The following terms and conditions of sale shall constitute a complete and final agreement between the Buyer and the Odyssey Group (“Seller”) relating to the sale of the Seller’s products (“Products”):
Acceptance. SELLER’S ACCEPTANCE OF BUYER’S ORDER IS EXPRESSLY MADE CONDITIONAL ON BUYER’S ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS OF SALE, WHICH ARE IN LIEU OF ANY ADDITIONAL OR DIFFERENT TERMS CONTAINED IN BUYER’S PURCHASE ORDER OR OTHER DOCUMENT OR COMMUNICATION PERTAINING TO BUYER’S ORDER OR THE GOODS. BUYER’S CONSENT SHALL BE PRESUMED FROM BUYER’S SILENCE OR ACCEPTANCE, USE, OR FROM PAYMENT BY BUYER FOR ALL OR ANY PART OF THE GOODS. NONE OF THESE TERMS AND CONDITIONS MAY BE ADDED TO, MODIFIED, SUPERSEDED OR OTHERWISE ALTERED, EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY AN AUTHORIZED EXECUTIVE OF SELLER. FAILURE OF SELLER TO OBJECT TO ANY TERMS OR CONDITIONS WHICH MAY BE CONTAINED IN ANY DOCUMENT OR FORM FROM BUYER SHALL NOT BE CONSTRUED AS A WAIVER OF THESE CONDITIONS, NOR AS AN ACCEPTANCE OF ANY SUCH TERMS AND CONDITIONS.
Payment Terms. Payments are to be made in U.S funds. Unless otherwise specified all invoices are due net 30 days from the date of Shipment. PRICES INVOICED WILL BE THOSE IN EFFECT AT TIME OF SHIPMENT. Seller reserves the right to place a service charge on past due accounts at the highest rate permitted by applicable law. In the event a check is returned for insufficient funds, Seller reserves the right to put your account on hold until cleared and thereafter on COD Money Order for 6 months.
Taxes. Buyer shall pay the amount of any federal, state, county or municipalities, use compensating, intangibles, gross income or like tax applicable to this transaction.
Warranty. Seller warrants that the Goods supplied shall conform to the description stated on the Products and/or Seller’s website. THE FOREGOING WARRANTY IS SELLER’S SOLE WARRANTY WITH RESPECT TO THESE GOODS. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANT-ABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED. SELLER’S LIABILITY FOR BREACH OF WARRANTY HERE-UNDER IS LIMITED SOLELY TO THE REPLACEMENT OF THE DEFECTIVE GOODS, WHICH SHALL BE RETURNED TO SELLER AND TRANSPORTATION CHARGES PREPAID BY BUYER. THE FAILURE TO GIVE NOTICE OF A WARRANTY CLAIM WITHIN THIRTY (30) DAYS FROM DATE OF DELIVERY SHALL CONSTITUTE A WAIVER BY BORROWER OF ALL CLAIMS IN RESPECT TO SUCH GOODS. THE FOREGOING SHALL CONSTITUTE THE SOLE REMEDY OF BUYER AND THE SOLE LIABILITY OF SELLER UNDER THIS WARRANTY. SELLER HEREBY DISCLAIMS ALL INDEMNITIES AND PROVISIONS FOR ASSESSMENT OF ATTORNEY FEES AND EXPENSES. No claim of any kind, whether as to Goods delivered or for non-delivery of Goods, shall be greater in amount than the purchase price of the Goods in respect of which such claim is made.
LIMITATION OF LIABILITY. SELLER’S LIABILITY TO BUYER, WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE, SHALL NOT EXCEED IN ANY CASE THE RETURN OF THE AMOUNT OF THE PURCHASE PRICE PAID BY BUYER AND UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES. THE PRICE STATED FOR THE GOODS IS CONSIDERATION FOR LIMITING SELLER’S LIABILITY. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS INVOICE MAY BE BROUGHT BY BUYER MORE THAN ONE (1) YEAR AFTER THE DATE OF THIS INVOICE. WITHOUT LIMITATION OF THE FOREGOING, IN NO EVENT WILL SELLER BE RESPONSIBLE OR LIABLE FOR (A) PENALTIES OR PENALTY CLAUSES OF ANY DESCRIPTION, OR (B) INDEMNIFICATION OF BUYER OR OTHERS FOR COSTS, DAMAGES OR EXPENSES ARISING OUT OF OR RELATED TO THE GOODS.
Seller disclaims all liability for any Goods which were subjected to misuse, neglect or accident, or has been altered or tampered with, or on which corrective work has been completed without Seller’s specific written consent. Seller does not recommend and will not assume any liability for rebuilding, repairing negligent instruction, or use of products not specifically approved by seller. see instructions for use and warnings included with the goods or seller’s website for terms and conditions of use.
Indemnification. To the fullest extent permitted by law, BUYER SHALL DEFEND, INDEMNIFY AND HOLD SELLER HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS, SUBORNATION CLAIMS BY BUYER’S INSURERS, CAUSES OF ACTION, CONTROVERSIES, LIABILITIES, FINES, REGULATORY ACTIONS, SEIZURES OF EQUIPMENT, LOSSES, COSTS, EXPENSES (INCLUDING, BUT NOT LIMITED TO ATTORNEYS’ FEES, EXPERT WITNESS EXPENSES AND LITIGATION EXPENSES) (HEREINAFTER COLLECTIVELY, “CLAIMS”), ARISING FROM OR IN CONNECTION WITH CLAIMS ASSERTED AGAINST SELLER FOR ANY DAMAGE, ENVIRONMENTAL LIABILITY, PATENT AND/OR INTELLECTUAL PROPERTY INFRINGEMENT RESULTING FROM:
- INJURY, DEATH, LOSS, PROPERTY DAMAGE, DELAY OR FAILURE IN DELIVERY OF THE GOODS OR ANY OTHER CLAIMS, WHETHER IN NEGLIGENCE, TORT, CONTRACT, OR OTHERWISE, RELATING TO THIS AGREEMENT;
- THE SPECIFICATIONS PROVIDED BY BUYER;
- THE BUSINESS RELATIONSHIP BETWEEN THE PARTIES;
- THE GOODS;
- BUYER’S BREACH OF THIS AGREEMENT; AND/OR
- BUYER’S USE, MODIFICATION OR ALTERATION OF THE GOODS.
Buyer, for itself and its insurers, expressly waives any and all limitations or liability caps, if any, on Buyer’s contribution liability to Seller, and any and all statutory or common law lien rights or Claims against Seller arising from any applicable workers compensation or disability acts, which Buyer might or could assert against Seller or Seller’s insurers in the event of the personal injury or death of Buyer’s employees, representatives or servants. Without limiting the foregoing, Buyer, for itself and its insurers, also waives any Claims, liens or other rights it may have as a result of being subrogated to any rights of its employees, representatives or servants.
IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR OR HAVE ANY DUTY FOR INDEMNIFICATION OR CONTRIBUTION TO THE OTHER PARTY FOR ANY CLAIMS FOR STATUTORY OR COMMON LAW INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, TREBLE OR LIQUIDATED DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE) SUCH AS, BUT NOT LIMITED TO, LOSS OF USE, REVENUE, PROFIT, BUSINESS OPPORTUNITIES AND THE LIKE, DEPRECIATION OR DIMINUTION IN VALUE, EVEN IF THE PARTY HAD BEEN ADVISED, OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
Shipment. Scheduled dates of delivery are determined from the date of Seller’s acceptance of any order or orders placed by Buyer and are estimates of approximate dates of delivery, not a guaranty of a particular date of delivery. Seller shall not be liable for any damages caused by failure or delay in shipping the goods described herein, if such failure or delay is due to any war, embargo, riot, fire, flood, accident, mill condition, strike or other labor difficulty, an act of Buyer, an act of God, an act of a governmental authority, transportation shortage or failure, inability to obtain sufficient fuel, labor, materials or manufacturing facilities, or any other cause beyond the reasonable control of Seller.
Title & Security Interest. Shipments, deliveries, and performance of work by Seller shall at all times be subject to the approval of and requirements of the Seller, including the requirement that Buyer pays part or all of the purchase price in advance. Title to the products supplied here-under, to any and all accessories thereto and substitutions therefor shall remain in Seller as a security interest until Buyer has completed payment of the purchase price, plus accrued interest if any, and fully performed all of the terms and conditions hereof. Where permitted by applicable law, Seller retains a purchase money security interest in all Goods not paid for in full, notwithstanding that the goods have been delivered to Buyer, and Buyer hereby authorized Seller to execute and file financing statements describing the Goods, and other documents which may be requested by Seller to evidence its security interest.
Claims. Claims by Buyer for defects, shortages, errors, or that the Goods do not otherwise conform, must be made within 5 days after the delivery. Buyer shall give Seller written notice of such defects or nonconformity and a reasonable opportunity to cure.
Returns. No Goods shall be returned for credit without first obtaining written consent from an executive officer of Seller. If permission is granted, and in the Seller’s sole discretion, the returned Goods may be subject to a 20% handling charge plus freight cost. Non-standard items or fabricated items are not returnable
Buyer’s Cancellation. Orders accepted by Seller are subject to cancellation by Buyer only upon the express written consent of Seller. Upon such cancellation and consent, Seller shall cease work and hold for Buyer all completed and partially completed articles and work in progress and Buyer shall pay Seller for all work and materials that have been committed to and/or identified to Buyer’s order plus a cancellation charge as prescribed by Seller, in addition to a reasonable profit to Seller on the entire contract.
Buyer’s Additions. Seller reserves the right to consider order add-ons as separate and new orders subject to this Agreement.
Deductions and Set-off. Buyer shall have no right of deduction or set-off against sums due to Seller for Goods which have either been delivered or which Seller has undertaken to deliver.
Seller’s Right to Reject, Rescind or Cancel. Seller shall have the right to rescind all or part of any offer, order or this Agreement if:
- Buyer breaches or fails to perform any of its obligations under the contract;
- Buyer becomes insolvent;
- Proceedings are instituted by or against Buyer under any federal or state bankruptcy of insolvency laws;
- Buyer ceases operations; or
- Seller determines in its full discretion that it elects to reject, cancel or rescind.
Waiver & Sever-ability. This Agreement shall be deemed to be separable. If any part thereof is held to be invalid for any reason, the other terms and conditions here-under shall remain in full force and effect. Seller’s waiver of any breach, or failure to enforce any of this Agreement, shall not be deemed to affect, limit or waive Seller’s right thereafter to require compliance with this Agreement.
Governing Law. Any agreement arising out of this transaction shall be deemed to have been made in Troy, Oakland County, Michigan. The parties agree that the validity, interpretation, and performance of any agreement arising out of this transaction shall be governed by the laws of the State of Michigan without regard to conflicts of interest laws. Buyer and Seller hereby submit to the exclusive jurisdiction for the resolution of any disputes here-under, to the Circuit Court of the 6th Judicial Circuit, Pontiac, Oakland County, Michigan. This shall be the sole and exclusive jurisdiction and venue for the purpose of adjudication of any rights and liabilities here-under.
Remedies. Buyer and Seller understand they have a right to litigate through a court and to have a judge or jury decide any dispute between them, but the parties choose to have any dispute regarding this Agreement resolved through binding arbitration. If Parties are unable to select an Arbitrator, the American Arbitration Association shall decide and arbitrate the dispute. The arbitration shall take place at Seller’s Corporate Offices located in Troy, Oakland County, Michigan.
Default. In the case of default or breach by Buyer in the performance of any or all of the provisions of this Agreement, Seller may cancel any outstanding order from Buyer and declare all obligations immediately due and payable, and shall, in addition, have all remedies afforded by any other applicable law. Buyer shall, in addition, be liable for Seller’s expenses incurred in exercising any remedies available to it, including reasonable attorney’s fees and legal expenses. All unpaid obligations shall bear interest at the rate stated by Seller.
Delay. If Buyer requests deferral of deliveries, Seller’s agreement to defer delivery shall not excuse Buyer from its obligation to pay for the Goods at the same times and in the same quantities as the original delivery schedule, including interest due pursuant to these terms and conditions. In addition to adhering to the original payment schedule, Buyer shall pay such storage charges as Seller may assess for storing the goods awaiting delivery. If Buyer requests deferral prior to the commencement of production, Seller may require progress payments in connection with expenses for materials and services incurred by Seller in anticipation of production.