Terms & Conditions
MPG Terms and Conditions of Sale
1. Acceptance and Complete Agreement. All orders placed for products (“Products”), spare/replacement parts for products (“Parts”) and/or services (“Services”), as applicable, furnished by the entity set forth on the written order acknowledgement (“Seller”) to the purchaser thereof (the “Buyer”) are subject to the terms and conditions set forth herein and any schedules attached hereto (collectively, these “Terms”), the warranty incorporated by reference in Section 17 of these Terms (the “Warranty”), any sales quotation for the Products or Services given by Seller (the “Offer”), the written order acknowledgment from Seller accepting Buyer’s written order for the Products or Services (the “Order Acknowledgment”), and any confidentiality and/or nondisclosure agreement executed between Seller and Buyer (the “NDA”). These Terms, the Warranty, the Offer, the Order Acknowledgment, and the NDA are hereafter collectively referred to as the “Contract,” whether or not specifically referred to. If any provision in the Order Acknowledgment is inconsistent with these Terms, the provision of the Order Acknowledgment shall govern. No additional or different terms or conditions or any modifications, changes or amendments to the Contract shall be binding upon Seller unless specifically agreed to in writing by an authorized representative of Seller. Other than governmental flow-down provisions that are expressly mandatory by the individual terms of each particular clause that are required to be inserted by law and are specifically identified by Buyer and provided in advance in accordance with Section 34 below, Seller hereby objects to, and rejects, any additional or different terms already or hereafter proposed by Buyer, but not expressly set forth in the Contract, whether contained in any documentation or communication from Buyer or otherwise, including, without limitation, any terms set forth in any purchase order, acknowledgement, statement of terms and conditions, electronic business portal, or any other such document or communication. Seller’s failure to further object to any of the provisions contained in any documentation of Buyer’s or any communication of any kind from Buyer shall not be deemed a waiver of the Terms of the Contract or as an acceptance by Seller of any deviation from the Terms of the Contract. SELLER’S ACCEPTANCE OF ANY OR ALL OF BUYER’S ORDERS FOR PRODUCTS, PARTS OR SERVICES IS CONDITIONAL UPON BUYER’S ASSENT TO THE TERMS OF THE CONTRACT REGARDLESS OF ANY TERMS CONTAINED IN ANY OF BUYER’S COMMUNICATIONS OR DOCUMENTS. Sales literature, price lists, illustrations, drawings, samples, photographs or descriptions and other documents issued by Seller in relation to the Products, Parts and Services are subject to alteration without notice and are intended as a guide only and shall not be binding on Seller. The Contract constitutes the entire agreement between Seller and Buyer, superseding all prior oral or written communications, representations, agreements and negotiations.
2. Delivery Times. All quoted delivery dates for Products, Parts and Services are estimates only and Seller shall not be liable for any loss or damage whatsoever for failure to deliver the Products or Parts or perform the Services, as applicable, at the specified time or on the specified date unless expressly agreed in writing between the parties. Seller reserves the right to make delivery in installments, and all such installments, when separately invoiced, shall be paid for when due per Seller’s invoice, without regard to subsequent deliveries. Delay in any installment, or failure of any delivery, shall not relieve Buyer of its obligation to accept remaining deliveries. Seller will consider reasonable requests by Buyer for the postponement of delivery but shall be under no obligation to do so. Additional charges may apply for changes in delivery dates or time, at Seller’s discretion.
3. Shipping and Delivery
3.1 Unless otherwise specified in the Order Acknowledgment or expressly agreed in writing by Seller, all Products shall be shipped Ex-Works (EXW, Incoterms 2020) from Seller’s facility or a location designated by Seller for that purpose.
3.2 Products will be standard packed for shipment. Unless otherwise agreed in writing by Seller, the price includes standard bulk packaging for domestic shipment. Upon Buyer’s request, Seller may agree to provide special packaging, marking or forms, subject to additional charges and Seller’s prior written consent.
3.3 Buyer shall be responsible for all shipping charges, including but not limited to shipping, transportation, duties, customs charges, and insurance costs. The Products will be shipped under a straight bill of lading, naming Buyer as consignee. If requested by Buyer, forthwith after the Products have been delivered to a shipper for transportation to Buyer, Seller shall transmit the bill of lading to Buyer at Buyer’s address as stated in Buyer’s order. Any prepayment by Seller of certain shipping or handling charges will be added to Buyer’s invoice or shall be payable collect by Buyer, as provided in the Order Acknowledgement or, if not provided therein, as otherwise determined by Seller in its sole discretion.
3.4 Unless otherwise provided in the Order Acknowledgement, installation, training, and other services related to Products or Parts ordered are not included. Pricing for such services are available upon request.
4. Risk and Title.Title to all Products and Parts shall transfer to Buyer upon delivery of such Products and Parts to a shipper or freight carrier, as applicable, for transportation to Buyer (the “Delivery”), and upon such Delivery, Buyer shall bear all risk of loss. Subsequent to the Delivery, Seller shall not be responsible or liable for the security, safeguarding, or insurance of the Products or Parts so transferred.
5. Storage. Any of the Products or Parts whose manufacture, installation or shipment is delayed (a) by the acts or omissions of Buyer or its carrier or (b) at Buyer’s request, may be placed in storage by Seller (at Seller’s sole option) at Buyer’s risk and at Buyer’s cost and expense (including insurance). Storage fees will be assessed from the originally-scheduled shipment date (or the date the Products were ready to ship if a shipment date had not been scheduled) until the Delivery. The storage fee rate for finished Products that are prevented from shipping will be provided to Buyer. The storage fee will be added along with the actual freight and handling and applicable taxes to the final invoice for the Products or Parts. All charges for storage are per Product or Part and may vary based on the type of Product or Part stored.
6. Orders and Price.
6.1 All prices and delivery quotations made by Seller in the Offer(s) are conditioned upon these Terms. No order shall be binding upon Seller until received in writing and accepted by an authorized representative of Seller through Seller’s issuance of a written Order Acknowledgment. Other than as prohibited by the issuance of a rated order under the Defense Priorities and Allocations System, Seller reserves the right, in its sole discretion, to reject any order from Buyer, regardless of whether Seller provided an Offer or other price quote to Buyer. Seller may, from time to time, specify a minimum quantity or value order for Products or Parts, and, if applicable, Buyer’s order must be for at least that minimum. Any amendment to an order made by Buyer shall be binding on Seller only if confirmed in writing by Seller and additional costs, if any, for such amendment shall be borne by Buyer. Any Contract(s) resulting from acceptance of any order(s) placed with Seller may only be modified or rescinded by a written document, signed by the duly authorized representative of both parties.
6.2 All information, prices and specifications shown in Seller’s advertisements, catalogues, brochures, product and price lists, website or otherwise are indicative, subject to change without notice and shall under no circumstances bind Seller.
6.3 The price of the Products, Parts or Services will be Seller’s price as confirmed in the Order Acknowledgement, or where no price has been quoted, Seller’s current price as of the date of the Order Acknowledgment. Typographical errors are not binding and are subject to correction.
6.4 Seller reserves the right, by giving notice to Buyer at any time before Delivery or the completion of the Services, as applicable, to increase the price of the Products, Parts, or Services, as applicable, to reflect any factor beyond the control of Seller, such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, change in law, order, or regulation, significant increase in the costs of labor, materials or other costs of manufacture, any change in delivery dates, quantities or specifications for Products, Parts, or Services which are requested by Buyer, or any delay caused by any instructions of Buyer or failure of Buyer to give Seller adequate information or instructions. Additionally, if Seller’s list price or standard price for any Products, Prices, or Services increase from the time of the order until the time of the Delivery, Seller shall have the right to increase the price of any unshipped Products or Parts, or any uncompleted Services, to reflect the standard or list price increase.
6.5 Prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions which are not part of the original price quotation in the Offer. If the prices are based on the purchase of a particular quantity of Products or Parts and Buyer fails to purchase that quantity which would justify the pricing granted, Buyer will, at Seller’s option, pay Seller the difference between the stated prices and Seller’s standard prices for such Products or Parts in the quantity actually purchased by Buyer.
7. Payment.
7.1 Products and Parts are invoiced upon Delivery, shipment or at the time Seller puts the Products and/or Parts at Buyer’s disposal, whichever occurs earlier. Services are invoiced upon completion of performance. If Delivery is delayed by Buyer (including due to Buyer’s failure to secure the proper export or import licenses or clearances), date of notice of readiness for Delivery shall be deemed to be date of delivery for invoice purposes. Terms of payment are net thirty (30) calendar days from the date of Seller’s invoice and shall be made in U.S. dollars, provided that Seller reserves the right to modify its credit terms from time to time, including requiring prepayment for orders at Seller’s sole discretion. All orders on credit may be subject to Seller’s credit approval process. If Buyer’s creditworthiness changes, as determined by Seller in its sole discretion, then Seller may demand advance payment or other means of financial security, including a letter of credit.
7.2 Any late payments are subject to a finance charge equal to the lesser of 1.5% per month (18% per annum), or the maximum amount allowed by law, computed on all unpaid amounts and accrued on a daily basis until the actual date of full payment. All payments due to Seller shall be made in full without any set-off or deduction to the amounts shown on the relevant invoice. If Seller receives partial payment in an amount less than the full amount of any invoice, such receipt shall neither constitute a waiver of Seller’s right to collect the balance nor an accord and satisfaction, notwithstanding Seller’s endorsement of a check or other instrument. Buyer shall have no right to withhold any amount due Seller under the Contract because of a claim Buyer may have against Seller. In the event of any late payment or default, Buyer will pay, in addition to the balance due and owing, all collection costs, court costs, administrative costs, investigation costs, reasonable attorneys’ fees and all other incidental costs, charges or expenses incurred by Seller in the collection of past due amounts or otherwise resulting or arising from any breach by Buyer of the Contract. In addition to all other remedies available under the Contract or at law (which Seller does not waive by the exercise of any rights under the Contract), Seller shall be entitled to withdraw credit or suspend or cancel the delivery of any Products or Parts or provision of any Services, under this Contract or any other agreement between the parties, if Buyer fails to pay any amount when due hereunder and such failure continues for five (5) calendar days following written notice to Buyer thereof.
8. Taxes and Other Charges. Unless otherwise specified in writing by Seller or required by law, all prices will be quoted and billed exclusive of customs fees, duties and taxes, and Buyer shall be responsible for all such applicable customs fees, duties and taxes (exclusive of taxes on Seller’s income). If exemption from such taxes is claimed, Buyer must provide a certificate of exemption at the time its order is submitted to Seller, and Buyer will indemnify Seller for any unpaid taxes, as well as any penalties and interest, in the event such exemption is not applicable.
9. Loss or Damage in Transit; Returns.
9.1 Seller’s responsibility for damaged goods ceases upon Delivery and all claims for loss or damage occurring after Delivery must be filed by Buyer with the carrier.
9.2 In the event of (a) shortage, or (b) excess deliveries, (c) wrong product, (d) visible or concealed damage occurring prior to Delivery, or (e) loss occurring prior to acceptance by the carrier, a claim must be made in writing by Buyer against Seller. All claims against the carrier or Seller under this Section 9 must be made within two (2) weeks after the Delivery of the Products; provided, however, that Buyer may make a claim within four (4) weeks after Delivery of the Products for international shipments. Buyer’s failure to timely make any such claim shall constitute unqualified acceptance and a waiver of all such claims by Buyer. Claims against Seller are subject to Buyer’s compliance with Seller’s Return Merchandise Authorization (RMA) policy, which will be provided to Buyer upon request. Seller may, at Seller’s option, require Buyer to (i) provide photographs or other documentation of such claim, and (ii) make the Products or Parts (including packaging, wrappings, carton) subject to the claim available for inspection by Seller or its authorized representative in order to substantiate the grounds for rejection of the Products or Parts. All rejected Products and Parts must be returned to Seller, at Buyer’s risk and expense, prior to replacement by Seller. The return of all rejected Products and Parts shall be at Buyer’s risk and expense and must be sent to Seller under DDP (Incoterms 2020) at the place of destination indicated by Seller.
9.3 Seller may, in its sole discretion, accept the return of Products or Parts on a case-by-case basis. Returned Products or Parts must be in good working condition and in their original packaging to be eligible for return. Prior to returning any Products or Parts, Buyer shall issue a written request to Seller for a RMA number setting forth the reason for such request in reasonable detail. Any return of Products or Parts to Seller will be made ONLY upon Seller’s assignment of an RMA number to Buyer. Such RMA number must be displayed prominently on the outside of the box that contains the returned Products or Parts. Buyer shall return all Products and Parts in compliance with Seller’s Return Merchandise Authorization (RMA) policy, which will be provided to Buyer upon request. Returns not meeting the conditions herein and in Seller’s RMA Policy will be refused and returned to Buyer at Buyer’s risk expense. Seller reserves the right to apply a re-stocking charge, at Seller’s sole discretion, to any accepted returns. All returned Products and Parts are eligible for exchange or merchandise credit only, subject to any restocking charges.
10. Loss or Damage in Transit.
10.1 Seller shall have the right to deliver substitute products for the Products or Parts ordered by Buyer, provided that such substituted products do not materially differ from the ordered Products or Parts in terms of overall form, fit and performance, as determined in Seller’s sole and complete discretion. Seller reserves the right at any time to make changes to Products and/or Parts or in the design or specifications of the Products and/or Parts, without liability or obligation to implement such change to any Products or Parts previously manufactured, and further reserves the right to discontinue any Product or Part at any time.
10.2 Drawings, specifications, product finishes and color shades in Seller’s literature and advertisements are approximate only and do not constitute a trade description.
11. Cancellation and Termination by Buyer; Rescheduling. Except as directed by the government in accordance with the terms of an agreed flow-down clause, Buyer may not cancel an order, reduce quantities, revise specifications or change delivery schedules unless approved in writing by Seller. If Seller consents to cancellation of all or a portion of an order, Seller may invoice Buyer for cancellation fees which shall take into account all expenses (a) already incurred, including but not limited to expended materials, labor, production costs, and work in progress; (b) for outstanding commitments that cannot be cancelled; and (c) for all incidental costs and expenses, including but not limited to storage and handling fees. Buyer will pay such cancellation fees within 30 calendar days of the date of Seller’s invoice. Any requests by Buyer to delay the delivery of an order beyond the originally scheduled delivery date shall be made in writing and are subject to the prior consent of Seller, in its sole discretion. Seller reserves the right to assess Buyer a charge sufficient to cover all costs incurred by Seller due to any approved delay or Buyer’s failure to take Delivery on the scheduled Delivery date (in addition to any storage charges described above). Any charge assessed to Buyer due to its failure to take delivery of an order shall be in addition to, and without prejudice to, other remedies Seller may have at law or equity.
12. Cancellation and Termination by Seller; Rescheduling. Seller reserves the right to cancel any orders placed by Buyer, or to refuse or delay shipment thereof, with no liability to Seller, if Buyer (a) fails to make any payment as provided in the Contract or under the terms of payment set forth in any invoice or otherwise agreed to by Seller and Buyer, (b) fails to meet reasonable credit or financial requirements established by Seller, including any limitations on allowable credit, (c) otherwise fails to comply with the Contract, (d) becomes debarred, suspended, or identified as a denied party by any applicable government agency; (e) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors, or (f) violates, or is reasonably believed to have violated, applicable law, including anti-bribery, anti-corruption, anti-money laundering, or privacy laws.
13. Services.
Unless otherwise provided in a separate agreement between Seller and Buyer, where Seller provides Services, including but not limited to installation, testing, servicing, training, development, optimizing, integration or support in connection with Products, the manner and means used to perform the Services are at the sole discretion and control of Seller. Seller reserves the right to subcontract the installation of Products or the performance of any Services required by the Contract. To enable Seller to provide the Services, Buyer will: (i) make all necessary preparation to the site by such date as may be specified in the order or as reasonably required by Seller; (ii) provide Seller with reasonable access to Buyer’s facilities, equipment and personnel; (iii) promptly respond to any request for information, approvals, authorizations or decisions necessary to provide the Services; and (iv) promptly notify Seller of any dangerous, operational or special conditions that may affect the provision of the Services.
14. Tooling. Unless otherwise specified in an agreement signed by Seller and Buyer, all tooling, fixtures, equipment, tools, software, and designs produced, acquired or used by Seller for the purposes of filling Buyer’s order, including those provided by Buyer to Seller in order for Seller to fulfill an order, shall remain the property of Seller during the term of the Contract and thereafter.
15. Software. Any and all software supplied to Buyer in connection with Products, Parts, or Services supplied hereunder is supplied solely under the conditions of the software agreement, user license agreement, terms and conditions, or similar agreement applicable to the relevant software, and not by way of sale, and is subject in the case of Seller’s software to Seller’s relevant terms and conditions of license, and in the case of third-party software, to terms and conditions equivalent to those agreed between Seller and the Seller’s licensor or terms and conditions which Seller’s licensor may require Buyer to accept in order to operate the software. Applicable software terms and conditions or license agreements are available upon Buyer’s written request.
16. Buyer Supplied Parts.
a. Governing Provisions. This Section 16 contains provisions specifically and only applicable to orders for Products or Parts for which Buyer supplies (a) parts to Seller for integration into the Products or Parts (“Buyer Supplied Parts” or “BSP”), or (b) designs. For the avoidance of doubt, Buyer Supplied Parts shall not include parts, components or any other materials procured by Seller in connection with the order.
b. Buyer Supplied Parts. Product ship dates are contingent on receipt of any and all BSP(s) on or before the BSP delivery date(s) provided in the applicable Order Acknowledgment. Any BSP delivery date missed by more than two (2) business days will result in the order being handled pursuant to Section 16(d) below.
c. Buyer Design Changes. All ship dates are based on design(s) finalized on or before the design finalization date(s) specified in the applicable Order Acknowledgment. Changes requested after that point in time will be accommodated pursuant to Section 16(d) below.
d. Late BSP Delivery or Design Changes. In the event that any BSP delivery or design change is not timely made as described in Sections 16(b) and 16(c) above, the order shall be handled as follows: (a) Buyer may request that Seller expedite the manufacturing of the Product to meet the original shipment date, subject to Seller’s acceptance of such request and Buyer’s payment of rescheduling charges; or (b) the Product is placed on “Hold” and its shipment rescheduled. If a Product is placed on “Hold”, the revised ship date will be formalized by Seller after determination of the next available production slot. In the event of a design change, the next available production slot must allow completion of the design change cycle. This cycle includes the quoting of, and Buyer’s agreement to, the revised pricing associated with the design change, the engineering implementation of the design change, and the acquisition of materials required for the design change. At Seller’s election, the design change may also be implemented in the field as an aftermarket modification. Other options will be considered by specific changes on specific Products at the time of the design change request.
e. Specifications. Quantities and sizes are subject to variation in accordance with Seller’s standard practices and tolerances and the requirements of the job where the Products or Parts are to be installed.
f. Installation. If the applicable Order Acknowledgment provides for installation, Seller’s obligation to deliver the Product or Part and provide for the installation of the Product or Part shall in no event commence until the premises is ready to receive the Product or Part, and such obligations shall be subject to all other terms of the Contract. Costs and expenses to Seller or its contractor of delays in installation due to interference by Buyer or other contractors working on the premises will be charged to the Buyer and shall extend Seller’s time of performance to the extent of such delay. Installation costs stated in the Contract are estimated, cover only installation of the Products or Parts specified herein, and do not cover any other costs, including, but not limited to, costs of electrical work, carpentry, plumbing, sweeping, mopping, dusting or general cleanup. Seller or its contractor shall not be responsible for removing or disposing of the packing material, cartons, boxes or other containers housing the Products or Parts. Buyer must inspect and accept or reject the Product or Part and/or services performed by Seller within five (5) business days from the date of installation, or the Product, Part and/or such services shall be deemed accepted by Buyer.
17. Limited Warranty
17.1 General. Seller hereby warrants to Buyer only (regardless of any subsequent sale or transfer of the Products or Parts) that: (i) the Products or Parts will be free from defects in materials and workmanship and materially comply with the specifications set forth in the Contract (or, if no specifications are set forth in the Contract, then Seller’s printed specifications); and (ii) the Services will be performed in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. Buyer must bring any warranty claim within five (5) days after becoming aware of the alleged non-conformance, and the warranty expires twelve (12) months after shipment of the Products or Parts or completion of the Service, as applicable. Buyer’s sole and exclusive remedy for any breach of the warranty is, at Seller’s option: (a) repair or replacement of the nonconforming Products or Parts or re-provision of the applicable Services, as applicable; or (b) an account credit for amounts paid for such non-conforming Products, Parts or Services. These remedies shall be the exclusive remedies for all claims based on Product or Part failure or defect, regardless of when such failure or defect arises, and whether a claim, however described, is based on contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise. The warranties provided in this Section 17 are exclusive and are in lieu of all other warranties, conditions and guarantees, whether written, oral, implied or statutory. Repaired or replaced Products or Parts or re-performed Services shall not extend or renew the applicable warranty period. Products may not be returned without Seller’s prior written authorization, and any costs and expenses in connection with storing, repackaging, and returning any Products will be the responsibility of Buyer. Products must be returned to Seller in strict compliance with Seller’s written return instructions, as noted above.
17.2 Conditions and Exceptions. The warranties and remedies set forth in this Section 17 are expressly conditioned upon (a) proper storage, installation, use, operation, and maintenance of the Products or Parts; (b) Buyer’s keeping complete, accurate records of operation and maintenance during the warranty period and providing Seller access to those records; (c) modification or repair of Products or Parts only as authorized by Seller in writing, and (d) use of the Products and Parts solely for their intended purpose. Failure to meet any such condition renders the warranty null and void. Seller is not responsible for normal wear and tear. In addition, the warranty DOES NOT COVER Products or Parts that: (i) have been subject to misuse, tampering, negligence, accident, or improper installation, maintenance or storage; (ii) have been altered without Seller’s prior written consent; (iii) based on Seller’s examination, do not disclose to Seller’s satisfaction the non-conformance with the warranty; or (iv) are identified as a pre-production version, prototype, sample, reference design or similar. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
17.3 Additional Terms Pertaining to Warranties. Deviations from published specifications which do not materially affect performance of the Products or Parts covered hereby shall not be deemed to constitute a breach of the Warranty. The Warranty is subject to the disclaimers and exclusions set forth therein.
18. Intellectual Property Rights. All intellectual property rights in, or relating to, the Products, Parts or Services, including but not limited to all technical data, processes, designs, drawings, engineering data, U.S. and foreign patents, patent applications, patent rights, trademarks and service marks (including common law rights, applications and registrations therefor), copyrightable and un-copyrightable works (including those in computer programs, drawings, designs, documentation and specifications), copyright registrations, trade secrets, proprietary rights in information (including in data, inventions, discoveries, know-how, formulas, processes, technical information and business information), license rights under the intellectual property rights of third parties and all other intellectual property rights whether or not subject to statutory registration or protection (collectively, “Intellectual Property Rights”), are owned by or licensed to Seller. The sale of any Products, Parts or Services to Buyer in no way conveys to Buyer, either expressly or by implication, any intellectual property ownership or license whatsoever, except as may be expressly granted by Seller in the materials which accompany the Products, Parts or Services upon delivery. Seller expressly reserves its ownership rights in and to its Products, Parts and Services, and asserts that additional restrictions may apply to the use of the Products, Parts or Services, as set forth in the applicable Products, Parts or Services documentation and other materials which accompany the Products, Parts or Services. Any unauthorized use of Seller’s Intellectual Property Rights, including, but not limited to its trademarks, is expressly prohibited.
a. Infringement Claims – Indemnification by Seller. Seller will defend, indemnify and hold harmless Buyer and its officers, directors, employees, agents and equity holders from any liabilities, losses, costs and expenses (including, without limitation, reasonable out of pocket expenses for attorneys’ fees and costs of litigation) (collectively “Losses”) arising out of a claim made against Buyer by a third party (but excluding claims described in Section 18(b) or Section 19(a)) for alleged infringement of any U.S. patent, trademark or copyright existing as of the effective date of any Contract and relating to Buyer’s lawful use of the Products purchased under such Contract in Buyer’s business. Seller’s obligations hereunder are contingent upon Buyer using the Products in accordance with all Seller guidelines and Buyer having made all payments to Seller then due at the time the claim arises and not otherwise being in breach of any provision of the Contract, as well as Buyer complying with the indemnification procedures outlined below. Seller may also, at any time, at its option: (i) procure for Buyer the right to continue to use the Products in question, free of any liability for such infringement; or (ii) direct Buyer to cease use of and not market or sell such Products and (1) modify the Products in question so that they become non-infringing; (2) substitute the Products in question with functionally equivalent non-infringing Products; or (3) accept the return of the Products against payment of the Products’ then-depreciated value, computed on a three (3) year straight-line depreciation schedule commencing as of the date of delivery. The obligations set forth in this Section 18(a) shall be Buyer’s sole and exclusive remedy and Seller’s entire liability for any infringement of third-party intellectual property rights as described in this Section 18(a).
b. Infringement Claims – Indemnification by Buyer. Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, employees, agents and equity holders from and against any Losses arising out of a claim made against Seller or its suppliers by a third party to the effect that any Products or Parts manufactured for or sold to Buyer infringe upon any patent, trademark, copyright or other intellectual property right, if such Products or Parts were manufactured pursuant to Buyer’s designs, specifications, processes and/or formulas.
19. Other Indemnification Claims.
a. By Buyer. Buyer shall defend, indemnify and hold harmless Seller and its officers, directors, employees, agents and equity holders from and against any and all Losses arising out of the use, operation or possession of the Products and/or Parts by Buyer or its affiliates, directors, employees, agents or representatives; the negligent or willful act or negligent or willful omission of Buyer or its affiliates, officers, directors, employees, agents or representatives; or the alteration or modification of the Products or Parts or the use or combination of the Products or Parts with other products, parts, devices or services by Buyer or its affiliates, directors, employees, agents or representatives.
b. By Seller. Seller agrees to defend, indemnify, and hold harmless Buyer and its officers, directors, employees, agents and equity holders from and against any and all Losses arising out of the negligent or willful act or negligent or willful omission of Seller or its affiliates, officers, directors, employees, agents or representatives in connection with its performance of its obligations hereunder.
20. Indemnification Procedures. Promptly after receipt of any written claim or notice of any action giving rise to a claim for indemnification, (a) the indemnified party shall promptly notify the other party and provide copies of the claim and any documents relating to the same in its possession; and (b) the indemnifying party shall have control of the defense of any such claim and all negotiations for settlement or compromise provided, however, that the indemnified party shall have the right to approve defense counsel selected by the indemnifying party, such consent not to be unreasonably withheld or delayed. In the event both the indemnified party and the indemnifying party are named in the claim and circumstances exist or may arise which would make the indemnifying party and the indemnified party adverse to each other or create a conflict of interest for the indemnifying party defending the indemnified party, the indemnified party shall be permitted to participate in the defense of the claim with counsel of its own choosing at the reasonable cost and expense of the indemnifying party; and (c) at the indemnifying party’s reasonable request and expense, the indemnified party shall provide it with reasonable assistance for the defense of the claim. The indemnified party shall be entitled to employ counsel at its own expense to monitor the handling of the claim and neither party shall settle a claim that imposes on, or restricts the operations of, the other party or requires the other party to pay monies or make admissions without the written consent of such other party, which consent shall not be unreasonably withheld or delayed. If the indemnifying party fails to assume the defense of any claim within the prescribed period of time, then the indemnified party may assume the defense of such claim at the reasonable cost and expense of the indemnifying party.
21. Confidentiality; Data Security and Data Protection.
21.1 All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller and its employees, agents, subcontractors, and representatives to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with the Contract is confidential, solely for the use of performing this Contract and may not be disclosed or copied by Buyer or its employees, agents, subcontractors, or representatives unless authorized in advance by Seller in writing. Buyer shall be responsible for a breach of such obligations by its employees, agents, subcontractors, or representatives. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain (other than due to an improper disclosure by Buyer); (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. The parties agree that the provisions set forth in the NDA (if executed by the parties), shall supplement and be in addition to the obligations of this Section. In the event of any conflict between this Contract and the NDA, the parties agree that the NDA shall control with respect to the obligations of confidentiality of information between the parties, and this Contract shall control with respect to the sale of any Products, Parts or Services.
21.2 Buyer represents that it has developed and implemented, and covenants that it will maintain, effective information security policies and procedures that include administrative, technical and physical safeguards designed to (a) ensure the confidentiality, security, integrity and availability of Seller’s Confidential Information provided hereunder; (b) protect against anticipated threats or hazards to the confidentiality, security, integrity and availability of such information; (c) protect against unauthorized access or use of such information; and (d) ensure the proper disposal of such information. Buyer shall promptly notify Seller of any breach of confidentiality by Buyer or any of its agents, disclosure of Seller’s Confidential Information by Buyer or one of its agents or a breach of Buyer’s information security policies or procedures. Notice shall be provided to Seller no later than 24 hours upon discovery of breach.
21.3 Buyer shall comply with the data protection and privacy legislation in all relevant countries and shall ensure that its employees, agents and contractors observe the provisions of that legislation. Buyer has been provided with a copy of Seller’s Privacy Policy, available at https://www.mpgdover.com/en/company/ corporate-information/Policy-information/privacy-policy.html (as the same may be amended or modified (the “Privacy Policy”), and understands that Buyer’s adherence to the Privacy Policy, the terms of which are incorporated herein by reference, are a fundamental component of the Contract.
21.4 Buyer shall have the obligation to properly and conspicuously label any controlled unclassified information and/or export controlled documents, data or other items provided to Seller with the applicable language as to and export restrictions related to such documents, data or other items. In advance of providing Seller with any controlled unclassified information and/or export controlled documents, data or other items, Buyer shall contact the Seller’s designated representative to coordinate proper transfer of such items. Failure of Buyer to properly label any controlled unclassified information and/or export controlled documents, data or other items provide to Seller shall be at Buyer’s risk and regulatory reporting requirements.
22. Security Interest. Except as prohibited by law, Buyer hereby grants to Seller, its successors and assigns, a lien on and purchase money security interest in and to all of the right, title and interest of Buyer in, to and under the Products and Parts sold hereunder, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing, to secure payment of all obligations of Buyer under the Contract, including, but not limited to, all costs and expenses set forth in Section 7 hereof, and Buyer authorizes Seller to take all actions necessary to perfect and/or enforce such security interests, including, but not limited to, the filing of any financing statement in accordance with the Uniform Commercial Code or other applicable law. Default in payment of such price or any part of the obligations when due shall permit Seller, in its sole discretion, to declare all obligations of Buyer immediately due and payable, and in such event, Seller shall have all the rights and remedies of a secured party under applicable law. In connection with the security interest granted herein, Seller is expressly authorized, at its discretion, to file one or more financing statements or other notices under applicable law naming Buyer as debtor and Seller as secured party. Buyer will execute such documents requested by Seller to record and otherwise perfect this security interest.
23. Limitation of Liability.
a. Incidental and Consequential Damages. SELLER’S LIABILITY WITH RESPECT TO THE PRODUCTS, PARTS AND SERVICES PROVIDED HEREUNDER SHALL BE LIMITED TO THE AMOUNT RECEIVED BY SELLER FOR THE PRODUCTS, PARTS OR SERVICES GIVING RISE TO ANY CLAIM HEREUNDER. SELLER SHALL NOT BE LIABLE FOR AND BUYER EXPRESSLY DISCLAIMS AND WAIVES ANY CLAIM OR INTEREST IN OR TO ANY AND ALL INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES WHATSOEVER RESULTING FROM SELLER’S PERFORMANCE OR FAILURE TO PERFORM UNDER THE CONTRACT OR THE FURNISHING, PERFORMANCE OR USE OF ANY PRODUCTS OR PARTS SOLD OR SERVICES RENDERED PURSUANT HERETO, WHETHER DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY, THE NEGLIGENCE OF SELLER OR OTHERWISE, AND WHETHER OR NOT SUCH LOSS WAS FORESEEABLE OR WHETHER BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. Specifically Excluded Damages. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER SPECIFICALLY DISCLAIMS AND BUYER WAIVES ANY LIABILITY OR CLAIM FOR PROPERTY OR PERSONAL INJURY DAMAGES, PENALTIES, DAMAGES FOR LOST PROFITS OR REVENUES, LOSS OF USE OF PRODUCTS OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES OR SERVICES, DOWN TIME, SHUT DOWN OR SLOW DOWN COSTS, OR FOR ANY OTHER TYPES OF ECONOMIC LOSS, AND FOR CLAIMS OF BUYER’S CUSTOMERS OR ANY THIRD PARTY FOR ANY SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT, SELLER SHALL NOT BE RESPONSIBLE FOR THE PAYMENT OF ANY LIQUIDATED DAMAGES TO BUYER HEREUNDER.
c. Remedies. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE LIABILITY OF SELLER TO BUYER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), UNDER THE WARRANTY, OR OTHERWISE, IS EXCLUSIVELY LIMITED TO THE REMEDIES EXPRESSLY PROVIDED UNDER THE TERMS OF THE CONTRACT, IN LIEU OF ANY AND ALL OTHER REMEDIES AT LAW OR IN EQUITY. THIS LIMITATION OF LIABILITY SHALL SURVIVE FAILURE OF ANY ESSENTIAL PURPOSE.
24. Statute of Limitations. Except as otherwise expressly provided herein, any action that Buyer may have against Seller alleging Seller’s breach of any provision of the Contract must be commenced within one (1) year following Buyer’s discovery of the alleged breach or such claim shall be forever barred.
25. Modification; Waiver. No modifications to these Terms shall be enforceable except when in writing and signed by both parties, unless otherwise expressly stated herein. Seller shall not be deemed to have waived any of its rights, powers, or remedies under these Terms, or at law or in equity unless such waiver is in writing and is executed. No delay or omission by Seller in exercising any right, power, or remedy shall operate as a waiver thereof or of any other right, power, or remedy. No waiver by Seller of any default shall operate as a waiver of any other default, or of the same default or another occasion.
26. Severability. If any provisions of the Contract shall be deemed illegal or unenforceable, such illegality or unenforceability shall not affect the validity and enforceability of any legal and enforceable provisions hereof which shall be construed as if such illegal and unenforceable provision or provisions had not been inserted herein, unless such illegality or unenforceability shall destroy the underlying business purpose of the Contract.
27. Assignability. Buyer may not assign any Contract without Seller’s prior written consent. Seller may assign any Contract, or any rights or obligations pursuant to a Contract, to an affiliate of Seller or to an acquirer of control of Seller’s equity or all or substantially all its assets, and such assignment shall not require Buyer’s consent.
28. Force Majeure. Seller shall not be liable for any loss, delay or failure to perform resulting from any circumstance, direct or indirect, reasonably beyond its control including, without limitation, pandemic, quarantine, fire, flood, earthquake, accident, explosion, mechanical breakdown, insurrection, riots, national emergencies, war, acts of public enemies, strike or other labor trouble, plant shutdown, unavailability of or interference with the usual means of transporting the Products, or any law, regulation, order, recommendation or request of any governmental authority having or claiming to have jurisdiction over Seller, its subcontractors and/or its suppliers. In addition, Seller shall be so excused in the event it is unable to acquire from its usual sources and on terms it deems to be reasonable, any labor or material necessary for manufacturing the Products or Parts or performing the Services. In the event that there should be a shortage of any Product or Part, Seller may apportion its available Product and Parts among itself, its affiliates and all its customers in such equitable manner as it deems fair and reasonable. Upon giving prompt written notice to Buyer of any such causes of a delay or failure in its performance of any obligation under the Contract, the time of performance by Seller shall be extended, at Seller’s option, to the extent of any delay resulting from any force majeure event.
29. Governing Law; Exclusive Jurisdiction and Venue. The Contract shall be governed and construed according to the laws of the State of Delaware, without reference to principles or conflicts of laws. Any action brought by either party arising out of or relating to the Contract must be brought in a U.S. District Court or state court in New Castle County, Delaware. Buyer waives any objection to jurisdiction or venue in respect of said courts and to any service of process issued under their authority. The U.N. Convention on Contracts for the International Sale of Goods does not apply to the Contract or these Terms.
30. Compliance with Laws. Buyer shall: (i) comply with all applicable laws, rules, and regulations, including, without limitation, those regarding anti-corruption, anti-bribery, human rights, and environmental health and safety; (ii) maintain in effect all licenses, permissions, authorizations, certificates, consents, approvals, and permits necessary to carry out Buyer’s responsibilities and obligations under the Contract and these Terms; and (iii) handle, store, use, and transfer the Products and Parts in compliance with the foregoing and any safety information provided by Seller. Buyer shall complete any documents and provide such information as Seller may reasonably request to ascertain Buyer’s compliance with the foregoing. The Products or Parts, including any documentation and technical data related thereto, may be subject to certain: (a) U.S. or other applicable export laws, rules, and regulations, including, without limitation, the U.S. International Traffic in Arms Regulations, Export Administration Regulations and Foreign Assets Control Regulations (“Export Laws”); and (b) anti-money laundering laws, rules, and regulations, including, without limitation, the U.S. Patriot Act (“AML Laws”). Buyer shall comply with all applicable Export Laws and AML Laws. Buyer shall not export, re-export, or release any Products or Parts that are subject to Export Laws, directly or indirectly, to any jurisdiction to which, or person to whom, such export, re-export, or release is prohibited by any applicable Export Laws, including but not limited to the terms of any export licenses obtained by Buyer as to end-use or end-user. It is Buyer’s responsibility to obtain any license or other approvals, and Buyer will complete any documents requested by Seller prior to exporting, re-exporting, or releasing any Products or Parts that are subject to Export Laws. Seller will have no obligation to make any shipment to Buyer until it has received all such information and has obtained copies of the applicable licenses, permits, approvals or documentation for shipment, if any. If Seller becomes aware that Buyer has violated, or is suspected of violating any Export Laws, Buyer understands that Seller shall have the obligation to report such suspected violation to United States customs officials, or any other applicable government officials, and/or to repossess the Products or Parts associated with such violation; provided, however, that such government remedies shall be cumulative to any other remedies provided to Seller hereunder or by law. Buyer shall indemnify, defend, and hold Seller, including its equity holders, directors, officers, employees, affiliates, successors, and assigns, harmless from and against any breach of this Section by Buyer or any of its equity holders, directors, officers, employees, affiliates, successors, permitted assigns, customers, agents, distributors, resellers, or vendors. Buyer shall have the further obligation to retain all documents related to purchases, licenses and shipments of export controlled goods for a period of not less than five (5) years, and shall make such documents available on reasonable notice by Seller or any applicable governmental authority for inspection.
31. Relationship of Parties. Nothing contained in these Terms shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these terms and conditions shall be deemed to construe either of the parties as the agent or distributor of the other party.
32. No Third-Party Beneficiaries. Except with respect to the indemnification obligations in favor of each party’s officers, directors, employees, agents and equity holders in Sections 18 and 19, the Contract is for the sole benefit of the parties hereto and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
33. Survival. Sections 7–9, 17-27, and 29-33 will survive the expiration or earlier termination of the Contract, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination.
34. Flow-Down Provisions. If, and to the extent Buyer seeks to flow down terms and conditions of a higher tier contract to Seller, Buyer will provide a copy of any portion of any higher tier contract that is applicable to Seller’s scope of work and Buyer shall specifically identify any applicable flow-down terms, including, without limitation, all applicable Federal Acquisition Regulation (“FAR”), Defense Federal Acquisition Regulation Supplement (“DFARS”) clauses, and any other Agency FAR supplemental clauses to which Buyer seeks to flow down. Seller shall not be responsible for complying with the requirements of any flow-down provision that is not so identified and provided to Seller in advance of entering into the Contract. Any attempted flow down provisions that either (i) Buyer is not specifically required to flow down to Seller by the terms of a particular clause, or (ii) are otherwise inapplicable to Seller’s scope of work by their terms, are rejected and shall be deemed self-deleting.
Additional Terms and Conditions
• Please refer to Espy’s End User License Agreement (EULA), for additional terms and conditions related to the licensed computer software, technical data, and services described in this brochure.
• ITAR: Licensee is hereby notified that the Licensed Information is subject to U.S. export control laws and regulations, including but not limited to, the Arms Export Control Act as amended (22 U.S.C. § 2778 et. seq.) and the International Traffic in Arms Regulations (22 C.F.R. § 120 et. seq.). In connection with and without limiting the general applicability of the preceding sentence, Licensee shall not make or permit disclosure by any means of the Licensed Information to citizens or nationals of prohibited countries or to any Foreign Person (as defined in the International Traffic in Arms Regulation) unless (a) Licensee has received Espy’s express written consent to do so and (b) necessary export licenses have been obtained and a copy of such license or export approval has been provided to Espy.
MPG Terms and Conditions of Sale
1. Acceptance and Complete Agreement. All orders placed for products (“Products”), spare/replacement parts for products (“Parts”) and/or services (“Services”), as applicable, furnished by the entity set forth on the written order acknowledgement (“Seller”) to the purchaser thereof (the “Buyer”) are subject to the terms and conditions set forth herein and any schedules attached hereto (collectively, these “Terms”), the warranty incorporated by reference in Section 17 of these Terms (the “Warranty”), any sales quotation for the Products or Services given by Seller (the “Offer”), the written order acknowledgment from Seller accepting Buyer’s written order for the Products or Services (the “Order Acknowledgment”), and any confidentiality and/or nondisclosure agreement executed between Seller and Buyer (the “NDA”). These Terms, the Warranty, the Offer, the Order Acknowledgment, and the NDA are hereafter collectively referred to as the “Contract,” whether or not specifically referred to. If any provision in the Order Acknowledgment is inconsistent with these Terms, the provision of the Order Acknowledgment shall govern. No additional or different terms or conditions or any modifications, changes or amendments to the Contract shall be binding upon Seller unless specifically agreed to in writing by an authorized representative of Seller. Other than governmental flow-down provisions that are expressly mandatory by the individual terms of each particular clause that are required to be inserted by law and are specifically identified by Buyer and provided in advance in accordance with Section 34 below, Seller hereby objects to, and rejects, any additional or different terms already or hereafter proposed by Buyer, but not expressly set forth in the Contract, whether contained in any documentation or communication from Buyer or otherwise, including, without limitation, any terms set forth in any purchase order, acknowledgement, statement of terms and conditions, electronic business portal, or any other such document or communication. Seller’s failure to further object to any of the provisions contained in any documentation of Buyer’s or any communication of any kind from Buyer shall not be deemed a waiver of the Terms of the Contract or as an acceptance by Seller of any deviation from the Terms of the Contract. SELLER’S ACCEPTANCE OF ANY OR ALL OF BUYER’S ORDERS FOR PRODUCTS, PARTS OR SERVICES IS CONDITIONAL UPON BUYER’S ASSENT TO THE TERMS OF THE CONTRACT REGARDLESS OF ANY TERMS CONTAINED IN ANY OF BUYER’S COMMUNICATIONS OR DOCUMENTS. Sales literature, price lists, illustrations, drawings, samples, photographs or descriptions and other documents issued by Seller in relation to the Products, Parts and Services are subject to alteration without notice and are intended as a guide only and shall not be binding on Seller. The Contract constitutes the entire agreement between Seller and Buyer, superseding all prior oral or written communications, representations, agreements and negotiations.
2. Delivery Times. All quoted delivery dates for Products, Parts and Services are estimates only and Seller shall not be liable for any loss or damage whatsoever for failure to deliver the Products or Parts or perform the Services, as applicable, at the specified time or on the specified date unless expressly agreed in writing between the parties. Seller reserves the right to make delivery in installments, and all such installments, when separately invoiced, shall be paid for when due per Seller’s invoice, without regard to subsequent deliveries. Delay in any installment, or failure of any delivery, shall not relieve Buyer of its obligation to accept remaining deliveries. Seller will consider reasonable requests by Buyer for the postponement of delivery but shall be under no obligation to do so. Additional charges may apply for changes in delivery dates or time, at Seller’s discretion.
3. Shipping and Delivery
3.1 Unless otherwise specified in the Order Acknowledgment or expressly agreed in writing by Seller, all Products shall be shipped Ex-Works (EXW, Incoterms 2020) from Seller’s facility or a location designated by Seller for that purpose.
3.2 Products will be standard packed for shipment. Unless otherwise agreed in writing by Seller, the price includes standard bulk packaging for domestic shipment. Upon Buyer’s request, Seller may agree to provide special packaging, marking or forms, subject to additional charges and Seller’s prior written consent.
3.3 Buyer shall be responsible for all shipping charges, including but not limited to shipping, transportation, duties, customs charges, and insurance costs. The Products will be shipped under a straight bill of lading, naming Buyer as consignee. If requested by Buyer, forthwith after the Products have been delivered to a shipper for transportation to Buyer, Seller shall transmit the bill of lading to Buyer at Buyer’s address as stated in Buyer’s order. Any prepayment by Seller of certain shipping or handling charges will be added to Buyer’s invoice or shall be payable collect by Buyer, as provided in the Order Acknowledgement or, if not provided therein, as otherwise determined by Seller in its sole discretion.
3.4 Unless otherwise provided in the Order Acknowledgement, installation, training, and other services related to Products or Parts ordered are not included. Pricing for such services are available upon request.
4. Risk and Title.Title to all Products and Parts shall transfer to Buyer upon delivery of such Products and Parts to a shipper or freight carrier, as applicable, for transportation to Buyer (the “Delivery”), and upon such Delivery, Buyer shall bear all risk of loss. Subsequent to the Delivery, Seller shall not be responsible or liable for the security, safeguarding, or insurance of the Products or Parts so transferred.
5. Storage. Any of the Products or Parts whose manufacture, installation or shipment is delayed (a) by the acts or omissions of Buyer or its carrier or (b) at Buyer’s request, may be placed in storage by Seller (at Seller’s sole option) at Buyer’s risk and at Buyer’s cost and expense (including insurance). Storage fees will be assessed from the originally-scheduled shipment date (or the date the Products were ready to ship if a shipment date had not been scheduled) until the Delivery. The storage fee rate for finished Products that are prevented from shipping will be provided to Buyer. The storage fee will be added along with the actual freight and handling and applicable taxes to the final invoice for the Products or Parts. All charges for storage are per Product or Part and may vary based on the type of Product or Part stored.
6. Orders and Price.
6.1 All prices and delivery quotations made by Seller in the Offer(s) are conditioned upon these Terms. No order shall be binding upon Seller until received in writing and accepted by an authorized representative of Seller through Seller’s issuance of a written Order Acknowledgment. Other than as prohibited by the issuance of a rated order under the Defense Priorities and Allocations System, Seller reserves the right, in its sole discretion, to reject any order from Buyer, regardless of whether Seller provided an Offer or other price quote to Buyer. Seller may, from time to time, specify a minimum quantity or value order for Products or Parts, and, if applicable, Buyer’s order must be for at least that minimum. Any amendment to an order made by Buyer shall be binding on Seller only if confirmed in writing by Seller and additional costs, if any, for such amendment shall be borne by Buyer. Any Contract(s) resulting from acceptance of any order(s) placed with Seller may only be modified or rescinded by a written document, signed by the duly authorized representative of both parties.
6.2 All information, prices and specifications shown in Seller’s advertisements, catalogues, brochures, product and price lists, website or otherwise are indicative, subject to change without notice and shall under no circumstances bind Seller.
6.3 The price of the Products, Parts or Services will be Seller’s price as confirmed in the Order Acknowledgement, or where no price has been quoted, Seller’s current price as of the date of the Order Acknowledgment. Typographical errors are not binding and are subject to correction.
6.4 Seller reserves the right, by giving notice to Buyer at any time before Delivery or the completion of the Services, as applicable, to increase the price of the Products, Parts, or Services, as applicable, to reflect any factor beyond the control of Seller, such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, change in law, order, or regulation, significant increase in the costs of labor, materials or other costs of manufacture, any change in delivery dates, quantities or specifications for Products, Parts, or Services which are requested by Buyer, or any delay caused by any instructions of Buyer or failure of Buyer to give Seller adequate information or instructions. Additionally, if Seller’s list price or standard price for any Products, Prices, or Services increase from the time of the order until the time of the Delivery, Seller shall have the right to increase the price of any unshipped Products or Parts, or any uncompleted Services, to reflect the standard or list price increase.
6.5 Prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions which are not part of the original price quotation in the Offer. If the prices are based on the purchase of a particular quantity of Products or Parts and Buyer fails to purchase that quantity which would justify the pricing granted, Buyer will, at Seller’s option, pay Seller the difference between the stated prices and Seller’s standard prices for such Products or Parts in the quantity actually purchased by Buyer.
7. Payment.
7.1 Products and Parts are invoiced upon Delivery, shipment or at the time Seller puts the Products and/or Parts at Buyer’s disposal, whichever occurs earlier. Services are invoiced upon completion of performance. If Delivery is delayed by Buyer (including due to Buyer’s failure to secure the proper export or import licenses or clearances), date of notice of readiness for Delivery shall be deemed to be date of delivery for invoice purposes. Terms of payment are net thirty (30) calendar days from the date of Seller’s invoice and shall be made in U.S. dollars, provided that Seller reserves the right to modify its credit terms from time to time, including requiring prepayment for orders at Seller’s sole discretion. All orders on credit may be subject to Seller’s credit approval process. If Buyer’s creditworthiness changes, as determined by Seller in its sole discretion, then Seller may demand advance payment or other means of financial security, including a letter of credit.
7.2 Any late payments are subject to a finance charge equal to the lesser of 1.5% per month (18% per annum), or the maximum amount allowed by law, computed on all unpaid amounts and accrued on a daily basis until the actual date of full payment. All payments due to Seller shall be made in full without any set-off or deduction to the amounts shown on the relevant invoice. If Seller receives partial payment in an amount less than the full amount of any invoice, such receipt shall neither constitute a waiver of Seller’s right to collect the balance nor an accord and satisfaction, notwithstanding Seller’s endorsement of a check or other instrument. Buyer shall have no right to withhold any amount due Seller under the Contract because of a claim Buyer may have against Seller. In the event of any late payment or default, Buyer will pay, in addition to the balance due and owing, all collection costs, court costs, administrative costs, investigation costs, reasonable attorneys’ fees and all other incidental costs, charges or expenses incurred by Seller in the collection of past due amounts or otherwise resulting or arising from any breach by Buyer of the Contract. In addition to all other remedies available under the Contract or at law (which Seller does not waive by the exercise of any rights under the Contract), Seller shall be entitled to withdraw credit or suspend or cancel the delivery of any Products or Parts or provision of any Services, under this Contract or any other agreement between the parties, if Buyer fails to pay any amount when due hereunder and such failure continues for five (5) calendar days following written notice to Buyer thereof.
8. Taxes and Other Charges. Unless otherwise specified in writing by Seller or required by law, all prices will be quoted and billed exclusive of customs fees, duties and taxes, and Buyer shall be responsible for all such applicable customs fees, duties and taxes (exclusive of taxes on Seller’s income). If exemption from such taxes is claimed, Buyer must provide a certificate of exemption at the time its order is submitted to Seller, and Buyer will indemnify Seller for any unpaid taxes, as well as any penalties and interest, in the event such exemption is not applicable.
9. Loss or Damage in Transit; Returns.
9.1 Seller’s responsibility for damaged goods ceases upon Delivery and all claims for loss or damage occurring after Delivery must be filed by Buyer with the carrier.
9.2 In the event of (a) shortage, or (b) excess deliveries, (c) wrong product, (d) visible or concealed damage occurring prior to Delivery, or (e) loss occurring prior to acceptance by the carrier, a claim must be made in writing by Buyer against Seller. All claims against the carrier or Seller under this Section 9 must be made within two (2) weeks after the Delivery of the Products; provided, however, that Buyer may make a claim within four (4) weeks after Delivery of the Products for international shipments. Buyer’s failure to timely make any such claim shall constitute unqualified acceptance and a waiver of all such claims by Buyer. Claims against Seller are subject to Buyer’s compliance with Seller’s Return Merchandise Authorization (RMA) policy, which will be provided to Buyer upon request. Seller may, at Seller’s option, require Buyer to (i) provide photographs or other documentation of such claim, and (ii) make the Products or Parts (including packaging, wrappings, carton) subject to the claim available for inspection by Seller or its authorized representative in order to substantiate the grounds for rejection of the Products or Parts. All rejected Products and Parts must be returned to Seller, at Buyer’s risk and expense, prior to replacement by Seller. The return of all rejected Products and Parts shall be at Buyer’s risk and expense and must be sent to Seller under DDP (Incoterms 2020) at the place of destination indicated by Seller.
9.3 Seller may, in its sole discretion, accept the return of Products or Parts on a case-by-case basis. Returned Products or Parts must be in good working condition and in their original packaging to be eligible for return. Prior to returning any Products or Parts, Buyer shall issue a written request to Seller for a RMA number setting forth the reason for such request in reasonable detail. Any return of Products or Parts to Seller will be made ONLY upon Seller’s assignment of an RMA number to Buyer. Such RMA number must be displayed prominently on the outside of the box that contains the returned Products or Parts. Buyer shall return all Products and Parts in compliance with Seller’s Return Merchandise Authorization (RMA) policy, which will be provided to Buyer upon request. Returns not meeting the conditions herein and in Seller’s RMA Policy will be refused and returned to Buyer at Buyer’s risk expense. Seller reserves the right to apply a re-stocking charge, at Seller’s sole discretion, to any accepted returns. All returned Products and Parts are eligible for exchange or merchandise credit only, subject to any restocking charges.
10. Loss or Damage in Transit.
10.1 Seller shall have the right to deliver substitute products for the Products or Parts ordered by Buyer, provided that such substituted products do not materially differ from the ordered Products or Parts in terms of overall form, fit and performance, as determined in Seller’s sole and complete discretion. Seller reserves the right at any time to make changes to Products and/or Parts or in the design or specifications of the Products and/or Parts, without liability or obligation to implement such change to any Products or Parts previously manufactured, and further reserves the right to discontinue any Product or Part at any time.
10.2 Drawings, specifications, product finishes and color shades in Seller’s literature and advertisements are approximate only and do not constitute a trade description.
11. Cancellation and Termination by Buyer; Rescheduling. Except as directed by the government in accordance with the terms of an agreed flow-down clause, Buyer may not cancel an order, reduce quantities, revise specifications or change delivery schedules unless approved in writing by Seller. If Seller consents to cancellation of all or a portion of an order, Seller may invoice Buyer for cancellation fees which shall take into account all expenses (a) already incurred, including but not limited to expended materials, labor, production costs, and work in progress; (b) for outstanding commitments that cannot be cancelled; and (c) for all incidental costs and expenses, including but not limited to storage and handling fees. Buyer will pay such cancellation fees within 30 calendar days of the date of Seller’s invoice. Any requests by Buyer to delay the delivery of an order beyond the originally scheduled delivery date shall be made in writing and are subject to the prior consent of Seller, in its sole discretion. Seller reserves the right to assess Buyer a charge sufficient to cover all costs incurred by Seller due to any approved delay or Buyer’s failure to take Delivery on the scheduled Delivery date (in addition to any storage charges described above). Any charge assessed to Buyer due to its failure to take delivery of an order shall be in addition to, and without prejudice to, other remedies Seller may have at law or equity.
12. Cancellation and Termination by Seller; Rescheduling. Seller reserves the right to cancel any orders placed by Buyer, or to refuse or delay shipment thereof, with no liability to Seller, if Buyer (a) fails to make any payment as provided in the Contract or under the terms of payment set forth in any invoice or otherwise agreed to by Seller and Buyer, (b) fails to meet reasonable credit or financial requirements established by Seller, including any limitations on allowable credit, (c) otherwise fails to comply with the Contract, (d) becomes debarred, suspended, or identified as a denied party by any applicable government agency; (e) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors, or (f) violates, or is reasonably believed to have violated, applicable law, including anti-bribery, anti-corruption, anti-money laundering, or privacy laws.
13. Services.
Unless otherwise provided in a separate agreement between Seller and Buyer, where Seller provides Services, including but not limited to installation, testing, servicing, training, development, optimizing, integration or support in connection with Products, the manner and means used to perform the Services are at the sole discretion and control of Seller. Seller reserves the right to subcontract the installation of Products or the performance of any Services required by the Contract. To enable Seller to provide the Services, Buyer will: (i) make all necessary preparation to the site by such date as may be specified in the order or as reasonably required by Seller; (ii) provide Seller with reasonable access to Buyer’s facilities, equipment and personnel; (iii) promptly respond to any request for information, approvals, authorizations or decisions necessary to provide the Services; and (iv) promptly notify Seller of any dangerous, operational or special conditions that may affect the provision of the Services.
14. Tooling. Unless otherwise specified in an agreement signed by Seller and Buyer, all tooling, fixtures, equipment, tools, software, and designs produced, acquired or used by Seller for the purposes of filling Buyer’s order, including those provided by Buyer to Seller in order for Seller to fulfill an order, shall remain the property of Seller during the term of the Contract and thereafter.
15. Software. Any and all software supplied to Buyer in connection with Products, Parts, or Services supplied hereunder is supplied solely under the conditions of the software agreement, user license agreement, terms and conditions, or similar agreement applicable to the relevant software, and not by way of sale, and is subject in the case of Seller’s software to Seller’s relevant terms and conditions of license, and in the case of third-party software, to terms and conditions equivalent to those agreed between Seller and the Seller’s licensor or terms and conditions which Seller’s licensor may require Buyer to accept in order to operate the software. Applicable software terms and conditions or license agreements are available upon Buyer’s written request.
16. Buyer Supplied Parts.
a. Governing Provisions. This Section 16 contains provisions specifically and only applicable to orders for Products or Parts for which Buyer supplies (a) parts to Seller for integration into the Products or Parts (“Buyer Supplied Parts” or “BSP”), or (b) designs. For the avoidance of doubt, Buyer Supplied Parts shall not include parts, components or any other materials procured by Seller in connection with the order.
b. Buyer Supplied Parts. Product ship dates are contingent on receipt of any and all BSP(s) on or before the BSP delivery date(s) provided in the applicable Order Acknowledgment. Any BSP delivery date missed by more than two (2) business days will result in the order being handled pursuant to Section 16(d) below.
c. Buyer Design Changes. All ship dates are based on design(s) finalized on or before the design finalization date(s) specified in the applicable Order Acknowledgment. Changes requested after that point in time will be accommodated pursuant to Section 16(d) below.
d. Late BSP Delivery or Design Changes. In the event that any BSP delivery or design change is not timely made as described in Sections 16(b) and 16(c) above, the order shall be handled as follows: (a) Buyer may request that Seller expedite the manufacturing of the Product to meet the original shipment date, subject to Seller’s acceptance of such request and Buyer’s payment of rescheduling charges; or (b) the Product is placed on “Hold” and its shipment rescheduled. If a Product is placed on “Hold”, the revised ship date will be formalized by Seller after determination of the next available production slot. In the event of a design change, the next available production slot must allow completion of the design change cycle. This cycle includes the quoting of, and Buyer’s agreement to, the revised pricing associated with the design change, the engineering implementation of the design change, and the acquisition of materials required for the design change. At Seller’s election, the design change may also be implemented in the field as an aftermarket modification. Other options will be considered by specific changes on specific Products at the time of the design change request.
e. Specifications. Quantities and sizes are subject to variation in accordance with Seller’s standard practices and tolerances and the requirements of the job where the Products or Parts are to be installed.
f. Installation. If the applicable Order Acknowledgment provides for installation, Seller’s obligation to deliver the Product or Part and provide for the installation of the Product or Part shall in no event commence until the premises is ready to receive the Product or Part, and such obligations shall be subject to all other terms of the Contract. Costs and expenses to Seller or its contractor of delays in installation due to interference by Buyer or other contractors working on the premises will be charged to the Buyer and shall extend Seller’s time of performance to the extent of such delay. Installation costs stated in the Contract are estimated, cover only installation of the Products or Parts specified herein, and do not cover any other costs, including, but not limited to, costs of electrical work, carpentry, plumbing, sweeping, mopping, dusting or general cleanup. Seller or its contractor shall not be responsible for removing or disposing of the packing material, cartons, boxes or other containers housing the Products or Parts. Buyer must inspect and accept or reject the Product or Part and/or services performed by Seller within five (5) business days from the date of installation, or the Product, Part and/or such services shall be deemed accepted by Buyer.
17. Limited Warranty
17.1 General. Seller hereby warrants to Buyer only (regardless of any subsequent sale or transfer of the Products or Parts) that: (i) the Products or Parts will be free from defects in materials and workmanship and materially comply with the specifications set forth in the Contract (or, if no specifications are set forth in the Contract, then Seller’s printed specifications); and (ii) the Services will be performed in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. Buyer must bring any warranty claim within five (5) days after becoming aware of the alleged non-conformance, and the warranty expires twelve (12) months after shipment of the Products or Parts or completion of the Service, as applicable. Buyer’s sole and exclusive remedy for any breach of the warranty is, at Seller’s option: (a) repair or replacement of the nonconforming Products or Parts or re-provision of the applicable Services, as applicable; or (b) an account credit for amounts paid for such non-conforming Products, Parts or Services. These remedies shall be the exclusive remedies for all claims based on Product or Part failure or defect, regardless of when such failure or defect arises, and whether a claim, however described, is based on contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise. The warranties provided in this Section 17 are exclusive and are in lieu of all other warranties, conditions and guarantees, whether written, oral, implied or statutory. Repaired or replaced Products or Parts or re-performed Services shall not extend or renew the applicable warranty period. Products may not be returned without Seller’s prior written authorization, and any costs and expenses in connection with storing, repackaging, and returning any Products will be the responsibility of Buyer. Products must be returned to Seller in strict compliance with Seller’s written return instructions, as noted above.
17.2 Conditions and Exceptions. The warranties and remedies set forth in this Section 17 are expressly conditioned upon (a) proper storage, installation, use, operation, and maintenance of the Products or Parts; (b) Buyer’s keeping complete, accurate records of operation and maintenance during the warranty period and providing Seller access to those records; (c) modification or repair of Products or Parts only as authorized by Seller in writing, and (d) use of the Products and Parts solely for their intended purpose. Failure to meet any such condition renders the warranty null and void. Seller is not responsible for normal wear and tear. In addition, the warranty DOES NOT COVER Products or Parts that: (i) have been subject to misuse, tampering, negligence, accident, or improper installation, maintenance or storage; (ii) have been altered without Seller’s prior written consent; (iii) based on Seller’s examination, do not disclose to Seller’s satisfaction the non-conformance with the warranty; or (iv) are identified as a pre-production version, prototype, sample, reference design or similar. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
17.3 Additional Terms Pertaining to Warranties. Deviations from published specifications which do not materially affect performance of the Products or Parts covered hereby shall not be deemed to constitute a breach of the Warranty. The Warranty is subject to the disclaimers and exclusions set forth therein.
18. Intellectual Property Rights. All intellectual property rights in, or relating to, the Products, Parts or Services, including but not limited to all technical data, processes, designs, drawings, engineering data, U.S. and foreign patents, patent applications, patent rights, trademarks and service marks (including common law rights, applications and registrations therefor), copyrightable and un-copyrightable works (including those in computer programs, drawings, designs, documentation and specifications), copyright registrations, trade secrets, proprietary rights in information (including in data, inventions, discoveries, know-how, formulas, processes, technical information and business information), license rights under the intellectual property rights of third parties and all other intellectual property rights whether or not subject to statutory registration or protection (collectively, “Intellectual Property Rights”), are owned by or licensed to Seller. The sale of any Products, Parts or Services to Buyer in no way conveys to Buyer, either expressly or by implication, any intellectual property ownership or license whatsoever, except as may be expressly granted by Seller in the materials which accompany the Products, Parts or Services upon delivery. Seller expressly reserves its ownership rights in and to its Products, Parts and Services, and asserts that additional restrictions may apply to the use of the Products, Parts or Services, as set forth in the applicable Products, Parts or Services documentation and other materials which accompany the Products, Parts or Services. Any unauthorized use of Seller’s Intellectual Property Rights, including, but not limited to its trademarks, is expressly prohibited.
a. Infringement Claims – Indemnification by Seller. Seller will defend, indemnify and hold harmless Buyer and its officers, directors, employees, agents and equity holders from any liabilities, losses, costs and expenses (including, without limitation, reasonable out of pocket expenses for attorneys’ fees and costs of litigation) (collectively “Losses”) arising out of a claim made against Buyer by a third party (but excluding claims described in Section 18(b) or Section 19(a)) for alleged infringement of any U.S. patent, trademark or copyright existing as of the effective date of any Contract and relating to Buyer’s lawful use of the Products purchased under such Contract in Buyer’s business. Seller’s obligations hereunder are contingent upon Buyer using the Products in accordance with all Seller guidelines and Buyer having made all payments to Seller then due at the time the claim arises and not otherwise being in breach of any provision of the Contract, as well as Buyer complying with the indemnification procedures outlined below. Seller may also, at any time, at its option: (i) procure for Buyer the right to continue to use the Products in question, free of any liability for such infringement; or (ii) direct Buyer to cease use of and not market or sell such Products and (1) modify the Products in question so that they become non-infringing; (2) substitute the Products in question with functionally equivalent non-infringing Products; or (3) accept the return of the Products against payment of the Products’ then-depreciated value, computed on a three (3) year straight-line depreciation schedule commencing as of the date of delivery. The obligations set forth in this Section 18(a) shall be Buyer’s sole and exclusive remedy and Seller’s entire liability for any infringement of third-party intellectual property rights as described in this Section 18(a).
b. Infringement Claims – Indemnification by Buyer. Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, employees, agents and equity holders from and against any Losses arising out of a claim made against Seller or its suppliers by a third party to the effect that any Products or Parts manufactured for or sold to Buyer infringe upon any patent, trademark, copyright or other intellectual property right, if such Products or Parts were manufactured pursuant to Buyer’s designs, specifications, processes and/or formulas.
19. Other Indemnification Claims.
a. By Buyer. Buyer shall defend, indemnify and hold harmless Seller and its officers, directors, employees, agents and equity holders from and against any and all Losses arising out of the use, operation or possession of the Products and/or Parts by Buyer or its affiliates, directors, employees, agents or representatives; the negligent or willful act or negligent or willful omission of Buyer or its affiliates, officers, directors, employees, agents or representatives; or the alteration or modification of the Products or Parts or the use or combination of the Products or Parts with other products, parts, devices or services by Buyer or its affiliates, directors, employees, agents or representatives.
b. By Seller. Seller agrees to defend, indemnify, and hold harmless Buyer and its officers, directors, employees, agents and equity holders from and against any and all Losses arising out of the negligent or willful act or negligent or willful omission of Seller or its affiliates, officers, directors, employees, agents or representatives in connection with its performance of its obligations hereunder.
20. Indemnification Procedures. Promptly after receipt of any written claim or notice of any action giving rise to a claim for indemnification, (a) the indemnified party shall promptly notify the other party and provide copies of the claim and any documents relating to the same in its possession; and (b) the indemnifying party shall have control of the defense of any such claim and all negotiations for settlement or compromise provided, however, that the indemnified party shall have the right to approve defense counsel selected by the indemnifying party, such consent not to be unreasonably withheld or delayed. In the event both the indemnified party and the indemnifying party are named in the claim and circumstances exist or may arise which would make the indemnifying party and the indemnified party adverse to each other or create a conflict of interest for the indemnifying party defending the indemnified party, the indemnified party shall be permitted to participate in the defense of the claim with counsel of its own choosing at the reasonable cost and expense of the indemnifying party; and (c) at the indemnifying party’s reasonable request and expense, the indemnified party shall provide it with reasonable assistance for the defense of the claim. The indemnified party shall be entitled to employ counsel at its own expense to monitor the handling of the claim and neither party shall settle a claim that imposes on, or restricts the operations of, the other party or requires the other party to pay monies or make admissions without the written consent of such other party, which consent shall not be unreasonably withheld or delayed. If the indemnifying party fails to assume the defense of any claim within the prescribed period of time, then the indemnified party may assume the defense of such claim at the reasonable cost and expense of the indemnifying party.
21. Confidentiality; Data Security and Data Protection.
21.1 All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller and its employees, agents, subcontractors, and representatives to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with the Contract is confidential, solely for the use of performing this Contract and may not be disclosed or copied by Buyer or its employees, agents, subcontractors, or representatives unless authorized in advance by Seller in writing. Buyer shall be responsible for a breach of such obligations by its employees, agents, subcontractors, or representatives. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain (other than due to an improper disclosure by Buyer); (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. The parties agree that the provisions set forth in the NDA (if executed by the parties), shall supplement and be in addition to the obligations of this Section. In the event of any conflict between this Contract and the NDA, the parties agree that the NDA shall control with respect to the obligations of confidentiality of information between the parties, and this Contract shall control with respect to the sale of any Products, Parts or Services.
21.2 Buyer represents that it has developed and implemented, and covenants that it will maintain, effective information security policies and procedures that include administrative, technical and physical safeguards designed to (a) ensure the confidentiality, security, integrity and availability of Seller’s Confidential Information provided hereunder; (b) protect against anticipated threats or hazards to the confidentiality, security, integrity and availability of such information; (c) protect against unauthorized access or use of such information; and (d) ensure the proper disposal of such information. Buyer shall promptly notify Seller of any breach of confidentiality by Buyer or any of its agents, disclosure of Seller’s Confidential Information by Buyer or one of its agents or a breach of Buyer’s information security policies or procedures. Notice shall be provided to Seller no later than 24 hours upon discovery of breach.
21.3 Buyer shall comply with the data protection and privacy legislation in all relevant countries and shall ensure that its employees, agents and contractors observe the provisions of that legislation. Buyer has been provided with a copy of Seller’s Privacy Policy, available at https://www.mpgdover.com/en/company/ corporate-information/Policy-information/privacy-policy.html (as the same may be amended or modified (the “Privacy Policy”), and understands that Buyer’s adherence to the Privacy Policy, the terms of which are incorporated herein by reference, are a fundamental component of the Contract.
21.4 Buyer shall have the obligation to properly and conspicuously label any controlled unclassified information and/or export controlled documents, data or other items provided to Seller with the applicable language as to and export restrictions related to such documents, data or other items. In advance of providing Seller with any controlled unclassified information and/or export controlled documents, data or other items, Buyer shall contact the Seller’s designated representative to coordinate proper transfer of such items. Failure of Buyer to properly label any controlled unclassified information and/or export controlled documents, data or other items provide to Seller shall be at Buyer’s risk and regulatory reporting requirements.
22. Security Interest. Except as prohibited by law, Buyer hereby grants to Seller, its successors and assigns, a lien on and purchase money security interest in and to all of the right, title and interest of Buyer in, to and under the Products and Parts sold hereunder, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing, to secure payment of all obligations of Buyer under the Contract, including, but not limited to, all costs and expenses set forth in Section 7 hereof, and Buyer authorizes Seller to take all actions necessary to perfect and/or enforce such security interests, including, but not limited to, the filing of any financing statement in accordance with the Uniform Commercial Code or other applicable law. Default in payment of such price or any part of the obligations when due shall permit Seller, in its sole discretion, to declare all obligations of Buyer immediately due and payable, and in such event, Seller shall have all the rights and remedies of a secured party under applicable law. In connection with the security interest granted herein, Seller is expressly authorized, at its discretion, to file one or more financing statements or other notices under applicable law naming Buyer as debtor and Seller as secured party. Buyer will execute such documents requested by Seller to record and otherwise perfect this security interest.
23. Limitation of Liability.
a. Incidental and Consequential Damages. SELLER’S LIABILITY WITH RESPECT TO THE PRODUCTS, PARTS AND SERVICES PROVIDED HEREUNDER SHALL BE LIMITED TO THE AMOUNT RECEIVED BY SELLER FOR THE PRODUCTS, PARTS OR SERVICES GIVING RISE TO ANY CLAIM HEREUNDER. SELLER SHALL NOT BE LIABLE FOR AND BUYER EXPRESSLY DISCLAIMS AND WAIVES ANY CLAIM OR INTEREST IN OR TO ANY AND ALL INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES WHATSOEVER RESULTING FROM SELLER’S PERFORMANCE OR FAILURE TO PERFORM UNDER THE CONTRACT OR THE FURNISHING, PERFORMANCE OR USE OF ANY PRODUCTS OR PARTS SOLD OR SERVICES RENDERED PURSUANT HERETO, WHETHER DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY, THE NEGLIGENCE OF SELLER OR OTHERWISE, AND WHETHER OR NOT SUCH LOSS WAS FORESEEABLE OR WHETHER BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. Specifically Excluded Damages. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER SPECIFICALLY DISCLAIMS AND BUYER WAIVES ANY LIABILITY OR CLAIM FOR PROPERTY OR PERSONAL INJURY DAMAGES, PENALTIES, DAMAGES FOR LOST PROFITS OR REVENUES, LOSS OF USE OF PRODUCTS OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES OR SERVICES, DOWN TIME, SHUT DOWN OR SLOW DOWN COSTS, OR FOR ANY OTHER TYPES OF ECONOMIC LOSS, AND FOR CLAIMS OF BUYER’S CUSTOMERS OR ANY THIRD PARTY FOR ANY SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT, SELLER SHALL NOT BE RESPONSIBLE FOR THE PAYMENT OF ANY LIQUIDATED DAMAGES TO BUYER HEREUNDER.
c. Remedies. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE LIABILITY OF SELLER TO BUYER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), UNDER THE WARRANTY, OR OTHERWISE, IS EXCLUSIVELY LIMITED TO THE REMEDIES EXPRESSLY PROVIDED UNDER THE TERMS OF THE CONTRACT, IN LIEU OF ANY AND ALL OTHER REMEDIES AT LAW OR IN EQUITY. THIS LIMITATION OF LIABILITY SHALL SURVIVE FAILURE OF ANY ESSENTIAL PURPOSE.
24. Statute of Limitations. Except as otherwise expressly provided herein, any action that Buyer may have against Seller alleging Seller’s breach of any provision of the Contract must be commenced within one (1) year following Buyer’s discovery of the alleged breach or such claim shall be forever barred.
25. Modification; Waiver. No modifications to these Terms shall be enforceable except when in writing and signed by both parties, unless otherwise expressly stated herein. Seller shall not be deemed to have waived any of its rights, powers, or remedies under these Terms, or at law or in equity unless such waiver is in writing and is executed. No delay or omission by Seller in exercising any right, power, or remedy shall operate as a waiver thereof or of any other right, power, or remedy. No waiver by Seller of any default shall operate as a waiver of any other default, or of the same default or another occasion.
26. Severability. If any provisions of the Contract shall be deemed illegal or unenforceable, such illegality or unenforceability shall not affect the validity and enforceability of any legal and enforceable provisions hereof which shall be construed as if such illegal and unenforceable provision or provisions had not been inserted herein, unless such illegality or unenforceability shall destroy the underlying business purpose of the Contract.
27. Assignability. Buyer may not assign any Contract without Seller’s prior written consent. Seller may assign any Contract, or any rights or obligations pursuant to a Contract, to an affiliate of Seller or to an acquirer of control of Seller’s equity or all or substantially all its assets, and such assignment shall not require Buyer’s consent.
28. Force Majeure. Seller shall not be liable for any loss, delay or failure to perform resulting from any circumstance, direct or indirect, reasonably beyond its control including, without limitation, pandemic, quarantine, fire, flood, earthquake, accident, explosion, mechanical breakdown, insurrection, riots, national emergencies, war, acts of public enemies, strike or other labor trouble, plant shutdown, unavailability of or interference with the usual means of transporting the Products, or any law, regulation, order, recommendation or request of any governmental authority having or claiming to have jurisdiction over Seller, its subcontractors and/or its suppliers. In addition, Seller shall be so excused in the event it is unable to acquire from its usual sources and on terms it deems to be reasonable, any labor or material necessary for manufacturing the Products or Parts or performing the Services. In the event that there should be a shortage of any Product or Part, Seller may apportion its available Product and Parts among itself, its affiliates and all its customers in such equitable manner as it deems fair and reasonable. Upon giving prompt written notice to Buyer of any such causes of a delay or failure in its performance of any obligation under the Contract, the time of performance by Seller shall be extended, at Seller’s option, to the extent of any delay resulting from any force majeure event.
29. Governing Law; Exclusive Jurisdiction and Venue. The Contract shall be governed and construed according to the laws of the State of Delaware, without reference to principles or conflicts of laws. Any action brought by either party arising out of or relating to the Contract must be brought in a U.S. District Court or state court in New Castle County, Delaware. Buyer waives any objection to jurisdiction or venue in respect of said courts and to any service of process issued under their authority. The U.N. Convention on Contracts for the International Sale of Goods does not apply to the Contract or these Terms.
30. Compliance with Laws. Buyer shall: (i) comply with all applicable laws, rules, and regulations, including, without limitation, those regarding anti-corruption, anti-bribery, human rights, and environmental health and safety; (ii) maintain in effect all licenses, permissions, authorizations, certificates, consents, approvals, and permits necessary to carry out Buyer’s responsibilities and obligations under the Contract and these Terms; and (iii) handle, store, use, and transfer the Products and Parts in compliance with the foregoing and any safety information provided by Seller. Buyer shall complete any documents and provide such information as Seller may reasonably request to ascertain Buyer’s compliance with the foregoing. The Products or Parts, including any documentation and technical data related thereto, may be subject to certain: (a) U.S. or other applicable export laws, rules, and regulations, including, without limitation, the U.S. International Traffic in Arms Regulations, Export Administration Regulations and Foreign Assets Control Regulations (“Export Laws”); and (b) anti-money laundering laws, rules, and regulations, including, without limitation, the U.S. Patriot Act (“AML Laws”). Buyer shall comply with all applicable Export Laws and AML Laws. Buyer shall not export, re-export, or release any Products or Parts that are subject to Export Laws, directly or indirectly, to any jurisdiction to which, or person to whom, such export, re-export, or release is prohibited by any applicable Export Laws, including but not limited to the terms of any export licenses obtained by Buyer as to end-use or end-user. It is Buyer’s responsibility to obtain any license or other approvals, and Buyer will complete any documents requested by Seller prior to exporting, re-exporting, or releasing any Products or Parts that are subject to Export Laws. Seller will have no obligation to make any shipment to Buyer until it has received all such information and has obtained copies of the applicable licenses, permits, approvals or documentation for shipment, if any. If Seller becomes aware that Buyer has violated, or is suspected of violating any Export Laws, Buyer understands that Seller shall have the obligation to report such suspected violation to United States customs officials, or any other applicable government officials, and/or to repossess the Products or Parts associated with such violation; provided, however, that such government remedies shall be cumulative to any other remedies provided to Seller hereunder or by law. Buyer shall indemnify, defend, and hold Seller, including its equity holders, directors, officers, employees, affiliates, successors, and assigns, harmless from and against any breach of this Section by Buyer or any of its equity holders, directors, officers, employees, affiliates, successors, permitted assigns, customers, agents, distributors, resellers, or vendors. Buyer shall have the further obligation to retain all documents related to purchases, licenses and shipments of export controlled goods for a period of not less than five (5) years, and shall make such documents available on reasonable notice by Seller or any applicable governmental authority for inspection.
31. Relationship of Parties. Nothing contained in these Terms shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these terms and conditions shall be deemed to construe either of the parties as the agent or distributor of the other party.
32. No Third-Party Beneficiaries. Except with respect to the indemnification obligations in favor of each party’s officers, directors, employees, agents and equity holders in Sections 18 and 19, the Contract is for the sole benefit of the parties hereto and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
33. Survival. Sections 7–9, 17-27, and 29-33 will survive the expiration or earlier termination of the Contract, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination.
34. Flow-Down Provisions. If, and to the extent Buyer seeks to flow down terms and conditions of a higher tier contract to Seller, Buyer will provide a copy of any portion of any higher tier contract that is applicable to Seller’s scope of work and Buyer shall specifically identify any applicable flow-down terms, including, without limitation, all applicable Federal Acquisition Regulation (“FAR”), Defense Federal Acquisition Regulation Supplement (“DFARS”) clauses, and any other Agency FAR supplemental clauses to which Buyer seeks to flow down. Seller shall not be responsible for complying with the requirements of any flow-down provision that is not so identified and provided to Seller in advance of entering into the Contract. Any attempted flow down provisions that either (i) Buyer is not specifically required to flow down to Seller by the terms of a particular clause, or (ii) are otherwise inapplicable to Seller’s scope of work by their terms, are rejected and shall be deemed self-deleting.
Additional Terms and Conditions
• Please refer to Espy’s End User License Agreement (EULA), for additional terms and conditions related to the licensed computer software, technical data, and services described in this brochure.
• ITAR: Licensee is hereby notified that the Licensed Information is subject to U.S. export control laws and regulations, including but not limited to, the Arms Export Control Act as amended (22 U.S.C. § 2778 et. seq.) and the International Traffic in Arms Regulations (22 C.F.R. § 120 et. seq.). In connection with and without limiting the general applicability of the preceding sentence, Licensee shall not make or permit disclosure by any means of the Licensed Information to citizens or nationals of prohibited countries or to any Foreign Person (as defined in the International Traffic in Arms Regulation) unless (a) Licensee has received Espy’s express written consent to do so and (b) necessary export licenses have been obtained and a copy of such license or export approval has been provided to Espy.
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