1. Standard Terms.
This document contains the standard terms and conditions (the “Terms”) applicable to dealings between Mott Corporation (“SELLER”) and its customers (each, “BUYER”). The Terms are incorporated into, and a material part of: (a) each quotation to sell goods and/or services (“Goods”) provided by SELLER to BUYER (a “Quotation”), (b) each order to purchase Goods submitted by BUYER to SELLER (an “Order”), (c) each acceptance of an Order by SELLER (an “Acceptance”), (d) each invoice issued by SELLER (an “Invoice”), and (e) all other paper and electronic documents or other communications exchanged between SELLER and BUYER pertaining to any Order (each Proposal, Order, Acceptance, Invoice or other relevant document or communication is a “Document”); in each case regardless of whether the Terms are referred to in a Document and regardless of whether a Document is submitted or provided electronically, on paper or otherwise.
SELLER’S AGREEMENT TO SUPPLY GOODS IS EXPRESSLY CONDITIONAL ON BUYER’S ACCEPTANCE OF THE TERMS, WHICH ARE IN LIEU OF ANY ADDITIONAL OR CONTRARY TERMS CONTAINED IN AN ORDER OR OTHER DOCUMENT OR COMMUNICATION PERTAINING TO AN ORDER OR GOODS REGARDLESS OF WHEN A DOCUMENT MAY BE PROVIDED BY BUYER TO SELLER OR SELLER TO BUYER, EXCEPT AS EXPRESSLY AGREED BY SELLER (VIA AN AUTHORIZED EXECUTIVE) AND BUYER IN A WRITING SPECIFICALLY DESCRIBED AS AN AMENDMENT OF THE TERMS AND SELLER AND BUYER EXPRESSLY OBJECT TO ANY ADDITIONAL OR CONTRARY TERMS OR CONDITIONS. BUYER’S ASSENT TO THE TERMS SHALL BE CONCLUSIVELY PRESUMED FROM BUYER’S ISSUANCE OF AN ORDER OR BUYER’S ACCEPTANCE OF ALL OR ANY PART OF GOODS OR FROM PAYMENT BY BUYER FOR ALL OR ANY PART OF GOODS. NONE OF THESE TERMS MAY BE ADDED TO, MODIFIED, SUPERSEDED OR OTHERWISE ALTERED, EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY AN AUTHORIZED EXECUTIVE OF SELLER. FAILURE OF SELLER TO OBJECT TO ANY TERMS OR CONDITIONS WHICH MAY BE CONTAINED IN ANY DOCUMENT OR FORM OF BUYER SHALL NOT BE CONSTRUED AS A WAIVER OF THESE TERMS, NOR AS AN ACCEPTANCE OF ANY SUCH TERMS AND CONDITIONS. SELLER’S ACCEPTANCE MAY BE IN WRITING BY SELLER BY PAPER DOCUMENT, FACSIMILE, E-MAIL; ANY OTHER RECORDED COMMUNICATION; ANY ORAL ACCEPTANCE CONFIRMED IN WRITING BY SELLER; OR BY ANY CONDUCT BY SELLER WHICH RECOGNIZES THE EXISTENCE OF A CONTRACT PERTAINING TO GOODS, INCLUDING SELLER’S SHIPMENT OF GOODS.
3. Payment Terms.
Unless so stated on a Quotation, and mutually agreed upon by BUYER and SELLER, BUYER’s payment terms are net thirty (30) days from the date of an Invoice, subject to credit approval.
4. Prices; Taxes.
Unless explicitly specified in a Quotation or Order, prices quoted in a Quotation or an Order do not include sales, use, excise, property or similar taxes arising out of or relating to the sale, purchase, ownership or use of Goods or Services, and all sales are made subject to applicable taxes, the entire amount of which BUYER agrees to pay. BUYER shall provide SELLER with any applicable tax exemption certificates acceptable to appropriate taxing authorities together with an Order. BUYER shall indemnify and hold SELLER harmless from and against the imposition and payment of such taxes. SELLER may in any Invoice or separately bill BUYER at any time for any such taxes, in which case BUYER shall pay the same to SELLER, but SELLER shall not be obligated to do so.
5. Limited Warranty; Remedies.
SELLER warrants that Goods and/or services manufactured by, or rendered by SELLER will be delivered in compliance, as of time of shipment, with design standards, codes, specifications, materials, and other requirements as specified by BUYER and accepted by SELLER. Unless otherwise specifically stated, SELLER warrants that porous metal media will be free from defects in material and workmanship for a period of 12 months from date of shipment. All equipment and components relating to Goods other than the filter media are not manufactured by SELLER and are covered by, and subject to, the original manufacturer’s warranty, if any. No other warranties or guarantees are expressed or implied, and SELLER hereby disclaims all other warranties, either expressed or implied, including any warranty of merchantability or fitness for any particular purpose. SELLER will repair and/or replace defective materials or workmanship with a minimum impact on BUYER; provided that SELLER will have sole and absolute discretion regarding the determination as to the repair(s) and/or replacement(s) to be taken.
6. Limitation of Liability and Damages.
SELLER’S LIABILITY TO BUYER, WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE, SHALL NOT EXCEED IN ANY CASE THE PURCHASE PRICE PAID BY BUYER FOR THE ORDER PERTAINING TO THE APPLICABLE GOODS, AND UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL PUNATIVE, OR CONSEQUENTIAL DAMAGES. BUYER ACKNOWLEDGES THAT THE PURCHASE PRICE STATED FOR THE GOODS REFLECTS THE SELLER’S DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY AND DAMAGES AS SET FORTH IN THESE TERMS AND FURTHER ACKNOWLEDGES THAT THE PURCHASE PRICE WOULD BE SUBSANTIALLY HIGHER WITHOUT SUCH DISCLAIMER AND LIMITATION. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER AN ORDER MAY BE BROUGHT BY BUYER MORE THAN ONE (1) YEAR AFTER THE DATE OF THE ORDER. WITHOUT LIMITATION OF THE FOREGOING, IN NO EVENT WILL SELLER BE RESPONSIBLE OR LIABLE FOR (A) PENALTIES OR PENALTY CLAUSES OF ANY DESCRIPTION, OR (B) INDEMNIFICATION OF BUYER OR OTHERS FOR COSTS, DAMAGES OR EXPENSES ARISING OUT OF OR RELATED TO GOODS.
Claims by BUYER for shortages or errors in delivery must be made within five (5) days after the delivery of Goods. Goods are sold subject to the standard manufacturing practices of SELLER and/or SELLER’s suppliers. Goods purchased on the basis of weight are subject to customary quantity variations recognized by practice in the industry.
No Goods shall be returned for credit without first obtaining written consent from SELLER.
Delivery terms are either Ex Works in accordance with INCO 2000 terms, Seller’s plant, Farmington, Connecticut, or as specified on the Quotation or incorporated by mutual agreement into the Order or other relevant Document. Title to the Goods shall pass upon delivery to the carrier at the point of shipment. BUYER shall assume all risk of loss or damage upon delivery by SELLER to the carrier at the point of shipment. Scheduled dates of delivery are determined from the date of Seller’s Acceptance of an Order placed by Buyer and are estimates of approximate dates of delivery, not a guaranty of a particular date of delivery. SELLER shall not be liable for any damages caused by failure or delay in shipping the Goods, if such failure or delay is due to any war, terrorism, embargo, riot, fire, flood, accident, mill condition, strike or other labor difficulty, an act of Buyer, an act of God, an act of a governmental authority, transportation shortage or failure, inability to obtain sufficient fuel, labor, materials or manufacturing facilities, or any other cause beyond the reasonable control of SELLER.
Orders accepted by SELLER are subject to cancellation by BUYER only upon the express written consent of SELLER in its discretion. It is agreed that any cancellation, whether or not approved by SELLER, shall damage SELLER. Upon such cancellation with SELLER’s consent, SELLER shall cease work and hold for BUYER all completed and partially completed Goods, and BUYER shall pay SELLER: for all work and materials that have been committed to and/or identified to the Order plus a cancellation charge as prescribed by SELLER, in addition to a reasonable profit to SELLER for the entire Order. If the cancellation is not consented to by SELLER, BUYER shall pay to SELLER a cancellation charge as prescribed by SELLER and all other amounts to which SELLER may be entitled at law for BUYER’s breach, it being understood that the cancellation shall be a material breach by BUYER of the contractual relationship existing between SELLER and BUYER.
BUYER agrees to save and hold SELLER harmless from any claims, demands, liabilities, costs, expenses or judgments arising in whole or in part, directly or indirectly, out of the negligence or lack of care by BUYER or BUYER’s customers, agents, employees or invitees involving the use of the Goods. This indemnification shall include all costs, attorney’s fees and other expenses paid or incurred by or imposed upon Seller in connection with the defense of any such claim.
12. Governing Law.
Any agreement arising out of this transaction shall be construed according to the laws (other than the laws on conflicts of laws) of the State of Connecticut, United States of America. The parties hereto agree to accept the exclusive jurisdiction of the courts of the State of Connecticut, and those of the United States of America situated in Connecticut, for the adjudication of any dispute arising here from. The parties specifically agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
SELLER, in its sole and absolute discretion, may modify the Terms at any time and from time to time. The Terms as in effect at the time of SELLER’s Acceptance shall govern the terms of sale of the Goods and Services contemplated by the Order so accepted, provided SELLER has provided BUYER with a copy of such Terms prior to or contemporaneously with the Acceptance.
If any provision(s) of the Terms are held by any court of competent jurisdiction to be unenforceable or invalid, the remaining provisions of the Terms shall not be rendered invalid or unenforceable as a result thereof.
15. No Delegation or Assignment.
BUYER may not assign or delegate any of its rights or obligations under or in connection with the Terms or the Order without the prior written consent of SELLER, and any purported assignment or delegation in violation of this sentence shall be void ab initio, without force or effect, and a material violation of the Terms by BUYER.
In addition to the rights and remedies conferred on SELLER by the Uniform Commercial Code as enacted in Connecticut, any other applicable law, and the Terms, in the case of default or breach by BUYER in the performance of any or all of the provisions of the Terms or any other terms or conditions applicable in accordance with the Terms in connection with any Order, SELLER may cancel any outstanding Orders (even if previously accepted) and declare all obligations immediately due and payable. BUYER shall in addition, be liable for Seller’s expenses incurred in exercising any remedies available to it, including reasonable attorney’s fees and legal expenses.