TERMS AND CONDITIONS OF SALE MAGELLAN GROUP LTD
THE AGREEMENT: The agreement between Magellan Group LTD, hereinafter referred to as Seller, and Buyer, with respect to the sale of goods described herein (the "goods") shall consist only of the terms appearing hereon and on the other side hereof together with any terms mutually agreed to in writing hereafter by Seller and Buyer.
Seller objects to and shall not otherwise be bound by any additional or different terms, whether printed or otherwise, in Buyer’s purchase order or in any other communication from Buyer to Seller. This agreement shall be for the benefit of Seller and Buyer and not for the benefit of any other person. Prior courses of dealing, trade usage and verbal agreements not reduced to in writing signed by Seller, to the extent they differ from, modify, add to or detract from this agreement, shall not be binding on Seller. There are no agreements, promises or understandings, either verbal or written that are not fully expressed herein. No affirmation, representation or warranty concerning the goods made by an agent, employee or representative of Seller shall be binding on Seller unless the affirmation, representation or warranty is specifically included with this written agreement. No statements, recommendations, or assistance by either party has been relied upon by either party or shall constitute a waiver by either party of the provisions hereof.
TERMINATION OR MODIFICATION: This agreement may be modified only upon written consent of both parties or terminated only upon Seller’s written consent. If all or part of the contract is terminated, Buyer, in the absence of a contrary written agreement with Seller, shall pay termination charges based upon expenses and costs incurred in the production of the goods to the date such termination is accepted by Seller plus a reasonable profit, except that any goods completed on or prior to Seller’s acceptance of such termination shall be accepted and paid for in full by Buyer.
TERMS OF PAYMENT: Payment terms are net 30 days from date of invoice. Seller will invoice daily for orders as shipped from its facilities. After 30 days, Seller will invoice for the remainder of inventory produced and not shipped. All prices are F.O.B. shipping point unless otherwise stated herein. Buyer’s failure to pay any amount when due shall entitle Seller to suspend performance of any other purchase orders from Buyer. Seller is entitled to perform periodic credit reviews of Buyer. Whenever, in the judgment of Seller, the financial condition of Buyer does not justify the continuation of production or shipment on the specified terms of payment, Seller may require full or partial payment in advance. Seller may require full or partial payment in advance for any Buyer having its place of business outside of Magellan’s local office regional areas.
WAREHOUSING: Customer will be charged a warehouse fee on all goods stored by Seller longer than 30 days after manufacturing. Insurance coverage for warehousing is the responsibility of Buyer.
SALES TAX: Buyer shall pay sales/local/international tax on orders shipped if applicable, requiring such payment unless Seller is provided with an appropriate tax exemption document.
TIMING OF DELIVERY: Delivery dates are not guaranteed but are estimated on the basis of immediate receipt by Seller of all information and documentation to be furnished by Buyer and the absence of delays, direct or indirect, resulting from or contributed to by circumstances beyond Seller’s reasonable control. Seller shall in good faith endeavor to meet estimated delivery dates. Under no circumstances shall Seller be liable for any damages or losses arising out of or resulting from any production or shipping delay of any kind whatsoever, unless there is specific written agreement between the Seller and the Buyer to the contrary.
METHOD OF DELIVERY: Seller agrees to put the goods in the possession of a carrier, make an appropriate contract for their transportation, and obtain and deliver documents necessary to enable Buyer to obtain possession of the goods. Buyer agrees to procure and maintain at its cost all necessary insurance, and to pay all loading, unloading and other charges incidental to transportation. Seller will attempt to follow Buyer’s shipping instructions, but may make reasonable changes thereto.
RISK OF LOSS: Buyer assumes all risk of loss of goods upon delivery by Seller to carrier. Breach of this agreement shall have no effect upon this provision controlling the risk of loss.
FORCE MAJEURE: Seller shall not be responsible or liable for any delay or failure to deliver which directly or indirectly results from or is contributed to by any fire, flood, explosion, strike, accident, foreign or domestic embargo, seizure, act of God, insurrection, war, act of terrorism, the adoption or enactment of any law, ordinance, regulation, ruling or order directly or indirectly interfering with or rendering more burdensome the production or delivery hereunder, or the lack of usual means of transportation, whether or not beyond Seller’s control. In the event that any one or more deliveries pursuant to this agreement is suspended or delayed by reason of any of the foregoing events, the Seller may, at its option, terminate this agreement or delay delivery until such disabilities have ceased to exist.
In the event Seller’s supply of product is insufficient to meet current shipping requirements due to any disability described above, Seller may allocate its supply of product for its own use and among its customers on such basis as Seller in the exercise of its discretion may determine, and in such event Seller shall not be liable to Buyer for failure to deliver all or any part of the quantities sold hereunder.
The provisions of this Section shall be effective even though the disability shall have been operative on the date a particular order was accepted.
PRODUCTION QUANTITY TOLERANCES: Production quantity tolerances of or - 5% will be considered accepted fulfillment of Buyer’s purchase order requirements. Invoicing will reflect actual quantities produced and/or shipped.
LIMITED WARRANTIES: Seller warrants that the goods to be delivered hereunder will be of the kind designated herein and free from defects of material and workmanship. SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, OF ANY KIND OR NATURE. WITHOUT LIMITATION ON THE FOREGOING, SELLER MAKES NO REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FURTHER, IF THE GOODS ARE MADE ACCORDING TO BUYER’S SPECIFICATIONS, SELLER DOES NOT WARRANT THE ADEQUACY OR APPROPRIATENESS OF SUCH SPECIFICATIONS, OR THAT THE GOODS, EITHER ALONE OR AS COMBINED WITH OR INTO OTHER PRODUCT, WILL SATISFY OR COMPLY WITH INDUSTRY OR GOVERNMENTAL CODES, STANDARDS, SPECIFICATIONS, REGULATIONS OR REQUIREMENTS EXCEPT AS EXPRESSLY SET FORTH herein. ALL RISK AND LIABILITY ASSOCIATED WITH ANY SUCH NONSATISFACTION OR NONCOMPLIANCE IS HEREBY EXPRESSLY ASSUMED BY BUYER. Seller’s sole obligation under the foregoing warranties will be limited to either, at Seller’s option, replacing or repairing defective goods or refunding the purchase price for such goods theretofore paid by Buyer, and Buyer’s exclusive remedy for breach of any of such warranties will be enforcement of such obligation of Seller. These warranties will not extend to goods subjected to misuse, neglect, accident or improper installation or maintenance or which have been altered or repaired by anyone other than Seller or its authorized representative. Seller shall not be liable on any claim for defective goods which is not made within 30 days after such goods have been received by Buyer.
REMEDIES AND LIMITATION OF LIABILITY: In the event Seller has breached any of its obligations under this agreement, whether of warranty or otherwise, Seller may request the return of the goods and tender to Buyer the purchase price theretofore paid by Buyer, and in such event, Seller shall have no further obligation under the contract except to refund such purchase price upon redelivery of the goods. No goods may be returned without Seller’s written request. If Seller requests the return of the goods, the goods will be redelivered to Seller at Seller’s expense by lowest cost mode of transportation unless otherwise authorized in writing by Seller. In the event Seller has breached any of its obligations under this agreement, whether of warranty or otherwise, and Seller has not yet delivered any goods to Buyer, Seller may tender to Buyer the purchase price theretofore paid by Buyer, and, in such event, Seller shall have no further obligation under the contract except to refund such purchase price theretofore paid by Buyer. The remedies contained in this and the preceding paragraph shall constitute the sole recourse of Buyer against Seller for breach of any of Seller’s obligations under the agreement, whether of warranty or otherwise. In no event shall Seller be liable for consequential or incidental damages nor shall Seller’s liability on any claim for damages arising out of or connected with the agreement or the manufacture, sale, storage, delivery or use of the goods exceed the purchase price of the goods theretofore paid by Buyer to Seller. Seller shall not be liable for failure to perform its obligations under the agreement resulting directly or indirectly from circumstances beyond Seller’s reasonable control.
SHIPPING DAMAGES & FREIGHT CLAIMS: Shipping damages, while in transit, are the responsibility of the common carrier. Buyer releases Seller from all responsibility and liability for damage to the goods once they leave Seller’s possession in either the original shipment or during exchange of whole or part. Responsibility for placing a claim with the carrier for any damaged merchandise is that of the Buyer.
CONCEALED DAMAGES: In accordance with I.C.C. Regulations, the receiver must inspect all products immediately upon receipt for correct count, damaged, or defect. Visible damage or difference in count should be noted on the delivery receipt before accepting delivery. CONCEALED DAMAGE MUST BE REPORTED TO THE CARRIER AND TO SELLER WITHIN FIFTEEN (15) DAYS AFTER RECEIPT OF THE SHIPMENT AND A CONCEALED DAMAGE REPORT SECURED. The liability of Seller for shipping damages ceases with acceptance of the shipment in good order by the carrier.
RETURNED GOODS: If a return shipment to Seller is desired, Buyer must notify Seller’s Customer Service Department at least 72 hours in advance of return shipment. A return authorization number must be given and must accompany each return shipment. If there is no authorization number at the time of the return shipment, Seller has the right to refuse the return freight. A restocking fee will be charged on customer requested returns.
PATENTS: Seller makes no representation or warranty that the goods are or will be free of any claims of patent, trademark or copyright infringement. In the event that any goods manufactured by Seller are in any suit held to constitute infringement and their use is enjoined, Seller, if unable within a reasonable time to secure for Buyer the right to continue using such goods, either by suspension of the injunction, by securing for Buyer a license, or otherwise shall, at its own expense, either replace such goods with non-infringing goods or modify such goods so that they become non-infringing or accept the return of the enjoined goods and refund the purchase price theretofore paid therefore. The foregoing shall constitute Buyer’s sole remedy in the event of a finding of such infringement. If Buyer furnishes specifications to Seller, Buyer shall hold Seller harmless against any such claims of patent infringement which arise out of compliance with the specifications.
INDEMNIFICATION: Buyer agrees to indemnify Seller for any and all damages and expenses (including reasonable attorney fees) arising out of Buyer’s breach of this agreement, or out of the use, storage, sale or other disposition of the goods sold hereunder, or out of the action or inaction of Buyer or its employees, customers, or agents which may cause injuries or damage giving rise to claims against Seller.
TIME FOR BRINGING ACTION: Any action by Buyer for breach of this agreement, including any breach of warranty, must be commenced within thirty (30) days after the cause of action has accrued.
TAXES: Sales, use, occupation, excise and other taxes upon the production, sale or use of the goods are not included in the price and such taxes or any costs in connection therewith, wherever levied and whether imposed before or after payment of invoice, shall be paid by Buyer.
CHANGES: Changes in the work to be performed under the agreement may be made only if Buyer submits written instructions for such changes and if Seller accepts those changes in writing. If any such approved changes in drawings, materials, quantities, dates of performance or design of the part, units, tools, or fixtures, in Seller’s sole judgment, increase Seller’s costs, Seller may condition approval of any such change on agreement by Buyer to a price increase to recoup such cost increase, plus a reasonable return.
ASSIGNMENT AND DELEGATION: No right or interest in this agreement shall be delegated or assigned by Buyer without the written permission of Seller. Any attempt at assignment or delegation shall be void unless made in conformity with this paragraph. Buyer warrants that it is purchasing for its own account and not as an agent.
WAIVER: No waiver by Seller of any right or remedy under this agreement shall be effective unless it shall be in writing and have been signed by Seller. No waiver by Seller of any right or remedy under this agreement shall constitute a waiver of any other right or remedy. No delay or failure on the part of Seller in exercising any right or remedy under this agreement shall constitute a waiver of such right or remedy.