MAX THOMAS & ASSOCIATES, LLC (DBA MTA MOTORS) TERMS AND CONDITIONS OF SALE
Max Thomas & Associates (DBA MTA Motors) is referred to herein as the “Seller,” and the customer, person or entity purchasing products (“products”) from Seller is referred to as the “Buyer.” Seller’s acceptance of Buyer’s purchase order is expressly conditional on Buyer’s assent to all of Seller’s Terms and Conditions of Sale. Buyer’s acceptance of or payment for the Products will manifest Buyer’s assent to these Terms and Conditions.
ENTIRE AGREEMENT. The parties agree that there are no understandings, agreements or representations, express or implied, not specified herein, respecting this offer or sale, and that this instrument contains the entire agreement between Seller and Buyer. No prior waiver, course of prior dealing or usage of the trade shall be relevant to supplement or to explain terms used in this agreement.
CONTROLLING TERMS. All sales are expressly limited to, and the rights and liabilities of the parties shall be governed exclusively by, the terms and conditions herein. In the event any purchase order or offer from Buyer states terms additional to or different from those set forth herein, this document shall be deemed a notice of objection to such additional or different terms and a rejection thereof. Any acknowledgment or shipment of product by Seller to Buyer subsequent to Seller’s receipt of a purchase order or offer from Buyer shall not be deemed to be an acceptance by Seller of an offer to contract on the basis of any Buyer’s terms and conditions. Receipt and acceptance by Buyer of products shall be conclusive evidence of Buyer’s acceptance of the terms and conditions set forth herein as the sole controlling terms and conditions of the contract between Seller and Buyer. Stenographic and clerical errors by Seller are subject to correction.
ASSIGNMENT. Buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of Seller, and any such assignment, without such consent, shall be void.
ACCEPTANCE OF ORDERS. Seller possesses the exclusive right to accept or refuse any and all orders. No bid, offer, or quotation shall be valid or binding upon Seller, and no order shall be accepted and no sale shall be final, until such bid, offer, quotation, order or sale shall be acknowledged in writing by Seller.
PRICES, TOOLING & INTELLECTUAL PROPERTY. All prices are subject to change without notice and shall be adjusted to the Seller’s prices in effect on the date of shipment. Prices reflect standard packaging for domestic shipment only. All prices are in U.S. Dollars. All tooling, equipment and intellectual property Seller owns, produces or acquires in connection with this order shall remain the sole property of Seller notwithstanding any charges to Buyer therefore.
DELIVERY. Delivery dates are estimates and not a guaranty of a particular day of delivery and are based on the prompt receipt of all necessary information from the Buyer. Seller shall not be liable for failure or delay in shipping goods hereunder if such failure or delay is due to an act of God, fire, flood, war, labor difficulties, accident, strikes, lockouts, civil disorders, governmental priorities or embargoes, inability or difficulty in obtaining raw materials or supplies at customary terms and prices or any other causes or failure of presumed conditions of any kind whatsoever which are either beyond the reasonable control of the Seller or which would make impracticable the fulfillment of Seller’s obligations hereunder. Buyer shall not refuse to accept deliveries so delayed. Seller shall be compensated for any and all extra costs and expenses occasioned by delays attributable to Buyer.
TRANSPORTATION AND RISK OF LOSS. All shipments are freight collect unless eligible for a freight discount, either in whole or in part, expressly set forth in current price sheets or on the face hereof. Seller reserves the right to select the method and type of transportation. If a method of transportation other than that selected by Seller is requested by Buyer, excess packing, shipping and transportation charges resulting from compliance with Buyer’s request shall be for the Buyer’s account. All shipments are F.O.B. point of shipment and risk of loss shall pass to Buyer after products are delivered to carrier. Claims for damage or loss in transit must be filed by Buyer against the carrier.
CANCELLATION OR MODIFICATION. Buyer may not cancel or modify any order, either in whole or in part, without Seller’s prior written consent and then only upon payment to Seller for all costs incurred by Seller, including, without limitation, costs of materials, labor, overhead, equipment and supplies incurred or committed for, and for lost profits on such cancelled or modified orders. Order changes or additions received after original order has been processed may be treated as a new order.
TAXES. Any taxes which Seller may be required to pay or collect with respect to the sale, delivery or storage of the products, including taxes upon or measured by the receipts from the sales thereof, shall be for the account of Buyer who shall promptly pay the amount thereof to Seller upon demand, or in lieu thereof, furnish Seller with a tax exemption certificate acceptable to the taxing authorities.
LIMITED WARRANTY. Seller warrants that the products manufactured by Seller, other than those specifically identified below, will be free from defects in material and workmanship and meet Seller’s published specifications at the time of shipment under normal use and regular service and maintenance for a period of twelve (12) months from the date of purchase of the products by Seller or eighteen (18) months from the date of manufacture, whichever occurs sooner, unless otherwise specified by Seller in writing. Partial Motors of any kind not fully assembled by Seller shall carry no warranty of any kind, express or implied.
THE WARRANTY SET FORTH IN THIS SECTION IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY SELLER WITH RESPECT TO THE PRODUCTS AND ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS, DRAWINGS OR OTHERWISE, AND WHETHER OR NOT SELLER’S PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER’S USE OR PURPOSE.
This warranty does not extend to any losses or damages due to misuse, accident, abuse, neglect, normal wear and tear, negligence (other than Seller’s), unauthorized modification or alteration, use beyond rated capacity, unsuitable power sources or environmental conditions, improper installation, repair, handling, maintenance or application or any other cause not the fault of Seller. Seller reserves the right to delay issuing account credits for warranties for up to 10 business days after receiving written notification of a warranty request in order to inspect failed products, if desired, or investigate the circumstances surrounding product installation, power sources, environmental conditions and other factors relevant to the installation, operation and performance of Seller’s products. To the extent that Buyer or its agents has supplied specifications, information, representation of operating conditions or other data to Seller in the selection or design of the products and the preparation of Seller’s quotation, and in the event that actual operating conditions or other conditions differ from those represented by Buyer, any warranties or other provisions contained herein which are affected by such conditions shall be null and void.
If within thirty (30) days after Buyer’s discovery of any warranty defects within the warranty period, Buyer notifies Seller thereof in writing, Seller shall, at its option and as Buyer’s exclusive remedy, repair, correct or replace or refund the purchase price for, that portion of the products found by Seller to be defective. Failure by Buyer to give such written notice within the applicable time period shall be deemed an absolute and unconditional waiver of Buyer’s claim for such defects. Seller shall have the right to require the Buyer to deliver the products to Seller’s designated repair center or warehouse. All costs associated with dismantling, reinstallation and transportation to and from Seller’s designated repair center or warehouse and the time and expense of Seller’s personnel and representatives for site travel and diagnosis under this warranty shall be borne by the Buyer. Products repaired or replaced during the warranty period shall be covered by the foregoing warranty for the remainder of the original warranty period or ninety (90) days from the date of shipment, whichever is longer.
Buyer assumes all other responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of products, either alone or in combination with other products/components.
DISCLAIMER OF DAMAGES. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PENAL DAMAGES, WHETHER SUCH DAMAGES ARISE OUT OF OR ARE A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. Such damages shall include but not be limited to loss of profits, wages or revenues, loss of poultry, swine, cattle and other livestock, loss of use of the equipment or associated equipment, cost of substitute equipment, facilities, down time costs, increased construction costs or claims of Buyer’s customers or contractors for such damages. Buyer agrees that in the event of a transfer, assignment, or lease of the equipment sold hereunder that Buyer shall secure for the Seller the protection afforded to it in this paragraph.
LIMITATION OF LIABILITY. The Seller shall not be liable for any loss, claim, expense or damage caused by, contributed by or arising out of the acts or omissions of Buyer or third parties, whether negligent or otherwise. In no event shall the Seller’s liability for any cause of action whatsoever exceed the cost of the product giving rise to the claim, whether based in contract, warranty, indemnity, or tort (including negligence). Any suit arising hereunder must be commenced within one (1) year from the date the cause of action accrues.
NO RESPONSIBILITY FOR GRATUITOUS INFORMATION OR ASSISTANCE. If Seller provides Buyer with assistance or advice which concerns any products, parts or service supplied hereunder or any system or equipment in which any such products, parts or service may be installed and which is not required pursuant hereto, the furnishing of such assistance or advice shall not subject Seller to any liability, whether based in contract, warranty, tort (including negligence) or otherwise. It is expressly understood that any technical advice furnished by Seller with respect to the use of the Products
is given without charge, and Seller assumes no obligation or liability for the advice given, or results obtained, all such advice being given and accepted at Buyer’s risk.
RETURN OF PRODUCTS. Seller retains the exclusive and sole right as to whether a product(s) may be returned or exchanged. Seller’s permission must be obtained in writing before any products are returned to it by Buyer. If products are returned without such permission, Buyer authorizes Seller, in addition to such other remedies as it may have, to hold the returned products at Buyer’s sole risk and expense. All returns must be freight prepaid by Buyer and are subject to a standard 15% restocking fee. Seller will in no event accept the return of any product that upon return is in the opinion of Seller altered, damaged, used, or in other than first class salable condition.
INDEMNITY. Buyer agrees to indemnify, defend and hold harmless Seller from any claims, loss or damages arising out of or related to Seller’s compliance with Buyer’s designs, specifications or instructions in the furnishing of products to Buyer, whether based on infringement of patents, copyrights, trademarks or other rights of others, breach of warranty, negligence, strict liability or other tort.
PAYMENT/CREDITS. All invoices are due net 30 days from date of invoice unless otherwise specified by Seller. If at any time Seller deems itself insecure from any cause Whatsoever, including but not limited to adverse changes in Buyer’s financial condition or impairment of Buyer’s credit, Seller may in its sole discretion stop delivery of goods, require advance payment for goods, and/or declare immediately due all indebtedness owed to Seller including amounts due hereunder. Payments not made when due shall bear interest at the prime rate plus 5% per annum or, if lower, the highest rate legally permissible, until paid. If Buyer has a credit(s) on their account, the credit(s) may be applied against purchase orders. It’s the responsibility of Buyer to request such credits to be applied. Seller retains the exclusive and sole right as to whether Buyer’s credit may be issued in the form of a refund check. If credits are not claimed within one year of creation, the credit can only be applied against future purchase orders.
INTERPRETATION. Should any term or provision contained in this contract contravene or be invalid under applicable law, the contract shall not fail by reason thereof but shall be construed in the same manner as if such term or provision had not appeared therein.
GOVERNING LAW AND ARBITRATION. Any dealings or contract between the parties shall be governed by and construed in accordance with the law of the state of South Carolina, excluding its choice of law provisions. Buyer and Seller agree that any action, suit or proceeding arising hereunder or related hereto may be brought in any state or federal court of competent jurisdiction sitting in the State of South Carolina and each party submits to the jurisdiction of such courts. Either Buyer or Seller may elect to have any controversy arising under or in any way related to the subject matter hereof decided by binding arbitration by a single disinterested arbitrator in Greenville, South Carolina, U.S.A., in accordance with the commercial rules of the American Arbitration Association then obtaining. The fee for the arbitrator shall be shared equally by the parties. Each party shall bear its own costs and expenses, including attorney fees.
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