The sale by Micro-Surface Finishing Products, Inc. (“Micro-Surface” or “Seller”) of any goods or services to Buyer shall be subject to the following terms and conditions, and the terms and conditions stated on the face page of the Micro-Surface’s Quotation or Purchase Order acceptance form to which these terms and conditions are attached or on any Micro-Surface invoice accompanying the products or services sold by Micro-Surface to Buyer (the “Terms and Conditions”). THIS CONTRACT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN MICRO-SURFACE AND BUYER WITH RESPECT TO THE GOODS AND SERVICES FURNISHED BY MICRO-SURFACE. No representation, promise or condition not set forth in the Terms and Conditions has been relied upon by Buyer or shall be binding on Micro-Surface.
2. Other Documents; Modifications.
These Terms and Conditions are in lieu of and replace any and all terms and conditions set forth in any purchase order or other documents issued by Buyer. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITIONS ON ANY SUCH DOCUMENT ISSUED BY BUYER AT ANY TIME ARE HEREBY OBJECTED TO AND REJECTED BY MICRO-SURFACE, SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE BY MICRO-SURFACE AND SHALL NOT BE BINDING IN ANY WAY ON MICRO-SURFACE. No modification, waiver or amendment to these Terms and Conditions shall be binding on Micro-Surface unless made in a writing expressly stating that it is such a waiver or amendment and signed by Micro-Surface at its home office in Wilton, Iowa. No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement these terms and conditions shall be binding unless hereafter made in writing and signed by Micro-Surface at its home office in Wilton, Iowa.
3. Contract of Sale.
Any quotations given by Micro-Surface to Buyer will be valid for the period stated on the Quotation, and if no period is stated, the Quotation is valid for 10 days from the date of the Quotation. All offers to purchase, and purchase orders of Buyer are subject to final acceptance by, and are not binding upon Micro-Surface until accepted by an authorized officer of Micro-Surface at its home office at 1217 West Third Street, Wilton, Iowa 52778. Orders accepted by Micro-Surface are not subject to cancellation by Buyer except as provided below.
4. Payment Terms.
All prices are quoted FOB, Micro-Surface’s factory, Wilton, Iowa, Standard Freight prepaid. Terms of payment are within Seller’s sole discretion and, unless otherwise agreed to by Seller, payment must be received by Seller prior to delivery of products or upon performance of services by Seller. All prices are stated, and all payments must be made in U.S. Dollars. If credit terms have been agreed to by Micro-Surface, invoices are due and payable within thirty (30) days after the date of the invoice unless otherwise noted on the face page of the Purchase Order or Quotation or on Micro-Surface’s invoice. Micro-Surface may invoice parts of an order separately. Buyer agrees to pay interest on all past-due sums at the lesser of 1.5% per month or the highest rate allowed by law, and to pay all costs of collection, including costs of litigation and reasonable attorney’s fees incurred by Micro-Surface. Unless otherwise agreed in writing, all sales outside of the continental United States must be covered by an irrevocable confirmed letter of credit issued by a U.S. bank acceptable to Micro-Surface. In the event any invoice is not paid by Buyer when due, Micro-Surface reserves the right, in its discretion, in addition to any other remedies it may have, to do any one or more of the following: (a) to suspend services and all shipments of goods to Buyer until all invoices are paid in full, (b) to require cash in advance before performing further services or shipping any further goods to Buyer.
Any changes requested by Buyer in the goods or services to be provided by Micro-Surface, or in the time or method of shipment or delivery shall be mutually agreed upon in writing by Micro-Surface and Buyer, and shall be subject to equitable adjustment in the pricing of such goods and services. In the event Micro-Surface and Buyer cannot agree to an equitable adjustment to the price, this contract may be cancelled by Micro-Surface.
6. Shipment and Delivery Schedules.
Stated shipment and delivery schedules or dates are estimates only and not a commitment or guaranty by Micro-Surface as to shipment or delivery on specific dates.
All shipments are made FBO Micro-Surface’s factory, Wilton, Iowa, and title and risk of loss shall pass to Buyer upon delivery to the carrier at the Wilton facility. Common carrier shipping will be prepaid and added to Buyers invoice. All material is carefully packed for shipment and Micro-Surface shall not be responsible for loss, delay or breakage in shipment. Unless otherwise noted, sales prices do not include freight, shipping or handling charges. Separate charges for freight, shipping and handling will be shown on Micro-Surface’s invoice(s). All claims for breakage, loss delay and damage mast be made to the carrier. In the absence of directions, goods will be shipped by the method and via carrier Micro-Surface believes dependable.
Sales prices do not include, and Buyer is responsible for and agrees to pay (unless Buyer shall provide Micro-Surface at the time an order is submitted with exemption certificate or other documents acceptable to taxing or custom authorities), all sales, use, value added, excise and all other federal, state or local or foreign taxes, import or customs fees and duties associated with an order, however designated, except for Micro-Surface’s franchise taxes and taxes on Micro-Surface’s net income. If applicable, a separate charge for taxes will be shown on Micro-Surface’s invoice.
9. Limited Warranty.
9.1 Limited Warranty.
Micro-Surface warrants that all goods manufactured by Micro-Surface, will be free from defects (other than a design defect, unless the goods were designed by Micro-Surface) caused by faulty material or poor workmanship for a period of ninety (90) days from delivery to Buyer.
9.2 Limited Warranty Remedy.
Micro-Surface’s sole liability and Buyer’s sole remedy under the foregoing Limited Warranty is limited to, at Micro-Surface’s sole discretion, to refund the purchase price of, or to repair or replace any covered goods or part thereof found to be defective under normal use and service within the warranty period provided that (a) Micro-Surface is promptly notified in writing upon discovery of such defect within the warranty period; and (b) Micro-Surface’s examination discloses to Micro-Surface’s satisfaction that such defects have not been caused by misuse, abuse, neglect, accident, normal wear and tear, improper maintenance, or modifications by Buyer; or use for purposes for which goods were not intended
9.3 Limitations on Warranty.
The limited warranty does not cover misuse, abuse, neglect, accident, normal wear and tear, improper maintenance, or modifications by Buyer; or use for purposes for which the goods were not intended. The foregoing limited warranty applies only to goods manufactured by Micro-Surface. Micro-Surface does not warrant goods manufactured by third parties. Any products, parts, services, and accessories not manufactured by Micro-Surface carry only the warranty that is provided by the manufacturer thereof, and such warranty (if any) may differ from the warranties offered by Micro-Surface, and if there is such a manufacturer’s warranty with respect to such a good, Micro-Surface is not a party to it and such warranty is between the manufacturer and Buyer.
9.4 Disclaimer of Warranties.
EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, MICRO-SURFACE MAKES NO REPRESENTATION, STATEMENT OF FACT, PROMISE, GUARANTEE OR WARRANTY OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AND THE FOREGOING LIMITED WARRANTIES ARE IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR PARTICULAR PURPOSE, WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO MICRO-SURFACE IN SPECIFICATIONS, DRAWINGS OR OTHERWISE, AND WHETHER OR NOT MICRO-SURFACE’S GOODS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY MICRO-SURFACE FOR BUYER’S USE OR PURPOSE. Buyer is responsible for determining whether any goods purchased from Micro-Surface is fit for a particular purpose and suitable for Buyer’s method of application. Buyer expressly waives any right, claim, or cause of action that might arise out of the purchase and use of any goods supplied by or through Micro-Surface other than those rights expressly granted by express warranty. No salesperson or other representative of Micro-Surface or any dealer or other person, firm or corporation is authorized to make any other representation, guarantee or warranty on behalf of Micro-Surface, or to assume for Micro-Surface any other liability or obligation, express or implied.
10. Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL MICRO-SURFACE, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO BUYER OR ANYONE ELSE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS OR LOSS OF BUSINESS, COST OF CAPITAL PERSONAL INJURY OR PROPERTY DAMAGE) RESULTING FROM THIS SALE, OR FROM THE FURNISHING, PERFORMANCE, INSTALLATION OR USE OF ANY GOODS OR SERVICES SOLD PURSUANT HERETO, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, THE NEGLIGENCE OF MICRO-SURFACE OR ANY OTHER PARTY, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF MICRO-SURFACE IS ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall Micro-Surface be liable for any damages caused by any defect in the design of goods if the goods were manufactured by Micro-Surface to Buyer’s design. Notwithstanding any other provision or term of this contract, the limit of Micro-Surface’s liability with respect to this transaction or with respect to the goods and services, if any, which are the subject hereof, regardless of the form of the claim or cause of action (whether based in contract, infringement, negligence, strict liability, other tort or otherwise) shall be the contract price herein of the specific product supplied by the Micro-Surface giving rise to the claim or cause of action. The foregoing is intended as a complete allocation of the risks between the parties. Because the bargain struck and the price paid reflect such allocation this limitation upon remedies will not have failed of its essential purpose.
11. Acceptance of Goods:
Buyer shall have 10 working days after delivery of goods or performance of services to notify Micro-Surface in writing of any goods or services that are rejected. Any goods or services not rejected within 10 working days shall be deemed accepted. If Buyer rejects any goods or services, Micro-Surface may inspect the goods or the work, or may require the Buyer to return the rejected goods to Micro-Surface at Buyer’s expense.
12. Return Policy.
Micro-Surface does not accept returns after thirty days of the original purchase, or without prior written authorization from Micro-Surface. Unacceptable return products include: 1. used products, 2. dirty (contaminated) products, 3. wrinkled products, or 4. custom made products. Full contact information and reason why the product is being returned must be provided with the package. If the return is due to is due to a mistake by Micro-Surface, shipping charges will be refunded. Otherwise, shipping costs are not refundable. Authorized product returns via US mail should be addressed to: Micro-Surface, Attn: Sales Dept – Returns, Po Box 70, Wilton IA 52778 USA. Authorized product returns via UPS should be addressed to: Micro-Surface, Attn: Sales Dept – Returns, 1217 W 3rd St, Wilton IA 52778 USA
13. Order Cancellation.
In the event that the Buyer retracts the purchase order for any reason, Micro-Surface shall be paid a reasonable cancellation charge consisting of a percentage of the purchase order price reflecting the percentage of the work performed and material costs incurred by Micro-Surface prior to the notice of termination (including any uncancellable commitments for purchase of raw materials and other supplies), plus actual direct costs resulting from cancellation, and a reasonable profit, provided that in no event shall such cancellation charge be less than 15% of the price quoted..
14. Applicable Law.
The validity, performance and all other matters relating to the interpretation and effect of this agreement shall be governed by the law of the state of Iowa, USA. Buyer and Micro-Surface agree that the proper venue for all actions arising in connection herewith shall be only in state and federal courts located in Scott County, the state of Iowa, USA, and the parties agree to submit to such jurisdiction. The provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods are specifically excluded and shall not apply to this Agreement. Any action against Micro-Surface relating to or arising out of any sale of goods or services must be brought within one (1) year of when the cause of action arose, regardless of the Buyer’s lack of knowledge of the claim.
Buyer shall not assign its rights or delegate its duties hereunder or any interest therein or any rights hereunder without the prior written consent of the Micro-Surface; and any such assignment, without such consent, shall be void.
16. Force Majeure.
Micro-Surface shat not be liable in any way for any default or delay in shipping or installation due to contingencies beyond its control, or the control of its suppliers or subcontractors, which prevents or interferes with the Micro-Surface making delivery or installing goods on the dates specified, including but not limited to, acts of nature, fire, flood, accident, riot, war, terrorism, government intervention, embargoes, strikes, labor difficulties, equipment failure, late deliveries by suppliers or manufacturers and any other contingency affecting the Micro-Surface, its suppliers, or sub-contractors; and the Micro-Surface shall have the right to cancel a contract of sale or to extend the shipping date in the event that one or more of such contingencies prevent or delay shipments.
If goods are purchased on credit from Micro-Surface, Buyer hereby grants Micro-Surface a purchase money security interest in the goods, and in all attachments, accessories, improvements, replacements and proceeds, including insurance proceeds, resulting from any sale, assignment or other conveyance, or damage or destruction thereof (collectively, the “Collateral”), as security for the payment of all indebtedness of Buyer to Micro-Surface. Buyer hereby authorizes Micro-Surface, or its assignee, to sign and file financing statements in order to perfect the security interest of the Micro-Surface hereunder. Micro-Surface shall have all the rights and remedies of a secured party under the Iowa Uniform Commercial Code which rights and remedies, to the extent permitted by law, shall be cumulative. Buyer shall pay any expenses, including reasonable attorney’s fees, incurred or paid by Micro-Surface in the preservation or enforcement of Micro-Surface’s rights under this Agreement. Prior to receipt of payment in full by Micro-Surface, Buyer shall not create any other security interest in the goods or suffer or permit any lien or attachment thereto, or transfer its interest in the goods without the prior written approval of Micro-Surface.
18. Governmental Regulations.
Any order accepted by the Micro-Surface is at all times subject to Governmental proclamations, laws and regulations now or hereafter in effect, pertaining to priorities, allocations, prices and other such acts affecting this transaction or the production or sales by manufacturers of the products.
These Terms and Conditions shall be deemed severable. In the event that any provision is determined to be unenforceable or invalid, such provision shall nonetheless be enforced to the fullest extent permitted by applicable law, and such determination shall not affect the validity and enforceability of any other remaining provisions.
These Terms and Conditions, together with terms and conditions set forth on the face page of the quotation, acceptance of purchase order or in the Micro-Surface’s invoices to Buyer (a) contain the entire agreement between Micro-Surface and Buyer relating to this sale, and expressly supersede and replace any prior or contemporaneous agreements, whether written or oral, relating to said sale, including any terms and conditions on any of Buyer’s documents or purchase orders, and (b) shall be binding upon and inure to the benefit of the heirs, successors and permitted assigns of the parties. The paragraph headings contained herein are for the convenience of reference only and shall not be construed so as to affect the interpretation or construction of any substantive provision hereof.