The following terms, provisions, and conditions will apply to all goods and services sold by Agility Incorporated (“Agility”) to customers (“Customer”):
TERMS & CONDITIONS
The following terms, provisions, and conditions will apply to all goods and services sold by Agility Incorporated (“Agility”) to customers (“Customer”):
1. Acceptance of Order: The terms and conditions of sales as set forth below will be the only terms and conditions that will apply to and govern any purchase order accepted by AGILITY. Any term or condition in any Customer’s purchase order or other form in conflict with these terms or conditions is hereby expressly rejected and shall not be binding upon AGILITY. No term, provision or condition stated by Customer in a purchase order or elsewhere will be binding on AGILITY if in conflict with, inconsistent with, or in addition to the terms and conditions set forth below, unless expressly approved in writing by AGILITY. AGILITY is not required to accept Customer’s orders. All sales are final and may not be revoked, canceled or returned by Customer, unless AGILITY specifically agrees in advance in writing.
2. Price: Prices for goods and services provided by AGILITY are set by AGILITY and are subject to change without notice prior to AGILITY’s acceptance of Customer’s Except as may be expressly stated otherwise on the face of a purchase order (an “Order”) accepted by AGILITY, the prices stated in the Order constitute the full purchase price to be paid for the good and services purchased hereunder. Unless otherwise specified in writing, the purchase price for goods and services does not include delivery, shipping, and transportation charges, which will be paid for by Customer.
3. Packing, Marking and Shipping: All products are shipped F.O.B., point of shipment, unless agreed upon beforehand in writing or quote. AGILITY shall label, pack, mark and ship all goods and supplies in accordance with the requirements of the Order and so as to be in compliance with transportation regulations and good commercial practice for protection and shipment and shall secure the most advantageous transportation service and rates consistent therewith. No separate or additional charge is payable by Customer for containers, crating, boxing, bundling, dunnage, drayage, or storage unless specifically stated in the Order. Duplicate itemized packing lists of contents must be placed in each package bearing this Order number. No charge will be allowed by Customer for cartage or packing unless agreed upon beforehand in writing. All expenses incurred by AGILITY’s failure to furnish necessary shipping documents shall be charged to AGILITY. Risk of loss shall transfer to the Customer upon tender of goods to Customer, Customer’s representative, or common carrier. The cost of any special packing or special handling caused by Customer’s requirements or requests shall be added to the amount of the order. If Customer causes or requests a shipment delay, or if AGILITY ships or delivers the products erroneously as a result of inaccurate, incomplete or misleading information supplied by Customer or its agents or employees, storage and all other additional costs and risks shall be borne solely by Customer. Claims for products damaged or lost in transit should be made by Customer to the carrier, as AGILITY’s responsibility ceases upon tender of goods to Customer, Customer’s representative or common carrier.
4. Taxes: The amount of any sales, excise, or other taxes, if any, applicable to the products shall be added to the purchase price and shall be paid by Customer unless Customer provides AGILITY with an exemption certificate acceptable to the taxing authorities. Any taxes which AGILITY may be required to pay or collect under any existing or future law, upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption of any of the products, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of the Customer, who shall promptly pay the amount thereof to AGILITY upon demand.
5. Delivery: AGILITY will make a good faith effort to complete delivery of the products as indicated by AGILITY in writing, but AGILITY assumes no responsibility or liability and will accept no back charge for loss or damage due to delay or inability to deliver, whether or not such loss or damage was made known to AGILITY, including, but not limited to, liability for AGILITY’s non-performance caused by acts of God, war, labor difficulties, accidents, inability to obtain materials, delays of carriers, contractors or suppliers, or any other causes of any kind whatever beyond the control of AGILITY. Under no circumstances shall AGILITY be liable for any special, consequential, incidental, indirect, or liquidated damages, losses, or expense (whether or not based on negligence) arising directly or indirectly from delays or failure to give notice of delay. Customer’s acceptance of goods/services also constitutes a waiver of any claim for delay.
6. Payment: Unless otherwise specified on the Order, payment terms are net thirty (30) days from the date of the AGILITY’s invoice. Amounts are paid in U.S. dollars, and prices quoted by AGILITY are deemed to include all taxes. AGILITY reserves title to all goods until full payment on the Order. Customer will be conclusively deemed to have accepted and agreed to any invoice from AGILITY, unless AGILITY receives written objection to the invoice from Customer within seven (7) days after the date the invoice is sent to Customer. If payment is not made when due, or if Customer otherwise violates this agreement, Customer will pay AGILITY a late charge at the rate of 1.5% per month on the amount due.
7. WARRANTY and Claims: AGILITY provides a separate document containing AGILITY’s express Limited Warranty warranting the quality and condition of its goods. AGILITY’s express Limited Warranty can also be found on its website, and AGILITY may modify the terms of its Limited Warranty from time to time for any goods prior to their delivery and acceptance. SUBJECT TO AGILITY’S EXPRESS LIMITED WARRANTY, AGILITY and Customer agree as follows:
- AGILITY MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR Except for its express Limited Warranty, AGILITY disclaims all other express and implied warranties, including but not limited to any warranty of merchantability, fitness for a particular purpose, or suitability.
- Except for any warranty claims under the terms and conditions of AGILITY’s express Limited Warranty, Customer waives and releases AGILITY from any other liability for damages, whether direct, incidental, special, or consequential, for breach of warranty.
- In no event will AGILITY have any liability for any incidental or consequential damages arising out of or in connection with a breach of the sale or any other duty of AGILITY with respect to the goods/services, including, but not limited to, incidental or consequential damages for lost profits, lost sales or injury to persons or property.
- Any production figures quoted are approximate, based on the conditions as understood by AGILITY, but actual figures may vary substantially depending on operating conditions. Hence, no such figures are
- AGILITY’s liability on any claim of any kind, including but not limited to warranty, negligence, strict liability, and any other cause of action, for any loss or damage arising out of, connected with, or resulting from the performance or breach of the terms of sale of any goods/services, or from the design, manufacture, sale, delivery, or use of any goods or services or part of those goods or services will in no case exceed the purchase price allocable to the goods or services or part of those goods or services that gives rise to the claim.
Customer agrees to indemnify, defend and hold AGILITY harmless from any and all claims, demands, liability, losses, expenses, attorneys fees, and other obligations incurred by AGILITY which arise out of Customer’s acts or omissions with respect to any goods/services sold by AGILITY to Customer or with respect to any other matter or transaction between the parties or which arise out of Customer’s violation of any law.
8. Changes/Cancellation: Changes to quantity, designs, or specification may be made up to twenty-four (24) hours after receipt of Order acknowledgement, subject to AGILITY’s written consent following appropriate adjustments to scheduling, pricing, and for additional fees. Customer shall have no right to change, modify, or cancel an Order without AGILITY’s written consent, which AGILITY may withhold in its sole and unfettered discretion. Subject to AGILITY’s written consent to Customer’s request for a cancellation, AGILITY’s general Cancellation Policy is priced as follows: (1) within twenty-four (24) hours of the Order date is no charge; (2) within four (4) days of the promised ship date is twenty-five percent (25%) of the Order price; (3) within three (3) days of the promised ship date is fifty percent (50%) of the Order price; (4) within two (2) days of the promised ship date is one hundred percent (100%) of the Order price; and (5) notwithstanding the foregoing cancellation pricing, any Order cancelled two (2) days or fewer prior to the promised date of shipment will be charged one hundred percent (100%) of the Order price. Specially-fabricated or ordered items may not be cancelled or returned, and no refund will be made.
9. Indemnification / Patents (AGILITY): AGILITY agrees to indemnify and save harmless the Customer, its officers, employees, agents, or representatives or any of its customers buying or using the goods specified herein from any loss, damage, or injury arising out of a claim or suit at law or equity for actual or alleged infringement of patents, by reason of the buying, selling, or using of the goods supplied under the Order, and will assume the defense of any and all suits and will pay all costs and expenses incidental hereto.
10. Indemnification (Customer): Except to the extent caused by AGILITY’s breach of warranty, Customer shall defend, indemnify and hold harmless AGILITY, its employees, officers and directors, and their respective successors and assigns, from and against any and all liability, damages, claims, causes of action, losses, costs and expenses (including attorneys’ fees) of any kind (collectively, “Damages”) arising out of injuries to any person (including death) or damage to any property caused by or related to the goods or any negligent act or omission of Customer, its employees, agents, or assigns. Except to the extent caused by AGILITY’s actual or alleged infringement of patents under Section 9 above, Customer shall indemnify and save harmless AGILITY, its officers, employees, agents, or representatives, from and against any and all Damages, royalties and license fees arising from or for infringement of any patent by reason of any sale or use of goods which are manufactured according to Customer specifications or sample, and Customer will assume the defense of any and all suites and will pay all costs and expenses incidental hereto.
11. Confidential Information: AGILITY agrees not to make use of any data, designs, drawings, specifications, and other information furnished to it by the Customer, except for the performance of this Order and then only under similar restrictions against use and disclosure. Upon completion or termination of this Order, AGILITY shall return to Customer on demand, all such data, designs, drawings, specifications, and other information, including copies made by AGILITY. This Order is confidential between the Customer and AGILITY, and it is agreed by AGILITY that none of the details connected herewith shall be published or disclosed to any third party without the Customer’s written permission.
12. Remedies of AGILITY: Upon default by Customer, Customer agrees to reimburse AGILITY all attorney fees and court costs incurred by AGILITY in connection Customer agrees that any of the following shall constitute an event of default which shall enable AGILITY, at its option, to cancel any unexecuted portion of this order or to exercise any right or remedy which it may have by law: (a) the failure of Customer to perform any term or condition contained herein; (b) any failure of Customer to give required notice; (c) the insolvency of Customer or its failure to pay debts as they mature, an assignment by Customer for benefit of its creditors, the appointment of receiver for Customer or for the materials covered by this order or the filing of any petition to adjudicate Customer bankrupt; (d) the death, incompetence, dissolution, or termination of existence of Customer; (e) a failure by Customer to provide adequate assurance of performance within ten (10) days after a justified demand by AGILITY; or (f) if AGILITY, in good faith, believes that Customer’s prospect of performance under this Agreement is impaired. All rights and remedies of AGILITY herein are in addition to, and shall not exclude, any rights or remedies that AGILITY may have by law. In the event it becomes necessary to incur any expense for collection of any overdue account, reasonable collection charges, including reasonable attorneys’ fees, will be added to the balance due and Customer shall pay all such charges.
13. Work on Customer’s Premises: In the event this Order provides for services to be provided on the premises of the Customer, the provisions of AGILITY’s On-Site Work Rider will apply to govern all aspects of this Order as if fully set forth at length Customer shall provide AGILITY with copies of Customer’s plant safety and health rules and any other specific terms and conditions that Customer proposes to include with the rider, and such terms shall be incorporated within the rider to the extent accepted in writing by both parties.
14. Inspection and Acceptance: Claims for damage, shortage, or errors in shipping must be reported within one (1) day following delivery to Customer. Customer shall have seven (7) days from the date Customer receives any products to inspect such products and services for defects and noncomformance which are not due to damage, shortage, or errors in shipping and notify AGILITY, in writing, of any defects, nonconformance, or rejection of such products. After such seven (7) day period, Customer shall be deemed to have irrevocably accepted the products, if not previously accepted. After such acceptance, Customer shall have no right to reject the products for any reason or to revoke acceptance. Customer hereby agrees that such seven (7) day period is a reasonable amount of time for such inspection and revocation. The sole and exclusive remedy for merchandise alleged to be defective in workmanship or material will be the replacement of the merchandise subject to the manufacturer’s inspection and warranty.
15. Severability: These terms and conditions of sale shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these terms and conditions of sale and any uncertainty or ambiguity shall not be interpreted against any one party. If any provision hereof is held to be illegal, invalid, or unenforceable under any present or future laws, such provision shall be fully severable and the terms and conditions herein shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never been made a part The remaining provisions herein shall remain in full force and effect, and shall not be affected by such illegal, invalid, or unenforceable provisions or by their severance herefrom.
16. Set-Off: Customer shall not be entitled to set-off any amounts due Customer against any amount due AGILITY in connection with this transaction.
17. Entire Agreement: This is the entire agreement between the Terms and conditions may be updated at the discretion of AGILITY.
18. Governing Law: This transaction shall be governed in all respects by the laws of the state of Michigan (excluding choice of law provisions). Venue for any action shall be in Ottawa County, Michigan. All actions, regardless of form, arising out of or related to this transaction or the products sold hereunder must be brought against AGILITY within the applicable statutory period, but in no event more than ONE (1) YEAR after the date of invoice.
19. Waiver: The failure of either party to insist on performance of any provision of this Order shall not be construed as a waiver of that provision in any later instances.
20. Forms of Payment:
- ACH
- Check – Please note that a returned check charge of $25.00 will be added to account for each such check
- Credit Card – Please note that a 3% processing fee will apply to all payments by credit