- Assent to the terms and conditions of this Master Customer Agreement (this “Agreement”) is confirmed unless a customer 1) has a separate written mutual agreement or 2) provides written objection within 3 days of receiving an Order Confirmation or Invoice into which this Agreement is incorporated. Customer’s acceptance of all or any part of the goods is also confirmation of this Agreement.
- Any terms and conditions contained in purchase orders may supplement but not supplant the terms of this Agreement. In the event of a conflict between the terms of this Agreement and language contained in purchase orders, this Agreement will control.
- All orders are placed and paid for in US dollars.
- Prices are as set forth in the invoice provided by HMI.
- HMI’s quoted prices do not include any present or future sales, use, value added, excise or other foreign, federal, state or local taxes. In addition to the prices specified herein, customer shall pay and reimburse HMI for any and all taxes that may become payable with respect to customer’s purchase of goods from HMI, other than taxes based on HMI’s income.
- HMI will use commercially reasonable efforts to keep its delivery commitment. However, the stated time of delivery is an estimate only, and HMI shall not be liable for any delayed delivery or non-delivery of the goods caused by a Force Majeure Event (as defined below) or otherwise.
- HMI reserves the right to make partial shipments and to submit invoices for partial shipments.
- For direct container shipments, unless otherwise agreed upon by customer and HMI in writing, goods are quoted, and all goods delivered hereunder shall be delivered, Ex Factory (Incoterms 2010) the facility at which the products or goods are manufactured provided, however, that notwithstanding such Ex Factory designation, HMI shall be responsible for arranging and paying for transportation from such facility to the applicable port of origin. Title shall pass when product is loaded and sealed and shipped from factory.
- For any order that is held up by customer for delivery more than five days from arrival at port, HMI will assess storage charges. If necessary, HMI can arrange to have the affected goods moved to warehouse storage, in which case customer will be responsible for the monthly warehousing charge to include any cost associated with movement to the warehouse. Customer will bear all risk of damage or loss while product is in storage or in transit to or from storage.
INSPECTION AND SHORTAGES
- Customer agrees to inspect the goods against shipping papers immediately upon receipt.
- No objectionable or rejected goods shall be returned or disposed of without HMI’s prior written consent. HMI will instruct customer as to the disposition of any objectionable or rejected goods.
TERMS OF PAYMENT/SUSPENSION OF PERFORMANCE
- Payment terms are net thirty days from the date of invoice unless otherwise agreed in writing.
- If, in HMI’s judgment, reasonable doubt exists as to customer’s financial responsibility or creditworthiness, or if customer is past due in payment of any amount owing to HMI, then HMI reserves the right, without liability and without prejudice to any other remedies, to suspend performance, decline to ship or stop any goods in transit until HMI receives payment of all amounts, whether or not due, owing to HMI, or adequate assurance of such payment.
- Customer agrees to pay any charges that HMI incurs in collection, including reasonable attorneys’ fees, relating to the collection or enforcement of any indebtedness, liabilities or obligations of customer to HMI.
- Subject to the conditions stated herein, HMI warrants that, at the time of delivery as set forth above, the goods substantially conform to HMI’s specifications, subject to tolerances and variations consistent with usual trade. If any goods fail to substantially conform to such specifications, customer’s sole remedy will be as set forth in the “Remedies of Customer” section below.
LIMITATIONS OF LIABILITIES
- The limited express warranty set forth above and the provisions of the “Remedies of Customer” section below set forth customer’s sole remedy in connection with the goods, and in no event shall HMI be otherwise liable hereunder or otherwise for any loss, damage or injury, whether for direct, indirect, special, punitive, incidental or consequential damages of any kind of in any amount, arising out of these terms and conditions or in connection with the goods, including, but not limited to, loss of profits, revenues, anticipated sales or business opportunities, or interruption of business.
- HMI’s total and exclusive liability in connection with the goods, even if caused by HMI’s gross or ordinary negligence, under this Agreement shall be strictly limited to the remedies set forth in the “Remedies of Customer” section below, and in no event shall damages exceed the amount equal to price of the goods paid by customer to HMI.
PROPRIETARY RIGHTS/INTELLECTUAL PROPERTY/CONFIDENTIALITY
- HMI owns the designs or technical specifications for all of its goods.
- Designs and technical specifications are confidential and confidentiality must be maintained at all times.
REMEDIES OF CUSTOMER
- With respect to any claim or objection relating to any goods, as long as HMI confirms and agrees with defect or objection, as customer’s exclusive remedy, HMI will, at its sole option: (i) repair or provide replacement parts, (ii) replace the goods or portion of goods affected or (iii) refund the purchase price for such goods.
REMEDIES OF HMI
- Customer agrees that should customer breach these terms and conditions, or any other applicable agreement, HMI may, in its sole discretion, do any one or more of the following: (a) recover from customer the full purchase price and other amounts then due and as they shall thereafter become due in connection with this transaction; or (b) exercise any other right or remedy that may be available to HMI by law or in equity.
- No remedy is intended to be exclusive, but each shall be cumulative and in addition to all other available remedies.
- Waiver by HMI of any breach of any of the terms and conditions set forth herein shall not be construed as a waiver of any other breach, and the failure of HMI to exercise any right arising from any default of customer hereunder shall not be deemed to be a waiver of such right, which may be exercised at any subsequent time.
- Failure of HMI to perform hereunder shall not be considered a breach of this Agreement or any other agreement if such failure is caused by a Force Majeure Event.
- A “Force Majeure Event” means any fire; strike; lockout; flood; accident; disease; delay in transportation; shortage of or inability to obtain material, supplies, fuel or labor; war; acts of God; action taken on account of any acts, demands, orders or regulations of any local, state or federal government or any department or agency thereof, whether or not legally binding on HMI; or any contingency or event beyond the HMI’s control.
- This Master Customer Agreement will be posted and updated on the HMI website. Any revisions will be posted to the website and/or sent via e-mail. Revisions become applicable to all open purchase orders issued before or after the date of posting or email transmission.
- North Carolina law (without regard to any jurisdiction’s conflict-of-laws principles) exclusively governs all matters based upon, arising out of or relating in any way to this Agreement.
- Any legal action brought under or in connection with the subject matter hereof shall be brought exclusively in a court of competent jurisdiction sitting in Greensboro, North Carolina and each of customer and HMI waives any objection to the laying of the venue in such courts and agree not to plead or claim in such courts that any such action has been brought in an inconvenient forum.