The Customer is applying for a credit account (the “Account”). If this application is accepted by ZFS Creston, LLC, the Account and all sales shall be subject to the following terms and conditions:
1. AMOUNTS CHARGED TO ACCOUNT
(i) All purchases made from ZFS Creston, LLC by the Customer on credit, and all interests and costs payable by the Customer with respect to such purchases, may be charged to the Account according to the amount and the due date appearing on the invoice relating to such purchases (the “Invoice”).
(ii) For the purposes of these Terms of Sale, all purchases not paid for on a cash on delivery basis shall be deemed to be credit purchases subject to the terms of these Terms of Sale.
2. PAYMENT TERMS
(i) Each Invoice must be paid by the Customer to ZFS Creston, LLC in United States currency by the due date appearing on the Invoice, or if no due date is specified then within thirty (30) days from the date of the Invoice. If at any time ZFS Creston, LLC determines that Customer’s financial condition or credit rating does not justify a sale on credit or if Customer is at any time in default in payment of any indebtedness or performance of any obligation that Customer owes to ZFS Creston, LLC, then ZFS Creston, LLC may in addition to any other remedies provided in these Terms of Sale require advance payment or may ship C.O.D.
(ii) Any Invoice which remains unpaid by the Customer at the due date will be considered delinquent and interest will be added to the delinquent amount in the Account until the total amount of the Invoice, including but not limited to interest, is paid in full. Interest will be calculated at one and a half percent (1.5%) per month, eighteen percent (18%) per year, on the unpaid principal balance of the Account, unless such interest rate shall exceed the maximum rate allowed by law, in which case the interest rate shall be the maximum rate allowed by law.
(iii) In the event the Customer is in default in payment of an Invoice by its due date, ZFS may terminate or amend these Terms of Sale or the terms of any Invoice and demand immediate payment of all amounts owing to ZFS Creston, LLC by Customer.
(iv) In the event the Customer becomes insolvent, if a petition in bankruptcy is filed by or against the Customer, if a seizure or levy is made against the Customer’s assets, if any type of receiver is appointed for the Customer’s assets, or if in ZFS Creston, LLC’s reasonable opinion it is possible that the Customer is not or will not be able to discharge the Customer’s duties or the Customer’s obligations to ZFS Creston, LLC, ZFS Creston, LLC may, without prejudice to its other rights and remedies, without notice, cancel all pending orders and declare the Account due in full and immediately payable.
(v) All judicial and extra judicial fees, charges and disbursements, including but not limited to attorney and other professional fees, along with any administrative cost and disbursement incurred by ZFS Creston, LLC to recover amounts due by the Customer, will be charged to the Customer and added to the Account.
(vi) In the event one of the Customer’s payments is refused by any financial institution for any reason, ZFS Creston, LLC my exercise any of the rights provided for in this Section 2 and may, in addition, charge a fee of up to fifty and 00/100 dollars ($50.00) to the Account for each payment so refused.
(vii) Payment shall be mailed to ZFS Creston, LLC at P.O. Box 290, Zeeland, Michigan 49464.
3. FINANCIAL INFORMATION.
Customer authorizes ZFS Creston, LLC to obtain credit and financial information concerning Customer at any time and from any source, including but not limited to financial institutions, trade credit references and credit reporting agencies. Customer consents to ZFS Creston, LLC’s use of such information in connection with any decision to extend or terminate credit to Customer. At ZFS Creston, LLC’s request, Customer shall provide financial statements and such other financial or other pertinent information of the Customer, in order to allow ZFS Creston, LLC to evaluate Customer’s financial condition or any other matter related to Customer’s business. Customer agrees to release and hold harmless ZFS Creston, LLC from, and indemnify ZFS Creston, LLC for, any claims or liabilities in connection with such credit, financial and other pertinent information.
If Customer has not otherwise agreed to these Terms of Sale, then Customer’s acceptance of delivery of, or payment for, the goods sold to Customer (the “goods”) or the services supplied to Customer (the “services”) shall constitute Customer’s agreement to these Terms of Sale. ZFS Creston, LLC objects to and will not agree to any terms that are additional to or different from these terms. Terms that are printed on or contained in a purchase order or other form prepared by Customer, and any terms specified by the Customer in a different way (whether spoken, typed, hand written or printed) that changes, modifies, enhances, differs or adds to these Terms of Sale, which are additional to, in conflict with or inconsistent with these Terms of Sale shall be considered inapplicable and shall have no force or effect.
5. PRICE INCREASES.
ZFS Creston, LLC shall have the right to increase its prices at any time upon notice to Customer to reflect any unusual or unforeseen increase in ZFS Creston, LLC’s costs, including but not limited to any increase in the cost of materials. Customer may not offset or recoup any claim against amounts due ZFS Creston, LLC.
ZFS Creston, LLC’s price does not include any privilege, occupation, personal property, value-added, sales, excise, use or other taxes, and Customer shall be liable for all such taxes, whether or not ZFS Creston, LLC invoices Customer for them.
7. UNAVOIDABLE DELAY.
If ZFS Creston, LLC is not able to deliver the goods to Customer, or to perform the services, on time because of anything ZFS Creston, LLC cannot control (such as casualty, labor trouble, accidents, unavailability of supplies or transportation), then the estimated delivery or performance time shall be extended accordingly, and ZFS Creston, LLC shall not be liable to Customer for any damages caused by the delay.
8. LIMITED WARRANTY; REMEDIES.
(i) Goods. ZFS Creston, LLC warrants to Customer that any goods sold by ZFS Creston, LLC will be free from defects in material or workmanship under normal and intended use and service for a period of one (1) year from the date of delivery of the goods, except that the goods shall not be defective to the extent that they are damaged due to the method or length of time of storage by Customer, or to any alleged defect that results from damage, physical abuse, vandalism, misuse, alterations, modifications or additions made without ZFS Creston, LLC’s prior consent, exposure to water or corrosive liquids or other substances, exposure to excessive cold or heat, or use other than intended by ZFS Creston, LLC. In the event of a defect in any goods constituting a breach of this warranty, ZFS Creston, LLC will at its option either (a) replace such goods free of charge, or (b) in lieu of replacement, refund to Customer the original purchase price less the reasonable value of Customer’s use of the goods. ZFS Creston, LLC shall furnish to Customer instructions for the disposition of the defective goods. ZFS Creston, LLC shall have the option of requiring the return of the defective goods, transportation prepaid, and proof that the goods were not used, altered or subject to misuse or abuse to establish the claim. No goods shall be returned to ZFS Creston, LLC without its prior consent. The acceptance of any goods returned to ZFS Creston, LLC shall not be deemed an admission that the goods are defective or in breach of any warranty, and if ZFS Creston, LLC determines that the goods are not defective they may be returned to Customer at Customer’s expense. This paragraph sets forth Customer’s sole and exclusive remedies for any defect in the goods. The rights and obligation under this warranty may not be assigned or delegated to a third party by Customer without the prior written permission of ZFS Creston, LLC. Neither Customer 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 goods. Any statements to the contrary are rendered null and void unless expressly agreed to in writing by an authorized officer of ZFS Creston, LLC.
(ii) Services. If a service provided by ZFS Creston, LLC to Customer proves to be defective (as defined below) within one (1) year after ZFS Creston, LLC performs the service, then ZFS Creston, LLC shall, at its option, either re-perform the service, at ZFS Creston, LLC’s expense, or refund to Customer the price that Customer paid to ZFS Creston, LLC for that part of the service that was defective. A service shall be considered defective if it is found by ZFS Creston, LLC to have failed to meet the standards in ZFS Creston, LLC’s industry and if that failure materially impairs the value of the service to Customer, except that if Customer shall have approved or furnished to ZFS Creston, LLC specifications for the service, then the service shall not be considered defective to the extent it conforms to the specifications. This paragraph sets forth Customer’s sole and exclusive remedy for any defect in the service.
9. WARRANTY LIMITATIONS. EXCEPT AS STATED IN SECTION 8, ZFS Creston, LLC DOES NOT MAKE ANY WARRANTY AS TO THE GOODS OR SERVICES AND, IN PARTICULAR, DOES NOT MAKE ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
Customer is solely responsible for determining the proper application and use of the goods and services. ZFS Creston, LLC shall not have any tort lia¬bility to Customer 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 any product defect, delay, non-delivery, recall or other breach, including but not limited to such damages arising out of personal injury, death, property damage, lost profits or other economic injury. ZFS Creston, LLC shall not be liable to Customer or any other person in tort for the omission of any warning, or for the negligent performance of the services. Neither Customer 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 goods or services. No statement to the contrary shall bind ZFS Creston, LLC unless made in a writing signed by an authorized officer of ZFS Creston, LLC. Customer shall not have any right of rejection or of revocation of acceptance of the goods or services.
10. SOLVENCY AND SECURITY INTEREST.
Customer represents that Customer is solvent. Customer grants to ZFS Creston, LLC a security interest in and the right of repossession of the goods, including but not limited to a purchase money security interest, until full and final payment for the goods and services (including but not limited to notes and collection costs) has been made. In the event of default in any payment due from or in the performance of any obligation of Customer to ZFS Creston, LLC, the Account shall be due and payable in full on demand by ZFS Creston, LLC, and ZFS Creston, LLC may at ZFS Creston, LLC’s option either (i) recover the full amount unpaid and repossess the goods and all additions to them, wherever found, free from all claims whatsoever; or (ii) treat the contract between ZFS Creston, LLC and Customer as void and retain all payments made. ZFS Creston, LLC shall not be liable to Customer nor shall ZFS Creston, LLC be subject to any legal proceedings, criminal or civil, for ZFS Creston, LLC’s acts in such repossession. ZFS Creston, LLC shall not be liable to Customer for the repayment of any money paid as part payment for the goods. Customer agrees to execute any necessary instruments to perfect ZFS Creston, LLC’s security interest in the goods and ZFS Creston, LLC shall have the benefit of the applicable Uniform Commercial Code and the remedies thereunder. Pursuit of any right reserved by ZFS Creston, LLC or granted by law shall not preclude or waive the pursuit of any other such right.
11. INSECURITY AND ADEQUATE ASSURANCE.
If ZFS Creston, LLC ever believes in good faith that it has grounds for insecurity as to Customer’s performance under these Terms of Sale or any Invoice, then Customer shall provide adequate assurance of due performance within ten (10) days after ZFS Creston, LLC demands the assurance, which shall be considered to be a reasonable time. Customer’s failure to do so shall be considered to be a default by Customer of these Terms of Sale and of all other then-existing contracts that provide for Customer to purchase goods and/or services from ZFS Creston, LLC. Grounds for insecurity include, without limitation, (i) Customer’s failure to make a payment to ZFS Creston, LLC or to perform another obligation to ZFS Creston, LLC, (ii) Customer’s insolvency, the filing by or against Customer of a petition in bankruptcy, the seizure or levy against the Customer’s property, or the appointment of a receiver for the Customer’s property, (iii) a deterioration in Customer’s financial condition or if in ZFS Creston, LLC’s reasonable opinion it is possible that the Customer is not or will not be able to timely make payments due to ZFS Creston, LLC or perform the Customer’s obligations to ZFS Creston, LLC, and (iv) Customer’s failure to provide financial statements and other financial information to ZFS Creston, LLC promptly upon ZFS Creston, LLC’s request. Adequate assurance of due performance includes, without limitation, providing a security interest, lien, guaranty, letter of credit or other security in form and substance satisfactory to ZFS Creston, LLC for all obligations of Customer that then exist or that will arise in the future to ZFS Creston, LLC. The remedies under this Section 11 are without prejudice to any other rights and remedies of ZFS Creston, LLC. If the Customer neglects to meet the requirements of this Section 11 without delay, ZFS Creston, LLC reserves the right to, without notice, cancel all pending orders and declare the Account due in full and immediately payable.
Any claim by Customer that ZFS Creston, LLC failed to deliver the agreed-upon quantity of goods must be submitted to ZFS Creston, LLC in writing within fifteen (15) days after Customer receives the goods. If Customer fails to do so, then it shall be conclusively presumed that the proper quantity was delivered.
Customer does not have any right to cancel its agree¬ment to buy the goods or services from ZFS Creston, LLC. If, however, ZFS Creston, LLC agrees in writing to permit cancellation, then Customer shall immediately pay to ZFS Creston, LLC a cancellation charge in an amount equal to the purchase price less allowances (in amounts that ZFS Creston, LLC determines) for (i) the realizable value to ZFS Creston, LLC of any goods that ZFS Creston, LLC purchased or ordered before cancellation, (ii) the realizable scrap value to ZFS Creston, LLC of the remaining goods that ZFS Creston, LLC purchased or ordered before cancellation and (iii) any direct labor costs that ZFS Creston, LLC saved by reason of the cancellation. If Customer fails to pay any indebtedness or perform any obligation that Customer at any time owes to ZFS Creston, LLC, then ZFS Creston, LLC may consider Customer’s failure to be an anticipatory repudiation of any or all outstanding contracts that provide for ZFS Creston, LLC to sell goods or services to Customer, and ZFS Creston, LLC may, without liability to Customer, cancel any or all of those outstanding contracts.
Customer shall indemnify and hold harmless ZFS Creston, LLC with respect to all damages, losses, claims and expenses, including consequential and incidental damages and attorney fees that ZFS Creston, LLC incurs as a result of Customer’s breach of any of Customer’s obligations under these Terms of Sale.
15. ZFS Creston, LLC’s RIGHTS.
ZFSCreston, LLC has all rights and remedies that applicable law gives to ZFS Creston, LLC. ZFS Creston, LLC’s rights and remedies are cumulative, and ZFS Creston, LLC may exercise them from time to time. ZFS Creston, LLC’s waiver of any right on one occasion shall not be a waiver of any future exercise of that right.
16. TIME FOR BRINGING ACTION.
Any action that Customer brings against ZFS Creston, LLC for breach of these Terms of Sale or for any other claim that arises out of or relates to the goods or their sale or delivery or the services must be brought within one (1) year after the cause of action accrues.
17. GOVERNING LAW AND LANGUAGE.
This credit 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, excluding the United Nations Convention on Contracts for the International Sale of Goods. Either party may bring any action that arises out of or relates to these Terms of Sale in any federal or state court in Ottawa County, Michigan that has jurisdiction of the subject matter, and Customer irrevocably consents that any such court shall have personal jurisdiction over Customer and waives any objection that the court is an inconvenient forum.
18. COMPLETE AGREEMENT; AMENDMENT.
The terms on ZFS Creston, LLC’s Invoice and acknowledgment and these Terms of Sale contain the entire agree¬ment between Customer and ZFS Creston, LLC and supersede all prior understandings and communications, oral or written, between the parties. Any change in the terms must be by a writing signed by an authorized officer of ZFS Creston, LLC. From time to time and at any time, ZFS Creston, LLC may amend or revise the terms of these Terms of Sale, and may increase, decrease or terminate any credit availability to Customer in ZFS Creston, LLC’s sole discretion, provided that any such amendment or revision shall be presented to Customer in writing prior to implementation.
These Terms of Sale shall be binding upon and inure to the benefit of the parties and their successors and assigns, except that Customer may not assign or transfer all or any part of Customer’s rights or obligations without the express prior written consent of ZFS Creston, LLC. ZFS Creston, LLC may at any time assign or otherwise transfer all or any part of its interest under these Terms of Sale, and, to the extent of such assignment, any such assignee shall have the same rights or benefits against Customer, as if such assignee was ZFS Creston, LLC.
20. COMMERCIAL CREDIT.
Customer represents and warrants to ZFS Creston, LLC that Customer will use the credit requested for business and commercial purposes only and not for personal, family or household purposes. Customer understands that ZFS Creston, LLC is relying on this representation and warranty and would not otherwise extend credit to Customer.
All written notices to be given pursuant to these Terms of Sale may be sent by hand delivery, facsimile, e-mail or text, or may be mailed by first class mail, postage prepaid, upon the parties at the addresses listed on page 1 of these Terms of Sale, or by any other means of communication that may be available now or in the future.