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TERMS AND CONDITIONS
QUOTATIONS ARE GIVEN AND ORDERS FOR WORK
AND SERVICES ARE ACCEPTED SUBJECT ONLY TO THE FOLLOWING TERMS AND CONDITIONS
1. General. These Terms and Conditions take precedence over Buyer’s (or “you” or “your”) additional or different terms and conditions, to which notice of objection is hereby given. Acceptance by Buyer is limited to these Terms and Conditions. Neither the commencement of performance nor delivery by Poeton Max Power, Inc. (“MPC”) shall be deemed or construed as acceptance of Buyer’s additional or different terms and conditions.
2. Quotations. Unless previously withdrawn, a quotation from MPC is only open for acceptance within the period stated therein, or when no period is so stated for 14 days after its date. Oral quotations are for guidance only and are not binding upon MPC. MPC may require Buyer to submit drawings and specifications, as well as sample components, when requesting a quotation from MPC for certain items.
3. Acceptance. Notwithstanding MPC’s receipt from Buyer of an order or an acceptance of our quotation, such order or acceptance shall not be binding upon MPC until confirmed by MPC’s acknowledgment of order form incorporating these Terms and Conditions.
4. Advertising Matter. Specifications, descriptions and illustrations contained in MPC’s catalogues, brochures or other advertisement matter are intended to give only a general idea of the goods, work or services concerned and do not form part of the Contract.
5. Delivery. MPC shall make all reasonable efforts to meet any shipment or delivery date(s) quoted or acknowledged. However, any times quoted for shipment or delivery are estimates only and MPC shall not be liable to Buyer for MPC’s failure to ship or deliver within such time. Such shipment and delivery dates begin shall, in all cases, date from receipt by us of your written order together with your delivery to MPC of all necessary information to enable MPC to perform the order. The time for shipment or delivery shall be extended by a reasonable period if delay in shipment or delivery is caused by instructions or lack of instructions from you or by a strike or by any cause beyond our reasonable control. Any shipment dates given in our quotation or our acknowledgment of order are subject to confirmation upon receipt from you of a definite date for receipt of goods into our facility for processing.
6. Payment. (a) Unless otherwise agreed to in writing by MPC, all prices quoted are exclusive of all taxes (except taxes levied against MPC’s income) including state and local use, sales, property (ad valorem) and similar taxes. Buyer agrees to pay such taxes unless Buyer has provided MPC with an exemption resale certificate in the appropriate form for the jurisdiction of Buyer’s place of business and any jurisdiction to which equipment is to be directly shipped hereunder or unless such sale is otherwise exempt from such taxes. Payment for the goods shall be due - together with the cost (if any) of shipping, packing and any special tests, certification and any other specific requirements not included in the price prior to the shipment of goods - on or before the 21st days of the month following the month of shipment of the goods or of notification that the goods are ready for collection where terms are F.O.B. MPC plant; (b) interest at the rate of 1% per month and proportionately for part of a month shall accrue on all overdue payments.
7. Prices. If there is an increase in MPC’s costs (i) for wages, material, fuel, gas, electricity, insurance, transportation or other similar items; or (ii) for complying with such laws, orders and regulations as are applicable, directly or indirectly, to the work MPC is performing for Buyer, and such increased costs applies to or affects MPC’s ability to perform its obligations under the Contract, then MPC may give notice in writing to Buyer of such increase and MPC may increase the contract price to such amount as is stated in the notice. Any increased price shall be payable from the date of the notice as if such price was the original contract price, and a price so increased may from time to time subsequently be further increased in similar manner provided however that if within 8 days after receipt of any such notice Buyer gives notice in writing to MPC to cancel the balance of the Contract. In such case, MPC shall be entitled to complete and charge Buyer for any work in progress for Buyer when such work in progress has begun at or before the time when MPC received actual notice from Buyer of such cancellation. Such work shall be completed at the price prevailing immediately prior to the date when MPC’s notice of increase was given.
8. Lien. For so long as any account of Buyer remains unpaid, MPC shall have an absolute right of lien upon any of Buyer’s goods that may be in MPC’s possession or under MPC’s control. MPC may enforce such lien, without notice (other than the notice contained in this section 8) when any amount owed by Buyer to MPC is three months or more overdue.
9. Standards. (a) Unless otherwise agreed to in writing between Buyer and MPC, the quality and finish of the work performed by MPC for Buyer shall comply with the generally recognized standards in the trade for the class of work, type, quality and finish of the product concerned.
(b) MPC is not liable for a failure to meet the standards referred to in paragraph (a) of this section unless a written claim is made within 14 days following delivery of the goods stating the alleged defect and such written claim is accompanied by a reasonable number of articles exhibiting the claimed defect or defects. Following notice of such claim, MPC shall be given the opportunity to remedy any such defect or defects. MPC’s liability hereunder (if any) shall in all cases be further limited in accordance with the provisions of sections 13 and 19 hereof.
10. Tests. MPC’s products and work are carefully inspected and, where applicable, submitted to standard tests before shipment. In such cases where Buyer has requested special tests, Buyer will be billed for those tests. In the case of destructive tests (such as those for hardness and adhesion) these tests will not be carried out unless MPC is specifically instructed to do so in identified batches. In such cases, the provision of suitable test pieces will be Buyer’s responsibility unless otherwise agreed by MPC.
11. Performance. MPC is not responsible and will accept no liability for failure to attain any performance figures quoted by MPC unless MPC has specifically guaranteed them in the Contract. If the performance results for any test provided for in the Contract are outside the acceptance limits specified therein, Buyer will be entitled to reject the goods, but before rejecting the goods Buyer agrees to give MPC reasonable time and opportunity to rectify the performance problem. Buyer assumes responsibility that the processes and test ordered by Buyer are sufficient and suitable for Buyer’s requirements except insofar as such processes and tests are based on MPC’s advice.
12. Matching. MPC shall be under no obligation to ensure that any goods or components or parts are an exact match or that one batch exactly matches another, whether the color or finish are defined by reference to a sample or by description. Where a color or finish is specified in the Contract by reference to a sample or description, you shall accept as complying with the Contract all parts which are a commercial match with the sample or correspond with the description as the case may be and a commercial match with each other in accordance with the standard generally recognized in the trade. MPC shall be under no liability for any failure to provide a commercial match if failure is due wholly or partly to differences in the materialsfrom which the respective goods, components or parts are made or to any process or treatment to which the same have previously been submitted.
13. Defects. MPC is not responsible for any defect appearing in any goods, components or parts (including failure to provide color matching between different batches) at any time which is due or partly due to the material of which the same is made, its design or method of manufacture, or any process or treatment applied thereto by any person other than MPC. MPC will repair or replace, in its sole discretion, any defect in any product which is the subject of this Contract when such defect appears within six months after MPC ships such product to Buyer or within the first half of the average working life of said product, whichever period is shorter. However, MPC will only undertake such repair or replacement when a defect is due to MPC’s faulty materials, workmanship or design (this does not include faulty materials or workmanship or design when such are provided by or specified by Buyer) and there has been no maltreatment of the product and provided further that Buyer has notified MPC in writing immediately after such defects appear and the defective parts are returned to MPC for inspection. EXCEPT AS PROVIDED IN THIS SECTION 13, MPC MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED. MPC EXCLUDES ALL IMPLIED WARRANTIES INCLUDING SPECIFICALLY ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE. MPC HEREBY EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, OR FITNESS FOR ANY PURPOSE, PARTICULAR, SPECIFIC OR OTHERWISE. THE FOREGOING EXPRESS WARRANTY IS THE ONLY WARRANTY OF ANY KIND FOR THE PRODUCTS WHICH ARE THE SUBJECT OF THIS CONTRACT.
14. Export Contracts. In the case of goods or work for export MPC will give Buyer reasonable opportunity to inspect and test the same at MPC’s plant before shipment and MPC shall not be liable for any defects whatsoever or howsoever arising after such an opportunity has been given and the goods have been shipped. 15. Extras. The prices given in MPC’s acknowledgement of order are only for such work and services as are specified therein. The extra cost of any work performed by MPC that is not specifically provided for therein shall be added to the Contract price and paid for accordingly and all such work shall be carried out subject to these Terms and Conditions.
16. Loss or Damage in Transit. MPC is not responsible for any loss or damage in that occurs during shipping unless such loss or damage is due to the negligence of MPC, its representatives or agents and then only if notice in writing of such loss or damage is received by MPC within 8 days after delivery, or where delivery is made by our own transport, within 14 days after delivery.
17. Packaging. Items shipped to us for processing should be suitably packed with regard, among other things, to their manufacturing tolerances, quality and the inherent value of the items in question. MPC assumes that Buyer is expert in the preparation of Buyer’s goods for shipment. MPC will use the same packing used by Buyer, where practical, and will pack the items to at least as high of a standard for return to Buyer. Any additional packing requirements, whether required by Buyer, or deemed necessary by MPC to protect the work, will be charged to Buyer.
18. Barrel Plating and Bulk Processing. Quotations for barrel plating work and other bulk processing of small parts are given and contracts for such work accepted, subject to the customary trade allowance for wastage of 5%. Such work will generally be charged for and checked by weight or quantity only as appropriate. 19. Limitation of Liability. THE REMEDIES PROVIDED HEREIN ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES. IN NO EVENT SHALL MPC BE LIABLE FOR ANY DAMAGES ARISING FROM OR RELATED TO BUYER’S USE OF THE PRODUCTS EVEN IF MPC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MPC BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF MPC SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. MPC DOES NOT AGREE TO INDEMNIFY BUYER IN ANY WAY AGAINST ANY OTHER CLAIMS OR SUITS.
20. Confidential Information. All specification, drawings, technical descriptions and details of processes (hereinafter called “information”) submitted with MPC’s quotation or supplied to Buyer pursuant to the Contract are supplied in confidence. Buyer shall keep the information confidential and shall not disclose the same to any third party without MPC’s prior written consent and shall use the same only for the purposes of the Contract. Nothing in this section shall prevent MPC from undertaking or offering to undertake for third parties any work or services similar to or designed to achieve the same results as the work or services provided under this Contract.
21. Jigs or Tooling. Any jigs or tools made by MPC for the purpose of the Contract shall remain MPC’s property notwithstanding that the cost thereof may be included in whole or in part in the Contract price paid by Buyer. All drawings and information relating to such tools and jigs remain MPC’s property and MPC shall own the copyright. Buyer agrees that it will not copy or make use of the same for the benefit of any third party without MPC’s prior written consent. 22. Arbitration. In the event of any dispute, controversy or claim arising out of or relating in any way to this Agreement or the breach hereof, the parties to this Agreement shall first use their best efforts to settle the dispute, controversy or claim amicably between or among themselves. If, after the parties make their best efforts to settle the dispute amicably among themselves, they are unable to do so, such dispute, controversy or claim shall be finally settled by Arbitration in Dane County, Wisconsin, pursuant to the rules of Conciliation and Arbitration of the International Chamber of Commerce. Judgment on any award may be entered in any court having jurisdiction.
23. Legal Construction. This Contract shall be governed by, and interpreted and construed in accordance with, the laws of the State of Wisconsin.