MARTIN INTERNATIONAL ENCLOSURES, INC.
STANDARD TERMS AND CONDITIONS
The following standard terms and conditions shall apply to all goods and products purchased from Martin International Enclosures, Inc. (hereinafter referred to as “Seller):
1. ACCEPTANCE. Any order for the purchase of products from Seller shall be subject to the terms and conditions set forth herein. There are no understandings or agreements other than as set forth herein and on the face hereof, and no additions, deletions, or modifications of these terms shall be binding upon the parties unless agreed upon in writing and signed by an officer of Seller. Buyer understands and agrees that these terms and conditions shall apply to all purchase orders placed at any time by the Buyer. Seller reserves the right to amend these terms and conditions from time to time.
2. TITLE, RISK OF LOSS, PRICES. Terms of delivery are F.O.B. point of shipment. Risk of loss and title shall pass to Buyer upon delivery of the products to the Buyer or carrier, as the case may be. Unless specifically otherwise set forth, prices do not include the cost of freight, which is for the Buyer’s account, or cost of charges for such costs and/or charges in addition to the price(s) of the products supplied hereunder, and Buyer shall be obligated to pay such charges and costs on the same terms at those which apply to payment of the price(s) hereunder.
3. TERMS OF PAYMENT. Upon credit approval, terms of payment are net 30 days from the invoice date, in U.S. dollars, unless otherwise agreed in writing by an officer of the Seller.
A FINANCE CHARGE of 2% per month (24% APR) will be added to all past due accounts. Accounts with a balance over 90 days past due will be sent for collection. Buyer shall be responsible for and shall pay for all collection costs, including without limitation court costs and attorneys’ fees. Collection costs, including attorneys’ fees, shall be added to the Buyer’s account and shall become part of Buyer’s outstanding indebtedness to Seller.
4. REMEDIES. If Buyer fails to pay when due any amount on any invoice issued in connection with this order, fails to pay when due any amount(s) owing to Seller under any other contract or instrument, is in breach of any of Buyer’s obligations to Seller under this or any other contract with Seller, or if the financial business condition or responsibility of the Buyer shall become impaired or unsatisfactory to Seller, Seller reserves the right, at Seller’s option, to cancel the order without liability to Seller, suspend work on the order and/or future orders and/or withhold delivery of all or part of the products subject hereto, in all cases without prejudice to any legal or equitable remedy, until past due payments are made and satisfactory assurance of payment is received. Buyer agrees to pay Seller all costs of collection, including without limitation, attorney’s fees. All amounts not paid when due shall bear interest at the lesser of twenty-four percent (24%) per annum or at the highest rate permitted by law. Seller retains a security interest in all goods delivered under this order to secure payment of amounts due in respect thereof hereunder. Seller shall, in addition to the rights and remedies herein set forth, be entitled to all rights and remedies provided for by the Uniform Commercial Code and other applicable laws as from time to time amended and at equity.
5. DELIVERY. Dates of delivery are determined from the date of receipt by Buyers of Seller’s written Confirmation of Order and are estimates of approximate dates of delivery, not a guarantee of a particular day of delivery. Seller is not responsible for delays in delivery or non-performance resulting from causes beyond Seller’s reasonable control. Seller’s time for delivery shall be extended by the time required to eliminate such cause for delay. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF A DELAY OR FAILURE TO DELIVER. Delivery to Buyer’s designated carrier or common carrier F.O.B. point of shipment shall constitute delivery to Buyer.
6. CANCELLATION. CUSTOM ORDERS (INCLUDING CUSTOM COLORS) ARE NOT SUBJECT TO CANCELLATION OR MODIFICATION IN WHOLE OR IN PART, after Seller’s acceptance, except with Seller’s written consent. If Buyer cancels any order after acceptance by Seller without Seller’s written consent, Buyer agrees to compensate Seller for cost and any loss of profits that it may suffer as a result of cancellation.
7. EXPRESS WARRANTY, LIMITATION, EXCLUSION, AND DISCLAIMER OF UNSTATED WARRANTIES. Seller warrants for a period of one year from the date of purchase, to original purchaser only, that products manufactured by Seller and supplied hereunder shall conform to Seller’s published specifications for such products and shall be free from defects in material and workmanship. If a failure to conform to specifications or a defect in materials or workmanship is discovered during the warranty period, written notification of the same must be provided promptly to Seller, and such written notification must be received by Seller no later than thirty (30) days after discovery of the nonconformity or defect. If any products covered by this warranty are determined to be nonconforming or defective during the warranty period, then Seller shall, at Seller’s option and in Seller’s sole discretion, repair or replace such products or refund to purchaser so much of the purchase price as is allocable to the defective or nonconforming products. Examination and repair or replacement of such products will be effected, at Seller’s option, on location or at Seller’s facilities. The freight charges to ship and return the products to Seller’s facilities for inspection or Seller’s travel expenses to inspect the products on location shall be prepaid by purchaser. Products returned to Seller for inspection or warranty repair must be received timely by Seller during the warranty period, and in any event, no later than thirty (30) days after the expiration of the warranty period in the case of a nonconformity or defect discovered on the last day of the warranty period. If, after inspection, the products are determined by Seller to conform to Seller’s specifications and to be free from defects in material and workmanship, then purchaser shall be responsible for and shall pay for all return shipping costs, as well as for Seller’s expenses and service time expended on and off location, including transportation fees. If the products fail to conform to Seller’s warranty hereunder during the warranty period, then Seller shall pay for reasonable shipping or transportation costs within the continental United States associated with the repair or replacement of the warranted products, as determined by Seller.
Seller’s warranty applies only to products manufactured by Seller. Electrical and other components that are not manufactured by Seller are specifically excluded from Seller’s warranty, but may be covered by original manufacturer’s warranty. Normal wear and tear and damages caused by or resulting from abuse, misuse, negligence, modification, improper installation or accident are also specifically excluded from Seller’s warranty.
THE FOREGOING WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. Purchaser’s sole and exclusive remedy, whether in contract, in tort, under any warranty, or otherwise, shall be, at Seller’s option, the repair or replacement of any defective or nonconforming products, or a refund of so much of the purchase price as is allocable to the defective or nonconforming product, in accordance with this warranty, during the warranty period. Seller shall not be liable for special, indirect, incidental, or consequential damages.
8. ASSUMPTION OF RISK. Buyer expressly assumes all risk of patent infringement by reason of its use of product(s) provided hereunder in combination with the other material, or in operation of any process. All use and applications made of the products are solely at Buyer’s risk, and Buyer assumes all risk and liability resulting from the use of the product(s) delivered hereunder, whether used singly or in combination with other products.
9. INSPECTION; RETURN. Notification of order quantity discrepancies must be made within forty-eight (48) hours of receiving date. Buyer agrees to inspect, test, and accept or reject product(s) delivered by or for Seller within (10) days after delivery thereof to Buyer’s specified facility, and all product(s) delivered shall be conclusively deemed accepted and to conform to contract requirements unless rejection is made or specific objection or notice of non-conformity is given in writing within such (10) day period. Any freight damage must be noted on Bill of Lading at time of delivery and promptly reported to Seller at time of delivery. If freight damage occurs all packing materials must be saved. All returns require a Return Material Authorization number issued by Martin International Enclosures prior to return. Custom items including custom colors are non-returnable. A thirty percent (30%) restocking charge will be applied to all returned enclosures and/or accessories.
10. TAXES. Any tax imposed by federal, state, or other governmental authority on the sale of the merchandise and service shall be paid by Buyer in addition to the purchase price.
11. PATENT INFRINGEMENT. Buyer shall, in respect of goods manufactured by Seller in accordance with designs, formulas, or processes supplied, determined or requested by Buyer, hold harmless and defend Seller, at Buyer’s expense, and pay any judgment awarded in any suit brought against Seller for damages of any kind arising or alleged to arise from the manufacture, sale, or use of the goods, attributable, or alleged to be attributable in whole or in part to such designs, formulas, or processes, including, without limitation of the foregoing, suits for breach of warranty, negligence or infringement of any letters patent (whether of the United States or any other government), provided Seller promptly notifies Buyer in writing of any such suit and tenders the defense thereof to Buyer. Seller is entitled to be represented in any such suit at its own expense.
12. LIMITATIONS OF ACTION. Any action for breach of contract or any other cause of action arising out of Seller’s acceptance of Buyer’s orders goods and or goods sold by Seller to Buyer must be commenced within one (1) year of delivery of the products in question.
13. GOVERNING LAW. These terms and conditions shall be construed in accordance with the laws of the State of New Hampshire. Any action or proceeding shall be subject to the jurisdiction of the State of New Hampshire, and may be initiated only in the State of New Hampshire. Buyer agrees to be subject to and accepts the jurisdiction of the courts of New Hampshire.
14. ASSIGNABILITY. Buyers may not assign this order or any contract resulting from this order without the Seller’s prior written consent.
15. WAIVER AND MODIFICATION. No waiver or modification of these terms and conditions shall be valid unless made in writing and signed by an officer of the Seller.
16. ENTIRE AGREEMENT. These standard terms and conditions comprise the entire agreement between the Buyer and Seller as to all sales and transactions. Headings and titles are for convenience purposes only and are not intended to restrict or limit the substance of any paragraph or subsection. No other terms and conditions shall apply. Any terms and conditions set forth in any document or communication of Buyer, which is inconsistent with the terms set forth herein, shall be null and void.
All Purchase Orders are subject to Martin International’s Terms & Conditions