Terms And Conditions (Repair Services)
TERMS AND CONDITIONS
Definitions. As used herein:
“Company” means Moley Magnetics, Inc.
“Buyer” means the individual, company or entity to whom any Proposal is addressed.
“Services” means the repair services proposed to be provided by Company to Buyer including, without limitation, any pre-repair services proposed to be provided by Company to assess and determine the estimated level of necessary repair services.
“Proposal” means a written quotation, sales order, estimate, or invoice provided by Company to Buyer with respect the Services provided/to be provided by Company to Buyer. These terms and conditions are incorporated into and made a part of each Proposal.
“Purchase Order” means a purchase order, request for quotation, or similar document submitted by Buyer prior to, or in response to, a Proposal.
“State” means the State of New York.
“County” means the County of Niagara in the State.
1. Acceptance. Company’s offer to provide to Buyer the Services specified in any Proposal is expressly conditioned upon acceptance of these terms and conditions. Company objects to, and expressly rejects, any additional or different terms and/or conditions contained in Buyer’s Purchase Order or any other document of Buyer, none of which shall be binding or have any effect unless specifically agreed to in writing by an authorized officer of Company. These terms and conditions supersede any additional or different terms and/or conditions contained in Buyer’s Purchase Order or any other document of Buyer. Failure by Company specifically to object to provisions contained in Buyer’s Purchase Order shall not in any way alter or waive these terms and conditions. A binding contract for the Services provided to Buyer is made under these terms and conditions between Company and Buyer upon Company’s acceptance, or commencement of fulfilment, of Buyer’s Purchase Order.
2. Delivery; Prices. Delivery terms for the items to be repaired shall be as set forth in the Proposal. In the event that delivery terms are not set forth in a Proposal, costs of delivery of such items to and from Company’s facility shall be borne by Buyer. Prices do not include any goods or services, setup, start-up, and/or installation, safety equipment, signage, technical data or documentation, proprietary rights of any kind, qualifications, testing or process performance that are not specifically stated in any Proposal. Prices are valid for 30 days from the date of any Proposal unless otherwise stated.
3. Taxes and Other Charges. Buyer is responsible for the payment of any and all federal, state, local, foreign or provincial taxes, fees or charges of any nature whatsoever (other than Company’s income-based taxes) imposed by any governmental authority that may be assessed or levied on the Services provided to Buyer provided that such taxes are added to the sales price where Company has a legal obligation to collect them. If Buyer is exempt, prior to provision of Services, Buyer shall provide Company with the documentation necessary to support such a claim and to allow Company to document its decision not to collect such tax.
4. Changes, Cancellations and Returns. If Buyer requests changes to any Services or any Purchase Order after Company’s acceptance of Buyer’s Purchase Order, the proposed change shall not become effective unless and until Company (in its sole discretion) issues a revised Proposal.
5. Completion Dates. All dates quoted for completion of the Services are approximate and subject to Company’s availability schedule. Company will endeavor to meet the completion date quoted, however, Company does not assume any liability, consequential or otherwise, because of any delay or failure to provide all or part of any Services for any reason, and Company shall have no liability whatsoever to Buyer or any third party for failure to provide the Services by such date. All completion dates are predicated upon prompt and timely receipt from Buyer of all necessary information, documentation, etc.
6. Credit and Payment Terms.
a. Unless credit terms are provided to Buyer by Company in its sole discretion, any and all amounts due to Company for the Services shall be paid in full by Buyer prior to commencement of the Services by Company. Company reserves the right, in its sole discretion, to provide credit to Buyer upon review and approval of Buyer’s application for credit, and to establish credit limits at any time. Company reserves the right, at any time and in its sole discretion, to change, amend or withdraw any credit terms. All prices and payments are and shall be made in U.S. Dollars.
b. Buyer shall make all payments in full without any deduction for any claim or setoff or recoupment.
c. No cash discounts for early payment will be granted. Buyer shall be delinquent if payment is not remitted according to the applicable terms. Any amounts not paid when due shall bear interest from the date of invoice until paid at the rate of 1.5% per month, or the maximum allowable legal rate, whichever is lower. Buyer also shall pay all of Company’s costs incurred to collect payment of invoices, including Company’s reasonable attorneys’ fees.
7. Services Acceptance. All Services will be deemed accepted by Buyer if Buyer does not provide Company with a written notice of rejection within five (5) business days of the date of receipt by Buyer of the item(s) on which the Services were provided, which notice shall specify in detail any reasons for rejection.
a. Warranty. With respect to motor reconditioning Services, Company warrants that the motor has been dismantled, inspected, parts cleaned, lubricated, windings dried and treated, assembled, tested and painted. With respect to motor rewinding Services, Company warrants that the motor has been completely rewound and rebuilt to EASA recommended practice and tolerances. With respect to all other Services, Company warrants that it will provide the Services using commercially reasonable skill and care. In the event of any breach of such warranty, Company, at its option and sole discretion, shall either correct such breach by again providing the Services, or return to Buyer the price paid for the Services. EXCEPT FOR THE FOREGOING WARRANTY, COMPANY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCT(S), INCLUDING WITHOUT LIMITATION 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; IN EACH CASE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
b. The warranty provided herein is provided solely to Buyer, and is not transferable by Buyer to any third party.
8. EXCLUSIVE REMEDIES. THE REMEDIES PROVIDED HEREIN ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES. IN NO CASE WHATSOEVER, WHETHER AS A RESULT OF BREACH OF CONTRACT, BREACH OF WARRANTY OR TORT (INCLUDING COMPANY’S OR BUYER’S NEGLIGENCE OR STRICT LIABILITY) SHALL COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES INCURRED BY BUYER OR ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, LOSS OF SALES, PROFIT, REVENUE OR GOODWILL; LOSS OF USE OF GOODS OR ANY ASSOCIATED EQUIPMENT OR MATERIAL; COST OF CAPITAL; COST OF SUBSTITUTE PRODUCTS, FACILITIES OR SERVICES; DOWNTIME COSTS; ATTORNEYS’ FEES; OR LOSSES OR CLAIMS OF CUSTOMERS OR BUYER FOR SUCH DAMAGES. BUYER HEREBY AGREES TO INDEMNIFY AND HOLD COMPANY HARMLESS FROM ANY AND ALL SUCH DAMAGES. BUYER FURTHER AGREES TO DEFEND, INDEMNIFY AND HOLD COMPANY AND ANY INDEMNIFIED PARTY HARMLESS FROM ANY AND ALL CLAIMS, LIABILITY, DAMAGES OR EXPENSES (INCLUDING ATTORNEYS’ FEES) ASSERTED AGAINST COMPANY OR ANY INDEMNIFIED PARTY AS THE RESULT OF PROPERTY DAMAGE, PERSONAL INJURIES OR DEATH, TO BUYER, ITS EMPLOYEES, AND ANY OTHER THIRD PARTIES, RESULTING FROM THE ACTIONS OR INACTIONS OF ANY OTHER PERSON OTHER THAN COMPANY, INCLUDING, WITHOUT LIMITATION, THE ACTIONS OF BUYER, ITS EMPLOYEES, AGENTS AND CUSTOMERS.
9. Limitation of Liability. Buyer’s remedies set forth herein are exclusive, and the total liability of Company with respect to any Proposal and the Services furnished thereunder, in connection with the performance or breach thereof, whether based on contract, warranty, negligence, indemnity, strict liability or otherwise, shall not exceed the total amount paid by Buyer to Company for the Services upon which such liability is based.
10. Confidentiality and Non-Solicitation. Any Proposals, quotes, invoices, order acknowledgments, prints, brochures, drawings or other information furnished to Buyer by Company are intended for confidential use by Buyer, and shall not be disclosed by Buyer to any person or used to the detriment of Company’s competitive position. In addition, Buyer hereby agrees that for the two (2)-year period following any Proposal, Buyer shall not interfere in, or solicit or induce any change in or cessation of, the business relationship between Company and any of its customers, independent contractors, agents, representatives, contract manufacturers, suppliers, or investors; nor solicit or induce any Company employees or other agents to terminate their employment or other relationship with Company.
a. Applicable Laws: Jurisdiction and Venue. This contract shall be construed in accordance with the laws of the State without reference to principles of conflicts of laws. Exclusive venue and jurisdiction of any dispute between the parties regarding a Proposal and all related issues shall be with the local and federal courts of the County. Buyer hereby submits itself to this venue. Company and Buyer waive any objection to such venue and waive any right under the doctrine of forum non conveniens or otherwise to transfer any such action filed in any such court to any other court. In the event of a lawsuit, Buyer and Company each agree not to file any motion or defense asserting that the foregoing described courts are not a court of proper venue.
b. Force Majeure. Neither Company nor Buyer shall be responsible for any failure to perform the contract formed hereunder due to causes beyond its control, including, but not limited to, acts of God, labor disputes or shortages, acts of government or judicial action, inability or delay in securing parts or components, epidemic, pandemic, declared state of emergency, all whether foreseen or unforeseen.
c. Assignment. None of the rights, duties or obligations defined herein or in any Proposal may be assigned, transferred or delegated without the prior written consent of the other party.
d. Non-waiver. Neither party’s failure to exercise any of its rights for any period shall constitute or be deemed a waiver or forfeiture of such rights.
e. Modification/Entire Agreement. Any modification of these terms and conditions must be expressly agreed to in writing by authorized representatives of Company and Buyer. The applicable Proposal (including these terms and conditions) are the complete and exclusive statement of the terms and conditions of the agreement between Company and Buyer with respect to the purchase/sale of the Services, and supersede all previous written or oral commitments, and specifically defines the Services to be delivered, and constitutes the complete agreement between Company and Buyer.