Terms and Conditions of Sale

Returns:

Returns are accepted only if authorized by Seller in writing within forty-eight (48) hours after delivery of the product. Authorized returns are subject to a restocking fee of no less than fifty percent (50%) of the invoiced price of the returned product. Unauthorized returns will not be accepted.

These Terms and Conditions of Sale (“Terms”) govern the relationship between Seller and Buyer and apply to all sales of products by Seller to Buyer. These Terms are incorporated into and made part of every invoice, purchase order acknowledgment, quotation, delivery receipt, electronic transaction, and any other document or communication relating to the sale of products by Seller to Buyer (collectively, the “Agreement”). In the event of any conflict between these Terms and any terms or conditions contained in Buyer's purchase order, acknowledgment, or other document, these Terms shall control and any additional or different terms proposed by Buyer are hereby rejected and shall have no effect.

By accepting delivery in METRC®, retaining possession of, using, or failing to reject the product within forty-eight (48) hours after delivery, Buyer acknowledges and agrees to these Terms and agrees to pay all amounts due under the Agreement and the applicable invoice.

Buyer’s acceptance and retention of the product constitutes conclusive acceptance of the product and waiver of any claim that the product was rejected or nonconforming, except for latent defects that could not reasonably have been discovered upon inspection and that are reported to Seller in writing within thirty (30) days after discovery, and in no event later than thirty (30) days after delivery. ALL PRODUCTS ARE SOLD “AS IS,” “WHERE IS,” AND “WITH ALL FAULTS.” SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OF TRADE, OR COURSE OF PERFORMANCE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION, STATEMENT, PROMISE, DESCRIPTION, SAMPLE, SPECIFICATION, OR WARRANTY NOT EXPRESSLY SET FORTH IN THE AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM RELATING TO THE PRODUCTS SHALL BE REPAIR, REPLACEMENT, OR REFUND OF THE PURCHASE PRICE, AT SELLER’S SOLE OPTION. IN NO EVENT SHALL SELLER'S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO ANY PRODUCT EXCEED THE PURCHASE PRICE ACTUALLY PAID BY BUYER FOR THE SPECIFIC PRODUCT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY.

As security for the payment and performance of all present and future obligations, indebtedness, and liabilities of Buyer to Seller of every kind and nature whatsoever, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising (collectively, the “Obligations”), Buyer hereby grants Seller a continuing purchase money security interest and lien in and to all products sold by Seller to Buyer, together with all accessions, attachments, substitutions, replacements, inventory, accounts, chattel paper, instruments, general intangibles, proceeds, and products thereof.

This security interest shall secure all monies and Obligations owed by Buyer to Seller, whether arising under the Agreement or otherwise, including, without limitation, all unpaid purchase prices, service charges, interest, attorneys’ fees, collection costs, and any extensions, renewals, or modifications thereof.

Seller shall have all rights and remedies of a secured party under the Uniform Commercial Code as adopted in the State of Michigan and any other applicable law.

Buyer authorizes Seller, and hereby irrevocably appoints Seller as Buyer’s attorney-in-fact, to execute and file financing statements, amendments, continuations, and any other documents or instruments that Seller deems necessary or advisable to perfect, protect, or enforce Seller’s security interest in any jurisdiction. Buyer agrees to pay all filing fees, recording fees, and related costs incurred by Seller in connection therewith.

Unless otherwise stated in writing on the invoice, payment is due in full pursuant to the payment terms stated on the invoice, calculated from the invoice date.

Any amount not paid when due shall accrue interest at the lesser of: (a) one and one-half percent (1.5%) per month (eighteen percent (18%) per annum); or (b) the maximum rate permitted by applicable Michigan law, commencing on the due date and continuing until paid in full.

Buyer shall be in default under the Agreement if Buyer fails to make payment when due, otherwise breaches any obligation under the Agreement, becomes insolvent, files or has filed against it a petition in bankruptcy, makes an assignment for the benefit of creditors, or if Seller in good faith deems itself insecure with respect to Buyer's ability to perform. Upon default, Seller may, to the fullest extent permitted by law and in its sole discretion, exercise any and all rights and remedies available under the Agreement, the Uniform Commercial Code, and applicable Michigan law, including, without limitation:

Declaring all unpaid obligations immediately due and payable;
Repossessing the product;
Suspending or canceling future deliveries;
Recovering all costs of collection, including reasonable attorneys’ fees, court costs, and expenses; and
Pursuing any other legal or equitable remedy available.

The information furnished by the Buyer in connection with the Buyer’s request for an extension of credit is for commercial and business purposes only. The Buyer represents, warrants, and certifies that all information provided to Seller is true, accurate, complete, and correct in all material respects, and acknowledges that Seller is relying upon such information in evaluating and extending credit.

Buyer hereby authorizes Seller, its agents, assigns, and representatives, to investigate, obtain, and verify any references, financial information, banking relationships, trade references, credit history, and other information deemed relevant by Seller in connection with the evaluation of Buyer’s creditworthiness and financial responsibility. Buyer expressly authorizes Seller to obtain consumer and/or commercial credit reports, make such credit inquiries as Seller deems necessary or appropriate, and exchange credit information concerning Buyer with credit reporting agencies and other third parties in connection with the establishment, maintenance, review, collection, or enforcement of any credit account or extension of credit.

Buyer acknowledges and agrees that any extension of credit shall be subject to Seller’s continuing credit approval and Seller reserves the right, in its sole discretion, to modify, suspend, or terminate credit privileges at any time.

This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, without regard to its conflict of laws principles. Buyer agrees that venue for any dispute arising from or relating to the Agreement shall lie exclusively in the state or federal courts located in the State of Michigan, and Buyer consents to the personal jurisdiction of such courts and waives any objection based on forum non conveniens.

CROSS-DEFAULT; RIGHT TO SUSPEND PERFORMANCE

Any default by Buyer under the Agreement or under any other agreement, invoice, promissory note, guaranty, credit application, security agreement, or other obligation owing by Buyer or any guarantor to Seller or any affiliate of Seller shall constitute a default under all agreements between Buyer and Seller (a “Cross-Default”).

Upon any default or Cross-Default, Seller may, in its sole discretion and without notice or demand:
(a) suspend performance;
(b) withhold shipment or delivery of products;
(c) revoke any extension of credit;
(d) require advance payment, cash on delivery, or additional security;
(e) cancel pending orders; and/or
(f) declare all Obligations immediately due and payable.

Seller’s exercise of any such rights shall not waive any other rights or remedies available under the Agreement, the Uniform Commercial Code, or applicable law.

PERSONAL GUARANTY

For valuable consideration, including, without limitation, Seller extending credit to or selling products to Buyer, each undersigned guarantor (“Guarantor”), jointly and severally, absolutely, irrevocably, and unconditionally guarantees to Seller the full and prompt payment, satisfaction, and performance of all present and future Obligations of Buyer to Seller, whether now existing or hereafter arising, direct or indirect, absolute or contingent, secured or unsecured, matured or unmatured (collectively, the “Obligations”).

This is a continuing guaranty of payment and performance and not merely of collection. Guarantor’s liability shall be primary, direct, and immediate and shall not be conditioned or contingent upon pursuit of any remedy against Buyer, any collateral, or any other guarantor or person. Seller may enforce this Guaranty immediately upon default by Buyer without first instituting suit, foreclosing on collateral, exhausting remedies, or making demand upon Buyer or any other person.

This Guaranty shall remain in full force and effect notwithstanding any renewal, extension, modification, compromise, settlement, release, bankruptcy, insolvency proceeding, restructuring, or other change in Buyer’s obligations or financial condition.

Each Guarantor expressly waives:
(a) notice of acceptance of this Guaranty;
(b) notice of extension of credit;
(c) presentment, demand, protest, dishonor, and notice of nonpayment or default;
(d) any requirement that Seller proceed first against Buyer, collateral, or any other person;
(e) all suretyship defenses and defenses arising under applicable law; and
(f) any defense based upon impairment of collateral or modification of the Obligations.

Seller may amend, extend, renew, compromise, settle, increase, reduce, or otherwise modify the Obligations or any collateral securing the Obligations without notice to or consent from Guarantor, and no such action shall release, impair, or affect Guarantor’s obligations under this Guaranty.

Each Guarantor agrees to pay all attorneys’ fees, court costs, collection agency fees, expert fees, and all other costs and expenses incurred by Seller in enforcing this Guaranty or collecting any Obligations.

This Guaranty shall be governed by and construed in accordance with the laws of the State of Michigan. Guarantor consents to the exclusive jurisdiction and venue of the state and federal courts located in the State of Michigan and waives any objection based on forum non conveniens.