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Bata Plastics, Inc., a Michigan corporation with offices at 1001—40th St SE, Grand Rapids, MI 49508-2401 (hereinafter referred to as “Buyer”) makes all purchases subject to the following terms and conditions, in addition to those stated or referenced on the Purchase Order, and include any drawings, specifications, schedules, exhibits or other writings incorporated therein. As used in these terms and conditions, “Vendor” means the party named on the Purchase Order from whom Buyer is purchasing goods or services; and “UCC” means the Uniform Commercial Code in effect from time to time in the state of Michigan.


  1. Agreement: In consideration of Vendor agreeing to sell goods, and Buyer agreeing to buy them, the Vendor agrees as follows:  These Terms and Conditions of Purchaser, together with the terms and conditions of any Purchase Order and other document prepared by Buyer and sent to Vendor constitute the agreement between the parties (the “Agreement”).  Vendor agrees to each and every term contained in the Agreement as a precondition to Buyer’s performance.  Any term or condition in any invoice, acknowledgment, or other form or document issued by Vendor, regardless of the materiality of the term or condition, that differs from or is contrary to the terms and conditions contained in the Agreement are objected to and excluded unless expressly agreed to in a written acknowledgment issued by Buyer.  Any other terms or conditions not set forth in the Agreement shall not apply unless expressly agreed to in a written acknowledgment issued by Buyer.


  1. Vendor’s Acceptance:  Acceptance of Buyer’s Purchase Order is expressly limited to the terms and conditions contained herein. Any additional or different terms or conditions proposed by Vendor shall constitute a counteroffer.  Vendor accepts Buyer’s Purchase Order by signing and returning an acknowledgment copy of the Purchase Order, other written notice of acceptance which expressly refers to Buyer’s Purchase Order and accepts the terms hereof, or commencement of performance.  Acceptance of the Purchase Order must be received by Buyer within any time period specified on the Purchase Order.


  1. Purchase Order Changes:  Buyer may at any time by written notice to Vendor make changes in any one or more of the following (i) applicable specifications, delivery schedules, exhibits or other writings forming a part of Buyer’s Purchase Order; (ii) method of shipment or packing; or (iii) place of delivery.  If any such change causes a decrease in the cost or the time required for performance of Buyer’s Purchase Order, an equitable adjustment shall be made in the price or delivery schedule, or both, and Buyer’s Purchase Order shall be modified in writing to reflect such changes.  If any such change causes an increase in the cost or the time required for performance of Buyer’s Purchase Order, Vendor may only charge Buyer for such increase if Vendor immediately notifies Buyer of its claim for such an increase.  Buyer may then request from Vendor an estimate of the increase in the cost or the time required for performance of any change prior to ordering the same, whereupon Vendor shall promptly submit to Buyer a firm bid in writing stating the amount of any increase or decrease. Vendor shall not proceed with the change for which any such estimate has been requested unless and until Buyer gives written notice to Vendor to make such change.


  1. Delivery:  Time is of the essence in Buyer’s Purchase Order.  Vendor is responsible for all costs of delivery of goods and/or performance of services.  Should Vendor fail to comply with the delivery or performance terms of Buyer’s Purchase Order, Buyer may terminate Buyer’s Purchase Order in whole or part and may buy elsewhere and charge Vendor any additional expense incurred thereby.  Buyer expressly retains all its rights and remedies provided by law in the case of such default, and no action on the part of the Buyer shall constitute a waiver of any right or remedy. Neither Buyer nor Vendor shall be liable by reason of any failure to deliver or delay in delivery due to any cause beyond reasonable control without fault or negligence.


  1. Identification:  To the extent the goods ordered are identifiable, Identification of the goods shall occur upon Vendor’s acceptance of Buyer’s Purchase Order or as soon thereafter as the goods are identifiable.


  1. Risk of Loss:  Risk of Loss shall be upon the Vendor until receipt of the goods by Buyer at the location identified in its Purchase Order or at such other location identified by Buyer.


  1. Vendor Warranties:  (a) Vendor warrants that the goods and/or services subject to Buyer’s Purchase Order will conform to all applicable specifications and samples furnished or accepted by Buyer, will conform to any representations or statements made by Vendor to Buyer, will consist of only first-class workmanship and materials, and will be free from any defects, latent or patent, in material, design, or workmanship; Vendor acknowledges that Buyer has relied on representations or statements made by Vendor to Buyer, and that Buyer is relying on Vendors’ expertise, knowledge, skill, and judgment. (b) Vendor warrants that it has complied, and the goods and/or services covered by Buyer’s Purchase Order will comply, with all applicable federal, state and local laws, rules, regulations and orders, which directly or indirectly regulate or affect the manufacture and/or sale of such goods or services. Vendor will furnish Buyer with guarantees and assurances in accordance with the applicable provisions of any such law, rule, regulation or order which provide a specific written guarantee or assurance to be given by Vendor with respect to such goods or services.  (c) Vendor warrants that it has, or will have, at the time of delivery, good title to the goods covered by Buyer’s Purchase Order, and that it has a right to transfer such goods, free from any security interest, lien or encumbrance. Before final payment, Vendor shall, if requested, satisfy Buyer by affidavits or otherwise, that there is no outstanding security interest, lien or encumbrance for labor or material against the goods delivered to Buyer. (d) All material purchased by Buyer will be contaminate free unless otherwise indicated in Buyer’s Purchase Order.  Without limitation, Vendor will not sell to Buyer any material that includes Hazardous Waste.  “Hazardous Waste” means any “hazardous substance” or “hazardous waste” as defined in the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) or any other environmental hazards or contamination provided under CERCLA, the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), the Resource Conservation and Recovery Act of 1986, or any toxic hazardous infectious or radioactive substance, chemical or material regulated under the Toxic Substances Control Act, (“TSCA”) or the Federal Insecticide, Fungicide and Rodenticide Act or Atomic Energy Act or any applicable federal, state or local statutes, regulations and ordinances.  (e) All information provided to Buyer (whether in Buyer’s Scrap Vendor Information form or otherwise) is true and accurate in all material respects and includes all information necessary to ensure that such information is not misleading.


  1. Disclaimers and Limitation of Liability Ineffective: Any attempt by Vendor to disclaim any warranties, including those specified under the UCC, shall be ineffective.  Vendor shall remain liable for any indirect, special, incidental, consequential or punitive damages caused by Vendor, and any attempt by Vendor to limit Vendor’s liability as to Buyer shall be ineffective.


  1. Price:  (a) The price of the goods and/or services covered by Buyer’s Purchase Order shall be the lesser of (i) the amount specified on the Purchase Order or (ii) the lowest price that Vendor offers in effect on the date of shipment for comparable goods and/or services in comparable quantities, and Vendor shall promptly notify Buyer in writing of any reduction in price required hereunder.  (b) Buyer is not responsible for any charge not appearing on Buyer’s Purchase Order.


  1. Invoices and Payment:  (a) An invoice for goods and/or services, with evidence of shipment properly signed by carrier’s representative, if applicable, shall be submitted to Buyer for each shipment or performance of services. Error or omissions on invoices or delay in the receipt of invoices shall entitle Buyer to withhold payment without penalty or loss of any discount. Payment shall be made per the payment terms on the Purchase Order.  (b) Except as otherwise provided herein, payment for goods and/or services covered by Buyer’s Purchase Order shall be made only (i) after arrival of goods at destination or after completion of services, (ii) after Buyer’s inspection and acceptance of goods and workmanship, (iii) after receipt of the appropriate and correct invoice(s), and (iv) insofar as final payment is concerned, after Vendor has complied with all of its obligations to Buyer. (c) Buyer shall have the right to set off against Buyer’s Purchase Order any amounts that Vendor may owe to Buyer.  (d) Neither inspection nor payment shall be deemed to waive any rights of the Buyer.


  1. Right of Inspection:  Buyer shall have the right to inspect the goods and/or services at the time and place of delivery or performance before paying for or accepting them.  All material is subject to Buyer’s processing tests and Buyer shall have no obligation to pay for any material that does not pass such processing tests.  Any material that is rejected by Buyer will be returned to Vendor at Vendor’s sole expense.


  1. Buyer’s Property:  (a) Any property furnished by Buyer to Vendor in connection with Buyer’s Purchase Order shall be and remain Buyer’s property and Vendor shall be deemed to be an insurer thereof. (b) Vendor shall segregate, clearly mark and maintain complete inventory of all such property and will notify Buyer of any loss or destruction of or damage to such property. (c) Upon termination or completion of Buyer’s Purchase Order Vendor shall deliver any such property to Buyer, in good condition subject to ordinary wear and tear and normal manufacturing losses, in accordance with Buyer’s instructions, or shall otherwise dispose of such property as directed by Buyer. (d) Vendor shall maintain fire insurance with extended coverage and theft insurance for any such property and provide evidence of such coverage upon request.


  1. Indemnification: Vendor shall indemnify, defend and save Buyer harmless from any liability, loss, cost, penalty, damage or expense, including attorneys’ fees, which Buyer may incur as a result of any claim, damage, injury, cause of action, proceeding, citation, or work stoppage arising out of or in any way connected with goods or services provided by Vendor pursuant to a Purchase Order.  This indemnity includes all costs and attorney’s fees, regardless of whether litigation is filed or arbitration demanded.  This indemnity survives the termination or completion of the Purchase Order. This indemnity also includes all claims for patent infringement or any intellectual property claims.


  1. Confidential Information: Vendor acknowledges that any data, designs or other information disclosed by Buyer to Vendor in connection with Buyer’s Purchase Order is confidential and proprietary to Buyer and that use of or disclosure of this information other than as may be required in the course of Vendor’s performance of Buyer’s Purchase Order will be detrimental to Buyer. Vendor shall not in any manner advertise, publish or release any information concerning Buyer’s Purchase Order without the prior written consent of Buyer, except as may be required by law.


  1. Assignment and Transfer:  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, that Vendor shall not assign, delegate, subcontract, or transfer any of its rights or obligations under Buyer’s Purchase Order without the express prior written consent of Buyer.


  1. Remedies:  Buyer and Vendor shall have all of the remedies afforded by the UCC, as well as any other remedies which may be provided under the Agreement or at law or equity.


  1. Costs of Breach:  In the event Vendor shall breach in any way Vendor’s obligations under this, or any other agreement, to Buyer, Vendor shall be liable to Buyer for all of Buyer’s costs of remedying the breach including, but not limited to, attorney’s fees and expenses.


  1. Waiver:  Failure of Buyer to insist upon strict adherence to any term of Buyer’s Purchase Order on any occasion shall not be considered a waiver or deprive Buyer of the right thereafter to insist upon strict adherence to that term or any other term of Buyer’s Purchase Order. Any waiver must be in writing and signed by an authorized representative of Buyer.


  1. Governing Law: Buyer’s Purchase Order shall be governed by and construed in accordance with the laws of the State of Michigan without regard to its conflict of law doctrine.


  1. Arbitration. Any controversy or claim arising out of or relating to this Agreement or the breach thereof shall be settled by arbitration in Grand Rapids, Michigan (or at such other place as the parties may mutually agree) in accordance with the laws or regulations then obtaining of the American Arbitration Association, and judgment upon the award rendered may be entered in any Court, State or Federal, having jurisdiction.


  1. Severability. If any part, term, or provision of this Agreement shall be held illegal, unenforceable, or in conflict with any law of a federal, state, or local government having jurisdiction over this Agreement, the validity of the remaining portion or portions shall not be affected thereby.


  1. Entire Agreement:  Buyer’s Purchase Order, and the terms and conditions hereof, contains the complete agreement of the parties as to its subject matter, supersedes all prior agreements with respect to its subject matter, and may not be amended or discharged except in writing signed by the duly authorized representatives of both parties. Any different or additional terms and conditions proposed by any party in any form, even to the extent that such form purports to modify this Agreement, shall be deemed a material alteration of the terms of sale and shall not alter or modify this Agreement by operation of any law or otherwise, unless agreed to by the parties in writing.