Last Modified: September 29, 2021
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
These General Terms and Conditions of Sale and Delivery (these “Terms”) are applicable to all U.S. customers (the “Customers” and each, individually, a “Customer”) of Maxi-Press Elastomeric, Inc., a Delaware corporation (the “Company”).
1. Terms and Conditions of Sale:
1.1. Company shall sell and deliver to Customer and Customer shall purchase and accept from Company the products (herein, the “Products”) described on or in any confirmed order, agreement or quotation, or any combination thereof (the “Order”), pursuant to the terms and conditions of the Order and those specified below, which taken together shall constitute the entire agreement between Company and Customer regarding the Products (herein, this “Agreement”).
1.2. No other terms or conditions shall be of any effect unless otherwise specifically agreed to by Company in a separate written agreement duly signed by an officer of Company. Customer will be deemed to have assented to all Terms if any part of the Products is accepted by Customer. If Customer finds any Term not acceptable, Customer must so notify Company at once and must reject the Products delivered under this Agreement. Any additional or different terms or conditions contained in Customer’s order or response hereto shall be deemed objected to by Company and shall be of no effect. No general terms and conditions of a Customer shall at any time form a part of the content of any contract or agreement between the Customer and the Company, even if they are not further expressly rejected by the Company.
1.3. Unless otherwise agreed in writing or otherwise stated on the quotations, all quotations for Products are valid for a period of thirty (30) days from the date of issue. Subsequent modifications in quantity or quality, if such are requested by Customer, generally will cause a modification of the quoted price. Drawings and samples enclosed with any quotation remain the property of Company. All drawings and samples shall be treated confidentially by Customer and must be returned to Company after usage.
1.4. No Order is binding upon the Company until the earlier of acceptance of the Order in writing or the delivery of the Products to the Customer. Notwithstanding any prior acceptance of an Order by Company, Company shall have no obligation if the Customer is in breach of any of its obligations hereunder, or any other agreement between the Customer and Company, at the time Company’s performance was due.
1.5. All verbal agreements concerning the terms of any Order, including agreements made by telephone, shall have no force and effect unless and until acknowledged by the Company in writing.
1.6. Customer shall bear all costs associated with the cancellation or modification of the Order.
2. Prices:
2.1. All price quotations are EXW (per Incoterms 2020) from the Company’s facility at 80 Turnpike Drive Suite 4, Middlebury, CT 06762 and do not include costs for postage or other freight charges, insurance or taxes, if any. Costs for packaging are included in the price quotation.
2.2. The price of the Products shall be the Company’s current prices in effect from time to time or by special price quotes made to customer in writing.
2.3. Company may, without notice to Customer, increase the price of Products by the amount of any new or increased tax or duty (excluding franchise, net income and excess profits taxes) which Company may be required to pay on the manufacture, sale, transportation, delivery, export, import or use of the Products or the materials required for their manufacture, or which affects the costs of such materials.
2.4. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
3. Terms of Payment:
3.1. Unless otherwise agreed to in writing by the Company, the full amount of the purchase price shall be due upon receipt by Customer of Company’s shipping confirmation within thirty (30) days from the invoice date. Customer shall make payments by check or wire transfer to the account indicated on the invoice without a cash discount or offset and the Company shall not be required to incur any expense to receive timely payment in full as required by this Agreement. Payments by check shall be subject to collection and shall be received by Company as stipulated above.
3.2. Company may without notice change or withdraw extensions of credit at any time. If Company ceases to extend credit terms before shipment, Customer’s sole remedy shall be cancellation of its order. If Customer does not receive notice before shipment, its sole remedy shall be rejection of the Products immediately upon delivery.
3.3. If the Customer fails to make payment on or before the date required, Customer shall pay interest to the Company at the rate of 3.5 percent (3.5%) per month or such lesser amount permitted by law. The specification or charging of interest shall not be deemed an agreement to extend credit.
3.4. If Customer fails to observe these Terms or the terms of any other agreements between Company and Customer, or if Customer becomes insolvent, all balances then due and owing to the Company shall become due immediately, notwithstanding any agreed upon payment periods. Any Orders that have been confirmed by the Company but not yet filled shall in such cases become cancelable at the sole discretion of Company.
3.5. Customer does not enjoy a right of set-off under any circumstances.
4. Delivery Terms:
4.1. The goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished Goods. Seller shall not be liable for any delays, loss or damage in transit.
4.2. Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to 80 Turnpike Drive Suite, Middlebury, CT 06762 (the “Delivery Point“) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within seven (7) days of Seller’s written notice that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
4.3. Title shall pass upon Customer upon payment in full. Risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Connecticut Uniform Commercial Code.
4.4. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
4.5. If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.6. Customer shall pay all freight, transportation, shipping, insurance and handling charges, duties, and taxes, including any applicable VAT, sales, personal property, ad valorem, and other taxes, duties, levies or charges imposed by any governmental authority, irrespective of whether applicable law makes such items the responsibility of the buyer or seller, but excluding any taxes payable by Company with respect to its net income.
4.7. The Products shall be packaged as stated in Company’s order confirmation. Customer shall be exclusively responsible for, and shall provide Company with, any information necessary to comply with special labeling requirements applicable at Customer’s place of business.
4.8. Subject to Company’s available facilities at the shipping point, Company shall determine the type of transportation and shall notify Customer thereof at the time Customer places each Order. Company or its agent may select any commercial air, ship, motor or rail carrier or any combination thereof for the transportation of the Products. Company will make deliveries of the Products in the quantities ordered as near as reasonably possible to Customer’s requested delivery dates.
4.9. Company shall use its reasonable efforts to deliver the Products to Customer by the agreed upon date. However, except in cases of Company’s willful misconduct or gross negligence, Company shall not be liable to Customer for delays in delivery or damage to Products while in transit, irrespective of whether Company or Customer determined the mode of transportation.
4.10. In cases of deliveries of Products manufactured to Customer’s specification (“Special Orders”) and unless otherwise agreed to in writing, all tools, models, plans, blueprints or other devices and/or documents used and/or developed by Company (the “Tools”) in order to fulfill any Order or Special Order are the property of the Company, even if the cost of development and/or manufacturing of such tools, models, plans, blueprints or other devices and/or documents was wholly or partially borne by the Customer.
5. Security Interest:
5.1. As security for the timely payment and performance of all Customer’s indebtedness to Company, Customer hereby grants to Lender a first priority security interest in the Products following delivery thereof to Customer (“Collateral”). Such Interest shall remain in force until payment in full of the entire purchase price for the Products and any other amounts due to the Company by Customer.
5.2. If so requested by Company, the Customer shall deliver to Company, in form and substance satisfactory to Company, and duly executed as required by Company, financing statements and other security interest perfection documentation in form and substance satisfactory to Company, duly filed under the UCC in all jurisdictions as may be necessary, or in Company’s opinion, desirable, to perfect Company’s security interest and lien in the Collateral, in order to establish, perfect, preserve and protect Company’s security interest as a legal, valid and enforceable security interest and lien, and all property or documents of title, in cases in which possession is required for the perfection of Company’s security interest.
6. Limited Warranty:
6.1. Seller warrants to Buyer that for a period of six (6) months for electrical parts and twelve (12) months for mechanical part from the date of shipment of the Goods (“Warranty Period”), that such Goods will materially conform to the specifications set forth in Seller’s published specifications in effect as of the date of manufacture and will be free from material defects in material and workmanship.
6.2. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 6.1 SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
6.3. Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 6.1. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
6.4. The Seller shall not be liable for a breach of the warranty set forth in Section 6.1 unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within 30 days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.
6.5. The Seller shall not be liable for a breach of the warranty set forth in Section6.1 if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
6.6. Subject to Section 6.4 and Section 6.5 above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
6.7. THE REMEDIES SET FORTH IN SECTION 6.6 SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 6.1
6.8. With respect to Special Orders, Company reserves the rights to make no warranty that the Products manufactured under a Special Order will be free from defects in materials and workmanship under normal use. Company makes no warranty that such Special Order Products do not infringe the intellectual property or other proprietary rights of any third party. Customer is solely responsible for assuring that Special Order Products do not so infringe. In the event that the Product manufactured under a Special Order infringes the intellectual property or other proprietary rights of any third party then Customer shall hold Company harmless from any costs and claims in connection with such infringement.
7. Limitation of Liability
7.1. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
7.2. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED TWO (2) TIMES THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER WHICHEVER IS LESS.
7.3. The limitation of liability set forth in Section 7.2 above shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.
8. Indemnification:
8.1. Subject to the limitations set forth in these Terms, Customer agrees to diligently defend, and hold harmless and indemnify, Company and its directors, officers, employees, shareholders, affiliates and representatives from and against any and all liability, claims, lawsuits, losses, demands, damages, costs and expenses, including, without limitation, reasonable attorney’s fees and costs, and court costs, (the “Losses”) arising from any third party claim (I) due to any use of the Products of any nature, except to the extent such losses have been incurred as a direct result of a breach of Company’s warranty, Company’s willful and knowing infringement of the intellectual property rights of any third party, or Company’s gross negligence or willful misconduct, or (ii) arising out of any breach of any of Customer’s representations or covenants or other terms contained in these Terms or any contract in which these Terms are incorporated or to which these Terms are attached or made part of, or (iii) arising out of the improper use, storage, handling, transportation, maintenance, modification or alteration of Products by or on behalf of Customer or any third party; or (iv) arising out of a design or specification which is provided by or on behalf of Customer.
8.2. Subject to the limitations set forth in these Terms, Company agrees to diligently defend, and hold harmless and indemnify, Customer and its directors, officers, employees, shareholders, affiliates, agents and representatives from and against any and all Losses arising directly or indirectly out (i) Company’s strict liability, negligence or willful misconduct with respect to any product liability claims, or (ii) any breach or misrepresentation of any Company’s representations or covenants or other terms contained in the Terms or any contract in which these Terms are incorporated or to which these Terms are attached or made part of.
8.3. Each indemnitee shall notify the indemnitor in writing within 10 days of the receipt of any claim, suit or proceeding, including any incidents involving personal injury or damage to property. The indemnity shall cooperate with the indemnitor with regard to the defense of any suit or threatened suit. In the event of a claim involving accident or safety issues, the indemnitor shall make available all statements, reports and tests concerning the incident. The indemnitor may assume control of the defense of any such claim, proceeding or suit and shall have the authority to settle or otherwise dispose of any such suit or threatened suit, and to appeal any adverse judgment which may be entered, except that the indemnitor shall obtain the indemnitee’s prior written consent to any settlement.
9. Intellectual Property Rights:
9.1. The Company retains ownership and all intellectual property rights in any and all images, cost estimates, drawings, plans, calculations, and similar documents or information, whether in tangible or intangible form, including, without limitation information in electronic form created in connection with Customer’s Order.
9.2. To the extent that the Customer contributes or provides any intellectual property, including without limitation any intellectual property contained in drawings, specifications, instructions or other documents provided in connection with its Order, Company shall not be liable for any claims upon any infringement claims by third parties resulting from such intellectual property, and Customer hereby agrees to indemnify and hold Company harmless from any such infringement claims.
10. Force Majeure:
10.1. Company shall not be liable to Customer or any other person for any failure or delay in the performance of any obligation under this Agreement due to events beyond its reasonable control, including, but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, wars, riots and public disorder, sabotage, strikes, lockouts, labor disputes, labor shortages, work slowdown, stoppages or delays, shortages or failures or delays of energy, materials, supplies or equipment, transportation embargoes or delays, acts of God, breakdown in machinery or equipment, and, except as otherwise set forth in this Agreement, acts or regulations or priorities of the federal, state or local governments.
10.2. Customer shall not be liable to Company or any other person for any failure or delay in the performance of any obligation under this Agreement due to events beyond its reasonable control, including, but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, wars, riots and public disorder, sabotage, strikes, lockouts, labor disputes, labor shortages, work slowdown, stoppages or delays, shortages or failures or delays of energy, materials, supplies or equipment, transportation embargoes or delays, acts of God, breakdown in machinery or equipment, and, except as otherwise set forth in this Agreement, acts or regulations or priorities of the federal, state or local governments.
10.3. When the event operating to excuse performance by either party shall cease, this Agreement shall continue in full force until all deliveries have been completed.
11. Miscellaneous Terms:
11.1. Any controversy or claim arising out of or relating to this Agreement, or the negotiation or breach thereof, shall be exclusively settled by arbitration in accordance with the International Arbitration Rules of the American Arbitration Association (“AAA”). The award shall be final and binding. Judgment upon the award rendered by the arbitrator or the arbitrators may be entered in any court having jurisdiction thereof. The arbitration shall be held in New Haven, Connecticut, shall be conducted in the English language, and shall be conducted (i) if the amount in dispute is less than $250,000, before a single arbitrator mutually agreeable to Company and Customer, or if no agreement can be reached, then selected by the AAA, or (ii) of the amount in dispute is $250,000 or more, before three (3) arbitrators. The arbitrator(s) shall make detailed findings of fact and law in writing in support of his, her or their decision, and shall award reimbursement of attorney’s fees and other costs of arbitration to the prevailing party, in such manner as the arbitrator shall deem appropriate. In addition the losing party shall reimburse the prevailing party for reasonable attorneys’ fees and disbursements, the costs of the arbitration (including but not limited to the fees and expenses of the arbitrator and expert witnesses) and the costs incurred by the prevailing party in successfully seeking any preliminary equitable relief or judicially enforcing any arbitration award.
11.2. This Agreement shall be governed by and construed in accordance with the law of the State of Connecticut, without giving effect to principles of conflict of laws thereof or the UN Convention on Contracts for the International Sale of Goods of 1980.
11.3. If any provision contained in this Agreement is held to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of this Agreement, and the remainder of this Agreement shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in this Agreement, such modification being made to the minimum extent necessary to render the provision valid, legal and enforceable. Notwithstanding the foregoing, however, if the severed or modified provision concerns all or a portion of the essential consideration to be delivered under this Agreement by one party to the other, the remaining provisions of this Agreement shall also be modified to the extent necessary to equitably adjust the parties’ respective rights and obligations hereunder.
11.4. In the event of a violation or threatened violation of Company’s proprietary rights, Company shall have the right, in addition to such other remedies as may be available pursuant to law or this Agreement, to temporary or permanent injunctive relief enjoining such act or threatened act. The parties acknowledge and agree that legal remedies for such violations or threatened violations are inadequate and that Company would suffer irreparable harm.
11.5. The parties hereto are independent contractors and nothing in this Agreement will be construed as creating a joint venture, employment or agency relationship between the parties.
11.6. This Agreement, including any Schedules attached hereto, contains the entire agreement of the parties with respect to the subject matter of this Agreement, and supersedes all prior agreements between them, whether oral or written, of any nature whatsoever with respect to the subject matter hereof. This Agreement is binding upon the parties hereto, their successors and permitted assigns.