THUBAN INNOVATIONS, LLC
Sales Terms and Conditions
ENTIRE AGREEMENT. The following Sales Terms and Conditions
(“AGREEMENT”) represent the entire agreement between Thuban Innovations, LLC
(“THUBAN”) and the BUYER (“BUYER”), collectively the “PARTIES”, with respect to
the goods and services rendered, and may not be modified except by a new
written agreement signed by both PARTIES. In the event of a conflict between
the terms and conditions of the AGREEMENT, and terms contained on BUYER’s
invoices or purchase orders, the terms and conditions of this AGREEMENT will
govern. THUBAN reserves the right to update its Sales Terms and
Conditions at any time without notice.
ACCEPTANCE. All orders and sales contracts are subject to acceptance,
raw material availability or rejection by THUBAN in Midland, Michigan or other
locations designated by THUBAN. Acceptance is always subject to availability
for delivery of the goods covered by each order and to THUBAN’s prices for the
goods which are in effect at the time of the shipment (unless otherwise agreed
in a separate Agreement signed by BUYER and THUBAN).
END USE. Determination of the suitability of goods contemplated by BUYER or BUYER’s
customers for the goods is the sole responsibility of the BUYER or BUYER’s
customers, whichever the case may be, and THUBAN shall have no responsibility
in that connection. BUYER assumes all risk and liability for loss, damage, or
injury to property of BUYER or others, arising out of the use or possession of
the goods furnished under this AGREEMENT.
WARRANTY. THUBAN warrants goods and marketable title to the Product
sold hereunder. THUBAN warrants the Product delivered hereunder will
conform to its Quality Control Specifications at the time of shipment.
Upon request, THUBAN will furnish such technical advice or assistance, as it
deems appropriate about the use of its Product by BUYER. It is expressly
understood, however, that all such technical advice or assistance is rendered
without compensation to THUBAN, and that THUBAN assumes no obligation or
liability for such advice or assistance given or results obtained. Further,
THUBAN makes no warranty of results to be obtained, and BUYER accepts such
recommendations at BUYER’s risks.
BUYER ASSUMES ALL RISKS WHATSOEVER AS TO THE USE OF THE PRODUCT. BUYER’S
EXCLUSIVE REMEDY, AS TO ANY BREACH OF WARRANTY, NEGLIGENCE OR OTHER CLAIM SHALL
BE LIMITED TO THE PURCHASE PRICE OF THE PRODUCT. THIS WARRANTY IS IN LIEU OF
ALL OTHER WRITTEN OR UNWRITTEN, EXPRESSED OR IMPLIED WARRANTIES. THUBAN
EXPRESSELY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS OF A PURPOSE.
Failure to adhere strictly to any recommended procedures shall relieve THUBAN
of all liability with respect to the Product or the use thereof.
WARRANTY FOR SAMPLES. If this document covers a free sample, this clause
applies in lieu of THUBAN’s warranty above. ALL FREE SAMPLES ARE
FURNISHED ‘AS IS’ AND THE RECIPIENT AGREES TO ASSUME ALL RISK AND LIABILITY
WHATSOEVER FOR INJURY OR DAMAGE TO PERSONS OR PROPERTY OR OTHERWISE RESULTING
FROM THE HANDLING OR USE OF THE SAMPLE. By accepting the sample, the
recipient agrees to not commercialize the Product until recipient confirmed the
Product is be merchantable, fit-for-purpose, and that the proposed use is in
compliance with the requirements of all applicable laws.
LIMITATION OF LIABILITY. BUYER assumes all risks and liability for
damage or loss arising out of unloading, discharge, storage, handling,
transportation and use by BUYER of any Product shipped pursuant to this
acknowledgement, including the use of such Product alone or in combination with
other substances, or in the operation of any process, and for the arising out
of compliance or non-compliance with Federal, State, Municipal, Local or
foreign Governments, Laws and Regulations with reference thereto. BUYER’S
EXCLUSIVE REMEDY AND THUBAN’S LIMIT OF LIABILITY FOR ALL LOSSES OR DAMAGES
RESULTING FROM DEFECTIVE PRODUCT OR FROM ANY OTHER CAUSE SHALL BE THE REFUND OF
THE PURCHASE PRICE PAID TO THUBAN BY BUYER FOR THE PRODUCT DELIVERED WITH
RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED PLUS ANY TRANSPORTATION CHARGES
PAID BY BUYER. IN NO EVENT, SHALL THUBAN BE LIABLE TO BUYER FOR SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE ARISING FROM THE USE OF THE
PRODUCT.
BUYER shall return no Product to THUBAN without specific written approval by
THUBAN . Transportation charges for the return of Product shall not be paid by
THUBAN unless so authorized by advance written notice of THUBAN’s authorized
representative. If THUBAN agrees to the return of the product, BUYER assumes
all responsibility for transportation charges and agrees to pay to THUBAN a
twenty percent (20%) restocking charge based upon the purchase price of the
returned product.
CLAIM. BUYER shall inspect the Product furnished hereunder immediately
after delivery to BUYER’s place of business. All claims for alleged
defective product, shortage or other cause shall be deemed waived unless made
in writing within fifteen (15) days after delivery of such product, for which
the claim is made, to BUYER’s place of business. Such claim shall in no case
exceed that portion of the purchase price as is applicable to that portion of
the shipment with respect to which claims are made in case of breakage or loss
in transit. BUYER shall have notation of same made on the delivery receipt at
the time the product is unloaded at BUYER’s place of business.
SHIPMENT AS UNITY. Each shipment by THUBAN shall be treated as a
separate and distinct unit with respect, but only with respect to forwarding,
terms of payment, and the making of claims by BUYER; however, BUYER defaults in
the payment of any obligation to THUBAN or any installments thereof, under any
agreement between BUYER and THUBAN, or if BUYER refuses to accept any goods
when tendered for delivery hereunder or under any other contract between BUYER and
THUBAN, THUBAN may, on fifteen (15) days written notice to BUYER without
prejudice to THUBAN’s other lawful remedies, either defer further performance
until the defaulted payments are made in full, or make future deliveries for
cash in advance only, or treat the entire AGREEMENT with BUYER as breached by BUYER
and pursue its remedies for breach.
TITLE AND RISK OF LOSS. Title and risk of loss or delay to all goods
supplied under this agreement shall pass to BUYER upon THUBAN’s delivery to
carrier at shipping point.
ORDERS FOR INDEFINITE DELIVERY. Orders with indefinite dates are accepted on
the understanding that THUBAN shall have the right to fill the orders as it
sees fit in the course of its manufacturing schedules and to hold the goods for
the BUYER’s account at the BUYER’s expense and risk pending receipt of definite
shipping instructions and, where required, of government authorization.
CHANGE OR CANCELLATION OF ORDERS. THUBAN will give due consideration to any
request of BUYER for modification or cancellation of its order or release
against an order, but the order or release may not be modified or cancelled
without the written consent of THUBAN. THUBAN’s waiver of a breach by BUYER of
any provision of the agreement shall not constitute a waiver of any other
breach by BUYER or of a subsequent breach of the same provision by BUYER for
the same or any other cause.
QUANTITY VARIATIONS. On any individual order or release against an
order for goods not stocked as a standard item or not packed in standard cartons
or packages on which special fabrication or manufacturing is involved, THUBAN
reserves the right to ship and invoice for a quantity of goods which may vary
up to ten percent (10%) over or under the quantity specified on the individual
release and the BUYER shall accept delivery and pay for the revised quantity.
QUOTATIONS. Unless otherwise specified, quotations are for information only
and are not intended as an offer. Quotations are subject to change
without notice in all respects, including prices, delivery dates, terms,
quantities or specifications.
TERMS OF PAYMENT. Invoices are payable in United States Dollars (USD)
currency only, and payable within 30 days of date on invoice. Invoices
outstanding for over 30 days are subject to a 1.5% per month late payment
penalty.
TAXES. Any tax or other government charge now or in the future levied
upon the production, sale, use or shipment of goods ordered or sold may, at
THUBAN’s option, be added to the purchase price.
FREIGHT TERMS. Shipments will be made EXW and F.O.B. Midland, MI
48642. If BUYER does not specify the carrier or routing, THUBAN will, at its
discretion and for the account of BUYER, select the carrier and the routing.
SEVERABILITY. It is understood and agreed to by the parties hereto that if
any part, term or provision of this Acknowledgment is by the courts held to be
illegal or in conflict with any law (either State or Federal), the validity of
the remaining portions or provisions shall not be affected, and the rights and
obligations of the parties shall be concluded and enforced as if the
Acknowledgement did not contain the part, term or provision held to be invalid.
All other disagreements will be resolved through arbitration according to the
Laws of the State of Michigan
FAIR LABOR STANDARDS ACT. THUBAN hereby certifies that the goods supplied to
BUYER under this agreement were produced in compliance with the requirements of
the Fair Labor Standards Act, as amended, and of regulations and orders of the
United States Department of Labor issued under that Act.
COMMENCEMENT OF SUIT. An action for breach of this agreement must be
commenced within two (2) years after the cause of the action as accrued.
APPLICABLE LAW. This agreement shall be governed by and construed in accordance
with the laws of the State of Michigan.
MISCELLANEOUS. This constitutes the entire agreement between the parties and
shall not be modified except by writing signed by both parties. There are
no understanding, representations or warranties of any kind not expressly set
forth herein. Waiver, alteration or modification of one or more of the above
terms shall not constitute a waiver, alteration or modification of any other
term.
Rev. Date: Jan 23, 2023