item North America Terms And Conditions Of Sale
The articles described in this document and other documents or descriptions provided by MB Kit Systems, Inc., dba itemⓇ North America, its associates, affiliates, subsidiaries, agents, and authorized distributors (Seller’s Products) are hereby offered for sale and prices to be established by MB Kit Systems, Inc., dba itemⓇ North America, its associates, affiliates, subsidiaries, agents, and authorized distributors (Seller). This offer and its acceptance by any customer (Buyer) shall be governed by all of the following terms and conditions. Buyer’s order for any such article, when communicated to Seller either verbally or in writing, shall constitute acceptance of these Terms and Conditions of Sale.
1. Terms and Conditions of Sale
All descriptions, quotations, proposals, offers acknowledgments and sales of Seller’s Products are subject to and shall be governed by the terms and conditions stated herein. Buyer’s acceptance of any offer to sell is limited to these terms and conditions. Any terms or conditions in addition to, or incompatible with those stated herein, proposed by Buyer in any acceptance of an offer by Seller, are hereby objected to. No such additional, different or incompatible terms and conditions shall become part of the contract between Buyer and Seller unless expressly accepted in writing by Seller. Seller’s acceptance of any offer to purchase by Buyer is expressly conditional upon Buyer’s assent to all the terms and conditions stated herein, including any terms in addition to, or incompatible with those contained in Buyer’s offer. Acceptance of Seller’s Products shall in all events constitute such assent. A minimum order will consist of US $ 25.00, including discounts, plus normal shipping and handling charges..
Regular payment shall be made by Buyer net 30 days from the date of delivery of the articles purchased hereunder. Amounts not timely paid shall bear interest at the maximum rate permitted by law for each month or portion thereof that the Buyer is late in making payment. Any claims by Buyer for defects or shortages in a shipment shall be waived unless Seller receives notice thereof within 30 days after Buyer’s receipt of the shipment. Seller retains the right to require Cash On Delivery (COD) or other payment terms including payment in advance. COD terms would require cash, money order, certified check or Bank Credit Card.
Unless otherwise provided on the face hereof, all prices shall be made F.O.B. Seller’s plant. Regardless of the method of delivery, however, risk of loss shall pass to Buyer upon Seller’s delivery of Seller’s Products to a carrier. Any delivery dates shown are approximate only and Seller shall have no liability for any delays in delivery.
4. LIMITED WARRANTY
Seller warrants to Buyer that Seller’s Products shall be free from defects in material or workmanship for a period of 12 months from the date of shipment by Seller. If, within this 18-month period, Buyer discovers a defect in material or workmanship, it must promptly notify Seller in writing, setting forth in detail the nature of the nonconformity or defect (Buyer’s Notice). Seller shall in no event have any liability under or with respect to this warranty unless Buyer’s Notice is received by Seller within 19 months from the date of shipment of the Seller’s Products. Within a reasonable time after its receipt of Buyer’s Notice, Seller will correct any nonconformity or defect in Seller’s Products identified in Buyer’s Notice by furnishing new or used replacement parts. Such repair, including parts, labor, and the shipment of replacement parts to Buyer, will be at Seller’s expense. All warranty service will be performed at Seller’s place of business in Ohio. All costs and expenses relative to the shipment of any nonconforming or defective parts to Seller and the installation of replacement parts will be at Buyer’s expense. If, after a reasonable number of attempts, Seller is unable to repair any of Seller’s Products to conform to the warranty, Seller will provide, at its option and in exchange for the return of the defective Seller’s Products, one of the following: (a) replacement Products or (b) a full refund of the purchase price. These remedies are Buyer’s exclusive remedies for breach of warranty.
Seller does not warrant (a) any product, components, or parts not manufactured by Seller (but, to the extent that Seller may lawfully do so, Seller hereby transfers and assigns to Buyer any warranty given to Seller by the manufacturer of such parts), (b) defects caused by failure to provide a suitable installation environment for the Seller’s Products, (c) damages caused by use of any Seller’s Products for purposes other than those for which they were designed, (d) damage caused by disasters, such as fire, flood, wind, and lightning, (e) damages caused by unauthorized attachments or modifications, (f) damage during shipment, or (g) any other abuse or misuse by Buyer. Nothing in this paragraph shall be deemed in any way to modify or to broaden the limited warranty set forth in the first paragraph of this part 4.
The remedies described in the first paragraph of this part 4 are Buyer’s sole and exclusive remedies. Under no circumstances shall Seller be liable for any cost, loss, expense, damages, special damages, incidental damages, or consequential damages arising, directly or indirectly, from Buyer’s purchase, ownership, or use of Seller’s Products, whether based upon breach of warranty, breach of contract, negligence, strict tort liability, or any other legal theory. Such excluded damages include, but are not limited to, loss of profits, loss of savings or revenue, loss of use of Seller’s Products or any associated property, costs of capital, costs of any substitute equipment, facilities, or services, downtime, the claims of third persons (including lessees, customers, and invitees), and injury to property. This limitation does not apply to damages caused by breach of the warranty against infringement, as set forth in part 9, below, or the warranty of title.
THE WARRANTIES AND LIMITS OF LIABILITY DESCRIBED ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES AND LIABILITIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5. Changes, Reschedules and Cancellations
Buyer may request modifications in the designs or specifications for Seller’s Products sold hereunder as well as the quantities and delivery dates thereof, or may request to cancel all or a part of this order, subject, however, to a minimum 20 % restocking fee if the return is not due to defect in Seller’s Products. Restocking fees are higher for cut material.
6. Special Tooling
A tooling charge may be imposed for any special tooling, including, without limitation, dies, fixtures, molds and patterns, acquired to manufacture Seller’s Products sold pursuant to this agreement. Such special tooling shall be and remain Seller’s property even if all or part of the cost of the special tooling is paid by Buyer. Unless otherwise agreed, Seller shall have the right to alter, discard or otherwise dispose of any special tooling or other property in its sole discretion at any time.
7. Buyer’s Property
Any designs, tools, patterns, materials, drawings confidential information or equipment furnished by Buyer, or any other objects which become Buyer’s property, may be considered obsolete and may be destroyed by Seller after two (2) consecutive years have elapsed without Buyer placing an order for Seller’s Products manufactured using such property. Seller shall not be responsible for any loss or damage to such property while it is in Seller’s possession or control.
8. Security Interest
As security for Buyer’s payment under Section 2 of this Terms & Conditions of Sale, Buyer grants to Seller a security interest in Buyer’s inventory, accounts, accounts receivable, equipment and the proceeds of such collateral, until all amounts owed to Seller by Buyer are paid in full by Buyer to Seller. Seller in its sole discretion, may file UCC financing statements and any necessary amendments or renewal statements in order to perfect its security interest in the collateral provided for herein. Buyer will sign any documents presented to it by Seller to protect and/or perfect Seller’s security interest under the Uniform Commercial Code or other applicable law.
9. Costs of Collection
If Buyer defaults on any of its obligations hereunder, Buyer agrees to pay Seller’s cost of collection including but not limited to attorneys’ fees and court costs.
Unless otherwise indicated on the face hereof, all prices and charges are exclusive of excise, sales, use, property, occupational or like taxes which may be imposed by any taxing authority upon the manufacture, sale or delivery of the articles sold hereunder. If any such taxes must be paid by Seller or if Seller is liable for the collection of such tax, the amount thereof shall be in addition to the amounts for Seller’s Products. Buyer agrees to pay all such taxes or to reimburse Seller therefor upon receipt of its invoice. If Buyer claims exemption from any sales, use or other tax imposed by any taxing authority, Buyer shall save Seller harmless from and against any such tax, together with any interest or penalties thereon which may be assessed if Seller’s Products are held to be taxable.
11. Indemnity for Infringement of Intellectual Property Rights
Seller shall have no liability for infringement of any patents, trademarks, copyrights, trade dress, trade secrets or similar rights except as provided in this part 9. Seller will defend and indemnify Buyer against claims of infringement of U.S. patents, trademarks, copyrights, trade dress and trade secrets (hereinafter U.S. Intellectual Property Rights). Seller will defend at its expense and will pay the cost of any settlement or damages awarded in an action brought against Buyer based on a claim that an article sold pursuant to this contract infringes the U.S. Intellectual Property Rights of a third party. Seller’s obligation to defend and indemnify Buyer is contingent on Buyer notifying Seller within ten (10) days after Buyer becomes aware of such claims of infringement, and Seller having sole control over the defense of any statements or actions including all negotiations for settlement or compromise. If an article sold hereunder is subject to a claim that it infringes the U.S. Intellectual Property Rights of a third party, Seller may, at its sole expense and option, procure for Buyer the right to continue using said article, replace or modify said article so as to make it non-infringing, or offer to accept return of said article and return the purchase price less a reasonable allowance for depreciation. Notwithstanding the foregoing, Seller shall have no liability for claims of infringement based on information provided by Buyer, or directed to articles delivered hereunder for which the designs are specified in whole or part by Buyer, or infringements resulting from the modification, combination or use in a system of any articles sold hereunder. The foregoing provisions of this part 9 shall constitute Seller’s sole and exclusive liability and Buyer’s sole and exclusive remedy for infringement of U.S. Intellectual Property Rights. If a claim is based on information provided by Buyer or if the design for an article delivered hereunder is specified in whole or in part by Buyer, Buyer shall defend and indemnify Seller for all costs, expenses or judgements resulting from any claim that such article infringes any patent, trademark, copyright, trade dress, trade secret or any similar right.
12. Force Majeure
Seller does not assume the risk of and shall not be liable for delay or failure to perform any of Seller’s obligations by reason of circumstances beyond the reasonable control of Seller (hereinafter Events of Force Majeure). Events of Force Majeure shall include without limitation, accidents, acts of God, strikes or labor disputes, acts, laws, rules or regulations of any government or government agency, fires, foods, delays or failures in delivery of carriers or suppliers, shortages of materials and any other cause beyond Seller’s control.
13. Entire Agreement/Amendment/Choice of Forum and Governing Law
The terms and conditions set forth herein constitute the entire agreement concerning the sale of Seller’s Products. This agreement supersedes all prior written and oral agreements and can only be modified or amended by a writing signed by a duly authorized representative of Seller. This agreement shall be governed in all respects by the law of the State of Ohio. Any action arising out of the sale of Seller’s Products, including any action for breach of warranty, must be commenced within two (2) years following the date of shipment of Seller’s Products to Buyer, and must be commenced in either the federal or state court sitting in Summit County, Ohio. Buyer and Seller waive any objections based on venue or forum non conveniens.
14. Product Liability Indemnity
Buyer shall indemnify and hold Seller harmless from and against all claims, demands, actions and causes of action that are brought against Seller by any person for the bodily injury, sickness, disease or death of any person arising out of or in any way connected to the selection, purchase, ownership, use or maintenance of Seller’s Products. Seller shall give Buyer reasonably prompt notice of the filing of such a suit and shall permit Buyer to have sole control and conduct of the defense thereof, provided no reservation of rights exists. Buyer’s indemnity shall include without limitation any cost, loss, expense, attorney’s fees, damages, special damages, incidental damages, punitive damages and consequential damages regardless of what legal theory they are based upon.
item is a registered trademark of item Industrietechnik und Maschinenbau GmbH, Solingen/Germany.
Copyright reserved. Reprints of any kind only permitted with prior written consent of MB Kit Systems, Inc., dba itemⓇ North America. Effective 05-22-2013