TERMS AND CONDITIONS OF SALE

1.         Parties.

“Seller” means Custom Creations LLC, a limited liability company.  “Buyer” means the entity or person submitting the purchase order to Seller.  Each signatory represents that it has all requisite authority to execute the Agreement on behalf of its principal and that the Agreement is fully enforceable against the principal in accordance with its terms.  Endorsement shall only be effective by wet signature, electronic signature, electronic payment or agreement by electronic mail from Seller to Buyer.

2.         Application.

These Terms and Conditions of Sale define the relationship of Buyer and Seller and apply to all sales of equipment, parts, supplies, materials, or other personal property (individually and collectively, “Equipment”) by Seller to Buyer. Buyer acknowledges and agrees that these Terms and Conditions of Sale are incorporated in, and are a part of, each quotation, purchase order, invoice, release, requisition, work order, shipping instruction, specification, and any other document, whether expressed verbally, in written form or electronic commerce, relating to the sale of Equipment by Seller to Buyer (these documents are collectively referred to throughout as “The Agreement,” or “This Agreement”).  Buyer and Seller both acknowledge and agree that any circumstances arising out of this agreement, not contemplated by either party at the time of its endorsement by the parties, are to be governed by Article 2 of the Uniform Commercial Code, as applied in the State of Michigan, and agree that this is a Contract for the Sale of Goods.

3.         Quotation Expiration.

Written quotations are valid for a period of 30 days unless otherwise noted by Seller. Seller will have the right to withdraw any quote that has not been accepted by Buyer within the 30-day time period.

4.         Pricing.

Prices for Equipment and other related information shown in any Seller or manufacturer product publication, including but not limited to catalogs, brochures, and Web sites, are subject to change without notice. Prices do not include related freight charges, use tax, sales tax, excise tax, value-added tax, or similar taxes, or charges of any nature whatsoever imposed by any governmental authority unless otherwise expressly noted by Seller.

5.         Taxes.

Prices quoted do not include (and Buyer shall pay) all taxes and fees of any kind that may be levied or imposed on either party by federal, state, municipal, or other governmental authorities in connection with the sale or delivery of the Equipment by Seller with the exception of Seller’s income tax obligations arising out of the sale of the Equipment.

6.         Terms of Payment.

Unless otherwise specifically agreed in writing by Seller, the total price is due and payable to Seller, without setoff or other deductions or charges, immediately upon receipt of goods or equipment sold.  Terms of payment are COD or Cash on Delivery, or “net cash.”

Any amounts due by Buyer to Seller that are unpaid on or after 30 days of Seller’s invoice will bear interest at the rate of 1.5% per month or the maximum rate permitted by law, whichever 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 past-due amounts, including interest.

If shipment or delivery of Equipment is delayed by or at the request of Buyer, payment will remain due in full on the date of Seller’s invoice or original scheduled delivery date, whichever occurs first.  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.

7.         Security Interest.

As security for payment of all amounts due to Seller, Buyer grants to Seller a security interest in all Equipment sold by Seller to Buyer, and Seller will have all rights of a secured party under the Uniform Commercial Code with respect to the Equipment. 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.

8.         Limited Warranty—Disclaimer of Warranties.

The warranty obligations of Seller for Equipment sold by Seller will in all respects conform and be limited to the warranty extended by the manufacturer of the Equipment, if transferable. The sole remedy available to Buyer with respect to defects in the Equipment will be against the manufacturer under any applicable manufacturer’s warranty to the extent available to Buyer. TO THE EXTENT THE MANUFACTURER WARRANTY IS NOT TRANSFERABLE TO BUYER, SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO OR IN ANY WAY RELATING TO THE EQUIPMENT, WHETHER BASED ON BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

If Equipment is resold by Buyer, Buyer will include in its agreement for resale provisions that limit recoveries in accordance with the Agreement. In case of Buyer’s failure to include in any agreement for resale the terms providing for such limitations, Buyer will indemnify and hold Seller harmless against any liability, loss, cost, damage, or expense (including reasonable attorney fees) arising out of or resulting from the failure.

IN NO EVENT WILL SELLER BE LIABLE OR RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR EXPENSE OCCASIONED BY THE USE OF DEFECTIVE EQUIPMENT.

BUYER ASSUMES FULL RESPONSIBILITY THAT THE EQUIPMENT PURCHASED UNDER THE AGREEMENT MEETS THE SPECIFICATIONS AND/OR INTENDED USE OF BUYER, AND SELLER MAKES NO REPRESENTATION WITH RESPECT TO THEM.

LIMITATIONS OF LIABILITY TO THE EXTENT ALLOWABLE UNDER APPLICABLE LAW, CUSTOM CREATIONS LIABILITY FOR DEATH, INJURIES TO PERSONS OR PROPERTY, OR CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING FROM THE USE OF OUR EQUIPMENT IS EXPRESSLY DISCLAIMED.  CUSTOM CREATION LIABILITY IN ALL EVENTS IS LIMITED TO, AND SHALL NOT EXCEED, THE PURCHASE PRICE PAID.  NO OTHER WARRANTY, EXPRESSED OR IMPLIED, IS AUTHORIZED, INCLUDING WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULER PURPOSE.

9.         Delivery.

Any delivery dates or other schedule of performance by Seller are approximations, and the sole obligation of Seller with respect to the schedule of delivery or performance will be to use commercially reasonable efforts to deliver the Equipment, or otherwise to perform, consistent with the reasonable demands of its business. In any event, Seller will have no liability to Buyer or any other person for delays in performance.  It will be the Buyers responsibility to unload the shipment at the Buyers ship to location, either with the means of fork lift, lifting devices or manually. The Buyer will be responsible for all additional delivery charges if incurred by the Seller.  Example: Residential delivery when Commercial is stated, Re-Delivery Fees, Inside delivery fees.

10.      Title and Risk of Loss.

Title to and risk of loss or damage to the Equipment will pass to Buyer on delivery by Seller F.O.B. (a) Seller’s facility, (b) Seller’s supplier’s facility when Equipment is shipped directly from the manufacturer, or (c) as otherwise specifically indicated in the Agreement or on Seller’s Quotation to Buyer.

11.      Inspection and Acceptance.

Buyer will have five days from the date of delivery to inspect the Equipment for defects and nonconformance and to notify Seller, in writing and sent via Certified US Mail to Custom Creations, 48143 West Road Wixom, Mi 48393 of any defects, nonconformance, or rejection of the Equipment (other than defects or nonconformities due to damage, shortage, or errors in shipping that will be reported as set forth below). Claims for shipping damage, errors, or shortages must be documented on the delivery receipt paperwork provided by the shipping company at the time of delivery.  Buyer will be deemed to have irrevocably accepted the Equipment, if not previously accepted. After acceptance, Buyer will have no right to reject the Equipment for any reason or revoke acceptance. Claims for damage due to shipping must be made by Buyer to the freight carrier.

12.      Return of Equipment.

All returns will be pursuant to Seller’s instructions. Buyer must contact Seller for a Return Material Authorization (RMA) before returning any Equipment. All returns must reference the RMA number along with the original invoice number and the reason for return. Non-warranty returns of normal stock products that are unused and are in resalable condition will be subject to Seller’s return policies in effect at the time, including applicable restocking (35%) and transportation charges and other conditions of return.

13.      Cancellation or Termination.

All Cancellations must be made by US Certified mail and mailed to Custom Creations 48143 West Road Wixom Mi 48393. In the event of cancellation of the Agreement by Buyer, or in the event of default under the Agreement by Buyer that is not cured within 30 days after notice by Seller, Buyer will pay to Seller on demand all direct and indirect costs (including, without limitation, all applicable restocking or cancellation charges, including reimbursement for direct costs assessed by the manufacturer) incurred directly or indirectly by Seller in connection with the Agreement, all as reasonably determined by Seller, plus any profit to be negotiated with Buyer. In no event, however, will any amount payable by Buyer under the Agreement exceed the total price payable by Buyer for the Equipment.

14.      Buyer Insolvency.

Where Seller has reason to believe that Buyer may be insolvent, or reasonable grounds for insecurity arise with respect to the performance of either party, the other may demand, in writing, adequate assurance of due performance, and may suspend performance until adequate assurance is received.  Where Seller has discovered Buyer insolvency after shipment, Seller reserves the right to immediately reclaim all Equipment regardless of whether formal notice of intent to reclaim is given.

15.      Changes.

Seller reserves the right from time to time to correct any typographical or clerical errors, including all errors and omissions, that may exist in the Agreement.

16.      Technical Support.

Unless otherwise specifically provided on the quotation or invoice, the Agreement does not include any services of Seller in connection with installation, testing, or evaluation of the Equipment. Seller will, however, consistent with its capabilities and subject to scheduling acceptable to Seller, make available to Buyer, at Buyer’s expense, technical support services relating to the Equipment at the rates then imposed by Seller, together with any out-of-pocket expenses to Seller in connection with the technical support. The sole remedy of Buyer in connection with any acts or omissions of Seller in the provision of technical support will be the provision of further technical support to Buyer reasonably required to correct the act or omission.

17.      Modifications and Waiver—Entire Agreement.

Neither party has rights, warranties, or conditions expressed or implied, statutory or otherwise, other than those contained in the Agreement. The Agreement contains the entire agreement between Seller and Buyer and can be modified or rescinded only by a writing signed by both parties.  No waiver of any provision of the Agreement will be binding unless in writing signed by an authorized representative of the party against whom the waiver is asserted, and unless expressly made generally applicable, will apply only to the specific case for which the waiver is given. Failure of either party to insist on strict performance of the Agreement will not be construed as a waiver of any term or condition of the Agreement.

Any document submitted by Buyer to Seller confirming its intention to purchase Equipment described in this Agreement (purchase orders or releases) will be deemed to constitute a confirmation and acceptance of Custom Creations LLC’s Terms and Conditions of Sale, even if the document states terms in addition to or different from those in Custom Creations LLC’s Terms and Conditions of Sale. All agreements between Seller and Buyer will be solely under the terms and conditions of this Agreement and these Terms and Conditions of Sale, and Seller objects to any and all additional or different terms contained in any document submitted to Seller by Buyer.  Any execution by Seller of any other document submitted by Buyer in connection with the purchase of Equipment does not constitute acceptance of or agreement to any terms and conditions in addition to or different from those contained in the Agreement and these Terms and Conditions of Sale, but will constitute only acknowledgment of receipt of the document.  In addition, notwithstanding any terms contained in any documents submitted by Buyer in connection with the purchase of Equipment described under the Agreement, the acceptance of delivery by Buyer of Equipment described in the Agreement will constitute a course of conduct establishing Buyer’s agreement to the terms and conditions of the Agreement and these Terms and Conditions of Sale, to the exclusion of any additional or different terms and conditions asserted by Buyer.  Any additional Terms and Conditions of Sale asserted by Seller to Buyer via Sellers Quotation for the relevant project or job number are hereby incorporated by reference to be additional Terms and Conditions of Sale and will be considered binding as part of the Agreement.   

18.      Compliance with Laws.

Buyer will be responsible for compliance with any and all federal, state, or local laws or regulations respecting safety or respecting use of the Equipment and shall indemnify and hold Seller harmless from and against any and all claims of violations of laws or regulations or other claims of personal injury or property damage directly or indirectly related to the installation, maintenance, or operation of the Equipment.

19.      Export Control.

Equipment supplied by Seller may be subject to various export laws and regulations. It is the responsibility of the exporter to comply with all laws and regulations. Notwithstanding any other provision to the contrary, if federal, state, or local law requires export authorization for the export or re-export of any Equipment or associated technology, no delivery can be made until export authorization is obtained, regardless of any otherwise promised delivery date. If any required export authorization is denied, Seller and Seller’s supplier will be relieved of any further obligation relative to the sale and delivery of the Equipment subject to denial without liability of any kind relative to Buyer or any other party. Seller will not comply with boycott-related requests except to the extent permitted by federal law and then only at Seller’s discretion.

20.      Governing Law.

The Agreement will be governed by and construed in accordance with the laws of the State of Michigan.  If one or more provisions of this Agreement shall be invalid, illegal, or unenforceable in any respect under any applicable law or decision, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired in any way. Each party shall, in any such event, execute such additional documents, or re-execute an updated version of this Agreement, as the other party may reasonably request to give valid, legal, and enforceable effect to any provision of this Agreement that is determined to be invalid, illegal, or unenforceable as written in this Agreement..