Mott Corporation Standard Terms and Conditions of Sale.
The following Standard Terms and Conditions of Sale (“Agreement”) apply to any and all procurement by Buyer from Seller of all products, parts and components (“Equipment”) and engineering services, technical services, repair services, refurbishment or warranty work or other services (“Services”) described in an invoice, lease, proposal, quote, purchase order acknowledgment, sales acknowledgement, drawing, exceptions document or other instrument to which this Agreement is attached or to which reference is made or to any purchase order, transactional document or any other communication between the parties regardless of whether this Agreement is referenced therein. Equipment and Services shall be collectively referred to as “Products”. Seller objects to and shall not be bound by any additional or different terms, whether printed or otherwise, in any purchase order or other communication from Buyer to Seller, unless specifically agreed to in a single writing signed by both Seller and Buyer. This Agreement constitutes the entire, integrated agreement between the Parties related to the subject matter of this Agreement and any and all discussions, understandings, agreements, representations, courses of dealings, customs, and usages of trade heretofore made or engaged in by the Parties with respect to the subject matter hereof are merged into this Agreement, which alone fully and completely expresses the Parties’ agreement. Seller will not be liable to Buyer, for representations and warranties made by Seller’s distributors and sales agents which are inconsistent or in conflict with this Agreement.
1. Definitions.
“Seller” means Mott Corporation and any of its subsidiaries and affiliates. “Buyer” or “Buyers” means, as applicable, the purchaser or lessee of Products.
2. Terms of Sale.
a. The Equipment shall transfer by Seller to the shipping carrier per the Incoterms set forth in the applicable quotation provided by Seller (“Quote”) or, in absence of the same, Ex Works INCOTERMS 2020 Seller’s plant in Farmington, CT (or in the case of Digested Organics LLC, Seller’s plant in Plymouth, Michigan), at which point title and all risk of loss or damage to Equipment will pass to Buyer.
b. Buyer shall conduct an inspection of the Products promptly upon delivery (but in no event more than 30 days from delivery) and shall promptly notify Seller in writing of any defects. If Buyer fails to promptly notify Seller of any defects within that period, whether or not any such inspection and acceptance has been performed by Buyer, the Products shall be considered accepted. Buyer’s sole and exclusive remedy for rejection of Products is as set forth in Section 3 (Product Warranty).
3. Product Warranty.
All technical support installation, product warranty, and post warranty services are provided only at the original installed location. Product warranty is NONTRANSFERABLE from one location to another, except with the prior written consent of Seller.
a. Seller warrants that for a period of twelve (12) months from the date of shipment, the Equipment will: (i) be free from defects in materials and workmanship; and (ii) conform to the specifications agreed to by the Buyer and Seller in writing. Seller warrants that Services will be performed in a workmanlike manner and such warranty shall be limited to a period of twelve (12) months from date of service. Buyer’s sole and exclusive remedy for any breach of warranty related to Products will be limited to, at Seller’s sole option, repair or replacement of the Equipment that does not conform with the warranties or re-performance of the Services, provided that Buyer notifies Seller of such defect in writing within ten (10) days after Buyer knows or has reason to know thereof, and provided further that inspection of the Products by Seller discloses that the defect developed under normal and proper use of the Products. Wear parts are not warranted for the period stated above but only for a period of ninety (90) days from the date of shipment. This warranty will not apply to Equipment that: (i) is damaged due to misuse, abuse, negligence or accident; (ii) is changed or modified (unless the change or modification is made by or in accordance with Seller’s written instructions); (iii) deteriorates due to normal wear and tear; (iv) fails due to failure by Buyer or its customers or agents to store, install, operate, inspect or maintain the Equipment properly, or in accordance with Seller’s recommendations (or in absence of the same, generally accepted industry practice), or fails due to failure attributable to designs or specifications provided by Buyer; (v) fails due to any non Seller equipment, or system with which Equipment is used; or (vi) Buyer operates in any manner other than in accordance with Seller’s manual, guidelines, operating instructions or other material. All parts and components relating to Equipment not manufactured by Seller are covered by, and subject to, the original manufacturer’s warranty, if any. The warranty for Services will not apply if Services need to be re-performed for any of the above reasons.
b. Equipment will not be returned to Seller without Seller’s written permission. Provision of a replacement part or component will not operate to extend the warranty period for any Equipment. Seller reserves the right to inspect Equipment that is subject to warranty claims and to require the return of such Equipment that is subject to warranty claims to Seller’s Warehouse at Buyer’s expense; provided, however, that it is determined that the issue with returned Equipment is covered by warranty, Seller will reimburse Buyer for freight charges associated with the return of such Equipment to Seller’s Warehouse. Seller also reserves the right to use reconditioned parts and components for warranty replacements.
c. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF, AND SELLER DISCLAIMS AND BUYER WAIVES, ALL OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND OF ANY OTHER TYPE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW (STATUTORY OR OTHERWISE) AND WHETHER OR NOT OCCASIONED BY SELLER’S NEGLIGENCE.
4. Limitation of Liability.
SELLER WILL NOT BE LIABLE TO BUYER FOR SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, DOWNTIME, LOSS OF BUSINESS AND FROM ANY CLAIM, ACTION OR CAUSE WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE MANUFACTURE, SALE, HANDLING, REPAIR, REPLACEMENT OR USE OF PRODUCTS.
IN NO EVENT WILL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE PURCHASE PRICE OF THE PRODUCTS GIVING RISE TO THE CLAIM, EVEN IF SELLER IS ADVISED OR PLACED ON NOTICE OF THE POSSIBILITY OF SUCH PENALTIES OR DAMAGES AND NOTWITHSTANDING THE FAILURE OF AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. In no event shall Seller be liable for late delivery or other penalties.
5. Intellectual Property.
All drawings, designs, know-how, inventions, devices, works of authorship, technology, Seller’s Confidential Information, improvements thereto, and all associated patent, patent applications, copyright, including applications and registrations, trade secret or other similar proprietary or intellectual property rights (“Seller IP”) in or related to the conception, creation, development, reduction to practice, design, production, delivery, operation, use, application or performance of Products, are and will remain the sole and exclusive property of Seller.
In no event may Buyer make or apply for a patent, copyright, or other claim to the ownership or license of Seller’s Products and/or Seller’s IP. Nothing in this Section 5 precludes Buyer from incorporating a description or reference to Seller’s Products and/or non-confidential aspects of Seller’s technology or processes where necessary to support a patent, copyright or other claim to Buyer’s product, provided, however, that no use of Seller’s name, trademarks or logos may be made without Seller’s prior written consent. Nothing in this Agreement will be construed as granting to Buyer any license, ownership or grant of intellectual property rights with regards to the Products or Seller s IP. To the extent Buyer creates, conceives, develops, or reduces to practice any improvements in relation to Seller IP, Buyer hereby irrevocably assigns all right, title, and interest in and to such improvements and related intellectual property rights to Seller. Seller’s sale of Products to Buyer does not include any research, development, design, or other services associated with Seller’s IP.
6. Seller Indemnity.
Seller shall defend, indemnify and hold harmless Buyer against third party claims for personal injury or tangible property damage to the extent caused by a defect in Products within the warranty period. Seller’s obligations to Buyer hereunder shall be subject to and conditioned upon Buyer giving Seller written notice of such claim (including all known material facts related thereto) within ten (10) days after it is asserted against Buyer (provided that the failure to give Seller written notice of a claim as provided herein shall relieve Seller from its obligations hereunder only if and to the extent Seller is prejudiced thereby) and Buyer granting Seller exclusive direction and control of the investigation, defense and settlement of such claim, including, but not limited to, selection of legal counsel to represent Buyer at Seller’s expense.
7. Equipment Changes.
Seller reserves the right, in its sole discretion and without prior notice, to make changes to Equipment at any time that do not materially affect form, fit or function.
8. Buyer Requested Change, Delay or Cancellation; Liquidated Damages.
a. If Buyer requests a change to Products and Seller agrees to such change in writing, Seller may impose additional charges. Any changes may also impact delivery schedule, warranty or time of performance of Services.
b. No delivery reschedules, delay or cancellation by Buyer will be permitted for without Seller’s express written consent. If Seller grants consent, Seller shall be entitled to receive payment for the price of the manufactured Equipment, plus the cost of labor, work in progress, parts and components for Products that are on order, reasonable profit, any manufacturer or subcontractor cancellation charges for unshipped items for such cancelled parts and components, and an equitable portion of the cost of Services that Seller was scheduled to perform or have performed.
c. If Seller consents to delaying shipment, Seller will charge Buyer a storage and handling fee equal to one tenth of one percent (0.10%) per day of the purchase order value for each day the shipment is delayed, with a maximum storage and handling fee of ten percent (10.0%) of the purchase order value. Once that maximum fee is reached, Seller may terminate the purchase order and Buyer shall owe Seller the full amount of the purchase order, plus storage and handling charges. The parties agree that such amounts are a reasonable pre-estimate of the damages. Seller will suffer as a result of delay based on circumstances existing at the time the purchase order was issued and are to be assessed as liquidated damages and not as a penalty.
d. If pursuant to the terms of the purchase order, Buyer has elected to use a freight forwarder and/or carrier selected by Buyer, and shipment of the Equipment does not take place on or prior to the confirmed ship date as a result of Buyer’s failure to arrange for Buyer’s freight forwarder and/or carrier to take delivery of the Equipment on the confirmed ship date, then, upon five (5) business days’ notice to Buyer (which may be by email), (i) Seller shall be entitled to ship the Equipment to Buyer using a freight forwarder selected by Seller Ex Works INCOTERMS 2020 Seller’s plant in Farmington, CT (or as specified on the Seller’s quotation and incorporated by mutual written agreement into the purchase order), freight prepaid and billed, and invoice Buyer for such charges; and (ii) Buyer shall pay to Seller such invoiced charges net thirty (30) days after date of invoice. If Seller exercises its rights under this paragraph, title and risk of loss shall pass to Buyer in accordance with the Incoterm as specified in the Quote.
9. Confidential Information.
For purposes of this Agreement, “Confidential Information” shall include all information furnished under this Agreement which is designated as confidential or proprietary, or which the receiving party knows or should know is being disclosed on a confidential basis, including without limitation pricing information, proposals, prints, drawings and all information in or related to the design, development, production, delivery, operation, use, application or performance of any of a party’s technology, equipment, parts, products or maintenance/services. Confidential Information does not include information which: (a) is known or independently developed by the receiving party prior to its disclosure by the other party, as evidenced by receiving party’s records; (b) becomes a part of the public domain without breach of this Agreement by the receiving party; (c) is received from a third party without restriction and under conditions permitting its disclosure to others; or (d) which is disclosed pursuant to judicial action or government regulations provided the receiving party notifies the disclosing party prior to such disclosure, and cooperates with the disclosing party in the event it elects to legally contest and avoid such disclosure.
For a period of five (5) years from the date of receipt, Confidential Information shall be maintained in confidence by the receiving party, shall not be disclosed to any third party, other than Seller’s suppliers who have a reason to know, without prior written approval of the disclosing party, and shall be protected with the same degree of care as the receiving party normally uses in the protection of its own confidential and proprietary information, but in no case with any less degree than reasonable care. Notwithstanding the foregoing, the Parties’ obligation to protect Seller’s trade secrets is perpetual or for so long as such information remains a trade secret under applicable law, whichever occurs first.
10. Force Majeure.
Seller is not liable for any failure to perform its obligations under this Agreement resulting directly or indirectly from or contributed to by, acts of God, acts of civil, governmental or military authorities, riots or civil disobedience, terrorism, wars, embargo, strikes or labor disputes, accidents, floods, fires, accident, transportation shortage or failure, inability to obtain sufficient fuel, transportation, labor, materials, or manufacturing facilities, dissolution of a supplier’s business, acts or omissions of carriers, epidemics, pandemics, or any other circumstance beyond Seller’s reasonable control; provided, however, that, Buyer agrees to take delivery and make payment for finished Equipment or component as of the date of the Force Majeure event.
11. Waiver.
No failure or delay by either party to insist upon strict performance of any rights or powers under this Agreement shall operate as a waiver thereof, nor shall any other single or partial exercise of such right or power preclude any other further exercise of any rights or remedies provided by law, unless agreed to by that party in writing. Any waiver of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either party.
12. Assignment.
This Agreement may not be transferred or assigned by Buyer without the prior written consent of Seller. Seller may assign its rights and obligations under this Agreement in whole or in part to an affiliate company or third-party acquirer in the event of a merger, acquisition or sale of all or substantially all its assets.
13. Specific Performance.
Buyer agrees that monetary damages may not be sufficient to remedy a breach hereunder and that Seller shall be entitled to seek specific performance and injunctive or other equitable relief.
14. Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this contract shall remain in effect.
15. Export/Import.
Buyer shall be solely responsible for obtaining all approvals, authorizations licenses and permits, unless otherwise specified under the applicable Incoterms agreed to by the parties. Buyer shall comply with all laws, rules and regulations, and making all arrangements related to the export or import of Equipment supplied by Seller. Equipment and related technical information, data, documents and materials are subject to export controls under U.S. Export Administration Regulations and U.S. Department of the Treasury embargo regulations and other applicable laws. Buyer shall strictly comply with all such export controls, shall fully cooperate with Seller in any official or unofficial investigation, audit or inspection that relates to any of such controls, and shall not export, re-export, divert or transfer, directly or indirectly, any Equipment or related technical information, data, documents or materials to any party or destination or for any use that is subject to an embargo or otherwise prohibited pursuant to such controls, unless and until Buyer obtains all required governmental and regulatory approvals, authorizations, licenses and permits.
16. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of Connecticut, without regard to its conflict of law provisions and shall not be governed by the U.N. Convention on the International Sale of Goods. 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.
17. Payment.
Quoted prices exclude taxes, freight and insurance and any duties and brokerage charges, all of which shall be the sole liability and responsibility of Buyer. If Buyer claims an exemption from any tax, a valid and proper tax exemption certificate must accompany order. Unless otherwise set forth in Seller’s invoice, proposal, lease, or purchase order acknowledgment, all payments shall be made in the currency specified in Seller’s Quote.
Any deposit or graduated payment schedule shall be set forth in the Quote and invoiced accordingly. If not addressed in Seller’s Quote, Equipment will be invoiced upon shipment and Services upon completion or thirty (30) days from shipment of Equipment, whichever occurs first. Payment is due Net30 from the invoice date or as otherwise specified in Seller’s Quote. All amounts not paid and received in full by the due date are subject to a finance charge at the rate of one and one half percent (1.5%) per month (eighteen percent (18%) per annum) or, if less, at the maximum rate permitted by law, from the date due until paid in full. Prices set forth in Seller’s Quote are subject to being adjusted due to extraordinary market conditions. As used herein, “extraordinary market conditions” means any increase in the cost of materials caused by changes in the market or for any other reason that is outside of Seller’s control such as tariffs, surcharges, increased logistics costs and fluctuations in currency and raw materials, which results in an overall price increase of the Equipment in excess of two percent (2%) above the price listed in the Quote. Each shipment is a separate sale and is subject to credit arrangements or to receipt of cash. If payment is not made in accordance with Seller’s payment terms, or if at any time, in Seller’s sole judgment, Buyer’s credit standing has been impaired, Seller may withhold shipment of any Equipment or the provision of any Services, until cash or credit arrangements have been established to Seller’s sole satisfaction.
18. Government Orders.
If the subcontract, contract or purchase order expressly states that it is issued in support of a U.S. Government prime contract or higher-tiered subcontract, the attached Supplemental Terms and Conditions of Sale shall also apply and are incorporated herein.
Supplemental Terms and Conditions of Sale (Rev. 11/10/2024)
If the subcontract, contract or Purchase Order (“Subcontract”) expressly states that it is issued in support of a U.S. Government prime contract or higher-tiered subcontract, Mott Corporation and any of its subsidiaries and affiliates (“Seller”) only agrees to accept those Federal Acquisition Regulation (“FAR”) clauses and FAR agency supplemental clauses that are required to be included in commercial product or commercial service subcontracts, as set forth below. Only the FAR clauses referenced below are incorporated herein and are made a part of the Subcontract, provided the conditions described below apply to the Subcontract, and all other FAR and FAR agency supplemental clauses are hereby rejected, unless Seller expressly agrees to such clauses in writing.
For purposes of the Subcontract, the following FAR clauses shall operate, impose the obligations and responsibilities of the parties and be interpreted as if “Government” means “Buyer,” “Contracting Officer” means an authorized representative of Buyer’s purchasing department, “Contract” means this “Subcontract,” “Offeror” and “Contractor” means “Seller,” and “Disputes clause” means the Disputes or Venue clause of the Subcontract.
52.203-6 Restrictions on Subcontractor Sales to the Government (JUN 2020) (if the Subcontract exceeds $250,000)
52.203-7 Anti-Kickback Procedures (MAY 2014) (if the Subcontract exceeds $150,000; except paragraph (c)(1))
52.203-12 Limitation on Payments to Influence Certain Federal Transactions (JUN 2020) (if the Subcontract exceeds $150,000)
52.203-13 Contractor Code of Business Ethics and Conduct (NOV 2021) (if the Subcontract exceeds $6M and has a performance
period of more than 120 days)
52.203-17 Contractor Employee Whistleblower Rights and Requirement to Inform Employees of Whistleblower Rights (NOV 2023)
52.203-19 Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (JAN 2017)
52.204-21 Basic Safeguarding of Covered Contractor Information Systems (NOV 2021) (if the Subcontract requires Seller to have
Federal contract information residing in or transiting through its information system; not applicable if the Subcontract
is for commercially available off-the-shelf (“COTS”) items)
52.204-23 Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab Covered
Entities (DEC 2023)
52.204-25 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment (NOV 2021)
(except paragraph (b)(2))
52.204-27 Prohibition on a ByteDance Covered Application (JUN 2023)
52.204-30 Federal Acquisition Supply Chain Security Orders – Prohibition (DEC 2023) (except paragraph (c)(1))
52.209-6 Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for
Debarment (NOV 2021) (if the Subcontract exceeds $35,000 and is not for COTS items)
52.211-15 Defense Priority and Allocation Requirements (APR 2008) (if the Subcontract contains a DPAS rating)
52.219-8 Utilization of Small Business Concerns (FEB 2024) (if the Subcontract offers further subcontracting opportunities)
52.222-21 Prohibition of Segregated Facilities (APR 2015)
52.222-26 Equal Opportunity (SEP 2016)
52.222-35 Equal Opportunity for Veterans (JUN 2020) (if the Subcontract equals or exceeds $150,000)
52.222-36 Equal Opportunity for Workers with Disabilities (JUN 2020) (if the Subcontract exceeds $15,000)
52.222-37 Employments Reports on Veterans (JUN 2020) (if the Subcontract equals or exceeds $150,000)
52.222-40 Notification of Employee Rights Under the National Labor Relations Act (Dec 2010)
52.222-50 Combating Trafficking in Persons (NOV 2021)
52.222-54 Employment Eligibility Verification (MAY 2022) (applies to Subcontracts exceeding $3,500 for the performance of
services in the United States, except for commercial services that are (i) part of the purchase of a COTS item or an item
that would be a COTS item but for minor modifications, (ii) performed by the COTS provider and (iii) normally provided
for that COTS item)
52.223-18 Encouraging Contractor Policies to Ban Text Messaging While Driving (JUN 2020) (if the Subcontract exceeds $10,000)
52.225-13 Restrictions on Certain Foreign Purchases (FEB 2021)
52.244-6 Subcontracts for Commercial Items (FEB 2024)
52.247-64 Preference for Privately Owned U.S.-Flag Commercial Vessels (NOV 2021)
If the Subcontract is issued in support of a U.S. Department of Defense prime contract, then only the Department of Defense FAR Supplement (DFARS) clauses referenced below are incorporated herein and are made a part of the Subcontract, provided the conditions described below apply to the Subcontract. The substitution of parties referenced above also apply to the following DFARS clauses.
252.203-7002 Requirement to Inform Employees of Whistleblower Rights (DEC 2022)
252.203-7003 Agency Office of the Inspector General (AUG 2019) (if FAR 52.203-13 applies to the Subcontract)
252.204-7000 Disclosure of Information (OCT 2016)
252.204-7012 Safeguarding Covered Defense Information and Cyber Incident Reporting (JAN 2023) (applies to Subcontracts for
operationally critical support, or for which subcontract performance will involve covered defense information; not
applicable if the Subcontract is for COTS items)
252.204-7015 Notice of Authorized Disclosure of Information for Litigation Support (JAN 2023)
252.204-7018 Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services (JAN 2023)
252.204-7020 NIST SP 800-171 DoD Assessment Requirements (NOV 2023) (not applicable if the Subcontract is for COTS items)
252.223-7008 Prohibition on Hexavalent Chromium (JAN 2023) (if the Subcontract is for supplies, maintenance and repair services,
or construction materials)
252.225-7007 Prohibition on Acquisition of Certain Items from Communist Chinese Military Companies (DEC 2018) (applies if the
Subcontract is for items covered by the United States Munitions List or the 600 series of the Commerce Control List)
252.225-7009 Restriction on Acquisition of Certain Articles Containing Specialty Metals (JAN 2023) (applies to Subcontracts for
items containing specialty metals; except paragraphs (d) and (e)(1))
252.225-7048 Export-Controlled Items (JUN 2013)
252.225-7052 Restriction on the Acquisition of Certain Magnets, Tantalum, and Tungsten (JAN 2023) (applies to Subcontracts for
items containing a covered material, unless an exception in paragraph (c) of the clause applies)
252.226-7001 Utilization of Indian Organizations, Indian-Owned Economic Enterprises, and Native Hawaiian Small Business
Concerns (JAN 2023) (if the Subcontract exceeds $500,000)
252.244-7000 Subcontracts for Commercial Items (NOV 2023)
252.246-7008 Sources of Electronic Parts (JAN 2023) (applies if the Subcontract is for electronic parts or assemblies containing
electronic parts, unless the Supplier is the original manufacturer)
252.247-7023 Transportation of Supplies by Sea (JAN 2023) (if the Subcontract is for supplies that will be delivered to the
government without adding value)
Mott Corporation / Rev – November 2024
