MARCH 28, 2022
These Basic Terms and Conditions of Sale, together with the Comprehensive Terms and Conditions of Sale, above, together referred to as this “Agreement,” apply to all transactions between anyone purchasing products (“Buyer”) from Blu Technology, LLC (“Blu Technology” or “Seller”) unless noted in another document between Buyer and Seller.
- Buyer shall pay [·] upon order and the remainder upon delivery. Any amounts due by Buyer to Seller that are unpaid on or after 30 days after delivery will bear interest at the rate of 1.5% per month (unless the maximum rate permitted by law is less). The accrual or payment of any interest as provided above will not constitute a waiver by Seller of any rights and remedies in connection with a default by Buyer. Buyer will pay all court costs, attorney fees, and other costs incurred by Seller in collecting all past-due amounts, including interest.
- Delays Requested by Buyer. If shipment or delivery of any products sold by Seller to Buyer is delayed by or at the request of Buyer, payment will remain due in full 30 days from the date of order. In such event, Seller may impose, and Buyer shall pay, storage charges and other incidental expenses incurred by Seller as a result of the delay in addition to any interest on late payments as described above.
- Title & Security Interest. Title in the products sold shall remain in Blu Technology, LLC, until fully paid for, regardless where such products may be, or in what state of manufacture such products may be. Blu Technology shall at any time after the expiration of ten days after the due date of any applicable invoice, if said products are not fully paid for, have the right to repossess the same by any legal manner. Should title be deemed by a court of competent jurisdiction to have passed from Seller to Buyer, Buyer irrevocably grants to Seller a security interest in all products sold by Seller to Buyer, and Seller will have all rights of a secured party under the Uniform Commercial Code with respect to the products. Buyer appoints Seller as its attorney-in-fact with authority, at Seller’s option, to take actions as Seller deems reasonable in the circumstance to perfect the above security interest in any one or more jurisdictions, and Buyer shall pay all applicable filing fees.
- Warranty and Limitation of Liability. Warranties, Disclaimers, and Remedies are set forth in Section 6 of the Comprehensive Terms, and Limitations of Liability are set forth in Section 7 (below).
- Delivery will occur as set forth in each applicable order.
PLEASE CAREFULLY REVIEW THE COMPREHENSIVE TERMS OF SALE ON THE FOLLOWING PAGES:
MARCH 28, 2022
These Comprehensive Terms and Conditions of Sale, together with the Basic Terms and Conditions of Sale, below, together referred to as this “Agreement,” apply to all transactions between anyone purchasing goods (“Buyer”) from Blu Technology, LLC (“Blu Technology” or “Seller”) unless noted in another document between Buyer and Seller.
- Term. Unless terminated as set forth in this Agreement, the initial term of this Agreement will start on the Effective Date and end on the third anniversary of the Effective Date (the “Initial Term”) and will automatically renew for terms of one year each (each a “Renewal Term” unless the Buyer provides written notice of its intent to not renew at the conclusion of the then current term
- Sale of Products. Seller shall sell to Buyer and Buyer shall purchase from Seller the products set forth on an Order Form (the “Products”) in the quantities and at the price (as defined below) and upon the terms and conditions set forth in this Agreement.
- Delivery shall be FOB [·] Please review our Shipping Policy.
- Inspection and Rejection of Non-Conforming Goods. Inspection.
- Buyer shall inspect the products for defects and nonconformance (“Nonconforming Products” upon delivery and notify Seller, in writing, of any defects, nonconformance, or rejection of the products (other than defects or nonconformities due to damage, shortage, or errors in shipping that will be reported as set forth below) as soon as reasonable under the circumstances. Claims for shipping damage, errors, or shortages must be made in writing to Seller no more than two (2) business days after receipt of shipment. After this period, Buyer will be deemed to have irrevocably accepted the products, if not previously accepted. After acceptance, Buyer will have no right to reject the products for any reason or to revoke acceptance. Claims for damage due to shipping must be made by Buyer to the freight carrier.
- If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products; or (ii) credit or refund the Price for such Nonconforming Products. Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to Seller’s facility located at [·]. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Buyer’s shipment of Nonconforming Products, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Products to the original destination.
- Buyer acknowledges and agrees that the remedies set forth in Section 4(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided under Section 4(b), all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under this Agreement to Seller.
- No Setoff. Buyer shall not, and acknowledges that it will have no right, under this Agreement, any other agreement, document, or law to withhold, offset, recoup, or debit any amounts owed (or to become due and owing ) to Seller or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by Seller or its affiliates, whether relating to Seller’s or its affiliates’ alleged breach or non-performance of this Agreement or any other agreement between Buyer or any of its affiliates, and Seller or any of its affiliates, or otherwise.
- Warranties, Disclaimers, and Remedies.
- Seller warrants to Buyer that for a one year from the date of shipment of the Products, such Products will materially conform to the specifications set forth in Seller’s published specifications in effect as of the date of the Order and will be free from material defects in material and workmanship
- EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 6(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
- The Seller shall not be liable for a breach of any warranty set forth in Section 6 unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within five (5) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Products and Buyer (if requested to do so by Seller) returns such Products to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer's claim that the Goods are defective.
- The Seller shall not be liable for a breach of any warranty set forth in Section 6 if: (i) Buyer makes any further use of such Products after giving notice of an alleged defect to Seller; (ii) the defect arises because Buyer failed to follow Seller’s verbal or written instructions as to the storage, installation, commissioning, use or maintenance of the Products; or (iii) Buyer alters or repairs such Products without the prior written consent of Seller.
- Subject to Section 6(c) and Section 6(d) above, with respect to any such Products during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Products (or the defective part); or (ii) credit or refund the price of such Products at the pro-rata contract rate provided that, if Seller so requests, Buyer shall, at Seller's expense, return such Products to Seller.
- THE REMEDIES SET FORTH IN SECTION 6(e) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF ALL APPLICABLE WARRANTIES, EXPRESS OR IMPLIED, FOR ANY PRODUCTS SOLD UNDER THIS AGREEMENT.
- Limitation of Liability.
- IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED; AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER OR $10,000, WHICHEVER IS LESS.
- Termination. In addition to any remedies that may be provided in this Agreement, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (iii) 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.
- Severability. In the event that any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, but this Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had never been contained herein, unless the deletion of such provision or provisions would result in such a material change so as to cause completion of the transactions contemplated herein to be unreasonable
- Waiver. In the event that any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, but this Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had never been contained herein, unless the deletion of such provision or provisions would result in such a material change so as to cause completion of the transactions contemplated herein to be unreasonable
- Assignment. Buyer may not assign this Agreement or any rights conferred in this Agreement without the prior written consent of Seller. Any attempted assignment in violation of the provisions of this Section will be void.
- Applicable Law & Jurisdiction. All terms of the transaction shall be governed by and construed in accordance with the laws of the State of Michigan, without regard to its principles of conflicts of laws. Buyer irrevocably (i) submits to the exclusive jurisdiction of the courts of the State of Michigan located in Kent County, Michigan, and the United States District Court for the Western District of Michigan for the purpose of any suit, action, proceeding, or judgment relating to or arising out of a transaction with Seller; (ii) consents to the jurisdiction of to the laying of venue in such court; (iii) waives any objection to the laying of venue of any such suit, action, or proceeding brought in such courts; and (iv) waives any claim that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.
- Force Majure. Neither party shall be liable to the other for any loss of business or any other damages caused by an interruption of this Agreement when such interruption is due to: war, rebellion, or insurrection; an act of god; fires; government law, rule, or regulation prohibiting the performance of this Agreement; strikes, labor stoppages, lock-outs ,or labor disputes to the extent such occurrences are not caused by the actions of the party seeking relief under this Section 14; disease, pandemic, or public health emergency; or any other causes beyond the reasonable control or anticipation of the parties.
- Entire Agreement. This Agreement, including and together with any related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and verbal, regarding such subject matter.