TERMS AND CONDITIONS
Terms and Conditions of Sale
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UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING, ALL SALES ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
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1.Prices. All prices will be listed on www.magmotor.com and will remain in effect at the time of delivery. All prices are subject to adjustment if changes occur.
2.Taxes. All prices are exclusive of all excise, sales, use, transfer and other taxes and duties imposed with respect to the products or their sale by any federal, state, municipal or other governmental authority, all of which taxes must be paid by Buyer.
3.Terms of Payment. PayPal is the USA preferred choice of payment. Buyer must establish an open account with Paypal. If the products are delivered in installments, Buyer will pay for each installment in accordance with the terms specified above. Payment must be made for the products regardless of whether Buyer has made, or plans to make, any inspection of the products. Payment is considered made when payment is received by us at our principal offices or at such other address as we indicate to Buyer. Buyer shall also pay or reimburse us for all costs and expenses (including reasonable attorneys’ fees) incurred or paid by us in collecting amounts due from Buyer or in enforcing Buyer’s obligations hereunder.
4.Packaging and Shipment. Unless specific instructions to the contrary are supplied by Buyer, all packaging and methods and routes of shipment will be selected by us, but we will not assume any liability in connection with shipment nor constitute any carrier as our agent. We reserve the right to ship the products in any order and to make partial shipments. We reserve the right to stop delivery of products in transit and to withhold shipments in whole or in part if Buyer fails to make any payment to us when due or otherwise fails to perform its obligations hereunder. All shipping dates are approximate only. Unless otherwise instructed by Buyer, we will prepay transit insurance and freight and bill Buyer for such amounts. All shipments will be made at Buyer’s risk, and Buyer will be responsible for making all claims with carriers, insurers, warehousemen and others for misdelivery, nondelivery, loss, damage or delay.
5.Delivery. All sales are F.O.B. our premises located at 10 Coppage Drive, Worcester, MA 01603 unless otherwise agreed to in writing. The date of delivery is the date when the products are ready for pickup at that location by Buyer or by a carrier for delivery to Buyer. We will use reasonable efforts to meet requested delivery dates, but will not be liable for our failure to do so. We will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond our control. In the event of a delay due to any cause beyond our control, we may allocate production and deliveries among our customers, the time for delivery to Buyer will be extended for a period equal to the duration of the delay, and Buyer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of the delay. If, as a result of any cause beyond our control, any scheduled delivery is delayed for a period in excess of thirty (30) days, we may, at our option, by written notice to Buyer, cancel any and all scheduled or future deliveries without further liability or obligation of any kind. Products for which delivery is delayed due to any cause within Buyer’s control may be placed in storage by us at Buyer’s risk and expense and for its account. Buyer will be liable for all costs and expenses incurred by us in holding or storing products for Buyer or at Buyer’s request.
6.Title and Risk of Loss. Subject to Section 7 and to our right to stop delivery of products in transit, title to and risk of loss or damage for products (other than software products) will pass to Buyer upon the earlier of delivery to Buyer or delivery to a carrier for shipment to Buyer.
7.Security Interest. We reserve and Buyer grants to us a security interest in all products sold and all proceeds to secure the full payment and performance by Buyer of its obligations and liabilities to us. Buyer acknowledges that this document or copies of this document may be filed with the appropriate authorities as a financing statement and agrees to execute and deliver such other documents as we may request in order to evidence or perfect our security interest.
8.Cancellation. See magmotor.com Right of Withdrawal
9. Specifications. All products are subject to our standard tolerances for specifications. We reserve the right to make substitutions and modifications in the specifications of any products, provided that such substitutions or modifications do not materially affect the performance of the products or the purposes for which they can be used.
10. Warranty; Indemnification.
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(a) Seller warrants that any Product sold hereunder shall be free from defects in material and workmanship and shall conform to the applicable specifications when given normal, proper and intended usage for a period (the “Warranty Period”) terminating twelve (12) months from the date of first use by Purchaser or its customer or eighteen (18) months from the date of notification to Purchaser of readiness to ship, whichever occurs first and will perform substantially in accordance with applicable product specifications in effect at the time of delivery for a period of twelve (12) months from the date of delivery. This warranty does not apply to expendable components, such as, but not limited to, fuses and bulbs.
(b) At our expense, we agree to repair or replace at our option all defective products and to use reasonable efforts to correct all software products not performing substantially in accordance with applicable product specifications, provided that Buyer has given us written notice of such warranty claim within the warranty period. If we are unable, after reasonable efforts, to repair or replace such defective products or to correct such products not performing substantially in accordance with applicable product specifications, Buyer’s sole remedy shall be the refund of an amount not to exceed the actual payments received by us for such products. All repairs will be done during normal working hours. All replaced parts shall become our property. We may require that the products be shipped to us and returned to Buyer, at our expense, for warranty service to be performed. If we determine that products for which Buyer has requested warranty service are not eligible for warranty service, for any reason, Buyer shall pay or reimburse us for all costs of investigating and responding to such request at our then prevailing time and materials rates. If we provide repair services or replacement parts that are not covered by the warranty provided in this Section 10, Buyer shall pay us at our then prevailing time and materials rates.
(c) We shall have no obligation to make repairs, replacements or corrections which result, in whole or in part, from (i) normal wear and tear, (ii) catastrophe, fault or negligence of Buyer, (iii) improper or unauthorized use of the products, (iv) use of the products in a manner for which they were not designed, (v) causes external to the products such as, but not limited to, power failure or electric power surges, or (vi) use of the products in combination with equipment or software not supplied by us.
(d) If notified promptly in writing of any action (and all prior related claims) brought against Buyer based on a claim that a product infringes any valid United States patent, copyright or trade secret, we shall defend such action at our expense and pay all costs and damages finally awarded in such action or settlement which are attributable to such claim. We shall have sole control of the defense of any such action and all negotiations for its settlement or compromise. Buyer shall cooperate fully with us in the defense, settlement or compromise of any such action. In the event that a final injunction is obtained against Buyer’s use of a product by reason of infringement of a valid United States patent, copyright or trade secret, or if in our opinion any product is likely to become the subject of a successful claim of such infringement, we may, at our option and expense, (i) procure for Buyer the right to continue using the product, (ii) replace or modify the product so that it becomes non-infringing (so long as its functionality is essentially unchanged), or (iii) accept the return of the product and refund to Buyer the purchase price therefore as depreciated on a straight-line seven year basis. We may withhold further shipments of any such products.
(e) We shall not have any liability to Buyer to the extent that any infringement or claim thereof is based upon (i) use of a product in combination with equipment or software not supplied by us where the product would not itself be infringing, (ii) use of the product in an application or environment for which it was not designed or not contemplated hereunder, (iv) modifications of the product by anyone other than us, or (v) any claims of infringement of any patent, copyright or trade secret in which Buyer or any affiliate or customer of Buyer has an interest or license.
(f) Buyer shall not bring any suit or action against us for any reason whatsoever more than one year after the related cause of action has accrued.
EXCEPT AS STATED ABOVE, WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE PRODUCTS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE FOREGOING INDEMNIFICATION PROVISIONS STATE OUR ENTIRE LIABILITY WITH RESPECT TO INFRINGEMENT OR ALLEGED INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADEMARKS, TRADE SECRETS AND OTHER INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE PRODUCTS. OUR MAXIMUM LIABILITY ARISING OUT OF THE SALE OF THE PRODUCTS OR THEIR USE, WHETHER BASED UPON WARRANTY, CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE ACTUAL PAYMENTS RECEIVED BY US IN CONNECTION THEREWITH. IN NO EVENT SHALL WE BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES, ARISING HEREUNDER OR FROM THE SALE OF THE PRODUCTS.
(g) Buyer shall indemnify, defend and hold us harmless against all claims, liabilities, damages, expenses, judgments and losses (including reasonable attorneys’ fees) arising from (i) infringement or alleged infringement of any patent, copyright, trade secret, trademark or other intellectual property or proprietary right as a result of our compliance with Buyer’s designs, specifications or instructions, (ii) Buyer’s breach of any of its obligations hereunder and (iii) Buyer’s use and/or misuse of the products. No sale of any product shall be construed as granting to Buyer any license or other proprietary or intellectual property right applicable to the products. Buyer may not alter or remove, and shall abide by, any patent, trademark, copyright, trade secret, proprietary or other notices contained on or in the products.
11. Compliance with Laws.
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(a) Buyer shall comply with all applicable governmental laws, ordinances, codes, rules, regulations and orders in its performance hereunder, and shall obtain all permits or licenses required in connection with the purchase, shipment, installation and use of any of the products.
(b) The export of the products supplied hereunder may be subject to regulation or restriction under the Export Administration Act, the Arms Export Control Act or other laws. Therefore, prior to exportation, Buyer must obtain any licenses that may be necessary under any of these laws and the regulations thereunder and supply us with copies thereof. Buyer shall not sell, transfer or otherwise dispose of the products in violation of U.S. export laws. Buyer agrees that the products will not be exported directly or indirectly from the United States, separately or as part of a system, without first obtaining a valid license from the U.S. Department of Commerce, Department of State or any other appropriate agency of the U.S. Government, as required, and otherwise in compliance with all U.S. Government Export Regulations. Buyer shall have sole responsibility for obtaining all such licenses or other required permits at its sole cost and expense. Buyer shall also have sole responsibility for obtaining any other documentation or assurances necessary for legal export, such as written assurances from a subsequent purchaser with respect to re-export. No failure to obtain any such license or documentation shall excuse any nonperformance by Buyer of its obligations hereunder. Buyer shall provide us with full information and documentation required by us to ensure that Buyer has complied with all export restrictions.
(c) Specifically, but not by way of limitation, Buyer represents and warrants that neither the products supplied hereunder nor the direct products thereof, is intended to be shipped, directly or indirectly, to any country other than the countries listed in Country Groups T and V of the Export Administration Regulations from time to time. Buyer assures us that, unless prior authorization is obtained from the U.S. Office of Export Administration or U.S. Office of Munitions Control, as appropriate, Buyer will not knowingly re-export the products supplied hereunder, the direct products thereof, or the confidential and proprietary information related thereto for the installation,
maintenance or operation of the products or for any other purpose to any country other than the countries listed in Country Groups T and V of the Export Administration Regulations from time to time.
12. Government Contract Provisions. If Buyer is the U.S. government or any agency thereof the following provisions apply:
All Technical Data provided herein is provided with “Limited Rights” as provided for in 52.227-14, and in the case of the Department of Defense, as provided for in DFARS 252.227-7013(b)(1), and in case of the National Aeronautics and Space Administration, NASA FAR SUP 1852.227-74(g) (2).
(a) Buyer may provide the Technical Data to the U.S. government or any agency thereof only if its agreement with the U.S. government or agency thereof provides for the U.S. government or agency thereof to obtain the Technical Data with “Limited Rights.” Buyer shall appropriately label all Technical Data to protect such rights, if they are not so labeled by us.
(b) For purposes of this Section 15, the term Technical Data shall have the meaning ascribed to such terms in the Federal Acquisition Regulation.
13. Assignment. Buyer may not delegate any duties nor assign any rights or claims hereunder without our prior written consent, and any such attempted delegation or assignment shall be void.
14. Governing Law. The rights and obligations of the parties hereunder shall be governed by and interpreted, construed and enforced as a sealed instrument in accordance with the laws of the Commonwealth of Massachusetts.
15. Authorization. Buyer represents and warrants that it has been duly authorized to execute and deliver this document and to perform its obligations hereunder, and the person signing on Buyer’s behalf has the power and authority to do so.
16. Force Majeure. In the event that we are prevented from performing, or are unable to perform, any of our obligations hereunder due to any act of nature, act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production facilities, riot, insurrection, sabotage, inability to procure materials, labor, equipment, transportation or energy sufficient to meet our needs, delay in delivery, or any other cause beyond our reasonable control, and if we shall have used reasonable efforts to avoid such occurrence and minimize its duration and have given prompt written notice to Buyer, then our failure to perform shall be excused and the time for performance shall be extended for the period of delay or inability to perform due to such occurrence.
17. Severability; Remedies; Waiver. In the event that any one or more provisions contained herein (other than the provisions obligating Buyer to pay us for the products) shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The remedies contained herein are cumulative and in addition to any other remedies at law or equity. Our failure to enforce, or waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision.
18. Notices. Any notice or communication required or permitted hereunder shall be in writing and shall be deemed received when personally delivered or three days after being sent via first-class mail, postage prepaid, to a party at the address specified herein or at such other address as either party may from time to time designate to the other.
19. Entire Agreement. This is the complete and exclusive statement of the contract between Buyer and us with respect to Buyer’s purchase of the products. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by Buyer and us. In case of a conflict between the terms and conditions on the face of this document and the terms and conditions contained on this reverse side of this document, the terms and conditions on the face of this document shall control.
20. Additional or Inconsistent Terms. Any term or condition of Buyer’s purchase order or any other document provided to us by Buyer which is in any way different from, inconsistent with or in addition to the terms and conditions set forth herein will not become a part of the contract between us and Buyer or be binding upon us. To the extent that this document may constitute an acceptance, this acceptance is expressly conditioned upon Buyer’s assent to the terms and conditions set forth in this document. If Buyer objects to any term or condition set forth herein, this objection must be in writing and received by us at the address stated on the opposite side prior to our delivery. Retention by Buyer of any products delivered by us will be conclusively deemed as assent by Buyer to the terms and conditions set forth herein. Our failure to object to terms contained in any communication from Buyer will not be a waiver of the terms set forth herein. Buyer shall not condition any acceptance of delivery upon the abrogation or modification of any of the terms and conditions included in this document.
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BUYER Name: ______________________
By: ______________________
Title: ______________________
Address: ______________________