MASTER TERMS AND CONDITIONS OF SALE
1. EXCLUSIVE TERMS AND CONDITIONS. NO OTHER TERM WHICH ATTEMPTS TO DIFFER FROM OR ADD TO THESE MASTER TERMS AND CONDITIONS OF SALE (“TERMS”) SHALL BE BINDING UPON MCGARD. ANY OTHER OR DIFFERENT TERM OR CONDITION PROPOSED BY BUYER IS HEREBY EXPRESSLY REJECTED. THE PLACEMENT BY BUYER OF ANY ORDER SHALL CONSTITUTE ACCEPTANCE OF THESE TERMS.
THE SOLE EXCEPTION TO THE FOREGOING IS IF MCGARD PROPOSES A MODIFICATION AND SUCH MODIFICATION: (A) IS IN WRITING; (B) SPECIFIES THE PRECISE DESCRIPTION AND QUANTITY OF THE PRODUCTS TO WHICH SUCH MODIFICATION APPLIES; (C) SPECIFICALLY REFERENCES THIS PARAGRAPH; AND (D) IS SIGNED BY AN AUTHORIZED OFFICER OF MCGARD (WHEN ALL SUCH CONDITIONS ARE MET, AN “AUTHORIZED MODIFICATION”). IN THE EVENT OF AN AUTHORIZED MODIFICATION, ANY OF THESE TERMS THAT HAVE NOT BEEN EXPRESSLY MODIFIED WILL REMAIN UNCHANGED AND IN FULL FORCE AND EFFECT.
2. Delivery, Title, and Inspection. Products are delivered F.O.B. McGard Headquarters (“McGard HQ”) in Orchard Park, New York. Title and liability for loss or damage shall pass to Buyer immediately upon tender of products to the common carrier at McGard HQ. Shipping dates are estimates, contingent upon Buyer’s prompt provision of all necessary and complete information relating to the order, and time is not of the essence. Buyer shall have a period of ten (10) days after receipt to inspect the Products, and acknowledges that time period is reasonable. Buyer’s failure to inspect within said time shall constitute a waiver of Buyer’s rights of inspection and rejection. Buyer shall immediately notify McGard in writing as to any goods that Buyer intends to reject and particularize in detail the reasons for such rejection. If, upon such inspection, Buyer fails to immediately notify McGard as to which Products it intends to reject, such failure to notify shall be deemed to be Buyer’s acceptance of the Products. All Products not properly rejected by Buyer as set forth in this paragraph shall be deemed conforming and accepted by Buyer.
3. Payment. All payments shall be made in United States Dollars. If credit is extended to Buyer, payment is due thirty (30) days from the invoice date (“Due Date”). Credit may be withdrawn or subsequent shipments held at any time for late payment. Interest shall accrue at the rate of one percent (1%) per month, or the highest rate permitted by law, upon any balance that remains unpaid past the Due Date. McGard’s prices are exclusive of any applicable taxes and duties (“Taxes”), except those Taxes that are specifically included on the invoice. Buyer is exclusively responsible for the timely payment of all Taxes arising from or relating to the sale of Products to Buyer, except for Taxes on McGard’s income.
4. Price Adjustments. All prices are subject to change, without notice, if an estimated shipping date for the Products is more than thirty (30) days after the date of the order. All price quotations automatically expire thirty (30) days after the date issued. Pricing contingent on order quantity is subject to automatic adjustment if Buyer’s order volume is not consistent with the order quantity upon which the quoted price was based.
5. Security Interest and Repossession. Buyer hereby grants McGard a security interest in Products shipped to Buyer, until full and payment for such Products has been made. Buyer authorizes McGard to file a financing statement or other comparable public notification evidencing the foregoing and hereby appoints McGard as Buyer’s attorney-in-fact solely for the limited purpose of executing any and all documents in Buyer’s name that McGard reasonably believes necessary to evidence, perfect, and continue its security interest as set forth in this paragraph. In addition to any other rights or remedies provided by law, McGard shall have the right, with or without legal process, to enter the place where said Products are located and to repossess the Products in accordance with the applicable provisions of the New York Uniform Commercial Code.
6. Returns. Products are not subject to return, except as may be set forth in, and accordance with the terms of, the Limited Warranty (defined in paragraph 10 below). Notwithstanding the foregoing, McGard may, in its sole discretion, accept Products for return that: (a) have not been customized for Buyer; and (b) are in clean, unopened, resalable condition; provided, however, such Products accepted for return will incur a restocking charge equal to fifteen percent (15%) of the original purchase price.
7. Drawings, Specifications, Confidentiality. All right, title and interest in and to all manufacturing drawings, design documentation, prints, plans and specifications created by McGard (“McGard Documentation”) and all inventions, concepts, improvements, works of authorship, manufacturing know-how, manufacturing processes, manufacturing methodology, trade secrets and manufacturing techniques and all other intellectual property of any kind relating to: (a) the Products; (b) any existing McGard product; (c) the fulfillment of any Buyer order; or (d) any product under development at McGard (collectively, “McGard Work Product”) is owned exclusively by McGard. To the extent any McGard Documentation or McGard Work Product is disclosed to Buyer, or learned by Buyer in the course of any relationship with McGard, Buyer shall keep such material confidential, not disclose it to any third-party, and limit its use solely to the performance or fulfillment of the terms of an order with McGard.
8. Changes and Cancellations. McGard reserves the right to reject any Buyer initiated proposed modification of a placed order, including a proposed cancellation or delay. Any proposed modification that is accepted by McGard will require Buyer to promptly to pay for all costs and expenses (including costs associated with design, engineering, testing and logistical matters) reasonably associated with work undertaken by McGard in reliance upon the completion of the originally placed order.
9. Buyer Acknowledgements, Representations and Covenants. As a condition to McGard’s sale of Products to Buyer, Buyer acknowledges, represents and covenants to McGard that: (a) it has, or will, read and strictly comply with all applicable McGard-authorized product manuals and instructions (“Manuals”) with respect to Product installation and use; (b) it will refrain from making any warranties or representations concerning Products to any third-party, except Buyer may direct a third-party to Manuals or these Terms; (c) it will refrain from altering any Product; (d) it has, or will, ensure that Products meet or exceed all applicable regulatory standards, code requirements, or other safety standards, if any, applicable to the intended use of the Products; (e) it has, or will, comply with all applicable laws, including all export laws and regulations, and will not export, re-export or transfer any Products without first obtaining all required authorizations or licenses; (f) Products, when properly fit and installed, provide protection against theft; however, Products do not protect against damage or render any protected item “theft proof” or guarantee that any associated item will be free from theft, tampering, or misuse; (g) a proper fit of Products to each specific use case is a necessary (but not entirely sufficient) requirement for proper Product function, and that improper fit (including the use of the wrong size nut or fastening device, an incorrect match of Product to use case, the incorrect selection or installation of Product or the use of Product in any way not expressly authorized by the applicable Manual) may render Products ineffective and potentially dangerous; (h) it will not install, use, or recommend for use any Products in environments where, in addition to normal wear and tear, Products may be exposed or subjected to excessive heat (including steam, radiation, or fire), repeated flooding, explosives, corrosive chemicals (collectively, “Extreme Elements”) where damage to the Products from such Extreme Elements could impair normal performance and contribute to serious injury or damage; (i) it will not use or recommend for use any Products beyond any McGard-recommended estimated useful life for such Products; and (j) it acknowledges that proper performance of Products is conditioned, in part, upon: (1) Buyer’s accurate sizing and measurement, which Buyer has the requisite skill and experience to perform; and (2) proper torque and/or underlying lock engagement
BUYER FURTHER ACKNOWLEDGES THAT ITS BREACH OF ANY OF THE FOREGOING REPRESENTATIONS, OR ITS FAILURE TO FULFILL ANY OF THE FOREGOING COVENANTS, MAY RESULT IN SERIOUS DAMAGE AND/OR SERIOUS INJURY (INCLUDING DEATH) TO BUYER AND TO THIRD-PARTIES, AND THAT BUYER WILL INDEMNIFY, HOLD HARMLESS, AND DEFEND MCGARD AND THE MG GROUP (AS DEFINED IN PARAGRAPH 13) FOR ANY CLAIM ARISING FROM OR RELATING TO SUCH BREACH OR FAILURE, ALL AS MORE FULLY SET FORTH IN PARAGRAPH 13.
10. LIMITED WARRANTY. EXCEPT AS MAY BE SPECIFICALLY SET FORTH IN SCHEDULE A (“LIMITED WARRANTY”), MCGARD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. MCGARD’S LIMITED WARRANTY OBLIGATIONS AND BUYER’S REMEDIES ARE SOLELY AND EXCLUSIVELY DEFINED IN THIS PARAGRAPH.
11. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY. IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL MCGARD BE LIABLE TO BUYER, OR TO ANY THIRD-PARTY, FOR ANY CLAIM, DAMAGE OR LOSS WHATSOEVER WITH RESPECT TO THE PURCHASE, CONDITION OR USE OF ANY PRODUCT, WHETHER SUCH CLAIM IS EXPRESSED IN CONTRACT, TORT OR OTHER LEGAL THEORY AND WHETHER SUCH CLAIM IS FOR DIRECT, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, HOWEVER CAUSED, EXCEPTING THERE FROM MCGARD’S SATISFACTION OF THE TERMS OF ANY APPLICABLE LIMITED WARRANTY AS DEFINED IN SCHEDULE A. Any statement, oral or written, made by McGard or any of its employees or agents are not to be construed as representations or warranties and are not a part of these Terms. Buyer expressly acknowledges the foregoing and disclaims any reliance on such statements for any purpose, including as a basis for any purchase or relationship with McGard.
12. Force Majeure.
(a) Defined. “Event of Force Majeure” (“EOFM”) means an event beyond the control and without the fault or negligence of the party whose performance is adversely affected (“Affected Party”) and which by the exercise of reasonable diligence the Affected Party was unable to prevent, including: (1) acts of God (such as earthquake, tornado, hurricane, flood); (2) riot, war, insurrection, or acts or threats of terrorism; (3) nuclear accident or contamination by radioactivity; (4) strikes, lockouts, or industrial disputes that are not specific to this Agreement or specific to a party.
(b) Excused Performance. Neither party is responsible for any failure to perform, or delay in performance of, its obligations under this Agreement if such performance is prevented or delayed by an EOFM; provided, however, the Affected Party must provide to the other party: (1) notice of the EOFM; and (2) the reasons for the EOFM preventing or delaying the Affected Party’s performance. The Affected Party shall use commercially reasonable efforts to mitigate the effect of the EOFM upon its performance and must, as soon as reasonably practicable, recommence the performance of its obligations. Notwithstanding the foregoing, an EOFM does not relieve a party from an obligation to provide timely payment for any matter that was completed prior to the occurrence of the EOFM.
(c) Extended EOFM. If an EOFM is claimed by a party and such event continues for period of at least one hundred and eighty (180) consecutive days, or if the duration of the event can be reasonably estimated by the Affected Party to last for at least one hundred and eighty (180) consecutive days, then the party not claiming the EVOM shall have the right, but not the obligation, to terminate this Agreement by giving notice of termination to the Affected Party. For purposes of this paragraph 12, if the period between the end of one EOFM and the commencement of another EOFM is less than thirty (30) days, the period shall be deemed to be continuous, but the time between the EOFM shall not be counted in determining the one hundred and eighty (180) day period required before termination pursuant to this paragraph is permitted.
13. Indemnity. Buyer will, at Buyer’s expense, indemnify, hold harmless and defend McGard (and McGard’s Directors, Officers, employees and agents, collectively the “MG Group”) from and against any liability, damage, loss, expense (including, without limitation, reasonable attorneys’ fees), claim or judgment (collectively, a “Claim”) arising from injury (including death) to any person or damage to any property, however caused, whether by McGard’s negligence or otherwise, arising from or relating to: (a) the sale, resale, replacement or use of any Products delivered by McGard to Buyer; (b) Buyer’s breach of any of its representations, or its failure to fulfill any covenants as set forth in paragraph 9; (c) Buyer’s modification of, or alteration to, any Product, in each case excepting there from any Claim that is determined by final judgment to have been caused primarily by McGard’s gross negligence, recklessness, or intentional misconduct.
14. Third-Party Beneficiaries. Except for the Liability Limitation provisions of paragraph 11, which may expressly be asserted by any member of the MG Group, and except with respect to the indemnity running in favor of the members of the MG Group set forth in paragraph 13, these Terms do not and are not intended to confer any rights upon any person other than McGard and the Buyer.
15. Dispute Resolution.
(a) Direct Negotiation. The parties encourage the prompt and equitable settlement of all controversies or claims arising out of these Terms (“Dispute“). At any time, any party may give another party written notice that it desires to settle a Dispute. Within ten (10) business days of delivery of such notice, each party involved in the Dispute agrees to cause an officer having authority to resolve such Dispute (a “Senior Representative“), to meet (either by telephone or in person) with the other Senior Representative and attempt to resolve the differences causing the Dispute. If the Dispute is not settled within five (5) business days of such meeting then the Parties involved in the Dispute agree to submit it to arbitration as set forth in paragraph 15(b).
(b) Arbitration. Any Dispute that remains unresolved after the completion of Direct Negotiation as set forth in paragraph 15(a) shall be submitted to arbitration in accordance with the commercial rules of the American Arbitration Association (“AAA”). The arbitration shall be conducted by one (1) arbitrator mutually agreed upon by the involved parties, and if no agreement can be reached within thirty (30) days after names of potential arbitrators have been proposed by the AAA, then the AAA shall select one (1) arbitrator having reasonable experience in the manufacture and sale of products comparable to those governed by these Terms. The arbitration shall take place in Erie County, New York, in the State of New York, and shall be conducted in English in accordance with the AAA rules then in effect. Judgment upon any award rendered in such arbitration will be binding and may be entered in any court having jurisdiction thereof. There shall be limited discovery prior to the arbitration hearing as follows: (i) exchange of witness lists and copies of documentary evidence and documents arising out of or relating to the issues to be arbitrated; (ii) depositions of all involved party witnesses; and (iii) such other depositions as may be allowed by the arbitrators upon a showing of good cause. Depositions shall be conducted in accordance with the New York Civil Practice Law and Rules, the arbitrator shall be required to provide in writing to the parties the basis for the award or order of such arbitrator, and a court reporter shall record all hearings, with such record constituting the official transcript of such proceedings. The prevailing party shall be entitled to reasonable attorney’s fees, costs, and necessary disbursements in addition to any other relief to which such party may be entitled. Each party waives, to the fullest extent permitted by law, any right to appeal to, or to seek review of such arbitration award.
(c) Notwithstanding anything to the contrary contained in this paragraph 15 either party may, in its discretion, pursue any immediate equitable relief for any controversy, claim, or Dispute arising out of either party’s intellectual property rights for which a provisional remedy or equitable relief is sought. Each party consents to personal jurisdiction for any equitable action sought in the United States District Court for the Western District of New York or any courts of the State of New York located in Erie County, New York.
16. Export Controls. Certain Products may be subject to export controls under the laws, regulations and/or directives of the United States and various other countries. Buyer must comply with such laws and regulations and not export, re-export or transfer such Product without first obtaining all required authorizations or licenses or to any country to which such export, re-export or transfer is forbidden.
MCGARD LIMITED WARRANTY
The following constitutes the Limited Warranty in accordance with paragraph 10 of the Terms. The Limited Warranty is in lieu of all other warranties, whether oral, written, express, implied, statutory or otherwise.
McGard warrants to the original purchaser that the products will be free from defect in material and workmanship, under proper use, from the date of purchase for a period of 1 year.
In all cases, these Limited Warranty terms are: (a) enforceable only by the original Buyer; (b) non-transferable and non-assignable; (c) limited to Products that are properly installed, used and maintained; and (d) limited in aggregate value to the total amount paid by Buyer to McGard for the applicable Products.
For purposes of this Limited Warranty, a “defect in material and workmanship” excludes: (a) normal wear and tear; (b) damage incurred during shipment from McGard to Buyer, (c) damage caused by Force Majeure; (d) improper use, handling, installation, or maintenance; (d) damage due to alteration or modification of any kind; (e) damage due to exposure to Extreme Elements or abuse; (f) damage due to installation, use or operation of the Products not in accordance with Product Manuals.
Products subject to Limited Warranty claims must be submitted to McGard, postage-paid and adequately packaged, to:
3875 CALIFORNIA ROAD
ORCHARD PARK, NEW YORK 14127-4198
ATTN: WARRANTY CLAIMS