Notice: This sales Transaction, including, but not limited to, any offer, quotation order confirmation, order acceptance, or invoice for the sale of any products therein (“Products”) (Collectively, “Sales transaction”) is subject to and conditioned upon acceptance of the terms and conditions contained in this document. Any additional or different terms or conditions proposed by a purchaser of products (“purchaser”), are objected to by, and will not be binding upon, MWI Incorporated, including its subsidiaries and affiliated (collectively, “seller”). These terms and conditions of sale are incorporated into this sales transaction and shall apply to this sales transaction whether or not they applied to a prior purchase by purchaser, unless explicitly objected to in writing by purchaser, which writing must be received by seller within five (s) days after the date of this document.
1. Acceptance
All orders received by SELLER are subject to final acceptance or confirmation by SELLER and no terms or orders are binding upon SELLER until so accepted.
2. Deliveries
Unless otherwise specified by SELLER in writing, all deliveries are F.O.B. SELLER’s facility (U.C.C. Terms). All deliveries shall be via common carrier or some other reasonable means chosen by SELLER. All risk of loss to PRODUCTS shall pass to PURCHASER by SELLER upon delivery of such PRODUCTS to a common carrier Delivery is conditional on PURCHASER’s compliance with these terms and on the timely receipt by SELLER of documents necessary for the completion of the order and of any down payment. Partial deliveries of PRODUCTS are permissible. SELLER will not be liable for any delay in the performance of orders, or in the delivery or shipment of PRODUCTS, or for any damages suffered by PURCHASER by reason of such delay. Delivery is subject to PURCHASER maintaining credit satisfactory to SELLER. SELLER may suspend or delay performance or delivery at any time pending receipt by SELLER of any outstanding amounts owed to SELLER. Failure of PURCHASER to provide such assurances to SELLER shall entitle SELLER to delay delivery and /or cancel this order without further liability or obligation to PURCHASER.
3. Prices
Unless otherwise specified by SELLER in writing, prices and quantities are quoted F.O.B. SELLER’s facility (U.C.C. terms). Prices are subject to change by SELLER without notice to PURCHASER. Only those prices set forth in this Sales Transaction will apply to the order. Unless otherwise specified, prices do not include any packing or handling charges, any sales, use, excise, privilege, or similar tax, or any export or import tax or duty levied by any government; and PURCHASER shall pay any such applicable charges, taxes, and duties. Upon the request of SELLER, PURCHASER shall provide SELLER with a tax exemption certificate acceptable to the appropriate taxing authorities.
4. Terms of Payment
Unless otherwise specified by SELLER in writing, the purchase price shall by due in full by PURCHASER upon tender of delivery of PRODUCTS. Extension of credit, if any, may be changed or withdrawn by SELLER at any time. Invoices not paid within thirty (30) days after their due date will be subject to carrying charges. Carrying charges shall accrue and be added to the unpaid balance at the rate of one and one-half percent (1%%) per month of any overdue unpaid balance, or the maximum rate permitted by law, whichever rate is less. PURCHASER shall reimburse SELLER for the costs of collection, including, without limitation, reasonable attorneys’ fees, of any overdue amount owed by PURCHASER to SELLER, and such collection costs shall also be subject to carrying charges. PURCHASER may not retain or set-off any amounts owed to SELLER in satisfaction of any claims asserted by PURCHASER against SELLER.
5. Claims and Return of PRODUCTS
Within ten (10) days after PURCHASER’s receipt of PRODUCTS, PURCHASER must give written notice to SELLER of any claim by PURCHASER based upon the condition, grade, or quantity of PRODUCTS; such notice must indicate the basis of the claim in detail. PURCHASER’s failure to comply with this paragraph shall constitute irrevocable acceptance by PURCHASER of PRODUCTS as delivered and shall bind PURCHASER to pay to SELLER the full price of such PRODUCTS. PRODUCTS shall not be returned to SELLER without SELLER’’ prior written consent; and transportation charges for any authorized returns of RODUCTS shall be pre-paid by PURCHASER.
6. Cancellation/Changes
PURCHASER may not cancel or change an order once placed with and accepted by SELLER except with the prior written consent of SELLER and upon terms that will indemnify SELLER against any loss. SELLER may correct mathematical or clerical errors. SELLER may make any technical changes to PRODUCTS as SELLER may deem necessary.
7. Excusable Delays
SELLER shall not be liable for delays or failure to perform due, directly or indirectly, to causes beyond SELLER’s control, including the inability of SELLER’s suppliers to deliver goods, services, or raw materials necessary for SELLER to perform this SALES TRANSACTION, acts ( including failure to act) of any governmental authority, wars (declared or undeclared), strikes or other labor disputes, fires, and natural calamities (such as floods, earthquakes, storms, and epidemics).
8. Selection and Application
PURCHASER is solely responsible for proper selection and application of PRODUCTS. PURCHASER agrees that it will use and apply PRODUCTS only for their intended uses and according to specifications and limitations established by SELLER from time to time. PURCHASER shall indemnify and hold SELLER harmless from and against any and all damages, claims, or expenses (including reasonable attorneys’ fees) arising out of or relating to improper selection, application, or abuse of PRODUCTS, or use or application of PRODUCTS other than according to specifications and limitations established by SELLERS from time to time.
9. EXCLUSION OF WARRANTIES
NO EXPRESS WARRANTY AND NO IMPLIED WARRANTIES OF ANY TYPE, WHETHER OF MERCHANTABILITY, FITNESS FOR A PARTICUAR USE, OR OTHERWISE, SHALL APPLY TO PRODUCTS.
10. LIMITATION AND EXCLUSION OF DAMAGES
IN NO EVENT SHALL SELLER’S LIABILITY TO PURCHASER EVER EXCEED THE PURCHASE PRICE OF PRODUCTS. SELLER SHALL NOT BE LIABLE TO PURCHASER FOR INJUIES, LOSSES, OR DAMAGES RESULTING FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF PURCHASER, NOR SHALL SELLER BE LIABLE TO PUCHASER, IN EVENT, FOR CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, WHETHER ARISING FROM THE SALE OF PRODUCTS, ANY DEFECT IN PRODUCTS, AND ANY USE OF PRODUCTS, OR FORM PURCHASER’S INABILITY TO USE PRODUCTS, OR OTHERWISE.
11. Proprietary Information
SELLER retains ownership of all intellectual property rights, including, without limitation, patents, trademarks, trade names, trade secrets, and copyrights, and of all drawings, illustrations, dimensions, specifications, copyrights, and performance projections, designs, plans, price lists, customer lists, computations, and descriptions prepared by SELLER in connection with or relating to PRODUCTS (“Proprietary Information”) PURCHASER shall not copy or disclose to any other persons or use for any purpose whatsoever any or all of the proprietary information without SELLER’s prior written consent.
12. Patents, Trade Secrets, and Copyrights Indemnity
PURCHASER shall hold SELLER harmless against any claim, and at PURCHASER’S expense defend any suit or proceeding, brought against SELLER based on an allegation that any of the designs, drawings, specification provided by PURCHASER to SELLER, or any PRODUCTS resulting therefrom, or any part therefrom, or the application or use of PRODUCTS for the intended purpose, constitute an infringement of any patent or copyright or misappropriation or misuse of any trade secret.
13. Security agreement
PURCHASER hereby grants to SELLER a purchase money security interest in PRODUCTS and to the proceeds thereof. PURCHASER shall execute and deliver any financing statements and other documents the SELLER may reasonable require for the protection of the security interest hereby granted to SELLER by PURCHASER, and PURCHASER hereby authorizes SELLER to do all other acts reasonable necessary for the establishment, perfection, preservation, and enforcement of such security interest. PURCHASER shall maintain adequate insurance against casualty, loss, fire, or the of PRODUCTS for so long as the security interest is in effect.
14. Assignment
Purchaser may not assign its rights or obligations hereunder without the prior written consent of SELLER and any purported assignment by PURCHASER without the consent of SELLER shall be of no effect.
15. Limitations
Any Agreement and any dispute or claim relating to PRODUCTS must be commenced within one (1) year after such cause of action has accrued.
16. Choice of Law
This Agreement and any dispute or claim relating to it shall in all respects be governed by and construed according to the laws of the State of New York, excluding its conflict of law principles.
17. Choice of forum, Venue, and Consent to Jurisdiction
Except with respect to an action instituted by SELLER for equitable relief, including, without limitation, an action for temporary or permanent injunctive relief, PURCHASER and SELLER agree that the General Courts of Justice of New York and the United Stated District Courts situated in Rochester, NY shall constitute the exclusive forum(s) for the adjudication of any and all disputed or controversies arising out of or relating to this order or to PRODUCTS. PURCHASER and SELLER consent to the exercise of jurisdiction over them by such courts with respect to any dispute or controversy, and PURCHASER and SELLER waive any objection to the assertion or exercise by such court of such jurisdiction.
18. Construction of Agreement
The provisions contained in this Sales Transaction are incorporated into these terms and conditions of sale by reference, and in the event any provisions of this Sales transaction conflict with any provisions of these terms and conditions, the provision of this Sales Transaction shall control (with the other provisions of these terms and conditions continuing to apply to this Sales Transaction). These terms and conditions of sale may not be amended, modified, or supplemented except by written agreement executed by PURCHASER and SELLER. The provisions of this Sales Transaction are hereby deemed by the parties to be severable and the invalidity or unenforceability of one provision shall not affect the validity or enforceability of any other provision. PURCHASER and SELLER acknowledge that these terms and conditions of sale, together with the Sales Transaction, constitute the entire Agreement between PURCHASER and SELLER with regard to the sale or transfer of PRODUCTS, and supersede all prior oral or written statements of any kind made by the parties or their representatives.