TRENTON FORGING COMPANY STANDARD TERMS AND CONDITIONS OF SALE
All sales of goods and services by Trenton Forging Company (“Seller”) are made on the following terms and conditions. In these Standard Terms of Sale, any goods sold by Seller to the buyer named in Seller’s quotation or acknowledgment (“Buyer”) are referred to below as “goods” and any services sold by Seller to Buyer are called “services.”
1. Agreement. If Buyer has not otherwise agreed to these Standard Terms of Sale, then Buyer’s acceptance of delivery of, or payment for, the goods or services shall constitute Buyer’s agreement to these Standard Terms of Sale. Seller objects to and will not agree to any terms that are additional to or different from these Standard Terms of Sale. Terms that are printed on or contained in a purchase order or other form prepared by Buyer which are additional to, in conflict with or inconsistent with these Standard Terms of Sale shall be considered inapplicable and shall have no force or effect. The standard Terms of Sale control the contract between the Buyer and Seller, and upon acceptance of this by the Buyer shall automatically become a part of the contract. All terms and provisions of these Standard Terms of Sale shall be agreed to and accepted as a part of the Seller’s Quotation in order for Seller to commence any work set forth within the Quotation. If Buyer objects to any of the provisions of these Standard Terms of Sale, Buyer must bring such objection to the attention of Seller in a writing separate from any purchase order or other printed form of Buyer, which shall be deemed to be proposals for different terms and conditions that may be accepted only in writing signed by an authorized representative of Seller. All orders are subject to the approval by the Seller.
2. Prices; Payment Terms. Unless indicated differently on the quotation, prices quoted are firm for 30 days from the date of quotation by Seller, with the exception that Seller reserves the right to correct any and all typographical errors. Unless otherwise specified in Seller’s quotation or acknowledgment, payment in full of the price is due 30 days after shipment of the goods or performance of the services, without discount, except that if at any time Seller determines that Buyer’s financial condition does not justify a sale on credit or if Buyer shall at any time be in default in any indebtedness or obligation owing to Seller, then Seller may require advance payment or may ship C.O.D., and may withhold shipments on orders being shipped in installments. Any payment not made when due shall accrue a late charge of 1.5% per month. Payment must be made at Seller’s office, located at 5523 Hoover Road, Trenton, Michigan 48138 (hereinafter “Headquarters”). Buyer agrees that upon Buyer’s approval of the 50% design level for production that its approval automatically authorizes Seller to Purchase key components or services necessary to produce and manufacture the goods to be supplied by Seller. If Buyer requests and Seller agrees to any changes in Buyer’s order after its receipt by Seller, Buyer shall pay all charges reasonably assessed by Seller with respect to those changes. Seller has the right to increase its prices at any time upon notice to Buyer to reflect any unusual or unforeseen increase in Seller’s costs, including, but not limited to, an increase in the cost of materials. Buyer may not offset or recoup any claim against amounts due Seller. Unless otherwise agreed in writing signed by Buyer and Seller, all payments shall be in U.S. Dollars.
3. Delivery and Risk of Loss. Unless Seller agrees otherwise in writing, Seller shall deliver the goods F.O.B. Origin (Uniform Commercial Code) to any location designated by Buyer. The risk of loss of the goods shall pass to Buyer once the shipment leaves the Seller’s premises. Shipping, delivery and performance dates are estimates only, calculated from the date of receipt of Buyer’s order and complete drawings, specifications, designs, samples and other information reasonably requested by Seller to manufacture the goods and perform the services. Seller shall not incur any liability, direct or indirect, nor shall any order be canceled because or as a result of any delays in meeting such dates or schedules. Seller reserves the right to recalculate any projected shipping, delivery or performance dates upon receipt of Buyer’s order. Seller may ship all the goods at one time or in portions from time to time. Seller shall have the right to determine the method of shipment and routing of the goods, unless otherwise stated in Seller’s quotation or otherwise stated in Buyer’s purchase order, in which such case the Buyer shall be liable for shipping costs. Seller shall not be responsible or liable for a delay in the delivery of goods to Buyer that is due to a late delivery by Buyer of critical items or information needed for the design, fabrication and manufacture of the goods by Seller, including, but not limited to, try out material, sample, test, or design and quality specifications.
4. Quotation Acceptance. A Buyer’s authorization to proceed with quoted work, whether for new work or for an engineering change for existing work constitutes an acceptance of the quotation and agreement with the cost and timing specified on the quotation.
5. Taxes and Duties. Seller’s price does not include any privilege, occupation, personal property, value-added, sales, excise, use or other taxes, or any tariffs or customs duties, and Buyer shall be liable for all such taxes and duties, whether or not Seller invoiced Buyer for them.
6. Unavoidable Delay and Shortages. If Seller is not able to finish and deliver the goods to Buyer, or to perform the services, on time because of anything Seller cannot control (including but not limited to casualty, labor trouble, unavailability of supplies or transportation, Buyer’s failure to approve production samples, fire, flood, governmental act or regulation, riot, terrorist act, equipment or power failure, unscheduled maintenance, accident or act of God), then the estimated delivery or performance time shall be extended accordingly, and Seller shall not be liable to Buyer for any damages caused by the delay.
7. Changes. Seller shall have the right to make design or engineering changes in its parts, equipment, processes and methods of production of the goods or performance of the services in consultation with the Buyer, but Seller will not make any changes in operational or dimensional specifications that Buyer submits. Clerical errors in quotations are subject to correction.
8. Defects; Remedies.
A. Goods and Services. If any item of the goods and services proves to be defective after inspection, and for a period of 1 year (“Warranty Period”) following acceptance, the Buyer shall inform Seller of the issue by sending written notice to Seller at Seller’s Headquarters. Such notice (hereinafter “defect notice”) must be submitted to Seller within 30 days of discovery of the defect, and shall provide sufficient information for Seller to address the issue, and if possible, correct it or provide replacement goods as soon as practicable for the notice to be operative.
B. Period. Seller shall have 30 days to address the issues flagged in Buyer’s defect notice and respond.
C. Location for Notices and Returns. All notices and correspondence regarding purchases from the seller, including defect notices, as well as all returns, shall be made to Seller’s Headquarters, located at 5523 Hoover Road, Trenton, Michigan 48183, or other location specifically designated by the seller in writing, within 30 days of receipt of Seller’s response to the Buyer’s defect notice.
D. Seller’s Opportunity to Cure. If Buyer returns the item to Seller within the Warranty Period, and complies with all other procedural requirements noted in these Terms and Conditions, then Seller shall, at Seller’s option, either repair or replace the defective item(s), at Seller’s expense, or refund the purchase price for the defective goods. If Seller fails to repair or replace any defective item within a reasonable time, then Seller shall be liable to Buyer for the lesser of (1) the reasonable costs of repair or replacement by a third party or (2) that part of the purchase price of the defective goods that shall have been paid by Buyer, but Buyer shall not obtain repair or replacement by a third party without giving Seller at least 30 days prior written notice, during which time Seller may repair or replace the defective item. An item shall be considered “defective” if Seller finds that it is defective in materials or workmanship and if the defect materially impairs the value of the goods to Buyer, except that the goods will not be defective if they conform to industry accepted tolerances or Buyer’s specifications or the goods are used for applications not specified in Seller’s quotation for the goods. This paragraph sets forth Buyer’s sole and exclusive remedies for any defect in the goods. Seller does not warrant the workmanship of others who have performed work on or used the goods.
E. Limitations. This warranty shall not apply to any alleged defect that results from: (1) damage, physical abuse, vandalism, misuse, alterations, modifications, additions or repairs made without Seller’s prior consent; (2) improper installation by Buyer of the goods; or (3) excessive electrical loads, exposure to water or corrosive liquids or other substances, exposure to excessive heat, or use other than as intended by Seller. If goods are installed in mechanical equipment, it is Buyer’s responsibility to provide the appropriate type, quality and/or amount of lubrication to adequately sustain the goods provided to Buyer by Seller. This warranty shall also not apply to any item provided and/or used in connection with the goods provided by Seller that Seller purchased from a component supplier. Also excluded from Seller’s warranty is any warranty, except as to title, with respect to goods manufactured and/or designed to Buyer’s specifications or services performed to Buyer’s specifications, and the Buyer shall, at Buyer’s own expense: (1) defend and hold harmless the Seller from and against any claim, suit or other expense which is asserted or brought against Seller by reason of its manufacture or sale of such goods or its performance of the services: and (2) pay to Seller any service charges on such goods or services. Notice of any defect must be given to Seller within 30 days of discovery by Buyer of the defect. EXCEPT AS STATED IN THIS PARAGRAPH, SELLER DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTY AS TO THE GOODS OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Buyer is solely responsible for determining the proper application, installation, and/or use of the goods. Seller shall not have any liability with respect to any and all improper and/or defective Buyer supplied equipment or services that are used in connection with the goods provided by Seller. Seller shall not have any tort or contractual liability to Buyer with respect to any of the goods or services and shall not be liable for consequential, incidental, special, exemplary, indirect or punitive damages that arise from design defects arising from design failures or specifications established by the Buyer, delays, non-delivery, misuse of goods or other breach, including but not limited to such damages arising out of personal injury, death, property damage, lost profits or other economic injury. Seller shall not be liable to Buyer or any other person in tort for any negligent design or manufacture of the products, or for the omission of any warning with respect thereto, or for the negligent performance of the services. Neither Buyer nor any other person may modify or expand this warranty, waive any of the limitations, or make any different or additional warranties with respect to the products. No statement to the contrary shall bind Seller unless made in a writing signed by an authorized officer of Seller. Buyer shall not have any right of rejection or of revocation of acceptance of the goods or services.
9. Solvency, Security Interest and Statutory Rights. Buyer represents that Buyer is solvent. Seller retains title to the goods until the invoiced price is fully paid in immediately available funds. Seller retains and Buyer grants a security interest in the goods and all proceeds to secure payment of the price and all other indebtedness now and in the future owing by Buyer to Seller. Nothing contained in Seller’s Quotation and these Standard Terms of Sale shall be construed as a waiver or modification of the Seller’s statutory rights, including statutory lien rights under the Michigan law, which lien rights Seller will exercise if payment by the Buyer is not made promptly and pursuant to the Standard Terms of Sale.
10. Permits and Compliance. Seller is not responsible for obtaining any permit, inspection or license that is required for installation or operation of the goods or performance of the services. Seller does not make any promise or representation that the goods or services will conform to any law, ordinance, regulation, code or standard.
11. Proper Maintenance. Buyer agrees to properly and adequately maintain and care for the goods supplied by Seller. Buyer’s failure to properly and adequately maintain and care for the goods supplied by Seller will nullify and void any and all warranty provided by Seller on the goods.
12. Components of Another Product. If any of the goods constitute parts or components that are to be incorporated or installed in a product that is manufactured or assembled by or for Buyer, or if the services are performed on any components that are to be incorporated or installed in such a product, then: (1) Buyer shall obtain, or cause the end-user of the product to obtain, all permits, inspections and licenses required for installation or operation of the product; (2) Buyer shall cause the product to conform to all applicable laws, ordinances, regulations, codes and standards; and (3) Buyer shall place on the product all safety devices and warnings, and shall furnish to its buyer all operating instructions, that are necessary or desirable to prevent any death, personal injury or property damage from being caused by any use or operation of the product; and (4) Buyer shall indemnify Trenton Forging for any claims of negligence related to the Buyer’s design specifications or installation or modification of the product by Buyer or Buyer’s customer, contractor or subcontractor.
13. Resale. On any resale of the goods, Buyer shall contractually limit its buyer’s rights and remedies against both Buyer and Seller to the same extent as Buyer’s rights and remedies are limited under these Standard Terms of Sale.
14. Confidential Information:
A. Definition of Confidential Information. “Confidential Information” as used herein shall be broadly construed to mean all information (whether written, oral, or disseminated by electronic means or in any other form) that is or might reasonably be considered to be confidential or proprietary matter of Seller which may include, but not limited to: leases, contracts, maps, engineering information, engineering reports, feasibility studies, models, interpretations, and commercial, contractual and financial information, marketing information and analyses, bona fide sales leads, corporate records or other files, processes, plans, diagrams, components or assemblies, trade secrets, intellectual property, or other sensitive or proprietary data of Seller. Information shall be deemed to be Confidential Information irrespective of the form or manner of its communication or whether it has been designated or marked as such.
B. Buyer’s Obligations Regarding Confidential Information. The Buyer shall (a) use its best efforts to protect and safeguard the confidentiality of all such Confidential Information; (b) not use the Confidential Information, or permit it to be accessed or used, for any purpose other than the purpose of contemplated by these Standard Terms of Sale or otherwise in any manner to Seller's detriment, including without limitation, to reverse engineer, disassemble, decompile, or design around Seller's proprietary services, products, and/or confidential intellectual property; (c) not disclose any such Confidential Information to any person or entity, except to the Buyer's employees who: (i) need to know the Confidential Information to assist the Buyer, or act on its behalf, or to exercise its rights under these Standard Terms of Sale; (ii) are informed in writing by the Buyer of the confidential nature of the Confidential Information; and (iii) are subject to confidentiality duties or obligations to the Buyer that are no less restrictive than the terms and conditions of these Standard Terms of Sale; (d) comply with all applicable on-site access, remote access, and related security rules and procedures of Seller; (e) fully cooperate with Seller in any effort undertaken by Seller to enforce its rights related to any such unauthorized disclosure; (f) be responsible for any breach of these Standard Terms of Sale caused by any of its related persons and entities; and (g) notify Seller in writing immediately of any misuse, misappropriation, or unauthorized disclosure of Confidential Information that comes to the Buyer's attention.
15. Intellectual Property:
A. Definition of Intellectual Property Rights. “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to (i) patents; (ii) trademarks; (iii) internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, websites, and URLs; (iv) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (v) trade secrets; (vi) semiconductor chips, mask works, and the like; and (vii) all industrial and other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the laws of any jurisdiction throughout in any part of the world. Seller retains all ownership of all right, title, and interest in and to Seller’s Intellectual Property Rights and nothing in these Standard Terms of Sale grant any rights in or to Seller’s Intellectual Property Rights, by implication, estoppel or otherwise, to Buyer.
B. Buyer’s Obligations Related to Seller’s Intellectual Property Rights. Buyer acknowledges and agrees that: (a) any and all of Seller's Intellectual Property Rights are the sole and exclusive property of Seller or its licensors; (b) Buyer shall not acquire any ownership interest in any of Seller's Intellectual Property Rights under these Standard Terms of Sale;(c) any goodwill derived from the use by Buyer of Seller's Intellectual Property Rights inures to the benefit of Seller or its licensors, as the case may be; (d) if Buyer acquires any Intellectual Property Rights, rights in or relating to any goods (including any rights in any trademarks, derivative works, or patent improvements relating thereto) by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Seller or its licensors, as the case may be, without further action by either of the Parties; and (e) Buyer shall use Seller's Intellectual Property Rights solely for purposes of using the goods or services under these Standard Terms of Sale and only in accordance with these Standard Terms of Sale and the instructions of Seller.
C. Prohibited Acts Related to Trenton Intellectual Property Rights. Buyer shall not (a) take any action that might interfere with any of Seller's rights in or to Seller's Intellectual Property Rights, including Seller's ownership or exercise thereof; (b) challenge any right, title, or interest of Seller in or to Seller's Intellectual Property Rights; (c) make any claim or take any action adverse to Seller's ownership of Seller's Intellectual Property Rights; (d) register or apply for registrations, anywhere in the world, for Seller's trademarks or any other trademark that is similar to Seller’s trademarks or that incorporates Seller's trademarks in whole or in confusingly similar part; (e) use any mark, anywhere that is confusingly similar to Seller's trademarks in whole or in confusingly similar part; (f) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the goods or any Seller trademarks; or (g) alter, obscure, or remove any Seller's trademarks, or trademark or copyright notices or any other proprietary rights notices placed on the goods, marketing materials, or other materials that Seller may provide.
16. Cancellation. No purchase order for the Seller’s goods and services may be cancelled for any reason, in whole or in part, without Seller’s prior written approval. In the event a cancellation is approved by Seller then, unless otherwise agreed, Buyer shall pay Seller (i) all costs and expenses Seller incurred and allocated profit in relation to the order before Seller received the cancellation request, and (ii) any shipping charges and other out of pocket expenses incurred by Seller in relation to the cancellation (collectively, (“Cancellation Charges”). If Buyer delays or puts on hold a purchase order for the Seller’s goods for any reason for 60 days or more, Seller shall have the right to deem the purchase order cancelled and provide Buyer written notice that the purchase order has been deemed cancelled and a demand payment of its Cancellation Charges. Buyer must pay the Cancellation Charges within 30 days of the written notice on demand or otherwise be held to be in breach of the contract.
17. Insecurity and Adequate Assurance. If Seller ever believes in good faith that it has grounds for insecurity as to Buyer’s performance under the Contract, then Buyer shall provide adequate assurance of due performance within ten (10) days after Seller demands the assurance, which shall be considered a reasonable time. Buyer’s failure to do so shall be considered a repudiation by Buyer of the Contract and of all other then-existing contracts that provide for Buyer to purchase goods and/or services from Seller (“Outstanding Contracts”). “Grounds for insecurity” include, without limitation: (1) Buyer’s failure to make a payment to Seller or to perform another obligation under the Contract or an Outstanding Contract; (2) Buyer’s insolvency; (3) a deterioration in Buyer’s financial condition after the Contract was entered into; and (4) Buyer’s failure to provide financial statements and other financial information to Seller promptly upon Seller’s request. “Adequate assurance of due performance” includes, without limitation, providing a letter of credit or comparable security for all obligations of Buyer that then exist or that will arise in the future under all Outstanding Contracts.
18. Indemnity. Buyer shall indemnify and hold harmless Seller with respect to all damages, losses, claims and expenses, including but not limited to consequential and incidental damages and attorney fees, that Seller incurs as a result of Buyer’s breach of any of Buyer’s obligations under these Standard Terms of Sale or any claimed unfair competition or patent, trademark or copyright infringement or any other claim resulting from Seller’s manufacture of the goods, or performance of the services, to Buyer’s specifications.
19. Seller’s Rights. Seller has all rights and remedies given to Seller by applicable law, and Seller’s rights and remedies are cumulative and may be exercised from time to time. A waiver by Seller of any right on one occasion will not be a waiver of any future exercise of that right. If Seller finds it necessary to commence any type of collections proceedings to collect balances due from the Buyer, including lien enforcement actions, the Buyer agrees to pay all costs of collections and all attorneys fees incurred by Seller. Further, Buyer acknowledges that Seller will not be liable for delays caused by labor disturbances, weather conditions, acts of God, acts of environmental agencies, accidents, shortages of necessary materials and supplies, or any cause beyond Seller’s control.
20. Time for Bringing Action. Any action that Buyer brings against Seller for breach of this agreement or for any other claim that arises out of or relates to the goods or their design, manufacture, sale or delivery or the services must be brought within 1 year after the cause of action accrues.
21. Governing Law and Language. This agreement shall be considered to have been made in the State of Michigan, and it shall be governed by and interpreted according to Michigan law. This agreement shall be interpreted in the English language only. Either party may bring any action that arises out of or relates to this agreement in any federal or state court in Michigan, that has jurisdiction of the subject matter, and Buyer irrevocably consents that any such court shall have personal jurisdiction over Buyer and waives any objection that the court is an inconvenient forum.
22. Miscellaneous. If any term of this agreement is deemed unenforceable by a court of competent jurisdiction, the remainder of the agreement shall remain operative and binding. Headings are for convenience only and shall not limit the scope of the Terms and Conditions.
23. Complete Agreement; Amendment. The Terms and Conditions on Seller’s quotation or acknowledgment and these Standard Terms of Sale contain the entire agreement between Buyer and Seller. Any change in this agreement must be by a signed writing. This agreement is not assignable or transferable by either party, except to its successor, or to the transferee of all or substantially all the party’s assets to which this contract relates.
Updated 1/8/2024 – Rev. 4
