OUR TERMS AND CONDITIONS
ROSATI SPECIALTIES, LLC TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale are incorporated by reference into every quotation, acknowledgement and invoice issued by Rosati Specialties, LLC (“Rosati”) and govern the sale of any services provided by Rosati:
Rosati may issue a quotation for services to be performed, which may be set forth in a quotation document, in correspondence or e-mail from Rosati or any other writing by Rosati (“Quotation”). The Quotation, whether or not in response to an RFQ (request for quotation) process, and as may be amended from time to time, is an offer to enter into a contract with the Buyer to sell the Services described on the Quotation (the “Services”) with respect to the Buyer’s Products (the “Products”). Any drawings, specifications, preliminary statements of work and assignment of tasks and responsibilities, as they may be amended from time to time, are incorporated herein by reference to the extent that they are expressly identified in the Quotation or otherwise expressly agreed to in writing by Rosati. Any general terms and conditions issued by Buyer are specifically not incorporated into the Quotation. Buyer accepts the Quotation by: (i) signing the Quotation; (ii) issuing a purchase order for the Services; (iii) accepting delivery of Products upon which the Services were performed; or (iii) by other conduct which fairly recognizes the existence of a contract for the purchase and sale of the Services. Any additional or different terms proposed by Buyer, whether in its Purchase Order, RFQ materials, material releases, scheduling agreements or otherwise, are unacceptable to and expressly rejected by Rosati, are hereby waived by Buyer and are not part of the contract. Rosati will not be bound to any provisions in the contracts between Buyer and its customer(s). Acceptance by Buyer shall be limited to and conditional upon Buyer’s acceptance of the terms of the Quotation exclusively.
The price for the Services are listed on the face of the quotation and are not subject to decrease on account of pricing to any other Rosati customer.
3. DELIVERY, TITLE, INSURANCE AND RISK OF LOSS:
Unless otherwise stated on the face of the Quotation, delivery of the Products shall be made to Buyer at Rosati’s warehouse facility listed on the face of the Quotation or in other supporting documents. Title, insurance and the risk of loss of or damage to the Products shall remain with Buyer throughout the period of time that the Products are in Rosati’s custody.
Buyer will, at its own expense, maintain and carry in full force and effect general liability insurance against any liability for loss, injury, damage or claims arising out of or in connection with Buyer’s Products in Rosati’s possession or at Rosati’s facility or property. Buyer’s insurance will be maintained in such amounts and with such deductibles as are commonly carried by prudent businesses similarly situated or as is otherwise required by applicable law. Buyer’s insurance must cover all Products that are in Rosati’s possession or that will enter into Rosati’s facility or property. Rosati will be named as an additional insured on the policies for such insurance and Buyer shall provide certificates of such insurance to Rosati evidencing that Rosati is an additional insured. Such certificates shall state that Rosati will receive 30 days’ prior written notice from the insurer of any termination or reduction in the amount or scope of coverage. The existence or non-existence of insurance does not release Buyer of its obligations or liabilities under any contract with Rosati.
The remedies afforded Buyer under paragraph 7 hereof entitled Warranty shall be exclusive for any non-conforming Services but shall be cut off and permanently waived if Buyer inspected or reasonably should have inspected the Services and could have discovered the non-conforming Services upon such inspection. By way of example and without limiting the scope of this paragraph 4, if Buyer has approved a sample of the finishing and stains, any warranty claim relating to whether the stain or finishing will match with other work on a project will be cut off.
Unless otherwise provided on the Quotation, payment for the Services shall be made “net 30 days” in US dollars via check, money order or electronic funds transfer. Buyer shall not delay payment for goods pending inspection under paragraph 4 above.
The Products upon which the Services have been performed will be packaged and shipped in accordance with the agreement of the parties or in the absence of any agreement, in accordance with Rosati’s sole discretion. Unless otherwise provided, export or other special packaging will be additional charge to the Buyer.
Rosati warrants to Buyer that, at the time of delivery, the Services were performed in a commercially reasonable and workman-like fashion and conform to the specifications as stipulated in the Quotation. Rosati further warrants to Buyer that the stains and coatings used in its millwork and finishing will have the properties as described by the manufacturer of such stains and coatings. Any deviations from these warranties will be set forth on the face of the Quotation. If the Buyer has specified the materials to be used in the millwork and finishing process, Rosati makes no warranty of any kind or nature. The length of the warranty will be stated on the face of the Quotation but in no event greater than one (1) year from the date of delivery. Rosati is not responsible for or liable to Buyer in damages (for breach of warranty or otherwise) arising out of or related to the selection of the Services for Buyer or the integration of the Services into the Products of the Buyer. Conformance of the Services to Buyer’s written specifications is an absolute defense to warranty liability. In the event that the Services are non-conforming, Rosati’s sole liability to Buyer and/or Buyer’s customer(s) and Buyer’s and/or Buyer’s customer’s sole remedy under this warranty (whether or not the non-conforming Services have been installed and must be the subject of a recall or service action) is limited to the repair or replacement of the non-conforming Services, but in no event will Rosati replace the Products upon which the Services were applied; provided, however, that written notice that the Services are non-conforming must be given by Buyer to Rosati (1) prior to any re-work or repair by Buyer and (2) within ten (10) days after the delivery of the Products. Transportation charges for the return of purportedly non-conforming Services to Rosati and the shipment of replacement Services to Buyer will be borne by Rosati only if such goods are returned in accordance with Rosati’s return procedure. The above warranty is rendered null and void if Buyer undertakes any repair or replacement of the Services without Rosati’s prior written consent.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE GIVEN AND ACCEPTED IN LIEU OF (i) ANY AND ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (ii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN CONTRACT OR TORT, WHETHER OR NOT ARISING FROM ROSATI’S NEGLIGENCE. THE REMEDIES OF THE BUYER SHALL BE LIMITED TO THOSE PROVIDED HEREIN TO THE EXCLUSION OF ANY AND ALL OTHER REMEDIES, INCLUDING WITHOUT LIMITATION, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES. NO AGREEMENT VARYING OR EXTENDING THE FOREGOING WARRANTIES, REMEDIES OR THIS LIMITATION WILL BE BINDING UPON ROSATI UNLESS IN WRITING AND SIGNED BY A DULY AUTHORIZED OFFICER OF ROSATI.
Rosati may terminate its contract with Buyer prior to completion as a result of Buyer’s: (i) breach of any representation, warranty or other term of the contract; (ii) repudiation, breach or threat to breach any of the terms of the contract; (iii) making an assignment for the benefit of creditors, or proceedings in bankruptcy or insolvency are instituted by or against Buyer; (iv) request for accommodation from Rosati, financial or otherwise, in order to meet its obligations under the contract; (v) entering or offering to enter into a transaction that includes a sale of a substantial portion of its assets or a merger, sale or exchange of stock or other equity interests that would result in a change in control of Supplier within the meaning of Section 409A of the Internal Revenue Code and regulations issued thereunder; or (vi) at any time in Rosati’s sole judgment Buyer’s financial or other condition endanger Buyer’s ability to perform. If Buyer terminates this contract prior to the completion of the Services to be performed by Rosati, Buyer shall, within forty five days, pay to Rosati: (i) the contract price for all finished Services performed prior to termination; (ii) the cost of all work in process (based upon the contract price times percentage completion); and (iii) the cost of all unfabricated raw materials purchased by Rosati in connection with the contract. Rosati is not obligated to release any of Buyer’s Products nor provide any transition support to Buyer relating to the supply of the Services until Buyer makes all termination payments.
10. EXCUSABLE DELAYS:
Buyer acknowledges that the goods called for hereunder are to manufactured by or for Rosati to fulfill this order and that the delivery dates are based on the assumption that there will be no delay due to causes beyond the reasonable control of the Rosati. Rosati shall not be charged with any liability for delay or non-delivery when due to delays of suppliers, acts of God or the public enemy, compliance in good faith with any applicable foreign or domestic government regulation or order whether or not it proves to be invalid, fires, riots, labor disputes, unusually severe weather or any other cause beyond the reasonable control of Rosati. To the extent that such events cause Rosati to reduce or suspend its production and deliveries, the time for the performance shall be extended for as many days beyond the date thereof as are required to obtain removal of such causes. This provision shall not, however, relieve Rosati from using its best efforts to avoid or remove such causes and continue performance with reasonable dispatch whenever such causes are removed.
11. LIMITATION ON LIABILITY:
In the event any remedy under these terms fails of their essential purpose and monetary damages may be imposed, Rosati’s liability, whether founded in contract or tort (including negligence), arising out of or resulting from (i) this contract or the performance or breach thereof, (ii) the service, delivery, sale, repair, replacement, or (iii) the use of any such product or the furnishing of any such service is limited to the aggregate purchase price for the non-conforming Services at issue.
(a) Rosati’s obligation hereunder shall not include any obligation to indemnify, defend or hold Buyer harmless arising from claims brought or asserted by third-parties unrelated to Buyer.
(b) Buyer hereby assumes the entire, sole responsibility for any injury to person, including death, or damage to property of any kind or nature caused by, resulting from or in connection with the furnishing of Services by Rosati, its subcontractors, officers, agents, or employees. To the fullest extent permitted by law, Buyer will defend, indemnify, and hold harmless Rosati, and Rosati’s successors and assigns, against all damages, claims, or liabilities and expenses (including attorneys’ fees and other professionals’ fees, settlements, releases and judgments) to the extent such damages, claims, or liabilities and expenses arise out of or relate in any way to Rosati’s representations, performance or obligations under any contract with Buyer or under any legal theory related to the Services.
(c) Buyer’s obligation to defend and indemnify under this Section will apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability or otherwise. Rosati has the right to be represented by and actively participate through its own counsel in the defense and resolution of any indemnification matters, at Buyer’s expense. The indemnification obligations of Buyer set forth in this Section are independent of and in addition to any insurance obligations of Buyer.
Buyer may not set off or otherwise debit against or recoup from any amounts due or to become due to Rosati, any amounts due or become due to Buyer, however and whenever arising.
14: APPLICABLE LAWS:
The validity, interpretation and enforcement of this Agreement, matters arising out of or related to this Agreement or its making, performance or breach, and any and all related matters shall be governed by the laws of the State of Michigan.
Waiver by either party of a breach of any of the terms and conditions of this contract shall not constitute a waiver of any other breach of the same or any other term.
16. ENTIRE CONTRACT:
The contract to which these terms and conditions are attached constitutes the entire agreement between the parties, and no modification of this contract shall be binding unless in writing signed by both parties hereto.