Terms And Conditions
1. Scope. These Terms and Conditions will govern the purchase of all goods and services described in or related to the purchase of any goods from DiscountBearings.com LLC (“Seller”). Transfer of any additional goods or provision of additional services does not constitute Seller’s agreement to or acceptance of any new or different terms, including pre-printed terms on any order issued by Buyer. All purchase orders issued by Buyer shall be deemed overridden and subject to these terms and conditions. Third party products are subject to the license, warranty and available service as such third- party supplier allows Seller to pass through or assign to Buyer.
2. Shipping and Risk of Loss. All products sold pursuant to these Terms and Conditions are sold FCA, Seller’s facility
3. Intellectual Property. Any and all intellectual property associated with the goods sold under these Terms and Conditions is the result of the cumulative work of Seller and represents years of research and development. Except for the right to use the goods in accordance with the purposes for which they were intended, no other right, license or grant is made or implied to Buyer unless otherwise expressly agreed in writing by the parties.
4. Acceptance. All Orders issued in connection with these Terms and Conditions are subject to acceptance by Seller in writing by an authorized officer. To the extent that any conflict exists between these Terms and Conditions and any Order, the Terms and Conditions shall control.
5. Cancellations. Seller may cancel a Order at any time without penalty or other liability if Seller determines in its sole discretion that it is unable to meet the requirements of the Order.
6. Delivery/Shipments. Packaging requirements will be determined by Seller in its sole discretion. All shipments will be directed to the location described in the Order. If Buyer fails to specify a mode of shipment, Seller will select the mode which in its estimate provides the lowest reasonable transportation cost.
7. Claims. If goods shipped pursuant to these Terms and Conditions are missing, Buyer must notify Seller within three (3) days of receipt of shipment or all objections are waived. Buyer must also retain all original packaging, including exterior cartons.
8. Safety Disclaimer. By accepting delivery and utilizing the goods and services provided pursuant to these Terms and Conditions, Buyer acknowledges and accepts Seller’s disclaimer of any and all liability for personal injuries associated with the use of such goods and services. Buyer agrees not to hold Discount Bearings LLC liable for any injuries that occur in the installation, operation, maintenance, use or possession of the goods provided pursuant to this Order.
9. Indemnification of Seller. Buyer assumes all liability of any nature whatsoever arising out of the use or possession of all goods and services provided under these Terms and Conditions and agrees to indemnify, protect, defend and hold harmless Seller, it’s officers and employees with respect to any claim, suit, action or judgment of any kind arising out of the installation, operation, maintenance, use or possession of the goods or services provided pursuant to the Terms and Conditions and any expenses related thereto including attorneys’ fees and costs.
10. Limited Warranty on Products. Subject to the provisions below in the paragraph entitled “Disclaimer of Other Warranties” and “Damages and Limitation of Liability,” Seller warrants to Buyer that all equipment and other products sold to Buyer, regardless of manufacturer, will conform to all applicable written specifications of Original Equipment Manufacturer, and shall be free from substantial defects in material or workmanship for a period of time not to exceed twelve (12) months from the date of delivery of such equipment or products as herein provided. In the event Buyer discovers, within the applicable warranty period, the existence of any defect which is covered by the foregoing warranty, Buyer must provide written notice to Seller of any such defect within ten (10) days after discovery thereof, and Seller shall, if given notification by Buyer within the time and in the manner herein provided with respect to any such defect occurring within the applicable warranty period, take steps to correct or otherwise cure such defect by the following method: Seller may repair or replace any such defective product or equipment if returned by Buyer, at its cost, to Seller. In the event Seller determines to repair or replace any such defective equipment or other product, such repair or replacement shall be completed at no charge to Buyer for labor costs incurred by Seller for work performed during Seller’s normal working hours, as determined by Seller from time to time. Labor costs in connection with work performed at other times at the request of Buyer must be paid by Buyer to Seller promptly upon receipt of each invoice for payment thereof, at Seller’s applicable rates then prevailing for services of Seller’s personnel, agents, or contractors.
Seller warrants that all repair or replacement parts delivered and/or installed by Seller in connection with compliance with the foregoing warranty obligations shall be free from any substantial defect in material or workmanship for a period of ninety (90) days following delivery, and such repairs or replacements of original or replacement equipment or parts shall not result in or be construed as a renewal or extension of the original warranty period pertaining to any equipment or products. All parts returned or retrieved by Seller and which are replaced pursuant to the foregoing provisions shall then become the property of Seller.
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY HEREIN CONTAINED, ANY AND ALL EQUIPMENT AND PARTS SUPPLIED BY SELLER TO BUYER WHICH HAVE BEEN MANUFACTURED FOR OR PURCHASED BY SELLER, BY OR FROM ANY OTHER MANUFACTURER OR SUPPLIER SHALL BE SUBJECT ONLY TO ANY WARRANTY WHICH MAY BE OFFERED BY SAID MANUFACTURER OR SUPPLIER; AND BUYER AGREES TO LOOK SOLELY TO SAID MANUFACTURER OR SUPPLIER, AND NOT TO SELLER, TO REPAIR OR REPLACE ANY DEFECTIVE EQUIPMENT WHICH IS THE SUBJECT OF AND IS COVERED BY ANY SUCH WARRANTY , AND DOES HEREBY RELEASE AND HOLD SELLER HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS WITH RESPECT TO ANY BREACH OF WARRANTY OR DEFECT IN ANY SUCH EQUIPMENT OR PARTS.
Buyer shall pay to Seller such amounts, fees and costs as Seller shall charge or incur, in accordance with Seller’s prices and terms then in effect, for all parts and services which (1) are required to be replaced or repaired as a result of normal or excessive wear and tear and maintenance of the equipment, (2) are necessary in order to make additions or modifications to the equipment as requested by Buyer, or (3) are necessary in order for Seller to make repairs or replacements not covered by Seller’s warranties hereunder, including, without limitation, repairs to or replacements of equipment or parts damaged as a result of any accident, misuse, neglect, alteration, improper storage, installation, or maintenance, or unauthorized repair or programming errors or defects caused directly or indirectly by Buyer, its agents, or contractors. This Limited Warranty shall be contingent upon timely payment by Buyer of amounts owed to Seller.
11. VOIDING OF WARRANTIES. Notwithstanding anything to the contrary in these terms and conditions or any other agreement between Seller and Buyer, all warranties contained herein shall be void and of no force or effect with respect to any equipment, parts, products that have been damaged as a result of any accident, misuse, neglect, alteration, improper storage, installation, or maintenance, unauthorized repair of programming errors or defects caused directly or indirectly by Buyer, its agents or contractors.
12. DISCLAIMER OF OTHER WARRANTIES. THE FOREGOING LIMITED WARRANTIES WITH RESPECT TO EQUIPMENT OR PRODUCTS ARE EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER WARRANTIES OF QUALITY OR PERFORMANCE, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMIT A TION, ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS OF SAID EQUIPMENT OR PROGRAMS FOR ANY P ARTICULAR PURPOSE. SELLER DISCLAIMS ANY WARRANTY , WHETHER EXPRESS OR IMPLIED, REGARDING THE SUITABILITY OF PRODUCTS AND EQUIPMENT SUPPLIED PURSUANT TO ANY ORDER. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, SELLER MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO ANY SERVICES PERFORMED BY SELLER OR ITS AGENTS PURSUANT TO ANY ORDER. Seller does not authorize any person or entity (including, without limitation, Seller’s agents and employees) to make any representations (verbal or written) contrary to the terms of this limited warranty or its exclusions. Such terms of this limited warranty and its exclusions can only be effectively modified in writing and only by the Seller’s authorized representative.
13. DAMAGES AND LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER DISCOUNTBEARINGS.COM LLC BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM, CONNECTED WITH OR RELATING TO THE PROVISION OF ANY GOODS OR SERVICES TO BUYER UNDER ANY ORDER, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUE, LOSS OF BUYER GOODWILL, ATTORNEYS’ FEES, DAMAGE TO BUSINESS OR BUSINESS RELATIONS, LOSS OF USE OF EQUIPMENT, COST OF CAPITAL, CLAIMS BY CLIENTS OR CUSTOMERS OF BUYER, OR DAMAGES FOR ECONOMIC LOSSES OR PROPERTY DAMAGE ARISING FROM, CONNECTED WITH OR RELATING TO SELLER’S ACTS OR OMISSIONS, WHETHER UNDER NEGLIGENCE, STRICT LIABILITY, ENTERPRISE LIABILITY OR OTHER PRODUCT LIABILITY THEORIES. SELLER’S TOTAL LIABILITY SHALL NOT EXCEED THE AMOUNT PAID TO SELLER PURSUANT TO ANY ORDER DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE DAMAGE OR LOSS. ANY ACTION ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PRODUCTS OR SERVICES FURNISHED BY SELLER MUST BE BROUGHT BY BUYER WITHIN ONE (1) YEAR FROM THE DATE THE CAUSE OF ACTION ACCRUES, OR THE APPLICABLE STATUTORY PERIOD, WHICHEVER IS SHORTER. THE PARTIES AGREE THAT THE STATE OR FEDERAL COURTS LOCATED IN THE EASTERN DISTRICT OF MICHIGAN SHALL BE THE EXCLUSIVE FORUM FOR ANY DISPUTE REGADING ANY PRODUCTS SOLD BY BUYER AND ALL PARTIES CONSENT TO SUCH JURISDICITON AS AN EXPRESS CONDITION OF ANY SALE. SELLER SHALL BE ENTITLED TO RECOVER ACTUAL ATTORNEY FEES AS AN ELEMENT OF DAMAGES TO THE EXTENT IT IS THE PREVAILING PARTY IN SUCH DISPUTE.
14. Exporting. Buyer shall comply with all export regulations pertaining to Seller’s products. Without limiting the generality of the foregoing, Buyer expressly warrants that it will not directly or indirectly export, re-export, or transship Seller’s products in violation of any export laws, rules or regulations of the United States of America.
15. Force Majeure. Seller will not be deemed to be in default or otherwise responsible for delays or failures in performance resulting from acts of God, acts of war or civil disturbance, epidemics, governmental action or inaction, fires, earthquakes, unavailability of labor, materials, power or communication, or other causes beyond Seller’s reasonable control.
16. Choice of Law. These Terms and Conditions will be governed and controlled in all respects by the laws of the State of Pennsylvania, including interpretation, enforceability, validity and construction, without regard to any conflict of law provisions.
17. Integration. These Terms And Conditions constitute the entire understanding between the parties with respect to the subject matter of these Terms and Conditions and supersedes any prior discussions, negotiations, agreements and understandings, except only to the extent that Seller has expressly accepted Buyer’s terms contained in any Order.
18. Amendment. No amendment or modification hereof shall be of any force and effect unless in writing and signed by the party claimed to be bound thereby, and no amendment or modification shall be effected by an acknowledgment or acceptance by Seller a purchase order from Buyer containing any different terms and conditions. In
the event such new terms and conditions are inconsistent with these terms and conditions, these terms and conditions shall govern any such inconsistencies.
19. Waiver. Seller’s failure to exercise a right or remedy or Seller’s acceptance of a partial or delinquent payment will not operate as a waiver of any of Seller’s rights or Buyer’s obligations under any Order and will not constitute a waiver of Seller’s right to declare an immediate or a subsequent default.
20. Severability. Whenever possible, each provision of these Terms and Conditions will be interpreted in such a way as to be effective and valid under applicable law. If a provision is prohibited by or invalid under applicable law, it will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions.
21. Assignment. Buyer shall not assign any of its rights or benefits without the express consent of Seller.