TERMS AND CONDITIONS
ANY TERMS, CONDITIONS AND/OR PROVISIONS CONTAINED IN BUYER’S PURCHASE ORDER (OR ANY OTHER COMMUNICATION FROM BUYER) WHICH ARE IN ANY WAY INCONSISTENT WITH OR IN ADDITION TO THE TERMS AND CONDITIONS (THE “TERMS”) HEREIN ARE HEREBY REJECTED BY MIXER DIRECT, INC. (“SELLER”) AND SHALL NOT BE APPLICABLE TO THESE TERMS OR BINDING IN ANY WAY UPON SELLER. IF BUYER OBJECTS TO ANY TERMS HEREIN, SUCH OBJECTION MUST BE IN WRITING AND RECEIVED BY SELLER PRIOR TO COMMENCEMENT OF SHIPMENT BY SELLER OF ANY ITEMS LISTED ON THE DOCUMENT TO WHICH THESE TERMS ARE ATTACHED (THE “GOODS”). RETENTION BY BUYER OF ANY GOODS SHALL BE CONCLUSIVELY DEEMED TO BE ACCEPTANCE OF THESE TERMS. SELLER’S FAILURE TO OBJECT TO TERMS CONTAINED IN BUYER’S PURCHASE ORDER (OR ANY OTHER COMMUNICATION FROM BUYER) WILL NOT BE DEEMED A WAIVER OF THESE TERMS OR AN ACCEPTANCE OF THE TERMS CONTAINED IN BUYER’S PURCHASE ORDER.
1. Title and Delivery. All Goods shall be delivered Ex Works Seller’s shipping facility. Risk of loss and damage thereto shall pass to Buyer upon Seller’s tender of delivery thereof to a carrier at such point, and any loss or damage thereafter shall not relieve Buyer from any payment obligation. Buyer shall be responsible for pursuing any claims for loss or damage with the carrier, provided however that Seller shall reasonably cooperate with Buyer with respect to such claims. However, notwithstanding passage of title, Seller shall retain a security interest and right of possession in the Goods until Buyer has made payment in full. Buyer agrees to cooperate in whatever manner necessary, including executing the applicable UCC filing statements, to assist Seller in the perfection of such security interest. Seller reserves the right to make deliveries in installments and the contract shall be severable as to any such installments. Delay in delivery or other default of any installment shall not relieve Buyer of its obligation to accept and pay for remaining deliveries. All delivery dates are approximate. Buyer shall be responsible for all import duties, taxes, and any other expenses incurred or licenses or clearances required at port of entry and destination, and shall be responsible for the costs, if any, incurred by Seller in relation to expedited or “RUSH” orders. Shipping dates are approximate only, and Seller shall not be liable for any damage, loss or expense incurred by Buyer if Seller fails to meet the specified shipping dates. Unless otherwise specified, Goods shall be shipped in Seller’s standard packaging. When special or export packaging is requested or, in the opinion of Seller, required under the circumstances, the cost of shipping, if not set forth on the invoice, will be separately invoiced. Unless specifically agreed in writing all shipments shall be to the same address. In the event Buyer requests a delay in shipment of completed Goods of longer than one (1) week following date of completion, Buyer agrees that Seller may move such completed Goods to a third party offsite storage facility in Louisville, Kentucky until the Goods are shipped to Buyer. Seller shall invoice Buyer for all moving and storage costs for such completed Goods. Buyer shall be responsible for insuring, at its own expense, any completed Goods held at the storage facility against loss or damage. Loss or damage to the Goods shall not relieve Buyer from any payment obligation.
2. Pricing. Pricing shall be as set forth on the Sales Order Acknowledgement accompanying these Terms. Pricing does not include applicable sales and use tax. All invoices for deliveries to a Kentucky address shall include Kentucky sales and use tax unless Buyer shall have delivered to Seller a resale certificate or manufacturer’s sales and use tax exemption certificate in acceptable form. Buyer shall be solely and directly responsible for the reporting and payment of sales and use tax in any states other than Kentucky. In the event that legal proceedings are employed to collect any payment, all costs thereof shall be paid by the Buyer.
3. Terms and Method of Payment. No order by Buyer (with or without deposit) shall be binding upon Seller until accepted by Seller in writing (“in writing” shall mean any communication that is subsequently verifiable). Terms are payment of one hundred percent (100%) of the purchase price on or before the date of shipment, except where satisfactory open credit is established in Seller’s sole discretion, in which case the terms will be net thirty (30) days from the date of shipment. The amount of credit or terms of payment may be changed, and credit may be withdrawn, by Seller at any time for any reason. If the Goods are delivered in installments, Buyer shall pay for each installment in accordance with the terms of payment set forth herein, and Buyer’s obligation to pay for such installment shall accrue regardless of whether the remaining installments are delivered. If Buyer fails to make any payment when due, Seller reserves the right to suspend or cancel performance under any or all purchase orders or agreements under which Seller has extended credit to Buyer or pursue any other remedy available to Seller. Seller’s suspension of performance may result in a rescheduling delay contingent on availability. All quotes and payments shall be in United States dollars. All late payments shall bear interest at the rate of the lesser of (i) the maximum rate allowable by law or (ii) 1.5% per month.
4. Contingencies. Seller is not liable, either wholly or in part, for nonperformance or a delay in performance due to force majeure event or contingencies or causes beyond the reasonable control of Seller, including, but not limited to, shortage of labor, fuel, raw material or machinery or technical failure. Production and deliveries may be allocated by Seller in its sole and reasonable discretion in the event of a shortage of Goods.
5. Warranties. Except as otherwise provided in the Sales Order Acknowledgement to which these Terms apply, Seller warrants to Buyer only (and not to any entity who takes possession of the Goods from Buyer), that for a period of one year from date of shipment, the Goods (i) will be free from material defects in workmanship and materials, and (ii) will substantially conform to Seller’s published functional specifications for the Goods. Notwithstanding the foregoing, Seller makes NO WARRANTY as to Goods to the extent they consist of or contain experimental or developmental Goods, all of which are supplied “AS-IS”. Extended warranty coverage and/or terms may be available for an additional cost. THE WARRANTIES SET FORTH HEREIN SHALL NOT BE ENLARGED OR OTHERWISE AFFECTED BY, AND NO OBLIGATION OR LIABILITY OF SELLER SHALL ARISE OR GROW OUT OF, SELLER’S RENDERING OF TECHNICAL ADVICE OR SERVICE TO BUYER. EXCEPT AS SET FORTH IN THIS SECTION, SELLER MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.
6. Remedies. Seller’s sole and exclusive liability, and Buyer’s sole and exclusive remedy, for any breach of the warranties set forth in the previous section shall be (at Seller’s option) to repair or replace the Goods causing such breach, or to credit Buyer’s account the amounts actually paid by Buyer for any non-conforming Goods, provided that (i) Buyer promptly notifies Seller in writing upon discovery that such Goods fail to conform to such warranties, and provides a detailed explanation and documentation of any alleged deficiencies, (ii) Buyer obtains a return merchandise authorization (RMA) from Seller, (iii) Buyer at its cost returns such Goods to Seller’s warehouse or to such other location as Seller directs during the applicable warranty period to Seller’s plant from which Goods were shipped, and (iv) Seller’s examination of such Goods discloses that such alleged deficiencies actually exist and were not caused by accident, misuse, neglect, alteration, improper installation, unauthorized repair or improper testing. If Seller elects to repair or replace such Goods, Seller shall have a reasonable time to make such repairs or replace such Goods, and such repaired or replaced Goods shall be warranted for the remainder of the original warranty period. Such repair, replacement, or credit shall constitute fulfillment of all liability of Seller to Buyer whether based in contract, tort, indemnity, statutory provision or otherwise. If Seller’s examination of the Goods finds that the alleged deficiencies do not exist, or were not caused by accident, misuse, neglect, alteration, improper installation, unauthorized repair or improper testing, then, at Seller’s discretion, Seller may ship the Goods back to Buyer at Buyer’s expense.
7. CONSEQUENTIAL DAMAGES WAIVER. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SELLER SHALL NOT BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER’S AGGREGATE LIABILITY IN CONNECTION WITH THE GOODS AND THIS CONTRACT SHALL NOT IN ANY EVENT EXCEED THE TOTAL OF THE AMOUNTS PAID BY BUYER TO SELLER HEREUNDER FOR THE AFFECTED GOODS.
Seller shall not be liable for any unintended use or application of the Goods. In the event the Goods are made pursuant to the specifications of Buyer, and the same are found to infringe the rights of third parties under any intellectual property right, Buyer shall indemnify, defend and hold harmless Seller from and against all liabilities, damages, claims, losses, costs and expenses (including, but not limited to, court costs and attorney’s fees) arising out of or resulting therefrom.
8. Legal Compliance. Buyer at all times shall comply with all applicable federal, state and local laws, rules, regulations and orders and Buyer shall indemnify, defend and hold harmless Seller from and against all liabilities, damages, claims, losses, costs and expenses (including, but not limited to, court costs and attorney’s fees) arising out of or resulting from Buyer’s breach or failure to comply therewith or breach or violation of these Terms. Buyer shall also, at its own expense, obtain and arrange, and as appropriate maintain in full force and effect, all governmental approvals, consents, permits, licenses, authorizations, declarations, filings and registrations as may be necessary or advisable for any and all uses of the Goods by Buyer including, but not limited to, any environmental or health and safety laws.
9. Cancellation. If, in Seller’s judgment, Buyer’s financial condition does not justify the terms of payment specified herein, Seller may cancel Buyer’s order unless Buyer immediately pays for all Goods which have been delivered and pays in advance for all Goods to be delivered. Buyer may cancel an order upon written notice to Seller delivered not less than thirty (30) days prior to the scheduled shipment date of the Goods. If Buyer exercises such cancellation option, Buyer shall pay a cancellation fee in an amount equal to (i) 75% of the purchase price of the covered Goods for any order cancelled less than sixty (60) days (but not less than thirty (30) days) prior to the scheduled shipment date or (ii) 50% of the purchase price of the covered Goods for any order cancelled at least sixty (60) days prior to the scheduled shipment date. Any purported cancellation notice delivered less than thirty (30) days prior to the scheduled shipment date of the Goods shall be ineffective.
10. Non-Waiver of Default. In the event of any default by Buyer, Seller may decline to make further shipments. If Seller elects to continue to make shipments, Seller’s action shall not constitute a waiver of any default by Buyer and shall not in any way affect Seller’s legal remedies for any such default.
11. Applicable Law. The validity, performance and construction of these Terms shall be governed by the laws of the Commonwealth of Kentucky, without regard to its conflicts of law provisions. With the exception of Seller’s rights to obtain injunctive relief from any court of competent jurisdiction, all actions and proceedings relating to or arising out of this Agreement shall be brought only in the U.S. District Court for the Western District of Kentucky, Louisville Division, or the state courts for Jefferson County, Kentucky, and the parties hereby acknowledge and submit to exclusive jurisdiction of and venue in such courts. The U.N. Convention on contracts for the International Sale of Goods shall not apply to the Goods or this contract.
12. U.S. Government Contracts. If the Goods to be furnished under this contract are to be used in the performance of a United States government contract or subcontract and a government contract number shall appear on Buyer’s purchase order, those clauses of the applicable United States government procurement regulation which are required by federal statute to be included in the United States government subcontracts shall be incorporated herein by reference.
13. Assignment. Buyer may not assign (voluntarily, by operation of law or otherwise) this contract, or any of its rights or obligations thereunder, without the prior written approval of Seller.
14. Modification. These Terms are attached to and comprise a part of the Sales Order Acknowledgement between the parties and, together therewith and with all agreements and documents referred to herein or therein, constitutes the entire agreement between the parties relating to the sale of the Goods and supersedes all prior or contemporaneous communications, representations or agreements either oral or written with respect to the subject matter hereof. Any representations or statements of any kind made by any representative of Seller which are not stated herein shall not be binding upon Seller. No addition to or deletion from or other modification of any provisions upon the face or reverse hereof shall be binding upon Seller unless made in writing and signed by a duly authorized representative of Seller. No course of dealing or usage of trade or course of performance shall be relevant to explain or supplement any term expressed in this agreement.
15. Severability. If any provision of these Terms shall be determined to be illegal or unenforceable, all other provisions shall remain in full force and effect.
16. Notice. All notices provided pursuant to this Agreement shall be in writing and shall be deemed delivered on the date of personal delivery if addressed to the recipient at the addresses set forth in the document to which these Terms are attached.