Terms and Conditions
Terms and Conditions of Sale
Effective: June 15, 2023
1. Offer; Acceptance These Terms and Conditions of Sale as may be amended from time to time (collectively, “Terms”) define the relationship of Buyer and Superior Manufacturing, a Michigan corporation or its affiliate as identified in the applicable Order (the “Seller”) and apply to any and all sales of goods and/or services (“Products”) by Seller to Buyer. Buyer hereby acknowledges and agrees that these Terms are incorporated in, and are a part of, each quotation, purchase order, sales order, acknowledgment, invoice, release, requisition, work order, shipping instruction, specification, and any other document, whether expressed verbally, in written form or electronic commerce, relating to the sale of Products by Seller to Buyer. These Terms do not constitute an acceptance of the terms and conditions set forth in any purchase order or purchase order revision (“Order”), offer or proposal made by Buyer. These Terms supersede all prior agreements, orders, quotations, proposals and other communications regarding the Products covered by any Order. Any reference in these Terms to any Order, offer or proposal made by Buyer is solely to incorporate the description or specifications of Products in the Order, offer or proposal, but only to the extent that the description or specifications do not conflict with the description and specifications in these Terms. Any additional or different terms and conditions proposed by Buyer, whether in Buyer’s request for quotation, purchase order or otherwise, are expressly rejected by Seller, and shall not become part of the agreement between the parties regarding sale of the Products by Seller to Buyer. Any execution by Seller of any other document submitted by Buyer in connection with the purchase of Products does not constitute acceptance of or agreement to any terms and conditions in addition to or different from those contained in these Terms, but will constitute only acknowledgment of receipt of the document. In addition, notwithstanding any terms contained in any documents submitted by Buyer in connection with the purchase of Products, the acceptance of delivery by Buyer of Products will constitute a course of conduct constituting Buyer’s agreement to these Terms, to the exclusion of any additional or different terms and conditions. These Terms are available and may be revised and updated, from time to time, at https://ordersuperior.com/terms-and-conditions/ .
2. Term of Order Unless the commercial relationship between Seller and Buyer is governed by a master supplier agreement that expressly supersedes the applicable provisions herein, Seller’s obligations to sell Products to Buyer shall extend only to specific Orders accepted by Seller by means of a sales order or an acknowledgment (of Buyer’s purchase order). No “blanket purchase orders” shall be accepted.
3. Invoicing; Pricing; Taxes
(a) Payment will be made against invoices and documentation provided by Seller in compliance with these Terms, without adjustments or set-offs for any reason. If Buyer fails to make timely payment for any Products, Seller may terminate all or part of any Order, whether or not related to the late payment, as provided in paragraph 12 below. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Whenever, in the sole discretion and judgment of Seller, the financial condition of Buyer does not justify the continuation of production or shipment under the specified terms of payment, or, Buyer fails to meet the requirements of Seller’s credit policy, Seller may require full or partial payment in advance, or require security or other assurance of performance on terms acceptable to Seller. Buyer hereby expressly grants a purchase money security interest in all goods delivered as security for payment of the purchase price. Buyer agrees to keep Products delivered and not yet paid for separated and identifiable for the purpose of the purchase money security interest granted hereunder.
(b) If not otherwise specified, Buyer’s payment will be made net thirty (30) days following delivery of the Products in compliance with the terms of the Order. Payment will be made by wire transfer on or before the due date in U.S. dollars, unless otherwise expressly agreed in writing by Buyer.
(c) The stated price set forth in the Order is exclusive of shipping, handling, insurance costs, applicable taxes, excises, duties, tariffs, value added tax (VAT), and other governmental impositions, and Seller shall not be liable for any such taxes.
(d) All deliveries shall be Free Carrier (Incoterms 2020) at Seller’s address. Notwithstanding the foregoing, if applicable, Seller shall be entitled to determine the route and manner of delivery if so charged and charge Buyer accordingly. Should any vehicles or means of transport used by or on behalf of Seller cannot reach the agreed delivery site using their own power, the product shall be delivered to the nearest accessible location chosen at Seller’s sole discretion. Seller shall be entitled to refuse to load or have loaded any means of transport not compliant with applicable safety, legal, or technical requirements. Should transportation, pick-up, or delivery be inexcusably delayed or impeded by Buyer, or if Buyer refuses to promptly pick-up, or otherwise fails to provide the information or instructions necessary for delivery, Buyer shall be liable for and shall reimburse (as applicable) Seller for any additional delivery, storage, insurance, penalty, and other ensuing and related costs arising from Buyer’s failure to promptly facilitate pick-up or delivery. To avoid doubt, if all or any of the Products are damaged with respect to shipments made hereunder, even when Seller arranged to ship Products on Buyer’s behalf, Buyer’s sole recourse shall reside against the shipper. Buyer shall provide proper instruction to shipper regarding temperature control necessary to avoid freezing of Products. Upon Buyer’s request, Seller will expedite a replacement order for which Buyer will be additionally responsible for payment to Seller because Buyer’s sole recourse for damaged product properly lies against Buyer’s shipper, irrespective of who arranged the transportation.
4. Delivery; Risk of Loss The Products will be delivered within a reasonable time after the receipt of the Order. Delivery of Products shall be Free Carrier Seller’s facility. Risk of loss and title pass from Seller to Buyer upon delivery to the carrier at the Seller’s facility in accordance with Incoterms 2020, unless otherwise agreed to in writing by Seller’s authorized office representative.
5. Packaging; Marking; Shipping; Disclosure; Special Warnings and Instructions
(a) Seller agrees to: (i) properly pack, mark, and ship Products in accordance with the requirements provided or instructed by Buyer, the involved carriers, and the country of destination, (ii) route the shipments in accordance with Buyer’s instructions, (iii) label or tag each product according to Buyer’s instructions and labels, (iv) identify the purchase order number on each shipment, and (v) if applicable, promptly forward the original bill of lading or shipment receipt for each shipment in accordance with Buyer’s instructions and carrier requirements.
(b) For Products produced entirely under Seller’s formula(s), Seller shall comply with all federal and state laws and regulations pertaining to Product content and warning labels, including without limitation the Food and Drug Administration, Occupational Safety and Health Act, and the U.S. Toxic Substances Control Act.
(c) For Products produced entirely under Seller’s formula(s), Seller will reimburse Buyer only for direct costs incurred and paid by Buyer as a result of improper packing, marking, labeling, routing or shipping or any noncompliance with the requirements under Section 5(b). Otherwise paragraph 8 shall apply.
(d) For Products manufactured, produced, packaged, and labeled under formula specifications provided by Buyer, Buyer agrees to reimburse and indemnify Seller for all costs associated with any liabilities that result from improper packing, marking, labeling, routing, shipping or any noncompliance with the requirements under Section 5(b), notwithstanding that paragraph 8 shall also apply.
(e) For Products processed under Seller’s “contract packaging” services and completed in accordance with Buyer’s instructions, Buyer agrees to reimburse and indemnify Seller for all expenses, costs, and liabilities that arise or result from improper packing, marking, labeling, routing, shipping or any noncompliance that is not the fault of Seller. For the avoidance of doubt, if Buyer’s labels are non-conforming or violate any rule, law, or regulatory provision, any and all resulting liabilities, fines, and associated costs shall be borne solely by Buyer.
6. Inspection; Non-Conforming Goods/Services Upon receipt of Products, Buyer shall inspect them for defects and shall ascertain through reasonable visual inspection that (i) the correct Products were delivered, (ii) the quantity is accurate, and (iii) where applicable, the labels and other documents relating to the Products correspond to those ordered. If Buyer discovers that any of Products does not conform as agreed to the applicable specifications, Buyer shall, before being resold, altered, or further processed, notify Seller in writing within net thirty (30) days (net ninety (90) days for latent defects) from the delivery date of such Product. Such notification from Buyer shall provide detailed information on the claimed variation, defect, or shortage, and Buyer shall afford Seller a reasonable opportunity to inspect the applicable Products. Buyer’s failure to adhere to the terms of this Section shall constitute a waiver by Buyer of all claims based on any variation, defect, or shortage of any Product, and shall be conclusive evidence that Seller has satisfactorily performed its obligations under the applicable agreement. For clarity, any variation reported by Buyer falling within a zero to five percent (5%) range of the specifications in the Order shall not be regarded as a defect or constitute non-performance by Seller under the “perfect tender” rule; in addition, shortages reported by Buyer of less than five percent (5%) of the gross weight of a bulk shipment shall not constitute Seller’s non-compliance or non-performance of the agreement. The exclusive remedy for any shortage, defective, or non-compliant Product manufactured, distributed, packaged, and delivered by Seller, whether or not arising from negligence or any other cause, shall be limited to, at Seller’s option, either (i) the Product being replaced at the original point of delivery, or (ii) a credit or refund of the sales price in proportion to the defect(s) to which the claim relates including, without limitation, transportation costs and taxes. At Buyer’s risk and expense, Seller may require Buyer to return the Product to Seller before Buyer shall be entitled to any replacement, credit or refund. Should an actual defect or non-conformity be verified by Seller, reasonable costs to return the defective or non-conforming product shall be reimbursed to Buyer by Seller. The foregoing remedy shall not apply to any Product comingled with non-Seller material after delivery by Seller, Product damaged during Buyer’s transit after Seller delivery, or to Product damaged or lost due to Buyer’s willful misconduct, negligence, improper storage, environmental conditions, or failure to follow Seller’s oral or written instructions.
7. Limited Warranties Seller warrants that for a period of sixty (60) days from the date of delivery the Products will conform to Buyer’s specifications as detailed in the Order, and will be free from defects of material and workmanship. SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY SPECIFICALLY DISCLAIMED. IN PARTICULAR, BUT WITHOUT LIMITING THE GENERALITY OF THE FOREGOING EXCLUSION, (i) IF THE PRODUCTS ARE MADE ACCORDING TO BUYER’S SPECIFICATIONS, SELLER DOES NOT WARRANT ADEQUACY OF SUCH SPECIFICATIONS OR THAT THE PRODUCTS WILL PERFORM IN ACCORDANCE WITH SUCH SPECIFICATIONS, (ii) IF ANY INGREDIENTS, COMPONENTS, OR ADDITIVES ARE FURNISHED BY BUYER AND INCORPORATED INTO THE PRODUCTS, REGARDLESS OF WHICH SPECIFICATIONS THE PRODUCTS WERE MANUFATURED TO MEET, SELLER DOES NOT PROVIDE ANY WARRANTY WITH RESPECT TO SUCH PRODUCTS, AND (iii) SELLER DOES NOT WARRANT THAT THE PRODUCTS ARE IN COMPLIANCE WITH LAWS OF ANY PARTICULAR JURISDICTION OR COUNTRY. Seller’s sole obligation under the foregoing warranties will be limited to either, at Seller’s option, replacing non-conforming Products or refunding the purchase price paid for such Products previously paid by Buyer, and Buyer’s exclusive remedy for breach of any of such warranties will be enforcement of such obligation of Seller. These warranties will not extend to Products subjected to misuse, abuse, neglect, damage, accident or improper installation or use or which have been altered by anyone other than Seller or its authorized representative. Seller shall not be liable on any claim for defective Products which is not made within thirty (30) days after such Products have been received by Buyer.
8. Remedies and Limitation of Liability In the event Buyer claims Seller has breached any of its obligations hereunder or under any Order, whether of warranty or otherwise, Seller may request the return of the Products and tender to Buyer the purchase price previously paid by Buyer for the Products causing the breach, and in such event, Seller shall have no further obligation under the Order except to refund such purchase price upon return of the Products. Seller shall not be responsible for any packaging or labels provided by Buyer. No Products may be returned without Seller’s written consent. In the event Buyer claims Seller has breached any of its obligations under the Order, whether of warranty or otherwise, and Seller has not yet delivered any Products to Buyer, Seller at its option may tender to Buyer the purchase price previously paid by Buyer, and, in such event, Seller shall have no further obligation under the Order except to refund such purchase price previously paid by Buyer. The remedies contained in this and the preceding paragraph shall constitute the sole recourse of Buyer against Seller for material breach of any of Seller’s obligations under the Order, whether of warranty or otherwise. In no event shall Seller be liable for incidental, consequential, indirect, exemplary, punitive, or special damages, including without limitation, lost revenues, packaging, profits or recall expenses, nor shall Seller’s liability on any claim for damages arising out of or connected with the Order or the manufacture, sale, delivery or use of the Products exceed the purchase price of the Products previously paid by Buyer to Seller. Seller shall have no liability on any claim for damages arising out of or connected with the Order or the manufacture, sale, delivery or use of the Products where such Products are manufactured in accordance with the specifications supplied by Buyer. Any warranty rights that Seller may have relating to any Products provided by other suppliers will be assigned to Buyer upon reasonable request. Seller shall not be liable for failure to perform its obligations under the Order resulting directly or indirectly from circumstances beyond Seller’s reasonable control. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNT PAID TO SELLER FOR THE PRODUCTS SOLD TO BUYER THE PREVIOUS SIX (6) MONTHS.
9. Indemnification Buyer shall defend and indemnify Seller against, and hold Seller harmless from, any and all claims and liabilities, including reasonable attorney’s fees, arising out of, connected with, or resulting from the Products, including but not limited to, the design, manufacturing, selection, delivery, sale, possession, storage, use, operation or disposition of the Products. Seller’s entire liability for Products is limited as set forth in paragraphs 7 and 8 above.
10. Compliance with Laws If formulas are provided by Seller, then Seller, and any Products sold by Seller, shall be in substantial compliance with all material applicable laws in the state where manufactured, including rules, regulations, orders, conventions, ordinances and standards, that relate to the manufacture, use, labeling, transportation, importation, exportation, licensing, approval or certification of the Products, including laws relating to environmental matters, hiring, wages, hours and conditions of employment, subcontractor selection, discrimination, occupational health or safety, and motor vehicle safety. If formulas and labels are provided by Buyer, then Buyer represents and warrants that the Products being sold hereunder shall be in substantial compliance with all material applicable laws, including rules, regulations, orders, conventions, ordinances and standards, that relate to the manufacture, use, labeling, transportation, importation, exportation, licensing, approval or certification of the Products, including laws relating to environmental matters, occupational health or safety, and motor vehicle safety. The provisions of paragraphs 7 and 8 shall apply to any breach by either Party’s obligations hereunder.
11. Insolvency; Review of Financial Condition; Inter Alia
(a) This Order may be terminated immediately by Seller without liability to Buyer for any of the following events, or any other comparable events: (i) Buyer becomes insolvent, (ii) Buyer files a voluntary petition in bankruptcy, (iii) an involuntary petition in bankruptcy is filed against Buyer, (iv) a receiver or trustee is appointed for Buyer, (v) Buyer needs accommodations from Seller, financial or otherwise, in order to meet its obligations under this Order, (vi) Buyer executes an assignment for the benefit of creditors, (vii) Buyer fails to meet the credit standards of Sellery, or (viii) Buyer is unable to promptly provide Seller with adequate assurances of Buyer’s ability to perform any of Buyer’s obligations under the Order on a timely basis. In the event that this Order is not terminated in accordance with the immediately preceding sentence, upon the occurrence of an event described in the immediately preceding sentence, Seller may make equitable adjustments in the price, payment terms, and/or delivery requirements under this Order as Seller deems appropriate to address the change in Buyer’s circumstances, including Buyer’s continuing ability to perform its obligations regarding warranty, nonconforming Products or other requirements under this Order.
(b) Seller, or a third party designated by and acting on behalf of Seller, may at any time review the overall financial condition of Buyer and its affiliates, and Buyer shall fully cooperate in such review and shall make its financial managers available for discussions during reasonable business hours. Seller and any such third party shall keep confidential any non-public information about Buyer and its affiliates obtained in such financial review and shall use such information only for purposes of such financial review, except as otherwise needed to enforce the Order.
12. Termination In addition to any other rights of Seller to cancel or terminate any Order, Seller may, at its option and in its sole discretion, terminate all or any part of any Order at any time and for any reason by giving at least fourteen (14) days written notice to Seller. Seller shall have no additional obligations or liabilities to Buyer whatsoever as a result of any such termination.
13. Force Majeure Any delay or failure of either party to perform its obligations shall be excused if, and to the extent, that it is caused by an event or occurrence beyond the reasonable control of the party and without its fault or negligence. By way of example, this includes acts of God, restrictions, prohibitions, priorities or allocations imposed by or actions taken by any governmental authority (whether valid or invalid), embargoes, fires, floods, windstorms, severe weather, explosions, riots, natural disasters, wars, sabotage, inability to obtain power, change in cost or availability of materials based on market conditions, supplier actions, contract disputes or any labor strike or other labor disruption applicable to Seller or any of its subcontractors or suppliers, or court injunction or order. Buyer’s inability to perform due to, or delays caused by, Buyer’s insolvency or lack of financial resources is deemed to be within Buyer’s control. Written notice of such delay (including the anticipated duration of the delay and the time the delay will be cured) must be given to the other party as soon as possible (but no more than thirty (30) days after occurrence). During the delay or failure to perform by Seller, Buyer may purchase Products from other sources and reduce its schedules to Seller by such quantities, without liability to Seller.
14. Intellectual Property Any technical or confidential information disclosed by either Party during the term of the relationship is proprietary to the Party providing such information and may not be used by Buyer or disclosed by the other Party to any other entity without the written consent of Seller. Any technical or confidential information owned or developed by Seller, including but not limited to, patents, trademarks, copyrights, trade secrets, know-how, and proprietary information, and used to perform the agreement hereunder shall remain the sole and exclusive property of Seller. Likewise, any technical or confidential information owned or developed by Buyer, including but not limited to, patents, trademarks, copyrights, trade secrets, know-how, and proprietary information, and used to perform the agreement hereunder shall remain the sole and exclusive property of Buyer. Except to perform its obligations hereunder or as otherwise authorized in writing by the non-disclosing Party, neither Party shall disclose any technical or confidential information to any third party or to have any third party make any goods that use the technical or confidential information owned or developed by the non-disclosing Party.
All inventions, discoveries, improvements, processes, designs, ideas, and software (whether or not patentable) developed in whole or in part by either Party, either before or after the date of their agreement, will be the sole property of the Party owning such intellectual property to the extent permitted by applicable law, unless they are the subject of a separate written agreement specifically providing that a Party is not the sole owner thereof. Seller grants no license(s), express or implied, to such inventions, discoveries, improvements, processes, designs, ideas, and software, unless they are the subject of a separate written agreement specifically providing that Seller grants a license thereto. Notwithstanding the foregoing, Buyer grants Seller a license to use the intellectual property provided by Buyer solely to perform Seller’s obligations to Buyer hereunder.
15. Product Containers If applicable, any returnable chemical/product storage containers supplied by Seller in connection with the sale of the Products hereunder are not included in the Products and shall remain at all times the property of Seller and shall be returned to Seller promptly, at Buyer’s expense, when empty. All containers will be certified by Buyer as completely empty and free of any product residue prior to return to Seller. Buyer will not use, resell, dispose of, or reuse any such containers without the express written consent of the Seller. Buyer will only use such storage containers for Products sold hereunder. Buyer hereby releases and agrees to defend, indemnify and hold harmless Seller for any and all claims, liabilities, causes of action or damages, including reasonable attorney’s fees, incurred by Buyer or asserted by any person or entity including without limitation, any federal, state or local government body or agency, arising out of or connected with the use, handling, resale, storage, reuse, or disposal of any such containers by any person(s) other than Seller. SELLER MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO SUCH STORAGE CONTAINERS, ALL OF WHICH ARE HEREBY SPECIFICALLY DISCLAIMED.
16. Governing Law; Jurisdiction; Arbitration
(a) Regardless of the venue or forum, these Terms are to be construed according to the laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Michigan.
(b) Subject to Section 16(c) below regarding mediation and arbitration, any litigation arising from or relating to this Order may be brought only in the state or federal courts located in Oakland County, Michigan and the parties agree to exclusive venue and jurisdiction of such courts.
(c) The parties recognize that an organization’s business relationships may be among the most valuable assets of an enterprise, and that reasonable people may disagree from time to time; therefore, the parties agree that any and all disputes hereunder shall first be submitted to non-appearance-based facilitative mediation in a neutral forum mutually agreed to by the parties. The mediator’s fees shall be split equally but each party shall be responsible for its own legal fees. If a dispute cannot be resolved by facilitative mediation, either party may submit the claim to non-appearance-based binding arbitration in accordance with the procedures and rules of the American Arbitration Association in Oakland County, Michigan. The decision of the arbitrator shall be final and binding. Judgment upon the award rendered by the arbitrator may be entered in any court with competent jurisdiction. Each party shall be responsible for its own costs associated with the arbitration proceedings and the arbitrator’s fees shall be split equally among the parties. Except for actions seeking injunctive relief or action for collection of payment, all disputes between the parties relating to these Terms, any claim, transaction, or Order shall be resolved exclusively under this provision. The arbitrator shall issue written findings of fact and conclusions of law, and may award attorney fees and costs to the substantially prevailing party and the arbitrator deems appropriate. All arbitration proceedings shall be confidential, except to the extent that disclosure is necessary to enforce an arbitration award filed in a court of competent jurisdiction.
17. Entire Agreement; Modifications; No Implied Waiver
(a) Except as described in Section 1 or any Order, these Terms constitute the entire agreement between Seller and Buyer and supersede all prior oral or written representations and agreements. If these Terms conflict with the terms of any Order, these Terms will control.
(b) Seller may modify these Terms with respect to future Orders at any time by posting revised Terms to its website at https://ordersuperior.com/terms-and-conditions/ or at such other internet website as is specified in writing by Seller to Buyer, and such revised Terms will apply to all Orders and Order amendments issued thereafter. It is the responsibility of Buyer to review and obtain a copy of the current version of the Terms. The Terms that are applicable to the Order shall be the version of the Terms that is in effect on the date of the Order.
18. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under these Terms. These Terms are for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
19. Time Period for Claims. Any claim by Buyer for breach of these Terms, any agreement between the Parties, or any other right or claim that Buyer seeks to enforce against Seller arising from or in connection with the relationship between the Parties, cannot be filed or maintained unless: (1) it is commenced within one (1) year after the cause of action first began to accrue; (2) Buyer has given timely written notice to Seller of its claim as provided herein; and (3) Buyer deposits any unpaid portion of the purchase price for Products with the tribunal pending final adjudication.