GENERAL TERMS AND CONDITIONS OF SALE, EFFECTIVE MAY 1, 2018
Conditions of Sale
The following are the conditions of sale for the sale and quoting of all products (the “Products”) by MJ Celco, Inc. (Seller”). Any Seller quotation, purchase order or order acknowledgement is an offer subject to and expressly conditional upon Buyer’s assent to the terms and conditions contained in this General Terms and Conditions of Sale (“agreement”) and any terms included on Seller’s quotation, purchase order or order acknowledgement, whether assent is in writing or by conduct. Acceptance of or payment for the Products shall constitute such assent. Seller rejects all additional or different terms.
Unless Buyer is an authorized distributor of Seller, Buyer agrees to limit its distribution of the Products purchased under this Agreement to the incorporation of said Products into a value added product which Buyer shall market under Buyer’s name for sale, lease or rent to third parties in the regular course of Buyer’s business. Buyer is responsible for the selection of each Product(s), its ability to achieve the results intended for other products, software and/or peripherals of Buyers’ design, assembly, manufacture or purchase, and for the system performance of Buyer’s value added product. Buyer also acknowledges that any technical support for Buyer’s value added product shall be entirely Buyer’s responsibility.
Prices, Invoices and Payment
Prices quoted are for the Product only, and do not include any amount for freight, insurance, fees, custom duties or Federal, State or Local excise, sales, use, service or similar taxes, all of which are the responsibility of the Buyer. When certifications of material and/or processes, including but not limited to, plating and heat treatment, are required by Buyer the costs of such certifications will be passed on to or paid by Buyer.
Seller reserves the right to change quoted prices and warranty if the quoted assumptions change, including without limitation, increase or surcharges for raw material and/or outside processing.
Invoices shall be due and payable in 30 days (unless otherwise agreed to) from the date of invoice, without regard to deliveries. If payments are not received when due, Seller reserves the right to charge Buyer, in addition to the overdue payment, a late charge equal to the lesser of 1.5% per month or the highest applicable rate allowed by law on all such overdue amounts.
Seller’s offer is subject to Seller’s current credit policies and practices. Seller reserves the right, at its sole discretion, to approve, disapprove or change Buyer’s credit limit or to impose credit terms including without limitation the requirement that Buyer make full or partial advance payment. In the event of failure to pay, Seller may, at its option, revoke any credit extended to Buyer, suspend all future shipments under open purchase orders until Buyer’s account is current.
Buyer grants to Seller a security interest and right of possession in or repossession of the Products until Buyer makes full payment. Buyer authorizes Seller to file a UCC financing statement and Buyer will cooperate in whatever manner necessary to assist Seller in perfecting and recording such security interest. In the event Buyer shall fail to make payment when due for purchases, Buyer agrees to pay all of the Seller’s costs of collection, including attorney’s fees, cost and expenses.
All shipments are made Ex-works, Seller’s manufacturing location, and freight collect. All items shall be packed for shipment in accordance to Seller’s standard practices, unless noted on Seller’s acknowledgement. Any and all claims by Buyer for damage or loss of Product during transit shall be made by Buyer against the carrier. Title and risk of loss or damage to Products shall pass to Buyer when the Products are delivered by Seller to the carrier for shipment to Buyer.
Delivery dates are best estimates only. Seller reserves the right to make deliveries in installments and the contract shall be severable as to such installments. Delivery delay or default of any installment shall not relieve Buyer of its obligation to accept and pay for remaining deliveries.
The obligations of Seller and Buyer under this Agreement shall be temporarily suspended in the event of external delays beyond the obligated party’s reasonable control.
Buyer shall carefully inspect all deliveries of Product as they are received by Buyer and report to Seller promptly (within 30 days) any alleged error, shortage, defect or nonconformity of such Products. Any failure by Buyer to timely receive, inspect and report shall constitute a waiver by Buyer of any claim or right of Buyer against Seller.
Products sold are warranted by Seller to be free from defects in material and workmanship under normal use and operation and to conform to Seller’s specifications applicable at the time of shipment. This warranty is extended for a period of six months from the date of shipment to Buyer. This warranty does not apply to any changes or modifications made to the Product without prior written consent of Seller or any defect or damage to or issue with the Product arising from the operation, use, maintenance or storage of the Product other than prescribed by Seller in writing. Seller extends this warranty to Buyer only, and it is the complete warranty for the Product. Except as specifically set forth herein, all warranties express or implied, including implied warranties of merchantability and fitness for a particular purpose, are excluded. In no event shall Seller be liable any special, incidental, or consequential damages for breach of warranty.
Limitation of Liability
No action shall be brought for any breach of this Agreement more than six months after the accrual of such cause of action. Seller’s total
liability arising out of or related to the sale of the Product and this Agreement is limited to the price of the particular Product sold hereunder with respect to which losses or damages are claimed. Neither party shall be liable to the other for any incidental, indirect, special, or consequential damages as a result of the Agreement. The parties expressly agree that the above limitation on damages is an allocation of risk constituting in part the consideration for this Agreement.
Buyer will indemnify Seller from any and all third- party claims, damages and expenses (including reasonable attorney fees) under theories of tort, product liability, negligence (ordinary or gross), warranty, contract, statute or otherwise arising out of the production, use, storage, sale, processing or other disposition of the Products, if the action or inaction of Buyer or its employees, customers or agents, or Buyer’s design specifications, were a material or proximate cause of injuries or damages giving rise to claims against Seller.
Buyer acknowledges that any information disclosed to Seller has not and will not be considered by Buyer to be confidential or a trade secret unless clearly and conspicuously noted on the disclosure, or in some other writing delivered to Seller at or prior to the time of the disclosure. Seller reserves the right to use the Buyer’s disclosed information, with its suppliers and sub-contractors, for the purpose of quoting the material or outside process. All proposals, plans and other information furnished by Seller, in any form, during bidding, negotiating and performing the Agreement, are confidential and the property of Seller, whether or not marked “Confidential”, and may not be shown or disclosed to any other bidder, and may not be shown or disclosed to any other third party or used by Buyer except as may be necessary for the selection or use of the Goods and Seller provides Buyer with written consent.
This Agreement, with such documents as are expressly incorporated herein by reference, is intended by the parties to be a final, exclusive, complete and fully integrated expression of their agreement and its form. No course of prior dealing between the parties and no usages of the trade shall be relevant to determine the meaning of this Agreement or explain any term used herein. No modifications hereto shall be effective unless they are agreed upon in writing by both parties.
No right, interest or obligation in this Agreement may be assigned or delegated by either party without written permission of the other party. This Agreement is binding upon and shall insure to the benefit of the parties and their respective successors.
Seller reserves the right to take exception to Buyer specific requirements associated with this Agreement. Seller maintains a document containing all such exceptions. Buyer has the right to review all exceptions.
Seller reserves to right to choose its suppliers, contractors, and sub-contractors. Seller acknowledges not all suppliers maintain highest level of certification within all industries.
Seller has the right to a Technical Review Meeting and the price and delivery are subject to change based on the outcome of such meeting.
Seller will not be responsible for any delay or failure in any performance due, without limitation, to acts of God, war, warlike conditions, blockade, embargoes, riots, governmental restriction, labor disturbances, unavailability of anticipated usual means of supplies, transportation or loading facilities, wrecks, epidemics, quarantine, fire, flood, earthquake, explosion, any unforeseen change in circumstances, or any other causes beyond its reasonable control.
All tooling will remain the property of the Seller until all invoices are paid in full.
“Buyer’s Property” (tools, dies, gauges, and fixtures) is owned by the Buyer and provided to Seller for the purposes of manufacturing Goods or performing services for Seller. If Buyer’s Property wears out under normal use, Buyer must supply to Seller new or repaired Buyer’s Property. Seller will release to Buyer, Buyer’s Property, provided that: (i) Seller has fully paid Buyer for all Goods produced by Buyer’s Property and delivered to Buyer, (ii) Seller has fully paid for all Goods, raw materials and work in process produced and/or associated with Buyer’s Property, (iii) Buyer’s Property is not subject to any lien asserted by Seller or any third party.
The parties agree that any claim or dispute arising from this transaction will be submitted to non-binding mediation prior to initiation of any formal legal process.
If Buyer cancels or terminates any part this Agreement for any reason, Buyer must immediately purchase all finished goods, raw materials, and work in process that were purchased to produce. With respect to the work in process, Buyer is obligated the pay the then current purchase price. Buyer is also obligated to immediately reimburse Seller the cost of manufacture and liquidated damages (including labor, engineering, unamortized development cost, equipment time and overhead) computed using Seller’s standard internal costing procedures.
Buyer agrees that this Agreement and any terms included on the Seller’s quotation, purchase order or order acknowledgement are the exclusive statement of terms and conditions of the agreement between the parties and that they supersede all proposals and other communications between the parties, oral or written, relating to the subject matter thereof.
If any provision of this Agreement is contrary to, prohibited by or held invalid by any law or regulation of any government or by the final determination of any State or Federal court, such invalidity shall not affect the enforceability of any other provisions not held to be invalid.
This Agreement shall be governed and interpreted in accordance with the laws of the State of Illinois, without reference to principles of choice and conflicts of law. Any dispute regarding the Products of this Agreement shall be subject to the jurisdiction of the United States District Court for Northern Illinois. The prevailing party in any litigation related to the Products of this Agreement shall be entitled to recover its attorney’s fees and costs incurred in such matter.