(1) Taxes. Prices
do not include any sales, use, export, or import taxes, now or hereafter
enacted by any federal, state or municipal authority, applicable to the goods
sold on this transaction. Taxes will be
added by MBI to the sales price where MBI invoices the same to comply with law
and will be paid by Buyer unless Buyer provides MBI with a proper tax exemption
certificate.
(2) Prices, Releases and Setoff. Prices apply only if the quantity ordered hereunder is released
for shipment within six (6) months (or longer if mutually agreed to in writing)
from the date of MBI’s receipt of Buyer’s order. Otherwise, MBI’s standard prices in effect at time of release shall
apply to quantity shipped and Buyer shall pay the difference in price, if any,
and MBI has the right to terminate this contract. In such event, Buyer is liable for termination charges as set
forth in Paragraph 15(a). Buyer grants
to MBI the right, at any time during the course of this contract, to revise
prices hereunder by giving Buyer written notice of such revised prices and the
date such prices are to take effect. If
Buyer provides written objection within ten (10) days following notice of a
price change established by MBI, MBI shall have the option of terminating this
contract with no liability to MBI. Buyer waives any rights of setoff. Any variation in quantities shipped
over or under the quantities ordered (not to exceed 10%) shall constitute compliance
with Buyer’s order and the stated unit price will continue to apply.
(3) Title and Delivery:
All shipments of goods shall be delivered F.O.B. MBI’s facility, and title and
liability for loss or damage thereto shall pass to Buyer upon MBI’s delivery of
the goods to a carrier for shipment to Buyer, and any loss or damage thereafter
shall not relieve Buyer from any obligation hereunder. Buyer shall be liable for costs of insurance
and transportation and for all import duties, taxes and any other expenses
incurred or licenses or clearance required at port of entry and
destination. MBI may deliver goods in
installments. Shipping dates are approximate only. MBI shall not be liable for any loss or expense, whether by way
of contract or tort, (consequential or otherwise) incurred by Buyer if MBI
fails to meet the specified estimated delivery schedule because of unavoidable
production or other delays. All
provisions of Paragraph 3 apply to both domestic and international shipments,
except that title to goods shipped outside the U.S. shall pass at the point of
destination; risk of loss or damage and all expenses associated with goods
shipped outside the U.S. shall be the responsibility of the Buyer.
(4) Samples.
If requested, MBI will submit samples for approval when commencing production
upon any order. These samples will be
immediately sent to the Buyer. The
Buyer shall have 5 business days to review samples and submit verbal acceptance
or rejection of samples, followed by written confirmation by mail, fax, or
e-mail within 10 business days of receipt of samples. Failure of the Buyer to contact MBI within 5 business days will
be interpreted as acceptance of samples as is. It is understood that machines are to be run immediately upon acceptance
of samples unless otherwise specified in the Purchase Order. Any changes in original specifications will
be made only at buyer's direction and expense.
(5) Terms and Method of
Payment: Where MBI has extended credit to Buyer, terms of payment shall be
net thirty (30) days from date of invoice. The amount of credit or terms of payment may be changed, or credit
withdrawn by MBI at any time. If the
goods are delivered in installments, Buyer shall pay separately for each
installment. Payment shall be made for
the goods without regard to whether Buyer has made or may make any inspection
of the goods. If Buyer delays
shipments, goods may be held for Buyer at Buyer’s risk and expense, which will
be billed to Buyer as a warehousing charge.
(6) Contingencies and Force
Majeure: MBI shall not be liable for any delay in delivery or for
non-delivery, in whole or in part, caused by the occurrence of any contingency
beyond the control either of MBI or MBI’s suppliers, including, but not limited
to, war (whether an actual declaration thereof is made or not), sabotage,
insurrection, riot or other act of civil disobedience, act of a public enemy,
failure or delay in transportation, act of any government or any agency or
subdivision thereof, judicial action, terror, labor dispute, accident, fire,
explosion, flood, storm or other act of Nature, shortage of labor, fuel, raw
material or machinery or technical failure where MBI has exercised ordinary
care in the prevention thereof. MBI may
allocate production and deliveries among MBI’s customers.
(7) Legal Compliance:
Buyer, at all times, shall comply with all applicable federal, state and local
laws, rules, and regulations. Export of
the products covered by this quotation or acknowledgment may be subject to
export license control by the U.S. government. It is Buyer’s responsibility to obtain any licenses that may be required
under the applicable laws of the U.S. including the Export Administration Act
and regulations promulgated thereunder.
(8) Changes. Any notice or instruction from the Buyer received subsequent to MBI’s
acknowledgment, including supplementary information contained in a confirming
purchase order, which has the effect of changing the specifications, scope of
work, inspection, packaging, or other terms, will be effective only upon an
appropriate adjustment in the price and/or delivery date, and acceptance of any
change by MBI in writing.
(9) Limited Warranty.
(a) THE
FOLLOWING IS IN LIEU OF ALL WARRANTIES EXPRESS, IMPLIED OR STATUTORY,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OBLIGATION ON THE PART OF
MBI. MBI, except as otherwise
hereinafter provided, warrants the goods for a period of 90 days against faulty
workmanship or the use of defective materials, and that such goods will conform
to MBI’s written specifications, drawings, and other descriptions for a period
set forth in the schedule below. MBI
warrants that at the time of delivery MBI has title to the goods free and clear
of any and all liens and encumbrances. These warranties are the only warranties made by MBI and can be amended
only by a written instrument signed by an officer of MBI. Continued use or possession of goods after
expiration of the applicable warranty period stated above shall be conclusive
evidence that the warranty is fulfilled to the full satisfaction of Buyer. MBI’s warranties as herein above set forth
shall not be enlarged, diminished or affected by, and no obligation or
liability shall arise or grow out of MBI’s rendering of technical advice or
service in connection with Buyer’s order of the goods furnished hereunder.
(b) In all
claims for weight discrepancies, Buyer must notify MBI in writing within 2
business days of receipt of shipment. Any claim that product is defective must
be made within 90 days of receipt of shipment, or it will not be honored. Charges for inspection, repair, or
replacement of parts by Buyer without prior authorization by MBI will not be
honored (See paragraph 11). Claims will
not be honored on those parts further processed by Buyer resulting in change of
dimensions or characteristics from parts ordered. Parts that are subcontracted
to an external operation (such as plating, heat treating, or passivation) will
be warranted under the specifications of the subcontractor’s terms and
conditions. These will be included in
the package with the purchase order when accepted at MBI.
(10) Product Application
Indemnity: Buyer agrees to defend, indemnify and hold harmless MBI for all
claims, whether arising in tort or contract, against Buyer and/or MBI,
including attorneys’ fees, expenses and costs, arising out of the application
of MBI’s products to Buyer’s designs and/or products, or MBI’s assistance in
the application of MBI’s products.
(11) Exclusive Remedies And
Customer Returns Policy: If the goods furnished by MBI fail to conform to
MBI’s exclusive limited warranty as stated in paragraph 9(a) and (b), MBI’s
sole and exclusive liability shall be (at MBI’s option) to repair or credit
Buyer’s account for any such goods which are returned by Buyer during the
applicable warranty period set forth above, provided that (i) MBI is promptly
notified in writing upon discovery by Buyer that such goods failed to conform
to this contract with a detailed explanation of any alleged deficiencies and
Buyer is provided a Return Material Authorization (RMA) number, (ii) such goods
are returned to MBI, F.O.B. MBI’s plant by Buyer, and (iii) MBI’s examination
of such goods shall disclose to MBI’s satisfaction that such alleged
deficiencies actually exist and were not caused by accident, misuse, neglect,
alteration, improper installation, unauthorized repair or improper
testing. If such goods are non‑conforming,
MBI shall reimburse Buyer for the transportation charges paid by Buyer for such
goods. If MBI elects to repair or
replace such goods, MBI shall have a reasonable time to make such repairs or
replace such goods. THIS IS MBI’S ONLY
LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR ANY CLAIM, WHETHER ARISING IN TORT
OR CONTRACT, AND IN NO EVENT SHALL MBI BE LIABLE FOR SPECIAL, COLLATERAL,
INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES. THE MAXIMUM LIABILITY, IF ANY, OF MBI FOR
ALL DIRECT DAMAGES, INCLUDING WITHOUT LIMITATION CONTRACT DAMAGES AND DAMAGES
FOR INJURIES TO PERSONS OR PROPERTY, WHETHER ARISING OUT OF TORT, OR CONTRACT
IS LIMITED TO AN AMOUNT NOT TO EXCEED THE PRICE OF THE PARTICULAR GOODS, EVEN
IF MBI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE WARRANTIES SET OUT HEREIN ARE IN LIEU OF
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND BUYER
IS SOLELY RESPONSIBLE FOR DETERMINING THE PROPER APPLICATION AND USE OF THE
GOODS.
(12) Acceptance of Product:
Acceptance shall be presumed conclusively to have occurred thirty (30) days
following delivery of product to Buyer, unless Buyer has accepted the product
prior to that date.
(13) Patents. Buyer
shall defend, indemnify, and hold harmless MBI from any claim or any suit or
proceeding brought against Buyer insofar as such suit or proceeding is based on
a claim that any goods manufactured pursuant to the specification(s) of Buyer
to constitute infringement of any duly issued or recognized patent, trademark,
copyright or other intellectual property right now recognized or that may be
recognized in the future and Buyer shall pay all damages and costs finally
awarded therein against MBI, together with all reasonable attorneys’ fees and
costs.
(14) Termination and
Cancellation:
(a) Buyer may
terminate this contract in whole, or from time to time, in part, upon thirty-
(30) day’s advance written notice to MBI. In such event, Buyer shall be liable for termination charges which shall
include: a price adjustment based on the quantity of goods actually delivered
and all cost, direct and indirect, incurred and committed for this contract;
together with a reasonable allowance for prorated expenses and anticipated
profits. Such charges shall also include raw material, unamortized tooling,
engineering, handling, overhead, and production costs. Such charges will be determined at time of
cancellation or deferment of the order.
(b) If, in MBI’s
sole and exclusive judgment, the Buyer’s financial condition at any time does
not satisfactorily justify the terms of payment specified or credit extended
under paragraph 5, MBI may cancel this contract unless Buyer shall immediately
pay for all goods which have been delivered and pay in advance for all goods
prior to delivery.
(15) Non-Waiver of Default and
Collection Rights: In the event of any default by Buyer, MBI may invoke any
remedy provided by law or by the terms herein stated, and may decline to make
further shipments. If MBI in its sole
and exclusive discretion elects to continue to make shipments, MBI’s actions shall
not constitute a waiver of any default by Buyer or in any way affect MBI’s
legal remedies for any such default. In the event MBI resorts to a third party
or to litigation in order to collect amounts due MBI, Buyer agrees to pay costs
of collection for amounts owed to MBI, including, but not limited to,
attorneys’ fees, court costs, and service fees in the amount of 1½% per month
(18% per annum), from the date the amount is due.
(16) Applicable Law and Forum:
The validity, performance and construction of this contract shall be governed
by the laws of the State of New York and such shall be the only jurisdiction in
which any suit may be brought against MBI regarding any dispute arising out of
this transaction. Buyer consents to jurisdiction in New York without the
application of the conflict of laws and waives any objection thereto.
(17) U.S. Government Contracts. If the goods to be furnished under this contract are to be used
in the performance of a U.S. Government contract or subcontract, a U.S. Government
contract number must appear on Buyer’s purchase order and those clauses of the
applicable U.S. Government procurement regulations which are required by
Federal Statute to be included in U.S. Government subcontracts are incorporated
herein by reference.
(18) Assignment: This
contract is binding upon and inures to the benefit of the parties and the
successors and assigns of the entire business and goodwill of Buyer, or of that
part of the business used in the performance of this contract, but shall not be
otherwise assignable, without the prior consent of MBI.
(19) Sizes, Tolerances, Inspection and Buyer Provided Samples. Quotations are preferably made on the basis
of prints and specifications provided by the Buyer. When quotations are made on the basis of Buyer provided samples,
reverse engineering or other method, the dimensions on which the quotation is
based will be stated. Use of or
reference to samples shall not enlarge, affect or alter in any way the limited
and exclusive warranty (see paragraph 9) or exclusive remedies and customer
returns policy (see paragraph 11). Where Buyer requires samples from MBI to verify
their processes, Buyer will pay for such samples within thirty (30) days
after receipt of the samples, unless Buyer within such period gives MBI a
detailed written description of any allowable variance from specifications, in
which case Buyer will promptly pay upon correction of such variances. The dimensions for quoting and manufacturing
are the mean specifications and are subject to the stated tolerances for these
dimensions.
(20) Tools and Dies:
Unless otherwise provided herein, even though tooling charges may be specified,
all tools and dies, including, without limitation, fixtures, gauges and
assembly equipment manufactured or purchased for this contract, will be MBI’s property, but will be retained by MBI for
Buyer’s non-exclusive use; provided, however, that MBI may dispose of
such tools and dies if Buyer does not order from MBI goods for manufacture
there from within any one (1) year period. If any tools and dies manufactured by MBI are to become Buyer’s
property, it must be specifically so provided on the face hereof. Any such tools and dies, or any materials,
tools, dies and other equipment furnished by Buyer to MBI, shall be at Buyer’s
sole risk and expense, and MBI shall not be liable for loss, damage,
maintenance, repair or renewal, regardless of cause so long as ordinary care is
exercised with regard to said item(s). If Buyer desires to withdraw such tools and dies from MBI’s plant, and
if MBI consents to permit Buyer to withdraw them, for any reason, Buyer will
first compensate MBI for any cost incurred with respect to them, including,
without limitation, design and development costs.
(21) Severability of Terms:
If any phrase, clause or provision shall be declared void, the validity of any
other provisions shall not be affected thereby.
(22) Release of Information. Neither party hereto shall, without the
prior written consent of the other party (which will not be unreasonably
withheld), publicly announce or otherwise disclose the existence of the terms
of this contract, or release any publicity regarding this Agreement. This provision shall survive the expiration,
termination or cancellation of this Agreement.
(23) Modification: These terms and conditions constitute the
entire agreement between the parties relating to the sale of the goods
described on the face hereof, and no addition to or modification of any
provision herein shall be binding upon MBI unless made in writing and signed by
a duly authorized representative of MBI.
(updated 6/17/08)
