Michelin Advantage Association Conditions of Sale
MICHELIN NORTH AMERICA, INC. CONDITIONS OF SALE FOR PURCHASES THROUGH
THE ADVANTAGE ASSOCIATION PROGRAM
SCOPE OF THE PROGRAM
The Michelin North America (“Michelin”) Advantage Association Program (“Program”) covers purchases of, and the offer of discounts on, or other offers applicable to, new MICHELIN® and BFGoodrich® passenger and light truck tires, commercial truck tires, Michelin Retread Technologies, Inc. retreads and Oliver Rubber Company retreads and related products and services (“Michelin products”) by Michelin and/or Dealers (as defined below), and the purchase of Michelin products through commercial associations (“Advantage Association”) by its network of individual or commercial entities (the “Members”). These Conditions of Sale for Purchases through the Advantage Association Program (“Conditions of Sale”) govern all sales transactions between Michelin and Advantage Association and/or Members for Michelin products. Michelin is not providing any services of any kind. Any service or parts Members receive related to such Michelin products are provided by independent third-party Authorized Michelin Dealers (“Dealers”). Michelin is not responsible for, nor does it warrant, the third-party services or parts provided to the Members by any Dealer.
Notwithstanding anything to the contrary set forth in these Conditions of Sale, the parties understand and agree that each purchase of Michelin products is between Michelin or a Dealer and the applicable Member; Advantage Association is not buying or selling goods or services hereunder.
USE OF PRODUCTS
Michelin products purchased through the Program shall be installed on equipment that is directly owned or controlled by the Members. Michelin products once purchased by the Members shall not be resold. Any deviation from the above could result in a violation of the U.S. Antitrust laws and will be grounds for immediate termination of the Member and/or Advantage Association by Michelin.
Deliveries of Michelin products purchased by the Member are made directly by the Dealer who accepts the order of the Member. Michelin shall not be liable for any loss suffered or any costs incurred by the Member or Advantage Association resulting, directly or indirectly, from failure or delay in delivery. Michelin shall, however, use commercially reasonable efforts to provide inventory to the Dealer in adequate amount to fill the orders of the Member. If events outside of the control of Michelin, such as acts of God or public enemy, restrictions, prohibitions, priorities or allocations imposed by governmental authority, strikes or labor disputes, lack of or inability to obtain raw materials or supplies, floods, fires, earthquakes, epidemics, or unusually severe weather occur, Michelin may suspend performance of its obligations to fill the Member orders, even if previously accepted, without obligation to the Member.
PAYMENT TERMS & INVOICING
All amounts owing to Michelin for purchases under this Program are to be paid via the purchasing Member’s authorized and valid credit card on file at the time of purchase with no exceptions. Michelin will not extend credit limits to the Member for purchases under this Program. If Member is claiming an exemption from any federal, state or local tax or environmental fee imposed on the sale or use of Michelin products sold under these Conditions of Sale, an exemption certificate for the tax or fee must be on file with Michelin Customer Service Department prior to the claim. Note, purchases that are made prior to completing enrollment in the Advantage Program (confirmed via an email from Michelin) will be subject to tax. Michelin may impose a 25% service charge to cover its administrative costs for failure to have the exemption certificate on file at the time of sale.
Member shall notify Michelin Customer Service Department in writing (including electronic mail) of any claims or disputes within thirty (30) days of invoice or credit document date. Member’s failure to make payment in accordance with the terms of any invoice will constitute a material breach of these Conditions of Sale. In the event Member is delinquent in payment, Michelin shall have the right, without limitation on any other remedy otherwise available to it, to refuse shipment of any further Michelin products to Member and/or to declare the entire sum of Member’s indebtedness immediately due and payable. In addition to any right of setoff or recoupment provided by law, Michelin shall have the right to apply any amounts owed by Michelin (or any person or entity affiliated with Michelin) to Member (or any person or entity affiliated with Member) in reduction of any amounts due Michelin. Furthermore, in the event a Member’s credit card fails to process, the Advantage Association agrees to make a good faith effort to assist Michelin in procuring payment from the Member, including, but not limited to, providing Michelin with the Member’s contact information.
The Member shall provide notice to Michelin in writing if it desires to return unused current production Michelin products purchased through Michelin’s Member Program and inform Michelin of the location of the Michelin products. Michelin shall have the right to inspect such products and may, in its sole discretion, approve the return of the products by the Member. Upon approval, the Member shall ship the products, freight pre-paid, to the Dealer from whom the Michelin products were purchased. No tires may be returned directly to Michelin. The Dealer will process a reverse delivery receipt and any and all other documentation required by Michelin to process the product return. Michelin will issue a credit to the Member at the lesser of the net invoice price paid by the Member or the Member’s current purchase price, less any discounts, credits, allowances, or other benefits received by the Member.
All Michelin products sold to Members are warranted in accordance with the provisions of the written Limited Warranty and Owner’s Manual applicable to such products, as may be amended from time to time by Michelin. If a Michelin product is involved in, or suspected to have caused or contributed to, the cause of an accident, the Member shall promptly notify Michelin’s local commercial representative. If Michelin desires to inspect any such Michelin product, the Member shall arrange for transportation at the expense of Michelin in accordance with its instructions. EXCEPT AS EXPRESSLY STATED IN THE LIMITED WARRANTY, MICHELIN HEREBY DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES TO MEMBERS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. EXCEPT AS EXPRESSLY STATED IN THIS PARAGRAPH, EACH PARTY HEREBY DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY.
FINANCIAL AND OPERATING INFORMATION
If the Advantage Association wishes to avail itself of the Program for its Members as eligible to purchase products, the Advantage Association agrees, as a condition of membership, to establish a bill-to number with Michelin at the time of its application for membership in the Program. The participating Members will purchase products via credit card and shall be solely responsible for all such purchases. Further, as a condition of continued membership in the Program, Advantage Association agrees to provide prompt notice in writing to Michelin of any substantial change in the ownership or management of the Advantage Association and its subsidiaries and/or divisions.
The Advantage Associate agrees to provide a mechanism through which the Members of the Advantage Association may obtain a copy of the portion of these Conditions of Sale applicable to Members, information relating to the Program, and access documents and/or web portal for enrollment purposes.
MEMBER PURCHASE REIMBURSEMENT
Advantage Association shall be eligible to earn a quarterly bonus for purchases of Michelin product through these Conditions of Sale, as follows:
- Tier 1: If Members in the aggregate purchase a minimum of 200 units of Michelin product in a quarter, Advantage Association shall earn $1.50 per new tire Member purchases and $0.75 per retread purchase, net of taxes.
- Tier 2: If Members in the aggregate purchase a minimum of 500 units of Michelin product in a quarter, Advantage Association shall earn $2.50 per new tire and $1.50 per retread, net of taxes. MICHELIN will accrue on behalf of the “Advantage Association”, and make payable quarterly, a reimbursement amount based upon quarterly minimum purchases of 500 units at two dollars, 50 cents ($2.50) per new tire on all replacement medium truck tire Member purchases, net of taxes, and one dollar, 50 cents ($1.50) per MICHELIN Retread Technologies (MRT) retread.
PROPRIETARY RIGHTS; LICENSE
Michelin may monitor Member’s use and sale of Michelin products and services, and Member expressly agrees that Michelin may collect information related to Member’s use and sale of Michelin products and services, and third-party services (“Member Data”). In addition, Michelin may use Member Data in an aggregate and anonymous manner, including, to compile statistical and performance information related to the provision and operation of Michelin products and services (“aggregated statistics”). Michelin at all times retains the rights to and ownership of the aggregated statistics, and all intellectual property rights therein belong to and are retained solely by Michelin. Member acknowledges that Michelin will be compiling aggregated statistics based on Member Data and information input by other parties into the Michelin products and services and Member agrees that Michelin may (a) make such aggregated statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Member or its confidential information. To the extent necessary and required under applicable law, the Member is responsible for obtaining any required consent from its company, fleet, fleet drivers, employees, and other related parties in connection with the Member Data.
CONSTRUCTION, MODIFICATION, AND TERMINATION OF PROGRAM MEMBERSHIP
These Conditions of Sale shall be governed by and construed in accordance with the law of the State of South Carolina without regard to any conflict of laws provision. The Advantage Association and Members consents to personal jurisdiction and exclusive venue in the federal and state courts in Greenville, South Carolina. Either party may terminate the relationship at any time for any reason by notifying the other party in writing. However, the Member shall accept and pay for all Michelin products delivered or invoiced to the Member before Michelin receives or issues a written notice of termination. These Conditions of Sale shall apply to any purchases of Michelin products made by the Member pursuant to the Program, and Michelin may implement revisions to the portions hereof applicable to such purchases (not including Advantage Association’s rights and obligations hereunder), all of which cumulatively constitute the complete agreement of Michelin and the Member. Any attempt by Advantage Association or Member to vary in any way from these Conditions of Sale (whether by additional, conflicting or different terms contained in any purchase order submitted by a Member or otherwise) is hereby expressly rejected by Michelin and the terms and conditions contained in these Conditions of Sale only shall control. The specifications for tires and/or the prices charged therefore, as periodically offered under the Program and/or North America Member Price List, are subject to change at any time at Michelin’s sole discretion. In the event of any disputes by Members concerning payments and/or invoicing, Member shall have the ability to contact the Advantage Customer Service Call Center to address any such issues.
By completing and signing this Application for the Michelin Advantage Association Program, Advantage Association acknowledges that it has read the Conditions of Sale for Purchases through the Advantage Association Program, agrees to abide by the Conditions of Sale, certifies that all information provided by the Advantage Association in the Application is true and accurate, and acknowledges that upon affixing the signature of its duly authorized representative, Advantage Association is entering into a valid and enforceable written agreement subject to the terms of the Conditions of Sale that shall become effective once accepted by Michelin.