BY PURCHASING GOODS FROM MWS PURSUANT TO A SALES ORDER THAT INCORPORATES THESE STANDARD TERMS BY REFERENCE, CUSTOMER AGREES TO AND INTENDS TO BE BOUND BY THESE STANDARD TERMS.
THE STANDARD TERMS ARE SUBJECT TO CHANGE FROM TIME TO TIME. THE PARTIES AGREE THAT THE VERSION POSTED TO THE MWS WEBSITE AT THE TIME THAT A SALES ORDER (OR OTHER AGREEMENT OF PURCHASE AND SALE) IS ENTERED INTO WILL GOVERN THAT SALES ORDER (OR AGREEMENT OF PURCHASE AND SALE). A COPY OF MWS’S CURRENT STANDARD TERMS MAY BE OBTAINED ON REQUEST OR BY VISITING THE FOLLOWING WEBSITE: www.mwands.com (THE “WEBSITE”).
MWS may issue written proposals or quotations (each a “Proposal”) to the Customer. All Proposals are subject to these Standard Terms except to the extent otherwise expressly stated in the Proposal.
1.2 Expire or Revocation
Each Proposal will expire on the date specified therein, or where no such expiration date is specified, on the date that is 15 days after the date of the Proposal. Unless otherwise indicated by MWS in a Proposal, every Proposal is revocable by MWS at any time on notice to the Customer.
The Customer may accept a Proposal at any time before it expires or is revoked by MWS, after which time the Proposal ceases to be of any force or effect. A Proposal may be accepted only by issuing a written Sales Order (as defined below) in accordance with these Standard Terms that expressly references the Proposal.
2. Agreement of Purchase and Sale
2.1 Purchase Orders
(a) Where the Customer wishes to purchase Goods, Customer may do so through a commitment to buy by purchase order (a “Customer PO”).
(b) Any such Customer PO shall be consistent with the unexpired Proposal provided by MWS, if applicable, and with these Standard Terms. To the extent that a Customer PO includes any terms or conditions that are additional to, or inconsistent with, the Proposal (if applicable) and these Standard Terms, such additional or inconsistent terms shall be disregarded and not form part of the binding agreement of purchase and sale except to the extent expressly agreed by MWS in a Sales Order.
(c) Purchase orders will only be accepted from companies with an extensive buying history from MWS, placing a deposit with MWS and a thorough credit background investigation.
2.2 Sales Order
Subject only to Section 1, MWS shall have no obligation to provide Goods until a sales order (a “Sales Order”) has been issued by MWS and accepted by the Customer in accordance with this Section and payment for the Goods has been made. Online Sales Orders are authenticated via online payment for the Goods. A Sales Order (including these Standard Terms and, if applicable, a Proposal and/or Customer PO that are/is incorporated by reference) that has been accepted by MWS shall be a binding agreement of purchase and sale between MWS and the Customer.
2.3 Incorporated Documents
(a) These Standard Terms are automatically incorporated into and form part of every Sales Order. Any reference to a Sales Order in these Standard Terms refers to the Sales Order including these Standard Terms. Any modifications to these Standard Terms must be expressly stated in the applicable Sales Order as issued by MWS and accepted by the Customer. Any additional or different terms proposed by the Customer, whether in a Customer PO or otherwise, that are not expressly accepted by MWS in accordance with the previous sentence are rejected by MWS and will not become part of the Sales Order.
(b) Where a Sales Order expressly references a Proposal, Customer PO or both, such Proposal, Customer PO (subject to Section 2.1(b)) or both shall be deemed to be incorporated by reference and form part of the Sales Order. Any reference to such a Sales Order in these Standard Terms refers to the Sales Order including the Proposal, Customer PO or both as incorporated therein.
(c) In the event of any discrepancy between a Sales Order, these Standard Terms, and a Proposal or Customer PO that has been incorporated into a Sales Order, such discrepancy shall be resolved with reference to the highest ranking document in the following list, which is ranked from highest to lowest precedence: Sales Order, Standard Terms, Proposal and Customer PO (after having disregarded any additional or inconsistent terms pursuant to Section 2.1(b)).
If a Customer takes delivery of any Goods, it will be deemed to have accepted the Goods unless timely rejection is provided by written notice to MWS within five (5) days of delivery as set forth below.
2.5 Non-Standard Goods
Where the Customer requires Goods that do not conform to MWS’s standard specifications and which must be modified as a result, the Customer will be responsible for all costs and expenses associated with the design and implementation of such modifications, unless otherwise indicated in a Sales Order. The scope and cost of such modifications shall be identified in the applicable Sales Order. Where the need for such modifications is identified after a Sales Order has been submitted, MWS shall suspend production of the Goods while MWS and the Customer agree on an amendment or supplement to the Sales Order to incorporate the costs of and expenses of such modifications.
2.6 Changes and Waivers
Subject to Section 10, any changes to a Sales Order are subject to agreement by both MWS and the Customer. No waiver, alteration or modification of a Sales Order shall be binding upon MWS unless made in writing and signed by a duly authorized representative of MWS.
If applicable, any pricing provided in a Proposal is valid only until the Proposal expires or is revoked in accordance with Section 1.2. Pricing that is included in a Sales Order (including by accepting a Proposal in accordance with Section 1.3) applies only to that Sales Order unless otherwise agreed by MWS.
All prices are given in United States dollars unless otherwise stated in a Sales Order (including in any Proposal incorporated therein).
(a) Unless otherwise stated in a Sales Order, MWS’s prices include only the cost of the Goods and, without limiting the generality of the foregoing, specifically exclude: (i) applicable federal, state, provincial or other taxes imposed on the sale or use of Goods (collectively, (“Taxes”); (ii) the cost of any testing or inspection other than the standard testing as provided under Section 6.1; (iii) all costs of delivering Goods, including freight, insurance and other shipping expenses (collectively, “Delivery Charges”); (iv) duties, import/export levies, Taxes, and any other fees charged in connection with the importation of Goods (collectively, “Importation Charges”); and (v) any storage of Goods for more than 14 days after an order or consignment is ready to be shipped.
(b) Notwithstanding the foregoing, where a Sales Order stipulates “delivered pricing”, MWS’s prices for that Sales Order include Delivery Charges and Importation Charges.
Where MWS is required to charge and collect Taxes, MWS shall bill such taxes in accordance with applicable law, and Customer shall pay such Taxes to MWS, unless and to the extent that the Customer demonstrates to the satisfaction of MWS that the Customer is exempt from such Taxes.
MWS shall invoice the Customer for all Goods provided under a Sales Order. MWS is entitled to invoice the Customer separately for each consignment of Goods supplied under a Sales Order.
Except to the extent otherwise prescribed in a Sales Order (including in a Proposal incorporated by reference in such Sales Order) or for those Goods paid for in advance of shipment, every invoice from MWS will be due and payable upon receipt. The Customer shall pay all amounts when due in full without any deduction or withholding except as required by applicable law and shall not be entitled to assert any credit, setoff, deduction, or counterclaim against MWS in order to justify withholding payment of any such amount in whole or in part.
4.3 Application and Set Off
MWS may apply any payment it receives from the Customer against any obligation owing to it by the Customer. MWS may set off any amounts owed to it from the Customer against amounts owed by it to the Customer.
Client will pay interest at a rate equal to the lesser of: (a) 1.5% percent per month (18.0% per year); and (b) the maximum amount permitted by applicable law, on all overdue amounts, calculated from the date payment was due until the date that payment for all outstanding amounts (including accrued interest) is paid in full.
The Customer shall pay all of MWS’s costs and expenses (including reasonable collection agency and legal, attorney and litigation fees and expenses) to enforce and preserve MWS’s right to collect all amounts payable by the Customer to MWS and to exercise MWS’s rights and remedies as a secured creditor in respect of the Security Interest in the Goods as applicable.
4.6 Suspension or Termination
If (a) the Customer does not pay any invoiced amounts due under a Sales Order, (b) MWS believes that the Customer’s ability to meet its payment obligations may become impaired or threatened (including without limitation as a result of an Insolvency Event), or (c) the Customer is in breach of its obligations under Section 5, then MWS may, in its sole discretion and with notice to the Customer: (i) suspend MWS’s performance under any or all outstanding Sales Orders (and other agreements of purchase and sale) or remaining balance thereof until the Customer has paid all outstanding amounts, including all accrued interest, in full; or (ii) terminate the applicable Sales Order or remaining balance thereof and/or any other pending Sales Orders or agreements of purchase and sale between MWS and the Customer. MWS will have no liability for any loss or damage of any kind suffered by the Customer as a result of any such suspension or termination. For the purposes of this Section, an “Insolvency Event” means the Customer (A) becomes insolvent or generally does not pay its debts as they become due, or applies for, consents to, or acquiesces in the appointment of a custodian, liquidator, trustee, trustee in bankruptcy, receiver, monitor, interim receiver or receiver manager of the Customer or for real or personal property used by the Customer in its business or a custodian, liquidator, trustee, trustee in bankruptcy, receiver, monitor, interim receiver or receiver manager is appointed for and is not discharged within 60 days; (B) any bankruptcy, reorganization, debt arrangement, or other proceeding under the Bankruptcy and Insolvency Act or any other bankruptcy or insolvency law is instituted by or against the Customer or has been consented to or acquiesced in by the Customer, or remains undismissed for 60 days; or (C) any dissolution, wind up or liquidation proceeding is instituted by or against the Customer and remains undismissed for 60 days.
4.7 Cumulative Rights
MWS’s rights in respect of late payments under this Section 4 are in addition to any other rights or remedies it may have for late payment and will survive the termination of the applicable Sales Order.
5. Security for Payment
Unless otherwise indicated in a Sales Order, any required deposits are non-refundable.
5.2 Security Interest
(a) The Customer hereby grants to MWS a security interest (the “Security Interest”) in: (i) all Goods that have been or will be delivered under the Sales Order or that have been or will be delivered under any other Sales Order or agreement of purchase and sale fulfilled by MWS from time to time; and (ii) any proceeds of sale of the foregoing to a third party and, to the extent permitted by applicable law, any accounts receivable in respect of such sale (collectively, the “Collateral”) as security for all of the Customer’s payment obligations to MWS in respect of that Sales Order and in respect of any other outstanding Sales Orders (and agreements of purchase and sale) that are or may be outstanding from time to time and for payment by the Customer of MWS’s costs and expenses in collecting same and in enforcing the Security Interest (collectively, the “Obligations”).
(b) The Customer: (i) consents to MWS filing financing statements or other documentation pursuant to applicable law to secure, evidence or perfect the Security Interest; (ii) shall do all things and execute and deliver any and all documents and instruments necessary (including without limitation a confirmation of the security granted hereunder (a “Security Confirmation”)), in MWS’s sole discretion, for the creation, preservation, enforcement and protection of the Security Interest; (iii) hereby appoints MWS as its attorney to execute any documents or instruments necessary to create, perfect and enforce its security interest or otherwise exercise its rights under each Sales Order and these Standard Terms, and this power, being coupled with an interest, is irrevocable; (iv) shall maintain accurate records of the Collateral and, upon request by MWS, furnish copies of such records to MWS; (v) shall not damage, destroy or dispose of the Collateral excepted as permitted under these Standard Terms; (vi) shall keep the Collateral from any encumbrance except as set out in this Section 5.1; (vii) shall defend the Collateral against all claims and demands, except in respect of the security interest granted pursuant to this Section 5.1.
(c) If Goods are assembled with or integrated into products over which MWS has no security interest, MWS’s security interest will continue in the resulting products.
(d) Where Goods that form part of the Collateral are held by the Customer as inventory for resale (either in original form or after having been assembled with or integrated into a product produced by the Customer) in the ordinary course of the Customer’s business, the Customer may sell such Goods (or resulting products) to its customers on terms that are commercially reasonable for parties acting at arm’s length, provided that: (i) the Goods will remain subject to the Security Interest until such time as the Customer’s customer pays in full for such Goods (or resulting products); and (ii) all proceeds of the sale of such Goods (or resulting products) shall form part of the Collateral.
(e) Where Goods that form part of the Collateral are equipment to be used by the Customer (whether in original form or after having been assembled with or integrated into another product or affixed to real property), the Customer shall not sell or transfer its interest in such Goods without first paying MWS all amounts secured by the Security interest or otherwise with the prior written permission of MWS.
(f) In the event that the Customer fails to pay any Obligations when due, MWS shall have all rights and remedies of a secured creditor under the applicable provincial or territorial personal property security statute or Uniform Commercial Code, including, without limitation, the right to enter upon the premises of the Customer to repossess and remove the Goods forming part of the Collateral without notice, wherever they are situated and by whatever means MWS may deem appropriate. Where the Collateral includes accounts receivable, MWS may notify any account debtor to make payment directly to MWS and MWS may take control of any proceeds to which it is entitled.
(g) To the extent that the Collateral includes partially fabricated products into which Goods have been assembled or integrated, the Customer hereby grants to MWS the right to complete the fabrication of such products in connection with the enforcement of the Security Interest and grants to MWS a fully paid-up royalty-free license to use any intellectual property that is necessary to complete such fabrication and to exercise MWS’s rights and remedies hereunder. To the extent that the Collateral is labelled with or otherwise contains any trade-marks of the Customer or its affiliates, the Customer hereby grants a fully paid-up, royalty-free license to use such trade-marks for the purposes of exercising MWS’s rights and remedies hereunder. The Customer represents and warrants that it has sufficient rights in the foregoing intellectual property and trade-marks to grant the licenses given hereunder.
(h) The Customer shall inform MWS without delay of any seizure, notice, proceeding, action, claim or other occurrence that may adversely affect MWS’s priority or ability to enforce its rights in respect of the Security Interest.
5.3 Required Payment Security
Where a Sales Order requires that the Customer must provide a deposit, advance payment, letter of credit, payment bond or other form of security for the payment of the Obligations (collectively, “Payment Security”), MWS’s obligations under such Sales Order shall be conditional on the Customer first delivering the required Payment Security.
5.4 Remedial Payment Security
If, in its sole discretion, MWS believes that the Customer’s ability to pay the Obligations may become impaired or threatened, or if the Customer has failed to comply with payment terms, MWS may, in its sole discretion, require new or additional Payment Security and may suspend MWS’s performance under any outstanding Sales Orders (and other agreements of purchase and sale) until new or additional Payment Security is delivered by the Customer. MWS will have no liability for any loss or damage of any kind suffered by the Customer as a result of any such suspension.
6. Pre-delivery Inspections / Test
6.1 Standard Testing
All Goods supplied pursuant to a Sales Order will be subjected to MWS’s standard inspection and test procedures prior to shipment, together with any additional tests or inspections identified in the Sales Order. Unless otherwise demonstrated by the Customer, the condition of Goods at the time of delivery will be presumed to be the same as the condition of such Goods at the time of such testing or inspection.
6.2 Additional Testing
Should the Customer require any additional testing or inspection (whether before or after delivery), or to be present at MWS’s standard testing, the scope of such additional testing or inspection or attendance must be agreed to in writing by MWS and the Customer. Unless otherwise agreed, the Customer will be responsible for: (a) any additional costs or expenses associated with such testing, inspection or attendance; and (b) any damage to Goods caused by such testing, inspection or attendance.
7.1 Point of Delivery
MWS shall deliver Goods to the point of delivery specified in the Sales Order, provided that where no point of delivery is specified in a Sales Order, MWS will make the Goods available for pick-up at MWS’s manufacturing facility.
7.2 Shipping and Handling
Unless otherwise stated in a Sales Order: (a) MWS shall be responsible, at the cost of the Customer, for arranging shipping and obtaining appropriate insurance for the period during which the Goods are being transported to the point of delivery; (b) MWS shall be entitled to deliver Goods in one or more consignments; and (c) the Customer shall be responsible for, and assumes all risk in connection with, unloading the Goods and receiving the Goods at the point of delivery.
Unless otherwise stated in a Sales Order, where the point of delivery is located outside of the United States, Customer agrees to act as importer of record for any Goods that are exported from the United States to Customer at Customer’s cost. The Customer shall provide MWS with any information or documentation as may be required by MWS or by a carrier in connection with Customer’s importation of Goods.
7.4 Delivery Dates
All delivery dates are estimates unless otherwise specifically agreed by MWS and the Customer in a written Sales Order signed by MWS. All delivery dates are subject to the timely receipt by MWS from the Customer of: (a) instructions to ship, where the Sales Order provides that MWS will hold Goods until instructed by the Customer; (b) any financial or technical information requested by MWS; and (c) payment. MWS shall have no liability in respect of any delay or failure to deliver all or any part of any Sales Order as a result of any cause beyond MWS’s control.
7.5 Time of Delivery
Delivery shall be deemed to have occurred: (a) in the case of Goods to be delivered by MWS, when MWS or its shipping carrier shall have delivered the Goods to the point of delivery defined in the Sales Order; (b) in the case of Goods to be picked up by the Customer or its shipping carrier, when the Customer or its carrier takes possession of the Goods; or (c) at such earlier time as delivery may be deemed to occur pursuant to Section 7.6, as applicable.
Unless otherwise stated in a Sales Order, MWS shall be entitled to deliver Goods once an order or part thereof is ready for shipping. Where a Sales Order requires that MWS hold Goods until instructed by the Customer, and MWS has notified the Customer that an order or part thereof is ready to ship, the Customer must instruct MWS to ship the Goods within 14 days of the receipt of such notice. Similarly, where a Sales Order does not specify a point of delivery, and MWS has notified the Customer that an order or part thereof is ready for pick-up, the Customer must pick up the Goods within 14 days of the receipt of such notice.
7.7 Customer Delays
Where the Customer does not instruct MWS to ship or does not pick up goods, as applicable, within the period required under Section 7.6, MWS may charge and the Customer shall pay an amount equal to 15% of the total purchase price for the Sales Order, plus any additional out-of-pocket expenses incurred by MWS as a result of deferring delivery and any storage fees applicable under Section 7.8. MWS may also, at its sole option, on notice to the Customer: (a) cancel the Sales Order or part thereof and use or resell the Goods as it sees fit; (b) ship the order or consignment to the point of delivery; (c) make the Goods available for pick-up by the Customer; (d) where the Customer refuses delivery or fails to pick up the Goods within five days, dispose of the Goods as MWS sees fit; (e) any combination of the foregoing. Where MWS ships the Goods, makes them available for pick-up or otherwise disposes of them in accordance with (b), (c) and/or (d), the Goods will be deemed to have been delivered to the Customer for all purposes under these Standard Terms.
Unless otherwise stated in a Sales Order, any storage of Goods by MWS for more than 14 days after an order or consignment is ready to ship shall be invoiced by MWS at its then applicable storage rates and shall be due and payable by the Customer upon receipt of the invoice.
8. Inspection and Acceptance
The Customer shall, at its own expense, inspect Goods immediately on receipt thereof. If the Customer reasonably believes that the Goods were damaged or defective at the time of delivery (as determined under Section 7.5), then the Customer will give MWS written notice of the damage or defect within five (5) days of the time of delivery. If the Customer fails to give such notice within the required period, the Goods shall be conclusively presumed to be in all respects in accordance with the Sales Order and free from any defect which would be apparent on reasonable examination of the Goods and the Customer shall be deemed to have irrevocably accepted the Goods accordingly. Where the Customer provides such notice, any Goods that are damaged or defective will be promptly repaired or replaced by MWS at its expense.
Notwithstanding the foregoing, any use of the Goods by the Customer for any purpose after the time of delivery, including without limitation the resale of Goods to a third party, the incorporation of Goods into any product or facility, or any other use of the Goods, shall constitute an irrevocable acceptance of the Goods by the Customer.
9. Title and Risk of Loss
Title to Goods shall transfer from MWS to the Customer free and clear of encumbrances except to the security interest granted under Section 5.1 when the Goods are delivered (or deemed to have been delivered) to the Customer pursuant to Section 7.5 and are fully paid.
9.2 Risk of Loss
Risk of loss of or damage to Goods shall pass to the Customer when the Goods are delivered (or deemed to have been delivered) to the Customer pursuant to Section 7.5. MWS shall not be liable for any loss of any kind to the Customer arising from any damage to the Goods occurring after the risk has passed to the Customer however caused, nor shall any liability or obligation of the Customer to MWS be diminished or extinguished by reason of such loss.
10. Cancellation and Returns
If the Customer wishes to cancel a pending Sales Order or outstanding balance thereof, it may do so by providing at least 15 days’ prior notice in writing to MWS, provided that:
(a) it may not cancel any portion of a Sales Order that relates to Goods that have already been placed in shipment and/or delivered (or deemed to have been delivered) in accordance with these Standard Terms, and shall remain liable for paying for such shipped and/or delivered Goods;
(b) any deposit paid in respect of a Sales Order shall be forfeited to MWS; and
(c) in addition to the amount of any forfeited deposit, MWS may charge and the Customer shall pay to MWS an amount equal to 15% of the purchase price of the cancelled portion of the Sales Order as liquidated damages.
(a) Subject to the Applicable Warranties, no Goods that have been delivered (or deemed to have been delivered) may be returned to MWS without MWS’s prior written permission, which may be granted, conditioned or withheld in MWS’s sole discretion.
(b) Where MWS permits the Customer to return Goods, the Customer agrees to comply with MWS’s return material authorization (“RMA”) process as may be prescribed by MWS from time to time. Without limiting the foregoing, the Customer will return Goods to MWS at the Customer’s expense and in accordance with a written RMA authorization from MWS. The Customer will bear all risk of loss for returned Goods until they are received and accepted by MWS. The return of any portion of the Goods will not be accepted by MWS unless prior written authorization has been given by MWS and the Customer has complied with the packaging and shipping instructions provided by MWS.
(c) MWS may charge and the Customer shall pay to MWS a restocking fee equal to 20% of the purchase price of the Goods that are returned.
(d) Where the Customer returns Goods as permitted hereunder, MWS shall grant a credit note to the Customer in an amount equal to: (x) the amount paid by the Customer for Goods that are returned undamaged, in their original packaging, and otherwise in marketable condition, minus (y) the applicable restocking fee. Credit notes will not be issued for any returns by subsequent owners of the Goods (including by any customers of the Customer). Credit notes granted under this Section 10.2(d) have no cash value and expire one year after they are issued.
(e) Should MWS determine that the returned Goods condition is below the value of the refunded purchase price, the Customer shall pay the difference in the value. MWS shall have 10 days from receipt of the returned materials to make a valuation determination. The Customer will be notified of such determination and will have 5 days from notification to remit payment of the sum due. Failure to do so may, at the election of MWS, result in a reporting of non-payment to credit bureaus, the initiation of collections against Consumer, and other remedies that MWS may lawfully pursue. All such costs of collection, including, but not limited to, attorneys fees, expert fees, witness fees, litigation and court costs shall be paid by Consumer whether or not a civil action is filed.
11. Intellectual Property
MWS retains for itself all of its intellectual property rights in all Goods and in any supporting documentation supplied hereunder, including but not limited to all trademarks, service marks, designs, engineering details, manufacturing processes, testing, installation and maintenance procedures, and other data or information pertaining to any Goods.
11.2 No Transfer
No title to or ownership of any of MWS’s intellectual property rights is transferred to the Customer under any Sales Order or as a result of any deliveries made pursuant to a Purchase.
12. Limited Warranties and Exclusive Remedy
12.1 Standard Warranties
THE MWS STANDARD LIMITED WARRANTIES ARE SUBJECT TO CHANGE FROM TIME TO TIME. THE PARTIES AGREE THAT, SUBJECT TO SECTION 12.2, THE VERSION OF THE MWS STANDARD LIMITED WARRANTIES, SECTION 12.4, THAT IS POSTED TO THE WEBSITE AT THE TIME THAT A SALES ORDER (OR OTHER AGREEMENT OF PURCHASE AND SALE) IS ENTERED INTO WILL GOVERN THAT SALES ORDER (OR AGREEMENT OF PURCHASE AND SALE).
12.2 Special Warranties
Where MWS and the Customer agree in writing to warranties that are different from the MWS Standard Limited Warranties (“Special Warranties”), those Special Warranties shall supersede and replace (and not be additional to) the MWS Standard Limited Warranties with respect to each Sales Order that expressly references the Special Warranties. For the purposes of these Standard Terms, “Applicable Warranties” will mean the MWS Standard Limited Warranties or Special Warranties, as may be applicable to a given Sales Order.
12.4 Limited Warranty
MWS warrants its products free from defects in material and workmanship for a period of ninety (90) days from date of shipment. This warranty is expressly in lieu of all other obligations or liabilities on the part of MWS. THE FOREGOING WARRANTY IS SPECIFICALLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUATORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. MMW NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME ANY OTHER LIABILITIES IN CONNECTION WITH THE SALE OR USE OF ANY GOOD OR PRODUCT. THE FOREGOING WARRANTIES AND REMEDIES ARE FOR BUYER’S EXCLUSIVE BENEFIT AND ARE NOT TRANSFERABLE.
12.5 Exclusive Remedy
Buyer’s sole remedy for breach of the limited warranty set forth in 12.4 shall be repair or replacement, at MWS’s option, of the defective product. Buyer shall notify MWS of any warranty claim during the warranty period and obtain MWS’s authorization (RMA) prior to the return shipment of products for warranty adjustment. Products returned shall be sent with shipping charges prepaid. When any product is returned for examination and inspection, Buyer must assume responsibility for damage resulting from improper packaging and damage or loss in transit. Buyer shall provide explicit information as to the nature of the claimed defects, operating conditions to which the product had been exposed and any other pertinent information which will enable MWS to determine the cause of claimed warranty defects. In all cases, MWS has sole responsibility for determining the validity of any warranty claim and sole discretion in determining the nature and extent of remedy, if any, to which the Buyer will be entitled. In the event that product has been returned without cause and is still serviceable, or that the product was misused, stolen, vandalized, mishandled due to fire, water or other peril, or otherwise damaged subsequent to shipment by MWS, Buyer will be notified and the product returned at Buyer’s expense. In addition, a charge for testing and examination may be made on certain products so returned.
13. Liability and Customer Indemnity
IN NO EVENT WILL MWS’ LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR SALE EXCEED THE PURCHASE PRICE RECEIVED BY MWS FOR THE GOODS AND PRODUCT(S) WHICH ARE THE SUBJECT OF ANY CLAIMS OR DISPUTE. IN NO EVENT WILL MWS BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY BUYER. IN NO EVENT WILL MWS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT) WHETHER OR NOT MWS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST BUYER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. The liability to third parties for bodily injury, including death, resulting from MWS’ performance shall be determined in accordance with applicable law and the total liability limitation stated above shall not be construed as a limitation on MWS for damages for any such bodily injury, including death, nor shall such liability limitation be construed as a limitation on MWS for damages caused by MWS’ fraud or willful injury to the person or property of another.
MWS will have no liability for any claim to the extent that:
(a) Goods are not used by the Customer in accordance with the Sales Order or any product documentations provided by MWS;
(b) Goods are used in combination with other equipment, products, software or data not supplied by MWS and not contemplated by the Sales Order or any product documentation;
(c) Goods are modified, other than in accordance with product documentation, by any Person or entity other than MWS or its agents authorized to make such modifications;
(d) the claim relates to or arises out of information or works, including without limitation written instructions, specifications or designs, provided by the Customer for incorporation into or in respect of the Goods; or
(e) the claim is caused by an act or omission of the Customer or the Customer’s officers, directors, contractors, employees and/or agents.
13.4 By the Customer
The Customer shall indemnify and hold MWS harmless from and against any and all Losses suffered or incurred by MWS arising out of or in connect with: (a) a breach of MWS’s confidentiality or intellectual property rights related to the Goods; (b) a breach by the Customer of any terms or conditions of the Sales Order or Applicable Warranties; (c) the use of the Goods in or with any unlawful use or purpose whatsoever; or (d) personal injury, including death, or property damage sustained by MWS, its employees or agents, or a third party, as a result of an error or omission of the Customer, its agents or employees in taking delivery of an order.
14. Change of Law and Force Majeure
14.1 Change in Law
For the purposes of these Standard Terms, a “Change of Law” means the coming into force of any new Law, or amendment to or change in interpretation of any Law, after the date of a Proposal (if applicable) or a Sales Order, that has a material adverse effect on the ability of MWS to perform its obligations under a Sales Order or that materially increases the cost to MWS of performing its obligations, and includes without limitation the imposition of any new or increased duties on Goods to be imported pursuant to a Sales Order where MWS is responsible for paying such duties. Upon the occurrence of a Change of Law, MWS may, at its option and upon delivering notice of the Change of Law to the Customer: (a) terminate the applicable Sales Order or pending portion thereof; or (b) attempt to negotiate equitable amendments to such Sales Order to address the Change of Law failing which it may terminate the applicable Sales Order or pending portion thereof. If MWS terminates all or part of a Sales Order as a result of a Change of Law, MWS and the Customer shall be released of all obligations and liability with respect to the terminated Sales Order or part thereof except with respect to Goods that had been delivered (or deemed to have been delivered) prior to the effective date of the Change of Law. MWS will have no liability for any loss or damage of any kind suffered by the Customer as a result of any such termination.
14.2 Force Majeure
MWS shall not be responsible or liable for any delay or failure to perform its obligations arising from causes beyond MWS’s reasonable control, including, without limitation, acts of God, war, invasion, insurrection, riot, the order of any civil or military authority, fire, flood, weather, acts of the elements, delays in transportation, unavailability of equipment, materials, labor or fuel, breakdown, sabotage, lock-outs, strikes or labor disputes, the failure of suppliers to meet their delivery promises, any Change of Law, or any technological or physical event or condition which is not reasonably known or understood at the time of the sale of the Goods.
15. Limitations of Liability
15.1 Exclusion of Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR THE INDEMNITY PROVISIONS IN SECTION 13, MWS HEREBY DISCLAIMS, AND SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR, DAMAGE OR INJURY TO PERSONS OR PROPERTY OR FOR OTHER LOSS OR INJURY RESULTING FROM ANY CAUSE WHATSOEVER ARISING OUT OF OR RELATED TO ANY OF ITS PRODUCTS OR THEIR USE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL MWS BE LIABLE TO CUSTOMER, OR TO ANY THIRD PARTY CLAIMING THROUGH OR UNDER THE CUSTOMER, OR TO ANY ASSIGNEE OF THE CUSTOMER FOR ANY LOSS OF USE, LOSS OF PRODUCTION, LOSS OF REVENUES, LOSS OF PROFITS OR LOSS OF OPPORTUNITY, OR FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND, HOWSOEVER ARISING, RELATED TO THE PRODUCTS, EVEN IF MWS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MWS’ AGGREGATE LIABILITY, IF ANY, IN DAMAGES OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE PAID TO MWS BY THE CUSTOMER FOR THE GOODS FURNISHED THAT GAVE RISE TO A CLAIM.
CUSTOMER ACKNOWLEDGES THAT THE FOREGOING EXCLUSIONS AND LIMITATIONS ON LIABILITY ARE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE PURCHASE PRICE OF THE PRODUCTS WOULD BE SUBSTANTIALLY DIFFERENT. FOR CERTAINTY, THE CUSTOMER ACKNOWLEDGES THAT THE FOREGOING EXCLUSIONS AND LIMITATIONS ON LIABILITY APPLY TO WARRANTY AND INDEMNITY CLAIMS.
16.1 Entire Agreement
An accepted Sales Order (including any Proposal incorporated therein, these Standard Terms, the Applicable Warranties, including as applicable the applicable version of the MWS Standard Limited Warranties available at the Website, and, as applicable, any Security Confirmation) constitutes the entire agreement between MWS and the Customer with respect to the subject matter of the Sales Order and supersedes all prior Proposals (except to the extent expressly incorporated in the Sales Order), quotations, representations, arrangements, negotiations, understandings and agreements between the parties, both written and oral, relating to the subject matter thereof. Without limiting the foregoing, all descriptions and illustrations contained in MWS’s brochures, price lists, website, and advertisements, and all specifications, drawings and any other documents submitted with any Proposal or otherwise communicated to the Customer, are intended merely to present a general idea of the Goods described therein and nothing contained in any of them shall form any part of the agreement of purchase and sale unless otherwise stated in the Sales Order.
No failure on MWS’s part to strictly enforce any of these terms and conditions or any of its rights shall be construed as a waiver of such term, condition or right. MWS’s acceptance of a Sales Order shall not be deemed an acceptance of any terms and conditions that may be contained therein that are inconsistent with these Standard Terms except to the extent expressly agreed in writing by MWS.
In the event that any provision of these terms and conditions or any part thereof should be held to be invalid, illegal or unenforceable, the remainder of these terms and conditions shall remain valid and enforceable.
Any Sales Order that is subject to these Standard Terms, may not be modified except by an agreement in writing signed by authorized representatives of MWS and the Customer.
16.5 Relationship of Parties
The parties are independent contractors and no Sales Order or other agreement creates any partnership, joint venture, employer/employee, principal/agent or any other relationship between MWS and the Customer. The parties acknowledge and agree that neither party is granted any right or authority to assume, create or enter into any contracts, agreements, employment relationships, obligations or responsibilities, express or implied, on behalf of or in the name of the other party without express prior written authorization.
16.6 Binding Effect
Each Sales Order is binding on and enures to the benefit of MWS and Customer and their respective successors and assigns.
16.7 Applicable law and jurisdiction
These Terms shall be governed by the substantive and procedural laws and regulations of the State of Missouri and the United States, without regard to conflicts of laws principles. Seller and Buyer hereby agree that any legal proceeding with respect to these Terms shall be brought only in a State Court located in Greene County, Missouri or the United States District Court located in Springfield, Missouri. Both Seller and Buyer submit to and accept generally and unconditionally the personal jurisdiction of these courts.
All notices hereunder must be given to MWS in writing at its principal place of business for receipt within the time specified herein, provided that notices of warranty claims shall be given in accordance with the terms and conditions of the Applicable Warranties.
The Customer shall not assign any Sales Order or any part thereof without the consent in writing of MWS, which will not be unreasonably withheld, provided that the rights and obligations of third parties with respect to Applicable Warranties are set out in the terms and conditions of such Applicable Warranties.
The division of these terms and conditions into parts, sections, paragraphs, subparagraphs and clauses and the insertion of headings are for reference purposes only and will not affect the construction or interpretation of these Standard Terms.
Any Sales Order, and any amendment or supplement thereto, may be executed in any number of counterparts and by different parties on separate counterparts (which may be facsimile copies) but shall not take effect until each party has executed at least one counterpart. Each counterpart shall constitute an original but all the counterparts together shall constitute a single agreement.