Standard Terms and Conditions of Sale:
These terms and conditions of sale apply to all purchases of products (“Products”) from Mitchell Electronics, Inc. (“MEI”). By placing an order for Products with MEI, irrepsective of the form or manner in which such order is placed, or accepting a delivery of Products shipped by MEI, the buyer (“Buyer”) will be deemed to have agreed to and accepted all of these terms and conditions of sale.
1. EXCLUSIVE TERMS. Subject only to Section 9 below, these terms and conditions of sale constitute the entire agreement between MEI and Buyer with regard to any purchase of Products by Buyer and supersede any and all proposals or communications, or other understandings or agreements, whether oral or written, between MEI and Buyer with regard to the purchase of Products by Buyer. No change to or modification of any of these terms and conditions of sale will be valid, binding or of any effect unless made in writing and signed by MEI. Without limiting the foregoing, no course of dealing, custom or usage of trade will vary or modify any of these terms and conditions of sale. SUBJECT ONLY TO SECTION 9 BELOW, NO TERM OR PROVISION CONTAINED IN ANY DOCUMENT OR INSTRUMENT, INCLUDING SPECIFICALLY, BUT NOT EXCLUSIVELY, ANY PURCHASE ORDER PROVIDED TO MEI BY BUYER, WHETHER CONSISTENT OR INCONSISTENT, IN WHOLE OR IN PART, WITH THESE TERMS AND CONDITIONS OF SALE WILL BE OR BECOME PART OF THE AGREEMENT BETWEEN MEI AND BUYER OR BE OR BECOME BINDING UPON MEI, AND ALL SUCH TERMS AND PROVISIONS ARE HEREBY EXPRESSLY REJECTED BY MEI.
2. PRICES. The prices for Products shall be such prices as are established by MEI from time to time. Such prices will not include any taxes, tariffs, duties or similar charges that are or become payable by reason of the purchase, sale, use, import, export or transportation of Products, all of which are the responsibility of Buyer and will be paid and discharged by Buyer as and when they become due. Any such taxes, tariffs, duties or charges required to be collected by MEI will be invoiced to Buyer and will be paid by Buyer with the purchase price for the subject Products.
3. PAYMENT. Buyer will pay for Products purchased within the time period shown in MEI’s invoice therefor. All amounts due MEI will be paid by Buyer in currency of the United States of America. If any amount owing from Buyer to MEI is not received by MEI when due, Buyer will pay MEI interest upon such amount at the rate of one and one-half percent (1.5%) per month (or if such rate is unlawful, the maximum stated rate allowed under applicable law), accruing from the date that such amount was due until the date that such amount is received by MEI in full.
4. SHIPPING. MEI will make the Products available for shipment to Buyer at MEI’s shipping point in Ohio, U.S.A., EXW. Buyer will make arrangement for the shipment of the Products to Buyer and will be responsible for all matters relating to such shipment. Buyer will be solely responsible for, and will pay when due, (a) all charges, costs and expenses of shipping the Products to Buyer, and (b) all duties, tariffs, taxes (including value added taxes) and similar charges applicable to or imposed upon the shipment of the Products to Buyer, the importing of the Products by Buyer, or the exporting of the Products by MEI. Title to Products purchased by Buyer, and all risk of loss with respect to such Products, will pass from MEI to Buyer upon the tender of such Products by MEI to a carrier for delivery to Buyer. In no event will MEI be liable to Buyer for any failure of a carrier to deliver the Products to Buyer, any delay by a carrier in the delivery of the Products to Buyer, or any loss of or damage to the Products while in transit to Buyer. Buyer will inspect the Products with commercially reasonable promptness following delivery, and any claim that Buyer may have for non-conformance or incomplete shipment (e.g., shortage in count) will be considered to have been waived by Buyer if Buyer does not provide MEI written notice of that claim within 10 days following delivery.
5. WARRANTIES. As to Products manufactured by MEI (“MEI Products”), MEI warrants to Buyer that, for a period of one year from the date of receipt by Buyer, the MEI Products will be free from defects in workmanship or material when used for their intended functions and purposes and in accordance with any MEI provided operating or instruction manuals. BUYER’S SOLE AND EXCLUSIVE REMEDY, AND MEI’S SOLE AND EXCLUSIVE LIABILITY, UNDER THIS WARRANTY WILL BE THE REPAIR OR REPLACEMENT, AT MEI’S OPTION, OF THE MEI PRODUCT WITHIN A COMMERCIALLY REASONABLE TIME FOLLOWING MEI’S SUBSTANTIATION OF A CLAIM UNDER THIS WARRANTY. FOR THE AVOIDANCE OF DOUBT IN THAT REGARD, MEI WILL HAVE NO LIABILITY WHATSOEVER TO ANYONE FOR ANY DAMAGES (WHETHER SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER) ARISING FROM ANY ACTUAL OR ALLEGED BREACH OR FAILURE OF THIS WARRANTY. A claim under this warranty must be made in writing within 30 days following Buyer’s discovery of the condition that is the subject of that claim, or that claim will be deemed to have been waived. MEI may condition any claim under this warranty upon the return of the MEI Product to MEI. MEI will have no obligation to Buyer under this warranty with respect to any defect, damage, failure, condition, or circumstance that results from any abuse, misuse or neglect of the MEI Product by Buyer, any damage caused to the MEI Product, or any modification of the MEI Product. MEI MAKES NO OTHER REPRESENTATION, WARRANTY OR GUARANTEE WITH RESPECT TO THE MEI PRODUCT, WHETHER EXPRESS OR IMPLIED, AND HEREBY EXCLUDES AND SPECIFICALLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY TYPE, NATURE OR DESCRIPTION WHATSOEVER, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
MEI MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WITH RESPECT TO ANY PRODUCT THAT IS NOT MANUFACTURED BY MEI, WHETHER EXPRESS OR IMPLIED, AND HEREBY EXCLUDES AND SPECIFICALLY DISCLAIMS ALL SUCH REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY TYPE, NATURE OR DESCRIPTION, WHATSOEVER, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
6. RETURNS. Except pursuant to a warranty made by MEI, Buyer may not return Products to MEI.
7. FORCE MAJEURE. The obligations of MEI with respect to any order of Products will be suspended during any period and to the extent that MEI is prevented from complying with them by any cause beyond its reasonable control including, without limitation, strikes, lock-outs, labour disputes, acts of God, war, acts of terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, or difficulty or increased expense in obtaining workmen, materials, goods or raw materials.
8. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL MEI BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR ANY OTHER PECUNIARY LOSS), WITH RESPECT TO ANY PRODUCTS SOLD BY MEI, EVEN IF MEI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. PURCHASE AND LICENSE AGREEMENT. If MEI and Buyer have executed a Purchase and License Agreement with regard to any Products, and if there is any conflict between the terms of such Purchase and License Agreement and these terms and conditions of sale, the terms of such Purchase and License Agreement will control.