ACP STANDARD TERMS AND CONDITIONS OF SALE
Acceptance of orders by Automotive Cooling Products, Inc. (ACP) from Buyer is conditioned upon Buyer s consent and agreement to the terms and conditions of sale set forth below. Buyer s acceptance and use of shipped goods will be conclusively deemed consent and agreement to these terms and conditions. These terms and conditions shall apply to all purchase orders received by ACP from Buyer. These terms and conditions shall prevail, notwithstanding any variance with the terms and conditions of any order or other instrument submitted by Buyer to ACP.
1. ACCEPTANCE.
Once Buyer s order is accepted by ACP, a binding contract is created to purchase and sell the goods identified on Buyer’s order on the terms and conditions indicated below. Acceptance of any purchase order is subject to credit rating approval.
2. PRICES, TERMS OF PAYMENT.
Subject to approved credit and to establish credit limits, the purchase price set forth in this invoice is due and payable by the 10th of the month following the date of the invoice. Finance charges are imposed on all past due invoices at the lesser of (i) a periodic rate of 1-1 /2% per month (an annual percentage rate of 1 89/6) or (ii) a rate per month equal to 1-1/2th of the maximum annual percentage allowed under applicable state laws. The terms of payment may be changed or credit withdrawn any time ACP deems necessary. ACP may require full or partial payment in advance. Non-sufficient funds checks received by ACP from Buyer are subject to a $25.00 service charge. If Buyer fails to make payments when due, ACP may recover all incidental and consequential damages caused by Buyer s breach, including all fees paid to collection agencies and attorneys fees and costs, without prior notice. Typographical and other errors in stated prices are subject to correction.
3. TAXES.
All prices set forth in this invoice are exclusive of applicable sales, use and other taxes relating to the sale, purchase or delivery of the goods, and any such taxes shall be paid by Buyer. Product prices are subject to change without notice.
4. SHIPMENT AND RISK OF LOSS.
The methods of shipment and packaging shall be in accordance with ACP s standard procedures. Unless otherwise agree to in writing, all transportation and shipping charges shall be invoiced to and paid by Buyer. Risk of loss or damage shall pass to Buyer upon delivery of the goods to the common carrier for shipment.
5. SECURITY INTERESTS.
ACP retains and Buyer hereby grants to ACP a security interest in shipped goods and all proceeds received therefrom by the Buyer until the full purchase price has been paid. Buyer s failure to pay any amount when due shall give ACP the right to possession and removal of the goods at any time upon giving at least ten (1 0) days prior notice. ACP s taking of possession shall be without prejudice to any other remedies ACP may have. Upon request, Buyer agrees to execute financing statements or other documents reasonably required by ACP to protect and perfect ACP s security interest in the shipped goods.
6. INSPECTION AND ACCEPTANCE.
Buyer shall inspect all shipments of goods upon arrival and shall notify ACP in writing of any overshipments, shortages or other failures to conform to the contract which are reasonably discoverable upon arrival. Such notice must be sent within two (2) business days of arrival. Buyer shall further notify ACP in writing of any other failure to conform to the contract within two (2) business days after the failure is discovered or becomes reasonably discoverable, or prior to using the goods, whichever occurs first. All notifications shall be accompanied by packing slips, inspection reports, and other documents necessary to support Buyer s claims. All shortages or other failures to conform not timely reported to ACP as required by this section will be deemed forever waived by Buyer.
7. PRODUCT WARRANTY.
ACP MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS SOLD HEREUNDER, EXCEPT FOR THE MANUFACTURER S WRITTEN LIMITED WARRANTY, IF ANY, WHICH APPLIES TO THE GOODS PURCHASED HEREUNDER. ACP SHALL HAVE NO LIABILITY OR OBLIGATION WITH RESPECT TO THE FAILUREOF THE GOODS TO MEET THE MANUFACTURER S WARRANTY.
8. TERMINATION.
If Buyer petitions for relief under state or federal bankruptcy laws, or if any involuntary petition thereunder should be filed against Buyer and the same be not dismissed within sixty (60) days, or if it is adjudicated bankrupt, or if a receiver is appointed for Buyer s business, or if Buyer makes an assignment for the benefit of its creditors, or if it defaults in payment of any sum due to other party, then ACP may, without further notice, immediately terminate any contracts between the parties and enter upon the premises of the defaulting party or repossess and remove any products which have not been paid for in full. Obligations to pay all charges previously accrued shall survive any termination of the contracts between ACP and Buyer. In addition, any termination of contracts or taking of possession shall be without prejudice to any other remedies available to ACP including, without limitation, all remedies with respect to the unperformed balance of any outstanding contracts between ACP and Buyer.
9. GENERAL PROVISIONS
9.1 WAIVER.
Failure by either party to enforce any of its rights shall not be construed to be a waiver of such party s rights or ability thereafter to enforce any of such party s rights under these terms and conditions.
9.2 SEVERABILITY.
If any one or more of the above provisions shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions shall be unimpaired and will continue in full force and effect, and the invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable, comes closest to the intention of the parties.
9.3 HEADINGS.
Headings are for the purpose of reference only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof.
9.4 ENTIRE AGREEMENT.
These terms and conditions constitute the entire agreement between the parties with respect to the subject matter hereof as of the date hereof and supersede all previous understandings, representations, proposals, and discussions, whether oral or written, between the parties concerning the subject matter hereof.
9.5 GOVERNING LAW AND ENFORCEMENT.
These terms and conditions shall be interpreted and enforced pursuant to the laws of the State of Minnesota.
9.6 FORCE MAJEURE.
Neither party shall be liable for damages for any delay or failure to perform resulting from any cause beyond the reasonable control of the respective parties, including labor strikes, fire, or acts of God.
9.7 ASSIGNMENT.
Buyer may not assign any contract between ACP and Buyer without the prior written consent of ACP.
9.8 PAYMENT OF UNDISPUTED INVOICES.
All invoices rendered by ACP covering products not in dispute shall be paid by Buyer regardless of disputes relating to other invoices or other delivered or undelivered products. As to any disputed invoices, Buyer waives the right to assert offsets.
9.9 SEVERAL OBLIGATIONS.
All of the obligations, terms and conditions herein shall survive termination of the purchase contract.
9.10. PROPRIETARY INFORMATION.
The Buyer shall keep confidential all proprietary information furnished or disclosed by ACP The Buyer shall not use or disclose such confidential proprietary information for any purpose except as necessary for the maintenance, repair or operation of the goods, without the prior written consent of ACP.
