Motion & Control Enterprises, LLC Standard Terms & Conditions of Sale
1. Acceptance
The following standard terms and conditions (these “Terms”) are incorporated into all quotations, orders and purchases of products or services (“Goods”) from Motion & Control Enterprises, LLC, and its affiliated companies (“Seller”) to the purchaser identified in the applicable quotation or purchase order (“Buyer”). Any quotation from Seller only constitutes Seller’s offer to sell Goods pursuant to these Terms. The UCC applies to all Goods, including any services to be provided by Seller that are ancillary to and part of a sale of Goods, whether provided separately or as part of an installation. Any order given to Seller, whether or not in response to a quotation, is subject to acceptance by Seller and these Terms. Buyer will be deemed to have accepted these Terms, and an “Agreement” will be formed, upon any of the following: (a) signing and returning to Seller a copy of any Seller quotation; (b) sending Seller a written acknowledgment of a quotation; (c) placing a purchase order or giving Seller instructions respecting delivery of the Goods, including instructions to bill and hold, after receiving a quotation; (d) failing to cancel a pending purchase order within ten (10) days after receiving these Terms; (e) accepting delivery of all or any part of the Goods; or (f) paying for all or any part of the Goods. Conditions stated by Buyer in a purchase order form given in response to this proposal or otherwise shall not affect Seller’s quotation and shall not be binding on Seller unless expressly agreed to in writing by Seller. No order shall be binding on Seller until accepted in writing by Seller.
2. Order of Precedence
In the event of any conflict between these Terms and any quotation, purchase order, statement of work, or other document issued in connection with the sale of Goods, these Terms shall control unless a written amendment signed by an authorized representative of Seller expressly states otherwise. Seller’s quotations and order acknowledgments supplement but do not supersede these Terms. No employee or agent of Seller has authority to make verbal warranties, representations, or modifications to these Terms.
3. Prices
Quotes are valid for 30 days unless otherwise stated. Prices exclude applicable taxes, government fees, customs duties, which Buyer must pay. On confirmed orders, prices remain fixed for up to one year (and any price commitments over one year require written approval from an officer of Seller), except if key raw material costs increase by more than 10% prior to procurement; in such cases, if the parties cannot negotiate a new price within 15 business days, Buyer may cancel the unshipped portion without penalty. Prices are subject to change on orders shipped more than 30 days after quotation; Seller will notify Buyer of any price increase and Buyer shall have 3 days to cancel the affected portion.
4. Taxes
Prices do not include federal, state or local taxes, now or hereafter enacted, applicable to the Goods sold, which tax or taxes will be added by Seller to the sales price where Seller has legal obligation to collect same, and will be paid by Buyer unless Buyer provides Seller with the proper tax exemption certificate.
5. Terms and Method of Payment
Where Seller has extended credit to Buyer, terms of payment shall be as stated on Seller’s invoice. Standard payment terms are Net 30 days from invoice. Engineering changes / tooling require 100% payment upon first sample shipment. If shipments are delayed by Buyer, payments are due from date when Seller is prepared to make such shipments and issues invoice. Late payments incur a carrying charge of 1.5% per month (or the maximum legal rate). In the event of late payment, Seller shall have the right to suspend further work or delivery of Goods until outstanding amounts are paid in full. The amount of credit extended may be changed or credit withdrawn by Seller at any time. Buyer may withhold payments or set off amounts owed only with prior written notice and Seller’s prior written consent.
6. Delivery
The Goods shall be delivered when ordered by Buyer on reasonable notice to Seller, F.O.B. Seller’s plant. Whether or not Seller prepays shipping charges or arranges transportation, risk of loss and liability for loss and damage in transit or thereafter shall pass to Buyer upon Seller’s delivery of the Goods to a common carrier for shipment to Buyer. Buyer is responsible for selecting its preferred freight carriers and is responsible for their performance, including delays, damage, and scheduling errors. Notwithstanding the transfer of the risk of loss, title to the Goods will remain with Seller until Buyer pays for the Goods in full. Claims for damages in transit must be asserted against the carrier. Within 10 days after receipt of shipment, Buyer must report any shortage or damage not due to the carrier, otherwise claims for such shortage or damage will be deemed waived and the Goods shall be deemed accepted as delivered. Shipping dates are contingent upon prompt receipt by Seller of all applicable customer specifications and customer-furnished material. Seller reserves the right to make delivery in installments and the contract shall be severable as to each such installment. Seller may in whole or in part manufacture, assemble or otherwise fulfill the order of Goods at any Seller plant. Delay in delivery or other default in any installment shall not relieve Buyer of its obligation to accept and pay for remaining deliveries. All claims for delay in delivery shall be deemed waived unless presented to Seller in writing within 30 days after delivery of each shipment. Where delivery requires access to Buyer’s premises, Buyer agrees to provide Seller on a timely basis with such access, machine downtime, utilities and equipment as Seller shall reasonably require in order to perform the services.
7. Fulfillment
Delivery of 5% more or less than the quantity specified herein shall constitute fulfillment of Buyer’s order, and Buyer shall take and pay for any excess not exceeding 5%
8. Force Majeure
Seller shall not be responsible for any failure to perform due to causes beyond its reasonable control. These causes shall include, but not be restricted to, fire, storm, flood, earthquake, explosion, accident, acts of a public enemy, war or rebellion, insurrection, sabotage, epidemic, pandemic, quarantine restrictions, labor disputes, labor shortages, transportation embargoes, supply chain disruptions, or failure or delays in transportation, inability to secure raw materials or failures of machinery, acts of God, acts of any government or agency thereof, and judicial action, all whether foreseen or unforeseen. If a delay exceeds 30 days, Seller may terminate the affected portion of the order or establish a revised delivery schedule. Seller shall not be liable for any loss or expense (consequential or otherwise) incurred by Buyer or Buyer’s customer if Seller fails to meet the specified delivery schedule. Storage fees apply if Buyer requests delivery deferrals.
9. Assistance
If upon Buyer’s request Seller assists Buyer in submitting suggestions concerning design, construction or composition of molded parts, Seller shall not be liable for or on account of any such suggestions made by Seller or input given by Seller, whether or not adopted by Buyer in whole or in part.
10. Limitation of Warranty, Liability, Indemnity
Seller warrants that the Goods Seller and sold hereunder shall be free from defects in workmanship and material under normal use and service (except in those cases where the materials are supplied or designated by Buyer) for a period of twelve (12) months from the date of delivery. Seller’s sole obligation under this warranty shall be, at Seller’s option, to repair or replace non-conforming Goods or to refund the purchase price for such Goods. This warranty excludes normal wear and tear, perishable items, items not manufactured by Seller, or damage caused by misuse, alteration, or improper maintenance. For items not manufactured by Seller, the original manufacturer’s warranty shall apply. Buyer acknowledges sole responsibility for ensuring items specified, selected or designed by Buyer are fit for Buyer’s intended purpose and conditions of use. Seller’s liability for breach of warranty shall arise only upon the return of the defective parts at Buyer’s expense after written notice to Seller of claimed breach within the warranty period. Whether particular Goods have a defect in material or workmanship covered by this warranty shall be determined by reference to general industry standards as in effect at the date of production of such Goods by Seller. Notice to Seller of claimed defects discoverable by inspection must be given within ten days after receipt of shipment. When any Goods manufactured and sold hereunder are in any way assembled by Buyer into a device or product, such assembly constitutes acceptance by Buyer. Seller assumes no liability of any kind relative to such assembled device or product or for component parts damaged in assembly. THE FOREGOING WARRANTY AND REMEDY ARE EXCLUSIVE AND GIVEN IN LIEU OF: (I) ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND (II) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN CONTRACT OR TORT, WHETHER OR NOT ARISING FROM SELLER’S NEGLIGENCE, ACTUAL OR IMPUTED. THE REMEDIES OF BUYER SHALL BE LIMITED TO THOSE PROVIDED HEREIN TO THE EXCLUSION OF ALL OTHER REMEDIES INCLUDING WITHOUT LIMITATION INCIDENTAL, SPECIAL, COLLATERAL, LOSS OF PROFIT, DIRECT OR INDIRECT, CONSEQUENTIAL OR SIMILAR DAMAGES. Buyer assumes all risk and liability associated with the application, integration, and use of Goods in combination with other equipment or site infrastructure. Buyer indemnifies Seller, its successors and assigns from and against all losses, damages and expenses (including attorney’s fees) which Seller may sustain or incur as a result of any claim of negligence, breach of warranty or strict liability in tort in connection with the use of the Goods furnished hereunder, except such as may be wholly caused by the intentional misconduct or gross negligence of Seller.
11. Patents
Seller disclaims implied warranties of non-infringement. When Seller has manufactured any articles in accordance with specifications or drawings furnished by Buyer or when a product is made to Buyer’s design, Buyer agrees to indemnify and hold Seller harmless against all claims of intellectual property infringement arising from the manufacture of the Goods or the usage of materials supplied by Buyer. Buyer at its own expense will defend any suit against Seller for infringement of patents and will satisfy any final award of damages for such infringement, provided Seller gives Buyer notice in writing of any such suit for infringement, opportunity to conduct the defense thereof and assistance and cooperation in said defense.
12. Intellectual Property
Any Intellectual Property owned or licensed by Seller and used by Seller in connection with the performance of its obligations hereunder shall remain the exclusive property of Seller and its licensors, as the case may be. Nothing in any Agreement shall be deemed to grant Buyer any license or any other rights in such Intellectual Property. “Intellectual Property” includes without limitation: (i) inventions, discoveries, patents, patent applications and all related continuations, divisional, reissue, utility model, design patents, applications and registrations thereof, certificates of invention; (ii) works, copyrights, registrations and application for registration thereof; (iii) computer software programs, data and documentation; (iv) trade secrets, confidential information, know-how, techniques, designs, prototypes, enhancements, improvements, work-in-progress, research and development information, manufacturing processes, innovations or methods, tooling or equipment setup, design, layout, modifications or innovations; and (v) all other proprietary rights relating to the foregoing.
13. Changes
Any quotation from Seller shall not be deemed a firm offer as defined in 2-205 of the Uniform Commercial Code and is subject to change or withdrawal without notice, provided that price commitments over one year require written approval from an officer of Seller. Unless otherwise provided explicitly herein, Buyer’s order, after acceptance by Seller, shall not be subject to cancellation, change or reduction in amount, nor to any suspension by Buyer of deliveries without Seller’s prior written consent.
14. Non-Waiver of Default
Each shipment made under any order shall be treated as a separate transaction, but in the event of any default by Buyer, Seller may decline to make further shipments without in any way affecting its rights under such order. If, despite any default by Buyer, Seller elects to continue to make shipments, its actions shall not constitute a waiver of any default by Buyer or in any way affect Seller’s legal remedy for such default.
15. Miscellaneous
These Terms and any Agreement is intended by the parties as a final expression of their agreement and also as a complete and exclusive statement of the terms of their agreement and purchase. No affirmation, representation or warranty made in Seller’s advertising or by any agent, employee or representative of Seller which is not specifically included herein shall be enforceable. The rights and obligations stated herein shall not be assigned or delegated by Buyer without the written consent of Seller. Seller may assign any Agreement to any affiliate or successor without Buyer’s consent. Any provision found invalid or unenforceable will not affect the validity or enforceability of any other provision and the invalid provision may be judicially modified to the extent enforceable.
16. Governing Law; Jurisdiction
These Terms and any Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware without giving effect to the principles of conflicts of law. The U.N. Convention on the International Sales of Goods does not apply. Buyer irrevocably submits to the exclusive jurisdiction of the federal and state courts located in the State of Delaware over any action or proceeding arising out of or relating to any Agreement or the Goods. Buyer agrees that venue for any such action shall lie exclusively with courts sitting in Delaware unless Seller agrees to the contrary in writing. EACH PARTY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY MATTER RELATED TO ANY AGREEMENT AND/OR THESE TERMS. At Seller’s election, all controversies and claims arising out of or relating to any Agreement, or the breach thereof, will be settled solely by arbitration held in Wilmington, Delaware in accordance with the Commercial Arbitration Rules of the American Arbitration Association, provided that Seller may also elect to institute, prior to formation of the arbitration panel, an action for a claim and delivery or replevin action to enforce its security or other interests in the Goods. The arbitration proceedings and the award shall be kept confidential except to the extent required to enforce the award. Notwithstanding any other provision of these Terms or any Agreement, Buyer and Seller shall be entitled to seek preliminary injunctive relief from any court of competent jurisdiction pending the final decision or award of the arbitrator. The arbitrator may include the fees of the arbitration tribunal and arbitrators in an award. Judgment upon any arbitration award may be entered in any court of record having jurisdiction thereon.
17. Time for Bringing Action
Any action for breach of these terms or against Seller herein must be commenced within one year after the cause of action has accrued.
18. Termination
In addition to any other remedies that Seller may have (under the UCC or otherwise), Seller may terminate an Agreement with immediate effect upon written notice to Buyer without any further liability to Buyer if (a) Buyer fails to pay any amount when due under the Agreement and the failure continues for five (5) days after Buyer’s receipt of written notice of nonpayment; (b) Buyer has not otherwise performed or complied with any of the terms of the Agreement, in whole or in part; (c) Buyer becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors; or (d) there is a change of control of Buyer.
19. Export Compliance
Buyer agrees that Goods shall not at any time directly or indirectly be used, exported, sold, transferred, assigned or otherwise disposed of in a manner which will result in non-compliance with applicable export laws and regulations. Buyer agrees to indemnify and hold harmless Seller from any and all costs, liabilities, penalties, sanctions and fines arising from non-compliance with applicable export laws and regulations.
20. Confidentiality
All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer in connection with any Agreement is confidential, solely for the use of performing any Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. This section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer from a third party without breach of any confidentiality agreement.
21. Data and Cybersecurity
Buyer acknowledges that Seller does not collect, process, or store personal data of Buyer’s employees, customers, or end users in connection with the sale of Goods under any Agreement, except as may be incidentally included in purchase orders or shipping documentation. To the extent Buyer transmits any data to Seller, Buyer represents that such data does not include sensitive personal information unless Buyer has provided prior written notice and obtained Seller’s written consent.
