinue the Site or any portion of it, restrict the time the Site is available, or restrict the amount of use permitted. Without limiting the foregoing, you agree that we may terminate or restrict your access to the Site under these Terms or under any other applicable policy without prior notice. You agree that we will not be liable to you or any third-party for any termination of your access to the Site. Provisions that survive termination of these Terms are those relating to ownership, limitations of liability, indemnification and others which by their nature are intended to survive.
Amendments
Granco Clark reserves the right to change these Terms and and/or any of its other terms, conditions, policies and rules relating to the Site, at any time in its sole discretion. We will notify you of such changes by posting the modified terms on the Site. You are responsible for regularly reviewing the Site and these Terms regarding such changes. Continued use of the Site after any such changes have been posted shall constitute your agreement to them.
Applicable Law, Severability, and Waiver
In order to ensure consistency in the interpretation and enforcement of these Terms and our rights in the Site, these Terms will be governed exclusively by Michigan law and controlling U.S. federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. You expressly agree that any litigation or dispute arising between you and Granco Clark related, in any way, to the Site and/or these Terms, and/or any and all disputes, actions, claims, or causes of action related thereto, shall be initiated and maintained only in the U.S. District Court for the 7298 N. Storey Rd. Belding, MI. 48809 | Phone: +1-616-794-2600 | Fax: +1-616-794-1899 | www.grancoclark.com Western District of Michigan, and/or the Circuit Court of the County of Kent, Michigan. You expressly consent and irrevocably submit to the exclusive personal jurisdiction and venue of such courts and waive any claim that such courts are an inconvenient forum. If any provision of these Terms is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be modified to the extent necessary to be valid and enforceable, and all other provisions of these Terms shall remain in full force and effect. The failure of Granco Clark to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Granco Clark in writing. No waiver shall be implied from a failure of either party to exercise a right or remedy. In addition, no waiver of a party’s right or remedy will affect the other provisions of these Terms.
Indemnity
You agree to indemnify and hold Granco Clark, and its parents, subsidiaries, affiliates, officers, employees, agents, representatives, partners, and licensors harmless from and against any third-party claim, allegation, demand, liability, cost or expense, including reasonable attorneys’ fees, due to or arising out of your use of the Site, your connection to the Site, your violation of these Terms or any other applicable policy. You are solely responsible for your actions when using the Site, including, but not limited to, costs incurred for Internet access.
Assignment
You may not assign your rights and obligations under these Terms without our prior written consent.
Digital Millennium Copyright Act Notices
Notices and demands made pursuant to the Digital Millennium Copyright Act Section 512(c) (17 U.S.C. § 512(c)) must be submitted to the following Designated Agent: Scott M. Biggs 7298 N. Storey Road Belding MI., 48809 616-794-2600 copyright@grancoclark.com To be effective, the notification must be a written communication to the above Designated Agent that includes the following: 1. A physical or electronic signature of the copyright owner or one authorized to act upon their behalf; 2. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Granco Clark to locate and remove the material;7298 N. Storey Rd. Belding, MI. 48809 | Phone: +1-616-794-2600 | Fax: +1-616-794-1899 | www.grancoclark.com 4. Your contact information, including address, telephone number, and, if available, your email address, at which you can be contacted; 5. A statement that You have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and 6. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the copyright owner. Effective Date: November 23, 2016
Granco Clark Terms and Conditions for the Purchase of Goods and Services
All sales of products and services by GRANCO CLARK, INC. (“Seller”) are made on the following terms and conditions. In these Terms of Sale (“Terms”), any products sold by Seller to the buyer named in Seller’s quotation or acknowledgment (“Buyer”) are referred to below as “goods;” any services sold by Seller to Buyer are called “services;” and “Contract” means the contract between Seller and Buyer with respect to the goods and services.
Applicability
(a) These terms and conditions of purchase (these "Terms") are the only terms which govern the purchase of the goods ("Goods") and services ("Services") by Granco Clark, Inc. ("Buyer") from the seller named on the Purchase Order ("Seller"). (b) The accompanying purchase order (the "Purchase Order") and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Seller's general terms and conditions regardless of whether or when Seller has submitted its sales confirmation or such terms. This Agreement expressly limits Seller's acceptance to the terms of this Agreement. Fulfillment of or other performance under this Purchase Order constitutes acceptance of these Terms.
(b) The accompanying purchase order (the "Purchase Order") and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Seller's general terms and conditions regardless of whether or when Seller has submitted its sales confirmation or such terms. This Agreement expressly limits Seller's acceptance to the terms of this Agreement. Fulfillment of or other performance under this Purchase Order constitutes acceptance of these Terms.
Delivery of Goods and Performance of Services
(a) Seller shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (the "Delivery Date"). If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate this Agreement immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller's failure to deliver the Goods on the Delivery Date. Buyer has the right to return any Goods delivered prior to the Delivery Date at Seller's expense and Seller shall redeliver such Goods on the Delivery Date. (b) Seller shall deliver all Goods to the address specified in the Purchase Order (the "Delivery Point") during Buyer's normal business hours or as otherwise instructed by Buyer. Seller shall pack all goods for shipment according to Buyer's instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Seller's risk of loss and expense. (c) Seller shall provide the Services to Buyer as described and in accordance with the dates or schedule set forth on the Purchase Order and in accordance with the terms and conditions set forth in these Terms. (d) Seller acknowledges that time is of the essence with respect to Seller's obligations hereunder and the timely delivery of the Goods and Services, including all performance dates, timetables, project milestones and other requirements in this Agreement.
Quantity
.If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
Shipping Terms
Delivery shall be made in accordance with the terms on the Purchase Order. The Purchase Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence and any other documents pertaining to the Purchase Order.
Title and Risk of Loss
Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point.
Inspection and Rejection of Nonconforming Goods
Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind this Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Agreement for cause pursuant to Section 16. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller's obligations under the Agreement, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
Price
The price of the Goods and Services is the price stated in the Purchase Order (the "Price"). No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.
Payment Terms
Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with these Terms. Buyer shall pay all properly invoiced amounts due to Seller within 30 days after Buyer's receipt of such invoice, except for any amounts disputed by Buyer in good faith; Buyer shall be entitled to any agreed upon discounts for early payment. All payments hereunder must be in US dollars. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller. The parties shall seek to resolve any payment expeditiously and in good faith. Seller shall continue performing its obligations under this Agreement notwithstanding any such dispute.
Seller's Obligations Regarding Services
Before the date on which the Services are to start, Seller must obtain, and at all times during the term of this Agreement, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services. Seller shall comply with all rules, regulations and policies of Buyer, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Buyer to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures. Additionally, Seller shall maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Seller in providing the Services in such form as Buyer shall approve. During the term of this Agreement and for a period of two years thereafter, upon Buyer's written request, Seller shall allow Buyer to inspect and make copies of such records and interview Seller personnel in connection with the provision of the Services. Seller shall obtain Buyer's written consent, which shall not be unreasonably withheld or delayed/which may be given or withheld in Buyer's sole discretion, prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Seller, other than Seller's employees, to provide any Services to Buyer (each such approved subcontractor or other third party, a "Permitted Subcontractor"). Buyer's approval shall not relieve Seller of its obligations under the Agreement, and Seller shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Seller's own employees. Nothing contained in this Agreement shall create any contractual relationship between Buyer and any Seller subcontractor or supplier. Seller must require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of this Agreement, and, upon Buyer's written request, to enter into a nondisclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Buyer. Seller will ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Seller, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services. Seller will also ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by the Buyer. Finally, Seller shall keep and maintain any Buyer equipment in its possession in good working order and shall not dispose of or use such equipment other than in accordance with the Buyer's written instructions or authorization.
Change Orders
Buyer may at any time, by written instructions and/or drawings issued to Seller (each a "Change Order"), order changes to the Services. Seller shall within 5 days of receipt of a Change Order submit to Buyer a firm cost proposal for the Change Order. If Buyer accepts such cost proposal, Seller shall proceed with the changed services subject to the cost proposal and the terms and conditions of this Agreement. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in the Seller's compensation or the performance deadlines under this Agreement.
Warranties
(a) Seller warrants to Buyer that for a period of twelve months from the Delivery Date, all Goods will: (i) be free from any defects in workmanship, material and design; (ii) conform to applicable specifications, drawings, designs, samples and other requirements; (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable; (v) be free and clear of all liens, security interests or other encumbrances; and (vi) not infringe or misappropriate any third party's patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer. (b) Seller warrants to Buyer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with best industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. (c) The warranties set forth in this Section 11 are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer's discovery of the noncompliance of the Goods or Services with the foregoing warranties. If Buyer gives Seller notice of noncompliance pursuant to this Section, Seller shall, at its own cost and expense, promptly (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer, and, if applicable, (ii) repair or re-perform the applicable Services.
General Indemnification
Seller shall defend, indemnify and hold harmless Buyer and Buyer's subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees (collectively, "Indemnitees") against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") arising out of or occurring in connection with the Goods and Services purchased from Seller or Seller's negligence, willful misconduct or breach of the Terms. Seller shall not enter into any settlement without Buyer's prior written consent.
Intellectual Property Indemnification
Seller shall, at its expense, defend, indemnify and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer's or Indemnitee's use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Buyer's or Indemnitee's prior written consent.
Insurance
During the term of this Agreement and for a period of one year thereafter, Seller shall, at its own expense, maintain and carry commercially reasonable levels of insurance in full force and effect with financially sound and reputable insurers. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Buyer's insurers and Buyer.
Compliance with Law
Seller shall comply with all applicable laws, regulations and ordinances. Seller shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Seller shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Seller. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
Termination
In addition to any remedies that may be provided under these Terms, Buyer may terminate this Agreement with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods or the Seller's delivery of the Services, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate this Agreement upon written notice to Seller. If Buyer terminates the Agreement for any reason, Seller's sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by Buyer prior to the termination.
Waiver
No waiver by Buyer of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Confidential Information
All non-public, confidential or proprietary information of Buyer, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by Buyer in writing. Upon Buyer's request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain or (b) known to Seller at the time of disclosure and such knowledge is able to be verified by documentation.
Force Majeure
No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such party's (the "Impacted Party") failure or delay is caused by or results from the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) national or regional emergency. The Impacted Party shall give notice within 5 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 15 days following written notice given by it under this Section 19, the other party may thereafter terminate this Agreement upon 10 days' written notice.
Assignment
Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign or transfer any or all of its rights or obligations under this Agreement without Seller's prior written consent to any affiliate or to any person acquiring all or substantially all of Buyer's assets.
Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement 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.
No Third-Party Beneficiaries
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Governing Law
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Michigan.
Submission to Jurisdiction
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Michigan in each case located in the City of Grand Rapids and Kent County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
Notices
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
Severability
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Survival
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.
Amendment and Modification
These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
Granco Clark, Inc Terms of Sale
All sales of products and services by GRANCO CLARK, INC. (“Seller”) are made on the following terms and conditions. In these Terms of Sale (“Terms”), any products sold by Seller to the buyer named in Seller’s quotation or acknowledgment (“Buyer”) are referred to below as “goods;” any services sold by Seller to Buyer are called “services;” and “Contract” means the contract between Seller and Buyer with respect to the goods and services.
Agreement
If Buyer has not otherwise agreed to these Terms, then Buyer’s acceptance of delivery of, or payment for, the goods or services shall constitute Buyer’s agreement to these Terms. Seller objects to and will not agree to any terms that are additional to or different from these terms. Terms that are printed on or contained in a purchase order or other form prepared by Buyer which are additional to, in conflict with or inconsistent with those herein shall be considered inapplicable and shall have no force or effect.
Cancellation/Reschedule of Purchase Order(s)
Buyer may not cancel any purchase order after the Goods are transferred to the carrier for delivery to Buyer. In the event of any cancellation of all or part of any purchase order, Buyer agrees to pay Seller for all reasonable and allocable materials, material management, labor, overhead and general and administrative costs and expenses incurred as a result of any such cancellation, plus a reasonable profit within 10 days from the date of Seller’s invoice.
Payment Terms
Unless otherwise specified in Seller’s quotation or acknowledgment, payment in full of the price is due 30 days after shipment of the goods or performance of the services, except that if at any time Seller determines that Buyer’s financial condition or credit rating does not justify a sale on credit or if Buyer is at any time in default in any indebtedness or obligation that Buyer owes to Seller, then Seller may require advance payment or may ship C.O.D. Any payment that is not made when it is due accrues a finance charge equal to the nominal rate announced by JP Morgan Chase as its price rate per month. Payment is to be made to Seller at the place and in the manner described on the invoice or by other direction provided to Buyer by Seller. In the event Buyer delays shipment beyond original ship date as agreed to by the parties, seller shall have the right in his sole discretion, to increase its prices upon notice to Buyer to reflect any unusual or unforeseen increase in Seller’s costs, including but not limited to any increase in the cost of materials. Buyer may not offset or recoup any claim against amounts due Seller. Unless otherwise agreed in writing signed by Buyer and Seller, all payments shall be in U.S. Dollars.
Delivery and Risk of Loss
Unless Seller agrees otherwise in writing, Seller shall deliver the goods EXW (Incoterms 2010) Seller’s facility, or the point of origin of the goods if the goods are shipped directly to Buyer from a third party, from which the goods will be shipped, except that if Seller’s facility, or the point of origin of the goods if the goods are shipped directly to Buyer from a third party, and Buyer’s facility are both located in the United States, then Seller shall deliver the goods F.O.B. (Uniform Commercial Code term) Seller’s facility, or the point of origin of the goods if the goods are shipped directly to Buyer from a third party, from which the goods will be shipped. The risk of loss of the goods shall pass to Buyer upon identification of the goods to the contract between Buyer and Seller, whether such identification occurs at Seller’s facility or a point of origin other than Seller’s facility. Seller may deliver all the goods at one time or in portions from time to time.
Taxes
Seller’s price does not include any privilege, occupation, personal property, value-added, sales, excise, use, or other taxes, and Buyer shall be liable for all such taxes, whether or not Seller invoices Buyer for them. If Buyer does not furnish to Seller an appropriate sales and use tax exemption certificate with respect to Buyer’s purchase of the goods and if Seller is required by a governmental entity to collect and remit sales or use tax with respect to Seller’s sale of the goods to Buyer, then Seller’s invoice to Buyer for the purchase price shall include, and Buyer shall pay to Seller, the full amount of that tax.
Changes
Seller shall have the right to make design or engineering changes in its parts, equipment, processes and methods of manufacture, but Seller will not, without Buyer’s prior approval, make any changes in operational or dimensional specifications that Buyer submits. Stenographical and clerical errors in quotations are subject to correction.
Limited Warranty; Remedies
Seller warrants to Buyer for a period of one year from delivery of the goods (or installation of the goods if installed by Seller) that all goods manufactured solely by Seller (“Products”) will be free from defects in material or workmanship under normal and intended use and service. The Products shall not be defective to the extent that (i) they conform with drawings of or specifications that have been approved by Buyer; (ii) they conform with goods, testing results, dimensional layouts or manufacturing methods that have been submitted and approved by Buyer; (iii) they are damaged due to the method or length of storage by Buyer; or (iv) to the extent they conform to the specifications as changed or waived if Buyer’s representative agrees, in writing, to the change in or waiver of the specifications for any Product. If there is a defect in any Products constituting a breach of the warranty provided herein, Seller will at its option either (x) repair or replace such Product free of charge (F.O.B. Seller’s plant), or (y) in lieu of repair or replacement, refund to Buyer the original purchase price less the reasonable value of Buyer’s use of the Products. Seller will not pay for any of Buyer’s labor costs or charges for correcting defects or making additions nor will Seller accept any returned Products for credit unless the correction or return is authorized in advance by Seller in writing. Seller shall furnish to Buyer instructions for the disposition of the defective goods. Seller shall have the option of requiring the return of the defective goods, transportation prepaid, and proof that the goods were not used, installed, or altered or subject to misuse or abuse to establish the claim. No goods shall be returned to Seller without its prior consent. The acceptance of any goods returned to Seller shall not be deemed an admission that the goods are defective or in breach of any warranty, and if Seller determines that the goods are not defective they may be returned to Buyer at Buyer’s expense. This paragraph sets forth Buyer’s sole and exclusive remedies for any defect in the goods. The rights and obligation under this warranty may not be assigned or delegated to a third party by Buyer without the prior written permission of Seller. Neither Buyer nor any other person may modify or expand the warranty provided herein, waive any of the limitations, or make any different or additional warranties with respect to the Products. Any statements to the contrary are hereby rendered null and void unless expressly agreed to in writing by an authorized officer of Seller. If a service proves to be defective (as defined below) within 90 days after Seller performs the service, then Seller shall, at its option, either re-perform the service, at Seller’s expense, or refund to Buyer the price that Buyer paid to Seller for that part of the service that was defective. A service shall be considered “defective” if it is found by Seller to have failed to meet the standards in Seller’s industry and if that failure materially impairs the value of the service to Buyer, except that if Buyer shall have approved or furnished to Seller specifications for the service, then the service shall not be considered defective to the extent it conforms to the specifications. This paragraph sets forth Buyer’s sole and exclusive remedy for any defect in the services. Regarding any goods not manufactured or developed by Seller, Seller makes no warranties for these goods. Seller shall assign to Buyer any warranty for such goods or software extended to Seller by the actual manufacturer of the goods and Buyer shall look solely to such warranty in the event of a claim or action relating to such goods or software.
Limitations
EXCEPT AS STATED IN PARAGRAPH 8, SELLER DOES NOT MAKE ANY WARRANTY AS TO THE GOODS OR SERVICES AND, IN PARTICULAR, DOES NOT MAKE ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND BUYER IS SOLELY RESPONSIBLE FOR DETERMINING THE PROPER APPLICATION AND USE OF THE GOODS. SELLER SHALL NOT HAVE ANY TORT LIABILITY TO BUYER OR ANY OTHER PERSON WITH RESPECT TO ANY OF THE GOODS OR SERVICES AND SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, INDIRECT OR PUNITIVE DAMAGES ARISING FROM ANY PRODUCT DEFECT, DELAY, NONDELIVERY, RECALL OR OTHER BREACH. BUYER SHALL NOT HAVE ANY RIGHT OF REJECTION OR OF REVOCATION OF ACCEPTANCE OF THE GOODS.
Solvency and Security Interest
Buyer represents that Buyer is solvent. Buyer grants to Seller a security interest in and the right of repossession of the goods, including a purchase money security interest, until full and final payment for the goods and services (including notes and collection costs) has been made. In the event of default in any payment due from Buyer to Seller, the full amount unpaid shall be due and payable on demand, and Seller may at Seller’s option either (i) recover the full amount unpaid or repossess the goods and all additions thereto, wherever found, free from all claims whatsoever; or (ii) treat this contract as void and retain all payments made as rent for the use of goods. The goods or any part thereof, shall not be considered a fixture, or be incorporated into any real property by reason of its attachment thereto, and may be separated from any real property, as well as personal property, for the purpose of repossession. Seller shall not be liable to Buyer nor shall Seller be subject to any legal proceedings, criminal or civil, for Seller’s acts in such repossession. Seller shall not be liable to Buyer for the repayment of any money paid as part payment for the goods. Buyer agrees to execute any necessary instruments to perfect Seller’s security interest in the goods and Seller shall have the benefit of the applicable Uniform Commercial Code and the remedies thereunder. Seller shall have the right to elect to assert a claim of a mechanic’s lien against the real property upon which the goods are erected. Buyer shall not grant any right or security interest in or to the goods prior to payment in full to Seller for all goods and services without the prior written consent of Seller. Except as otherwise provided herein or required by law, pursuit of any right reserved herein or granted by law shall not preclude or waive the pursuit of any other such right.
Insecurity and Adequate Assurance
If Seller ever believes in good faith that it has grounds for insecurity as to Buyer’s performance under these Terms, then Buyer shall provide adequate assurance of due performance within 10 days after Seller demands the assurance, which shall be considered to be a reasonable time. Buyer’s failure to do so shall be considered to be a repudiation by Buyer of all then-existing contracts (including these Terms) that provide for Buyer to purchase goods from Seller (“Outstanding Contracts”). “Grounds for insecurity” include, without limitation, (i) Buyer’s failure to make a payment to Seller or to perform another obligation under these Terms or any other Outstanding Contract; (ii) Buyer’s insolvency; (iii) a deterioration in Buyer’s financial condition after these Terms were entered into; and (iv) Buyer’s failure to provide financial statements and other financial information to Seller promptly upon Seller’s request. “Adequate assurance of due performance” includes, without limitation, providing a letter of credit or comparable security for all obligations of Buyer that then exist or that will arise in the future under all Outstanding Contracts.
Permits and Compliance
Seller is not responsible for obtaining any permit, inspection, or license that is required for installation or operation of the goods. Seller does not make any promise or representation that the goods will conform to any local law, ordinance, regulation, code, or standard.
Site Preparation and Storage
All necessary excavations, drainage, pilings, foundations, masonry, and concrete and any design drawings will be provided and set by the Buyer in accordance with Seller foundation drawings. Buyer will clear the installation site and remove all obstructions, and make all necessary building alterations, including, without limitation, cut and repair any floor, wall or roof opening, in accordance with drawings and information provided by Seller to Buyer. All piping and wiring necessary for the operation of goods is to be provided, paid for and installed by Buyer unless otherwise stipulated by contract. Buyer will furnish, without charge, electric current, compressed air, water, light, heat and toilet facilities as required by Seller including, without limitation, as may be needed for installation work, and fire protection of the goods. Seller is to have the use of any elevator or crane service available on the Buyer’s premises, without charge, for the handling of material during the installation. Upon arrival of the goods, Buyer will provide safe, dry, inside storage for the goods. Goods exposed to the weather or stored in the open under tarpaulin or plastic may require reconditioning and such reconditioning will be at the expense of the Buyer. In addition, Buyer will unload all goods and material and cart and store such goods and material within a reasonable distance of the site of installation of the goods. Buyer shall be responsible for safekeeping of such goods and material including, without limitation, providing watchmen service or other theft protection services.
Safety Features
Buyer shall install and operate the goods properly and according to Seller’s operating instructions and shall not remove or change any safety device, warning or operating instructions that Seller placed on the goods.
Components of Another Product
If any of the goods constitute parts or components that are to be incorporated or installed in a product that is manufactured or assembled by or for Buyer or for a third party, then Buyer shall (a) obtain, or cause the end-user of the product to obtain, all permits, inspections and licenses required for installation or operation of the product, (b) cause the product to conform to all applicable laws, ordinances, regulations, codes and standards and (c) place on the product all safety devices and warnings, and furnish to its buyer all operating instructions, that are necessary or desirable to prevent any death, personal injury or property damage from being caused by any use or operation of the product.
Resale
On any resale of the goods, Buyer shall contractually limit its buyer’s rights and remedies against both Buyer and Seller to the same extent that Paragraphs 8 and 9 above limit Buyer’s rights and remedies.
Independent Contractor
Seller is an independent contractor under this Contract. Nothing in this Contract shall be deemed to make Seller or its employees or agents an employer, employee, partner, or joint venturer of Buyer.
Intellectual Property and Confidentiality
All inventions (whether or not patentable), devices, technologies, ideas, improvements, processes, systems, software and other works and matters that Seller creates or develops in the course of Seller’s design, development or manufacture of the goods or performance of the services and all drawings and specifications that Seller provides to Buyer (“Intellectual Property”) shall be Seller’s sole property, and Buyer assigns, and agrees to award, to Seller all right, title and interest that Buyer now has or in the future acquires in the Intellectual Property. Buyer shall not disclose or use any of the Intellectual Property or any information about Seller’s business, operations, or activities, except to the extent necessary for Buyer to use the goods or services.
Cancellation
Buyer does not have any right to cancel its agreement to buy the goods or services from Seller. If, however, Seller agrees in writing to permit cancellation, then Buyer shall immediately pay to Seller a cancellation charge in an amount equal to the purchase price (including any tooling charge) less allowances (in amounts that Seller determines) for (i) the realizable value to Seller of any standard components that Seller purchased or ordered before cancellation, (ii) the realizable scrap value to Seller of the remaining material and tooling that Seller purchased, fabricated or ordered before cancellation and (iii) any direct labor costs that Seller saved by reason of the cancellation. If Buyer fails to make a payment when due or repudiates or in any other way breaches any of the terms or conditions hereof, Seller shall have all rights and remedies under the Uniform Commercial Code including, but not by way of limitation, the right to recover as damages the price as stated herein, plus all other direct, indirect, special, incidental and consequential damages.
Indemnity
To the fullest extent permitted by law Buyer shall indemnify and hold harmless Seller including its agents, officers and employees with respect to all damages, losses, claims and expenses, including consequential and incidental damages and attorney fees, that Seller incurs as a result of (a) Buyer’s breach of any of Buyer’s obligations under these Terms, (b) any claimed unfair competition or patent, trademark or copyright infringement or any other claim that results from Seller’s manufacture of the goods, or performance of the services, to Buyer’s specifications, (c) Buyer’s modification of any of the goods or (d) the incorporation or installation of any of the goods in a product that is manufactured or assembled by or for Buyer, (e) claims arising out of or resulting from loss of production, equipment damage, property damage or personal injury caused by improperly trained personnel, misuse of the machinery and/or disregard of or non-compliance with Seller’s safety recommendations or instructions.
Seller’s Rights
Seller has all rights and remedies that applicable law gives to sellers. Seller’s rights and remedies are cumulative, and Seller may exercise them from time to time. Seller’s waiver of any right on one occasion shall not be a waiver of any future exercise of that right.
Time For Bringing Action
Any action that Buyer brings against Seller for breach of this Contract or for any other claim that arises out of or relates to the goods or their design, manufacture, sale or delivery or the services must be brought within one year after the cause of action accrues.
Title
This Contract between Seller and Buyer shall be considered to have been made in the State of Michigan, and it shall be governed by and interpreted according to Michigan law, excluding the United Nations Convention on Contracts for the International Sale of Goods. Either party may bring any action that arises out of or relates to this Contract in any federal or state court in Kent County, Michigan that has jurisdiction of the subject matter.
Complete Agreement; Amendment
The terms on Seller’s quotation and acknowledgment and these standard Terms contain the entire agreement between Buyer and Seller. Any change in this Contract must be in writing signed by an authorized officer of Seller.