Revised Date: March 5, 2020
All sales of products and services by HA Industries, Inc. (“HA”) are made on the following terms and conditions. The products and services being sold by HA are referred to below as the “Goods” and the purchaser of the Goods is referred to as the “Customer”.
These Terms and Conditions are specifically incorporated in and made a part of the order out of which the sale of Goods arises. If the Customer has not otherwise agreed to these Terms and Conditions, then the Customer’s acceptance of delivery of, or payment for the Goods shall constitute the Customer’s agreement to these terms. If there is any discrepancy between the order and these Terms and Conditions, these Terms and Conditions shall govern.
The Terms and Conditions shall also apply to all future business with the Customer, without us having to refer to them again in each individual case.
HA is not bound by an order until HA accepts the order in writing. HA may elect not to accept an order if, in HA’s judgment, HA will be unable to meet the requested delivery date or fill the requested quantity or type of Goods ordered. HA may also elect not to accept an order, or may delay shipment, or cancel an accepted order without consequence if the Customer is in default in its obligation to HA.
3. Materials for Setup
All materials, parts, or equipment required for tryout, testing or setup at HA's facility shall be furnished by the Customer in a timely manner without cost to HA. Customer is also responsible for all costs associated with the return of and/or safe disposal of all Materials.
4. Payment Terms
The payment terms shall solely be in accordance with the terms of the order as detailed on the quote provided to the Customer by HA.
If the financial condition of the Customer at any time does not, in the judgment of HA, justify continued performance of any purchase order, HA: (a) may require full or partial payment in advance; or (b) shall be entitled to terminate the purchase order and receive payment for all costs incurred to the point of termination.
HA may, by written notice to the Customer, and without any liability to the Customer whatsoever, cancel the Customer’s purchase order if the Customer:
fails to perform any of the terms and conditions contained herein or in the purchase order, and Customer does not cure such failure to HA’s satisfaction within a period of ten (10) days after receipt of written notice from HA; or
becomes insolvent, makes an assignment in favor of creditors, or becomes subject to any bankruptcy, dissolution or similar proceeding; or
is merged into, or all or a substantial part of its assets are sold to, another company.
As a non-exclusive alternative to cancellation, HA may, by written notice to the Customer, and without any liability to the Customer whatsoever, suspend any of its obligations under a purchase order for any reason referenced in subsections (I) through (III) above.
HA’s remedies hereunder are not exclusive and HA shall be entitled to avail itself of any and all other remedies available to it at law or in equity.
5. Delivery and Risk of Loss
Delivery shall be F.O.B. HA’s place of business unless stated otherwise in the order. Shipping, delivery and performance dates are estimates only. HA may ship all the Goods at one time or in portions from time to time. HA shall have the right to determine the method of shipment and routing for Goods and the Customer shall be responsible for any insurance, fees and applicable taxes.
6. Unavoidable Delay
If HA is unable to finish and ship the Goods to the Customer on time or perform the services because of anything HA cannot reasonably control (such as casualty, labor trouble, accidents, acts of God, Customer’s actions or unavailability of supplies or transportation), the estimated delivery time shall be extended accordingly and HA shall not be liable to the Customer for any damages caused by the delay.
The Customer shall be liable for any value-added, sales, excise, use, customs or other duties or other taxes whether or not invoiced by HA.
HA shall have the right to make design or engineering changes in its parts, equipment processes or methods of manufacturing of the Goods as it sees fit to do so. HA is further entitled to alter the Goods insofar as doing so is necessary owing to technical further development of the production process and/or the goods and insofar as the alteration is reasonable to the Customer. However, HA is not obligated to make such changes to Goods which have already been delivered.
9. Limited Warranty
All Goods carry the following limited warranty:
A Six (6) month limited warranty for services performed by HA beginning from the date the service is completed
A limited warranty extending One (1) year for a new HA product purchased by the Customer from HA beginning from the date the Goods are shipped from HA
A limited warranty extending Sixty (60) days for a used HA product purchased by the Customer from HA beginning from the date the product is shipped from HA
The limited warranty coverage for Goods other than services begins on the date of delivery to the Customer.
The limited warranty covers defects in materials or workmanship and excludes the following:
Normal wear and tear or environmental conditions
Misuse, abuse, neglect, accidents, collision, fire, theft, freezing, vandalism, riot, explosion or objects striking the Goods
Altering, disassembling or modifying the Goods or any of its parts without first receiving HA’s written consent
Adding non-HA components to the Goods without first receiving HA’s written consent
Defects caused by or induced by failures, breakdowns or damage by other machines in the same facility
Natural disasters, acts of God and other similar causes
As the Customer’s sole and exclusive remedy for the breach of the limited warranty described above, HA will either re-perform the services, repair the Goods and/or replace the Goods at HA’s discretion and at HA’s own cost if the Goods are found by HA to be defective in either material or workmanship. In no case will a refund be issued by HA for Goods covered by the limited warranty and in no event shall the Customer have a right to revoke acceptance of the Goods.
11. Limitations/Exclusion of Liability
HA makes no warranties, expressed or implied, as to the goods, whether new or used, and in particular, makes no warranties of merchantability of fitness for any particular purpose, and the Customer is solely responsible for determining the proper application and use of Goods. HA shall have no tort liability to the Customer with respect to any of the goods, whether new or used, and shall not be liable for consequential, punitive, special or incidental damages arising from any product defect, delay, non-delivery, recall or other breach. The Customer shall have no right of rejection or revocation after acceptance and/or use of the goods.
HA’s liability for any cause of action, of whatever kind and nature, shall not exceed, and be limited to, the amount of money already paid by the Customer to HA under the purchase order out of which the liability arose or five hundred thousand US dollars ($500,000.00), whichever is less.
12. Permits and Compliance
HA is not responsible for obtaining any permits, inspections or licenses required for delivery, installation or operation of the Goods. HA makes no promise or representation that the Goods will conform to any federal, state, local, foreign or other laws, ordinances, regulations, codes or standards unless specifically stated in the order.
13. Components of Another Product
If any of the Goods constitute parts or components to be incorporated or installed in a product manufactured or assembled by or for the Customer, then:
The Customer 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
The Customer shall cause the product to conform to all applicable laws, ordinances, regulations, codes and standards
The Customer shall place on the product all safety devices and warnings, and shall furnish to its Customer all operating instructions, that shall be necessary or desirable to prevent any death, personal injury or property damage from being caused by any use or operation of the product
14. Safety Features
The Customer shall itself, or cause the end-user, to install and operate the Goods properly and in accordance with any instructions that HA provides, and the Customer shall not, and shall cause the end-user to not, remove or change any safety devices, warnings or operating instructions placed on the Goods by HA.
The Customer shall indemnify and hold HA harmless with respect to all damages, losses, claims and expenses, including court costs and reasonable attorney fees, that HA incurs as a result of the Customer’s acts or omissions or any alleged or actual breach by the Customer of any of its obligations pursuant to these Terms and Conditions or any claimed patent, trademark or copyright infringement or any other claim from a third party resulting from HA’s manufacture of the Goods to the Customer’s specifications.
16. Intellectual Property and Confidentiality
The Customer shall not disclose or use any of HA’s intellectual property or any information about HA’s business, operations or activities, except to the extent necessary for the Customer to use the Goods. The Customer agrees that such information is confidential and proprietary, and that the Customer’s subcontractors must be bound by a corresponding undertaking. The Customer shall not use or incorporate into any other product any of HA’s logos, trademarks, trade names or part numbers.
The Customer is obliged to treat all information, expertise and other business secrets, that it has learnt from or about HA, strictly confidentially and not to pass on any information, documents/documentation, program descriptions, drawings, sketches or other documentation to third parties, to duplicate them or make them accessible to third parties otherwise without the explicit, written consent of HA and to impose these duties on employees, staff, agents, people tasked by the Customer or companies associated in any way with the Customer in full.
17. HA's Rights
In addition to the rights and remedies under these terms and conditions, HA has all the rights and remedies given to HA by applicable law and HA’s rights and remedies are cumulative and may be exercised from time to time. No waiver by HA of any right on one occasion shall be a waiver of any future exercise of that right.
18. Time for Bringing Action
Any action by the Customer against HA for breach of any obligation of HA to the Customer or for any other claim arising out of or relating to the Goods or their design, manufacture, sale or delivery must be brought within One (1) year after the cause of action accrues.
19. Applicable Law
This agreement between HA and the Customer shall be considered to have been made in the State of Michigan, and it shall be governed by and interpreted according to Michigan law, without reference to its conflicts of law rules. Any action arising out of or relating to this agreement shall be brought in any state or federal court in or for Macomb County, Michigan and the Customer irrevocably consents that any such court shall have personal jurisdiction over the Customer and waives any objection that these courts are an inconvenient forum.
20. Other Provisions
The Customer is not entitled to assign rights or claims resulting from the contract to third parties without prior written consent.
21. Complete Agreement; Amendment
The terms of the order and these Terms and Conditions contain the entire agreement between the Customer and HA. If there is a conflict between the order and these Terms and Conditions, these Terms and Conditions shall govern. Any change in this agreement must be by written instrument signed by an authorized HA officer.