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Please read this document carefully. It contains very important information about the Purchaser’s rights and obligations, as well as limitations and exclusions that may apply to the Purchaser.
TERMS ARE EXCLUSIVE: This document which shall accompany a quote, invoice, sales receipt or document of sale (“Sales Document”) contains the terms and conditions that apply to your purchase from Multisorb Technologies, Inc. (hereinafter “Multisorb”). This document, together with the relevant Sales Document issued by Multisorb, constitutes the complete and final agreement between the undersigned (hereinafter referred to as “Purchaser”) and Multisorb for the products, machinery and/or accessories described hereon or in the related Sales Document. The terms and conditions contained in this document may not be added to, modified, supplemented or superseded by the use of any other documents, including, but not limited to, any and all Purchaser documents. Any attempt to alter, supplement or amend this document will be null and void unless any such amendment or supplementation is agreed to as evidenced by a signed approval by an authorized representative of Multisorb. If Purchaser accepts any performance of Multisorb, Purchaser will be deemed to have accepted the terms and conditions of this document. For the avoidance of doubt and to resolve any issue regarding competing forms, in the event that the Purchaser issues a purchase order or other related purchase document, it is specifically agreed that the same is for internal purposes only and no term or condition stated in such document shall have any force or effect.
TERMS OF ACCEPTANCE: Payment in full is due upon receipt of invoice. However, the payment terms of a Purchaser with approved credit are net thirty (30) days after date of invoice which, in the case of the purchase of products shall be the date of release to the warehouse for shipment of the product(s), and in the case of the purchase of machinery and/or accessories shall be the date of delivery of the machinery and/or accessories to the Purchaser. If payment is not received when due, there will be assessed a charge for financing at one and one-half percent (1.5%) per month or fraction thereof. On special items, Multisorb reserves the right to ship and bill ten percent (10%) more or ten percent (10%) less than the quantity covered by the order as necessary because of difficulties in material procurement and in production scheduling. If any order is not for an integral number of standard containers, Multisorb reserves the right to ship, and Purchaser agrees to pay for, the nearest quantity possible in standard containers, even though this may raise or lower the quantity ordered.
AVAILABILITY OF SUPPLIES: Delivery of the products, machinery and/or accessories ordered by Purchaser is contingent upon Multisorb’s ability to obtain supplies, raw materials and services through its regular and usual sources. If, for any reason beyond Multisorb’s control, Multisorb is unable to meet anticipated deliveries or fill an order, Multisorb will not be liable therefore and may postpone the delivery date(s) under these terms and conditions for a period of time which is reasonable under all of the circumstances. Multisorb uses its best efforts to stock those items which are standard and for which there is a constant demand and does its best to make rapid delivery of special items which must be manufactured. Accordingly, delivery dates quoted by Multisorb are best estimates or approximations of delivery. Because of many factors which are generally beyond Multisorb’s control, Multisorb cannot guarantee delivery on a specific date (unless a specific delivery date is agreed to in a separate writing), and Multisorb will not be responsible for any penalty charges if a delivery date is exceeded. Multisorb reserves the right to ship in advance of a delivery date, if in Multisorb’s reasonable opinion, this should be done to insure delivery within the time desired. Relative to the purchase of machinery and/or accessories, in case of delay caused by Purchaser’s failure to furnish necessary information to construct the machinery, Multisorb may extend the date of shipment based on the period of Purchaser’s delay and conditions existing at Multisorb. In case shipment is delayed by a failure of the Purchaser to furnish shipping instructions or otherwise, Multisorb may, at its option, invoice the machinery and/or accessories ready for shipment, and payment therefore shall be made in accordance with the terms thereof, substituting the invoice for the bill of lading.
PRICING: In the event the transaction covered by these Sale Terms and Conditions is the sale of products, the prices shall be those in effect at the time of shipment for the particular product, grade and quantity shipped. Multisorb reserves the right to amend its pricing without advance notice to Purchaser. If an order is delayed at the request of Purchaser, and such delay causes increased production costs or otherwise, the additional cost will be billed to the Purchaser without objection. Additionally, if costs for a particular product are increased by new governmental regulations, or other reasons beyond Multisorb’s control, the increased cost shall be added to the Purchaser’s invoice without objection by Purchaser.
TAXES: Unless noted on the face of a Sales Document, no sales, use or other product taxes are included, and any such taxes, where applicable, are the sole and exclusive responsibility of the Purchaser and must be paid by the Purchaser.
A. Products. Title to and risk of loss of the products will pass to Purchaser upon Multisorb’s tender of delivery of the products to a carrier. The Purchaser is responsible for all freight, insurance and other related costs and risks. Multisorb’s freight terms are as defined in Incoterms® 2010.
B. Machinery and/or Accessories. If the machinery and/or accessories are sold EXW Multisorb, delivery is complete when the machinery and/or accessories are accepted by the carrier. While great care is taken in packaging all machines, parts and accessories, Multisorb cannot be held responsible for damage that occurs in transit. Purchaser will accordingly make all claims against the carrier for damage or breakage (whether concealed or obvious) incurred while in transit. If machinery or accessories is delivered to Purchaser’s place of business and is damaged in transit, Purchaser agrees to make the necessary and appropriate notation on the bill of lading concerning such damage and notify Multisorb of the pending claim against the carrier. Multisorb will render all reasonable assistance to secure satisfactory adjustment of such damage claims. Purchaser will pay all demurrage, drayage, hoisting and rigging, and Purchaser shall be responsible for arranging for unloading and moving the machinery or accessories to the site of installation.
INSURANCE: Relative to the purchase of machinery and/or accessories, from the time of shipment to complete installation and full payment to Multisorb for the machinery and/or accessories, Purchaser agrees to insure the machinery and/or accessories for the benefit of Purchaser and Multisorb, and upon request by Multisorb, Purchaser shall provide Multisorb with a certificate of insurance naming Multisorb as an additional insured.
CHANGES IN SPECIFICATIONS AND DRAWINGS: Relative to the purchase of machinery and/or accessories, all expenses incurred by Multisorb for changes in specifications or drawings for the machinery and/or accessories which had been approved by Purchaser and for any work performed or material furnished in addition to that specified in a Sales Document, shall be added to the purchase price as set forth in the Sales Document and paid by the Purchaser.
Additionally, although Multisorb’s machinery and/or accessories are designed to comply with generally accepted standards of safety and sanitation, it is agreed that any additional feature or changes required by local or state regulations or any national and/or governmental organization will be made at Purchaser’s sole cost and expense as an addition to the purchase price on the Sales Document.
INSTALLATION and INDEMNIFICATION: Installation of the machinery and/or accessories including the integration with existing equipment as may be required for operation of the machinery and/or accessories (including alterations and modifications to the existing equipment) shall be the sole responsibility of the Purchaser unless Purchaser requests, in writing, installation and integration assistance, final on-site adjustment and/or start-up services (“Services”). If Services are requested in writing by Purchaser, said Services shall be provided to Purchaser and invoiced to Purchaser separately from the purchase price at the rates set forth on the “Multisorb Service Rates” provided upon request.
Purchaser shall at its own expense apply for and obtain any permits and inspections required for the installation, integration and/or use of the products, machinery and/or accessories. Unless specifically agreed upon, Multisorb will not do any electrical wiring or air piping. All such services including exterior wiring and piping shall be provided by Purchaser and in place and installed in a workmanlike manner, as well as installed at a time which will not delay or hinder the installation by Multisorb of such machinery and/or accessories (if so agreed to in writing between the parties). Multisorb’s machinery and/or accessories are designed to comply with generally accepted electrical standards. Any modifications necessary to comply with special state, local or industry regulations or codes will be at Purchaser’s expense.
Multisorb shall not be responsible for any losses or damages sustained by Purchaser or any other person as a result of improper installation, integration or misapplication of the products, machinery and/or accessories. However, nothing herein shall relieve Multisorb of responsibility for its grossly negligent or intentionally malicious acts. Purchaser shall defend, indemnify and hold Multisorb and its agents and employees harmless against any loss, damage, claim, suit, liability, judgment or expense (including without limitation attorney’s fees) arising out of or in connection with any injury, disease or death of persons (including Purchaser’s employees and agents), or damage to or loss of any property or the environment, or violation of any applicable laws or regulations resulting from or in connection with the sale, transportation, installation, integration, use or repair of the products, machinery and/or accessories by Purchaser, or of the information, designs, services or other work supplied to Purchaser whether caused by the concurrent and/or contributory negligence of Purchaser, Multisorb or any of their agents, employees or suppliers. The obligations, indemnities and covenants contained in this paragraph shall survive the consummation or termination of this transaction.
INSPECTIONS AND ACCEPTANCE: Each delivery of products, machinery and/or accessories will be inspected promptly by Purchaser for damage and defects. Purchaser must notify Multisorb, in writing, of any and all claimed damage or defects within ten (10) days of Purchaser’s receipt of the products, machinery and/or accessories. If Purchaser fails to so inspect or notify Multisorb in writing, Purchaser will be deemed to have accepted the products, machinery and/or accessories and to have waived any claim for damage or defect. If Purchaser inspects the products, machinery and/or accessories and promptly notifies Multisorb in writing, within ten (10) days of receipt of the product(s), machinery and/or accessories of its claim that the products, machinery and/or accessories are damaged or defective, Multisorb will review Purchaser’s claim, and if valid, as determined in the sole discretion of Multisorb, Purchaser’s sole and exclusive remedy shall be the replacement of the products, machinery and/or accessories alleged to be damaged or defective. Purchaser hereby agrees that such ten (10) day period is a reasonable amount of time for such inspection and revocation.
SECURITY INTEREST: It is understood and agreed that Multisorb reserves and maintains a security interest in the products, machinery and/or accessories sold to secure Purchaser’s payment of the purchase price and any other charges owed by Purchaser, and Purchaser agrees that Multisorb may (but is not obligated to) take appropriate actions to evidence and perfect such interest and that Purchaser will cooperate with Multisorb in taking of such actions.
For the avoidance of doubt, title to the machinery and/or accessories sold and the right of repossession and removal thereof (with or without legal process) in case of non-payment Multisorb Sale Terms & Conditions+ 2 Rev. 11-12-2013 therefore or default by Purchaser shall be and remain vested in Multisorb, and such machinery and/or accessories shall be deemed to be and remain personal property, severable or removable without injury to the building, until full cash payment therefore shall have been received by Multisorb. Purchaser agrees to protect and maintain Multisorb’s title and right to possession and removal accordingly. Purchaser also agrees to properly care for any machinery and/or accessories delivered until the same is fully paid for and to hold Multisorb harmless against any taxes assessed upon same, or any part thereof, after it has been shipped by Multisorb.
LIMITED WARRANTY, WARRANTY DISCLAIMER AND LIMITATIONS OR REMEDIES AND LIABILITIES: Multisorb warrants to Purchaser, only for commercial use or resale, that at the time of delivery the products, machinery and/or accessories will conform (subject to variations acceptable within the industry) to the specifications set forth in this document and any related Sales Document. Multisorb makes no promise or representation that the products, services, machinery and/or accessories will conform to any federal, state or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon in writing by an authorized representative of Multisorb. Any products, machinery and/or accessories determined by Multisorb, in its sole discretion, not to have been in conformity with the specifications will be repaired or replaced, at Multisorb’s option, as long as Purchaser has acted in accordance with the paragraph above regarding inspections and acceptance. No item will be deemed defective or not in accordance herewith if such item conforms to previously accepted materials or if such item fits Purchaser’s parts or equipment or otherwise reasonably accommodates Purchaser’s intended purpose.
Except as set forth above or in a separate warranty given to Purchaser by Multisorb, Multisorb makes no other warranties concerning the products, machinery and/or accessories whatsoever. MULTISORB DISCLAIMS AND EXCLUDES ALL OTHER EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Purchaser agrees that Multisorb’s obligation described in this paragraph is the sole remedy bargained for by Purchaser in lieu of all other express and implied warranties. In no event will Multisorb’s liability exceed the paid purchase price of the products. No additional allowance shall be made for the labor or expense of repairing or replacing defective products, machinery and/or accessories or workmanship or damage resulting from the same. Multisorb’s obligation described in this paragraph will be Purchaser’s sole and exclusive remedy against Multisorb for any liability with respect to products, machinery and/or accessories whether any claim for recovery is based upon or arises out of theories of contract, negligence, tort (including strict liability) or otherwise. IN NO EVENT WILL MULTISORB BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS OR OTHER SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN. All products, machinery, accessories and/or services provided by Multisorb and its employees and agents are provided “AS IS”, “WHERE IS” and “WITH ALL FAULTS.”
RETURNS: No products, machinery and/or accessories are to be returned to Multisorb without the written authorization of Multisorb. Multisorb’s products, machinery and/or accessories are sold on the basis that the Purchaser has examined them and made its own selection or determination of suitability for the Purchaser’s need(s). Although Multisorb desires to help its customers make the best possible selection, the final decision of which products, machinery and/or accessories to purchase is that of the Purchaser.
A. Products. Written cancellation of an order for a standard product will be accepted without charge only if the cancellation results in no monetary loss to Multisorb. In the event that there is a monetary loss to Multisorb for a cancelled order, said loss will be billed to the Purchaser. Cancellation of special products order(s) will be accepted on the terms that Multisorb will refund only the savings in labor or material which Multisorb can affect by not completing the order.
B. Machinery and/or Accessories. Written cancellation of an order for machinery and/or accessories, prior to shipment, will incur a cancellation charge to be imposed to reimburse Multisorb for all reasonable expenses incurred from the date of acceptance of the purchase order to the date of cancellation. If a purchase order is cancelled after shipment, Purchaser shall be subject to the cancellation charge as set forth above, as well as all return shipping charges. Additionally, in the event of cancellation, Multisorb shall have the option of retaining twenty percent (20%) of the purchase price for the machinery and/or accessories. The balance, if any exists, shall be returned to Purchaser.
GENERAL: These Terms and Conditions will be governed by the laws of the State of New York. If any of the provisions of these Terms and Conditions are deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired thereby.
The rights and remedies of Multisorb herein will be cumulative and additional to any other or further rights and remedies provided in law or equity. Waiver by Multisorb of Purchaser’s performance or inaction, with respect to Purchaser’s breach of any provision of these Terms and Conditions, will not be deemed a waiver of future compliance therewith or a course of performance modifying such provision, and such provision will remain in full force and effect as written.
In the production of the products, machinery and/or accessories and/or performance of the services covered by this document, Multisorb has fully complied with the Fair Labor Standards Act of 1938, as amended, and all other applicable laws and governmental regulations.
FORCE MAJEURE: Failure of Multisorb, in whole or in part, to perform its obligations hereunder when due if occasioned by act of God, fire, explosion, flood, riot, war, insurrection, labor disputes, sabotage, epidemic, accident, embargo, or by interruption or delay in transportation, or by any inadequacy or shortage or failure of supply of product, or by compliance with any order, direction, action or request of any court or of any governmental officers, department or agency, or by other causes beyond Multisorb’s control which makes it impossible to perform, shall not subject Multisorb to any liability to Purchaser. In such event, Purchaser may, at its option, either cancel such order, in whole or in part, or extend the period for performance to the extent of the delay occasioned by any such circumstance.
REMEDIES OF MULTISORB: Upon default or breach by Purchaser, Purchaser agrees to reimburse Multisorb for all attorney’s fees and costs incurred by Multisorb in connection therewith. Purchaser agrees that any of the following shall constitute an event of default which shall enable Multisorb, at its option, to cancel any unexecuted portion of this order, or to exercise any right or remedy which it may have by law: (a) the failure of Purchaser to perform any term or condition contained herein; (b) any failure of Purchaser to give required notice; (c) the insolvency of Purchaser or its failure to pay debts as they mature, an assignment by Purchaser for the benefit of its creditors, the appointment of a receiver for Purchaser or for the materials covered by the Sales Document, or the filing of any petition to adjudicate Purchaser bankrupt; (d) the death, incompetence, dissolution or termination of existence of Purchaser; (e) a failure by Purchaser to provide adequate assurance of performance within ten (10) days after a justified demand by Multisorb; or (f) if Multisorb, in good faith, believes that Purchaser’s prospect of performance under this Agreement is impaired. All rights and remedies of Multisorb herein are in addition to, and shall not exclude any rights or remedies that Multisorb may have in law or in equity. In the event it becomes necessary to incur any expense for collection of any overdue account or to enforce these Terms and Conditions through litigation, all reasonable collection charges and enforcement charges, including reasonable attorney’s fees, will be the responsibility of the Purchaser.
PROTECTION: Multisorb’s specifications, drawings, manuals, programs and all other written material supplied by Multisorb are subject to copyright, trademark, trade name and/or trade secret protection and are not to be reproduced in whole or in part without the express written consent of Multisorb. All such information shall be deemed Confidential Information of Multisorb and shall be protected as such by Purchaser.
SET-OFF: Purchaser shall not be entitled to set-off any amounts due to Purchaser against any amount due to Multisorb in connection with this transaction.
EXCLUSIVE USE MACHINERY AND ACCESSORIES: Purchaser understands and agrees that any and all of the machinery and/or accessories sold by Multisorb to Purchaser hereunder are to be used exclusively with products manufactured and sold by Multisorb and/or its subsidiaries and affiliates. If machinery and/or accessories are used with non-Multisorb products, any warranty provided for said machines and/or accessories shall immediately become null and void.
ORDER OF PREFERENCE: Unless otherwise provided, in the event of a conflict between these terms and conditions and Purchaser’s order, specifications and/or terms and conditions, the order of precedence shall be as follows:
(1) Sales Document;
(2) These Terms and Conditions of Sale;
(3) Specifications; and
(4) Purchaser’s Terms and Conditions of Purchase.
HEADINGS: The section headings used herein are for convenience of reference only and do not form a part of these Terms and Conditions, and no construction or inference shall be derived therefrom.
In all cases, clerical errors are subject to correction.