24 HOUR EMERGENCY SERVICE MPI Supply- (“Seller”)
TERMS AND CONDITIONS OF TRANSACTION, TRANSACTIONS INCLUDE SALE, RENTAL, SERVICE EXCHANGE, SELLER FINANCED (RTO)
1) AGREEMENT. THIS AGREEMENT IS EXPRESSLY CONDITIONED ON BUYER’S ACCEPTANCE OF THE TERMS AND CONDITIONS CONTAINED HEREIN. These terms and conditions constitute the final, complete, and entire agreement between Buyer and Seller. No modification or waiver of these terms and conditions will be effective unless in writing and signed by the party to be bound. If these terms and conditions differ in any way from the terms and conditions of Buyer’s order or other writing, this writing will be construed as a counteroffer and not an acceptance of Buyer’s terms. In any event, Buyer’s authorization to ship the products or acceptance of the products will be deemed to be Buyer’s assent to these terms and conditions and an agreement shall be formed.
2) PAYMENT. Invoices are due and payable in full within thirty days from the date of invoice. Interest on accounts overdue more than thirty (30) days will be charged at the annual rate of 18% or the highest rate permitted by law, whichever is lower. If any invoice is not paid when due, all sums owing under this or any other agreement between Buyer and Seller may be declared due and Seller may defer performance under this and any other agreement until such invoice is paid without liability or penalty to Seller. In the event any proceeding is brought by or against Buyer under bankruptcy or insolvency laws, Seller will be entitled to treat such event as repudiation by Buyer and, in addition to other remedies, cancel any order then outstanding. Buyer will be liable for any collection costs or attorney’s fees incurred as a result of Buyer’s failure to comply with this Agreement. All sales are subject to the approval of Seller’s credit department.
3) TAXES AND OTHER CHARGES. All sales, excise, and similar taxes which Seller may be required to pay or collect with respect to the products, and all charges for packing, storage, and transportation to point of delivery covered by this order will be for the account of the Buyer, except as otherwise required by law.
4) RISK OF LOSS/F.O.B./SHIPPING TERMS. Shipment will be F.O.B. Seller’s place of business, freight collect. The method of shipment and carrier will be selected by Seller unless Buyer shall have specified in writing a method of shipment and carrier ten (10) days prior to scheduled shipment. All risks of loss or damage will pass to Buyer upon delivery to carrier.
5) SHORTAGES; DELIVERY DATES. Delivery dates are estimated only and are subject to change upon notice from the Seller. Seller, at its option, may deliver products in advance of the specified delivery schedule. Buyer’s obligation to pay, and the time for payment will begin to run upon tender of delivery of the products, properly invoiced, and otherwise conforming to this order. The purchase price will be allocated based on the quantity of products received and their unit price.
6) DELAY IN DELIVERY/FORCE MAJEURE. Buyer expressly acknowledges that Seller will not be liable for the failure to deliver or for any delay in delivery due to wars, strikes or other disputes with workmen, transportation delays, failures and/or delays on the part of suppliers, shortages of products, government regulations or Executive orders, fire, explosion or Acts of God, or any other cause beyond the commercially reasonable control of Seller. The time for performance on the part of Seller, if such a delay should result, is extended for whatever length of time that the delay may necessitate.
7) CANCELLATION/RESCHEDULING POLICY/RETURN POLICY
a. If Buyer cancels an accepted order before Seller orders any materials or incurs any actual costs required to fill the order, no cancellation charge will apply. The parties agree, however, that Seller may incur costs (including, but not limited to, carrying costs) and expenses for which Seller will be reimbursed in the manner set forth as follows: Seller will be entitled to receive from Buyer as cancellation charges (i) Seller’s total costs incurred in processing the cancelled order from the order stage to the stage that the order is in at the time Seller receives notice from Buyer that the order is cancelled; and (ii) an additional sum which would make the profit on the transaction equal to the average profit margin on the pertinent products during the preceding calendar year.
b. If Buyer requests earlier or later delivery, such request will be accommodated, if possible, at the sole discretion of Seller; however, a rescheduling request by Buyer that extends sixty (60) days past the original scheduled shipment date will accrue a maximum charge equaling two percent (2%) of total order value per month for a maximum of six (6) months. After six months, it will become Seller’s option to either sell the products for other order application or ship to Buyer at full order value plus accruals for extensions.
c. If Buyer chooses to return an unused item within 30 days of purchase, an RMA form will be sent to the Buyer from the Seller and the return will be processed. The Buyer will be responsible for the shipping and costs associated with the return. Once the item is received by the Seller and inspected for use, the customer will be reimbursed the full amount of the purchase, minus a 35% restocking fee and all shipping and handling costs incurred. Any damage or usage of the part by Buyer, will void the RMA and the customer will not be refunded.
8) TITLE. Both legal and equitable title to any products sold by Seller pursuant to this Agreement will remain fully in Seller until Buyer has paid the full purchase price along with all interest charges which are due. Buyer hereby agrees to execute any documents necessary to perfect a security interest in the products when requested by Seller.
9) WARRANTIES, RETURNS, AND REMEDIES
a. Warranty of Quality. Seller warrants that the products delivered hereunder will conform to the technical specifications for the products and will be free from defects in material or workmanship for a period of ninety days from the date of original shipment to the Buyer on new Z Drills and King Cobra Drills and for a period of thirty days from the date of original shipment to the Buyer on repaired Z Drills and King Cobra Drills. This Warranty of Quality will not apply to products which have been subjected to misuse, abuse, neglect or improper storage, handling or maintenance. Buyer’s EXCLUSIVE remedy for breach of this Warranty of Quality is repair or replacement of the products as Seller in its sole discretion shall decide. Buyer’s right to pursue this remedy is expressly conditioned on Buyer’s written notice of the failure to Seller within the warranty period and the prompt return of the products to Seller prepaid. C.I.F. Seller’s place of business. Products that are repaired or replaced will be returned to Buyer F.O.B. Seller’s place of business.
b. Disclaimer of Warranty Against Infringement. Seller makes no warranty that the products sold under this Agreement are delivered free of the rightful claim of any third party by way of infringement or the like.
c. Security Interest. Seller makes no warranty that the products sold under this Agreement are not subject to a security interest, lien, or other encumbrance.
d. All returns require an RMA number. Contact MPI Supply via telephone at (724) 416-3985 or email at INFO@MPISupply.com to obtain an RMA number. Returns will be authorized in accordance with the following policy: If it is deemed that the part should be returned, an MPI Supply representative will send you an RMA form. Completely fill out the RMA form and place the form in the box with the item(s) being returned. Clearly mark the outside of the box with the RMA number. Products will not be accepted by MPI Supply for return if not accompanied by a valid RMA number, which must be clearly marked on the outside of the package.
e. Stock Returns. Stock returns must be made within thirty (30) days of the invoice date. Authorization of stock returns is at the sole discretion of MPI Supply. If a stock part is authorized for return and is a customer error, 35% of the purchase price will be applied as a standard restocking charge. Parts must be new, unused and contain all the original packaging, instruction manuals, and accessories. There is no restocking fee due to errors by MPI Supply if correct order information was furnished with the order.
f. Customer Order Returns. The return of all custom order parts is subject to acceptance by MPI Supply. If a custom order part is authorized for return and is a customer error, 50% of the purchase price will be applied as a standard restocking charge.
g. Transportation Charges. The customer is responsible for all transportation, insurance, duties and other similar charges for all returned Product, and the customer must ensure that the product is appropriately packaged. Products shipped to MPI Supply freight collect will be refused. Shipping damage resulting from improper packaging will be the customer’s responsibility. After repair, MPI Supply will return the product ground freight prepaid for in-warranty items. For any other shipment method, the customer must pay the difference in freight. Non-Warranty items will be invoiced for any parts, labor, and shipping charges. Products will not be accepted by MPI Supply for return if not accompanied by a valid RMA number, which must be clearly marked on the outside of the package.
h. By choosing to request an RMA number from MPI Supply, it is implied that the customer has agreed to the terms of the MPI Supply RMA Policy.
i. Disclaimer. Except for the warranty of title, the Warranty of Quality contained herein is the exclusive warranty given to Buyer. SELLER EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTIES ARISING BY LAW, TRADE USAGE, COURSE OF PERFORMANCE OF COURSE OF DEALING.
j. Resale. Seller’s warranties are extended to Buyer only and Seller makes no warranties whatsoever to Buyer’s customer or any other third party. If Buyer resells or otherwise transfers the products subsequent to Buyer’s receipt of the products, Buyer will have no authority to make any warranty or representation to Buyer’s customer or any other party on behalf of Seller.
10) LIMITATION OF LIABILITY
a. Disclaimer of Consequential and Incidental Damages. In no event will Seller be liable to Buyer or any third party for special, indirect, incidental or consequential damages, arising under warranty, contract, tort (including negligence), strict liability or any other theory of liability whether by virtue of breach of warranty or any other section of this Agreement. Such damages include but are not limited to personal injury, death, or property damage suffered as a result of failure of this product to warn, or to adequately warn, against the dangers of this product, or failure of this product or Seller to instruct, or adequately instruct, about the safe and proper operation of this product. The total liability of Seller for any claim arising under this Agreement shall be limited to the purchase price of the products.
b. Repairs: Buyer may use any equipment repair facility they choose to repair equipment purchased from MPI Supply. Buyer will not hold MPI Supply responsible/liable for any damage, warranty, insurance, or medical claims on any repairs not completed by MPI Supply or MPI Supply Authorized Distribution Facilities.
11) HAZARDOUS PRODUCTS. Buyer is hereby advised and put on notice that the products which it has purchased or may purchase from Seller are very often utilized in situations which can be extremely hazardous to persons and property. For this reason, Seller instructs Buyer to utilize appropriate safety procedures and to exercise the highest degree of care when the products are in use. Buyer is additionally advised and put on notice that a direct relationship has been found between the degree of use the product is exposed to and the duration of the safe, functional life of that same product. Furthermore, some products are inevitably weakened as a consequence of their use. Seller will provide Buyer with operations manuals which set forth the minimum safety requirements and the products will have been marked with appropriate warnings. The buyer warrants that it will instruct users in the proper operation and safety precautions accordingly and will maintain the marked warnings during the life of the product. Buyer hereby agrees to indemnify Seller against any and all claims for damage or injury caused by Buyer’s breach of the above warranty.
12) INSPECTION/REJECTION: Buyer agrees to check products carefully against shipping papers upon unloading at destination. Claims, including shortage claims, must be made within fifteen (15) days of their receipt and Seller must be given a reasonable opportunity to investigate. No product will be returned to Seller without its written consent. Seller will instruct Buyer as to disposition of rejected products.
13) NO ASSIGNMENT. No rights arising under this Agreement may be assigned by Buyer unless expressly agreed to in writing by Seller. An assignment by Buyer would change the duty imposed by this Agreement, would increase the burden of risk involved, and would substitute an unknown credit risk; any assignment contrary to this provision will be a breach of this Agreement and will be void and of no force or effect.
14) EXPORT RESTRICTIONS. This Agreement is made subject to any laws, regulations, orders, or other restrictions on the export from the United States of commodities as may be imposed from time to time by the United States government. Buyer agrees that it will take all actions necessary to insure compliance with such U.S. laws, regulations, orders or other restrictions on exports and further will not sell, license or re-export the products to any person or entity for use in any country or territory if, to the knowledge of Buyer based upon reasonable inquiry, such sale, license or use would cause Buyer or Seller to be in violation of such laws, regulations, orders or other restrictions now or hereafter in effect.
15) REMEDIES UPON DEFAULT BY BUYER. If Buyer defaults on any payment in whole or in part or if Buyer in any way fails to comply with the terms of the Agreement, then Buyer expressly acknowledges that Seller or Seller’s legal representative may take whatever steps that Seller deems necessary, including, but not limited to entering the premises of Buyer, repossessing any products, dismantling any products, or removing any products. Buyer agrees that Seller will be immune from liability for any actions which Seller takes in good faith pursuant to this Section 15.
16) SEVERABILITY. A holding that any term or condition hereof is void or unenforceable will not render void or unenforceable any other term or condition.
17) CHOICE OF LAW/JURISDICTION/APPLICABLE LAW. All questions, disputes or actions arising in connection with this Agreement will be construed, resolved, and governed under the Commercial Code of the Commonwealth of Pennsylvania, without regard to its conflict of laws principles and excluding the United Nations Convention for the International Sale of Products. All disputes arising hereunder will be resolved in a court of competent jurisdiction in Washington County, Pennsylvania. Buyer hereby irrevocably consents to the jurisdiction of the State and Federal Courts sitting in Washington County, appoints the Secretary of State of Pennsylvania in Harrisburg as its agent for service of process and agrees to appear in any action upon written notice thereof sent by registered mail to Buyer’s place of business as set forth on the face hereof.