1. This contract supersedes and revokes for all purposes all prior correspondence, arrangements representations, understandings (whether written or oral), including but not limited to Buyer’s order forms or confirmations whether issued before or after this contract and any past or future orders, quotations, confirmations, acknowledgments or contracts of any agent or any party with respect to the goods covered by this contract.
2. There are no additional terms or conditions not expressly set forth on either face or reverse side hereof, and no prior course of dealing or usage of trade not expressly set forth here in shall modify or contradict this contract in anyway. This contract may not be modified, rescinded, waived or altered in any respect except by a writing signed by both parties. No waiver by Seller of any default or breach shall be deemed a waiver of any prior or subsequent default or breach.
3. Seller’s obligations hereunder are subject to all contingencies beyond the control of Seller and/or its suppliers (whether or not now in contemplation of either of the parties), including, but not limited to, strikes or labor troubles of any kind, floods, civil commotion, act of God, accidents, fire, breakdowns, delay of carriers, total or partial failure for any reason of source of supply, precedence or priority given at the request or for the benefit, directly or indirectly, or under the laws, regulations or restrictions, or any government or any subdivision, agency or instrumentality thereof, shortage of labor, materials, fuel, power or transportation facilities, or any similar or dissimilar cause. In any such event, Seller shall have the right, but not the obligation, at its election and without any liability or responsibility to Buyer, to (a)cancel all or any portion of this contractor (b) perform the contract as so restricted or modified to the extent determined by Seller in its discretion, and Buyer shall accept such restricted or modified performance to such extent, of (c)perform the contract within a reasonable time after the cause of non-performance or delay have terminated. Without limiting the generality of the foregoing, in the event of shortage of materials. Seller may allocate its available supply among all its customers, and for its own needs, on a fair and equitable basis, to be determined by Seller in its sole and absolute discretion. Seller shall not be liable for its failure to perform in full by reason of such shortage and allocation; and Buyer shall be required to pay for the amount of goods shipped by Seller at the unit price therefor provided in this contract.
4. A default in payment by Buyer after delivery or offer of any delivery of any installment may at the option of Seller, be deemed a default in the entire contract. The delivery of: merchandise to a carrier and the issuance by ii to Seller or a bill of lading or receipt shall be deemed to be complete delivery to Buyer of the merchandise covered thereby and Buyer assumes all responsibility for loss, delay or damage in transit upon the issuance to Seller by the carrier of such bill of lading or receipt.
5. The time provided for delivery or deliveries on the face hereof is not of the essence of this contract.
6. THERE IS NO WARRANTY OF MERCHANTABILITY AND THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WHICH EXTEND BEYOND THE DESCRIPTION OF THE GOODS ON THE FACE SIDE HEREOF. Buyer acknowledges that ii has not relied upon any representation by Seller of any agent on Seller’s behalf in making this contract. Seller makes no warranty that the goods sold under this contract are delivered free of the rightful claim of any third party by way of infringement of the like.
7. Any technical advice furnished by the Seller or any representative of the Seller concerning any use or application of the goods sold under this contract is believed to be reliable, but Seller makes no warranty, express or implied, of the results to be obtained. Buyer assumes all responsibility for any and all loss or damage arising out of or resulting from the handling of use of any such product.
8. SELLER SHALL NOT BE LIABLE FOR ANY INJURY TO PERSON OR PROPERTY WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL, OR FOR ANY LABOR, TRANSPORTATION OR OTHER CHARGES ARISING FROM THE USE OF ANY PRODUCT SOLD HEREUNDER AND FOUND DEFECTIVE. BUYER AGREES FOR HIMSELF OR ITSELF, AS WELL AS FOR OTHERS WHO MAY ACQUIRE OR USE ANY OF THESE PRODUCTS FROM BUYER, TO ACCEPT IN FULL AND COMPLETE SETTLEMENT AND AS LIQUIDATED DAMAGES THEREFOR THE REPLACEMENT OR CREDIT STATED IN PARAGRAPH 10 HEREOF.
9. Seller shall not be liable for normal manufacturing defects or any customary variations from quantities or specifications, nor for defects resulting from imperfections inherent in the materials used in the manufacture thereof.
10. If Buyer has any claim or complaint of any kind hereunder other than for non-delivery of the whole or any installment of the goods (including, but not limited to, non-conformity of the goods to any description appearing on the face side hereof, or latent defects). Seller shall not be liable there for unless Buyer shall present its written claim to Seller within thirty (30)days after shipment of the goods complained of. Claims for latent defects must be so presented to Seller with thirty(30)days after shipment of the goods complained of. If claim is made, Seller or its agent shall have the right to inspect and/or test the goods. Failure to present any such claim within the time fixed or strictly to comply with all requirements of this paragraph shall constitute a waiver byBuyer of each and every such claim and an unconditional acceptance of the goods by Buyer. Such written claim must clearly specify the grounds and nature of any objections. In the event of any such claim, Seller may, at its option, (a)repurchase the goods claimed to be defective or damaged at the unit price of this contract, in full satisfaction of any claim, or (b)replace the goods claimed to be defective within thirty (30)days after receipt of notice of defect as above provided, or within thirty (30) days after return of the goods to Seller, if demand for return is promptly made by Sellers, whichever is later. Goods replaced by Seller must be accepted by Buyer and Seller shall have no further liability in connection with the claim. No return of goods will be accepted unless authorized in writing by Seller.
11. Payment as required by the terms of this contract, must be made when due regardless of any claim by Buyer and shall be a condition to delivery by Seller of that shipment and future shipments. Claims made in respect of any one installment or delivery or any other contract between Buyer and Seller shall not affect Buyer’s obligations with respect to any other installments or delivery or with respect to any other contract with Seller, and as to any undisputed delivery, Buyer waives its right and expressly agrees not to assert any set-off. deduction or defense of make any counterclaim in any suit or proceeding to enforce payment hereunder.
12. If Buyer (a) becomes bankrupt, (b) makes an assignment for the benefit of creditors, (c) is subject to proceedings commenced under the bankruptcy act or under similar or analogous state statutes or laws forBuyer’s reorganization of other debt adjustment, (d) defaults in performing any of Buyer’s obligations to Seller under this or other contract between them, (e) ceases to do business, (I) dissolves or liquidates its business,(g)dies,or (h)disposes of a substantial portion of its assets, then Seller, at its option may terminate all said contracts, hold Buyer liable for any damage to Seller under said contracts and/or retain any amounts already paid under this or other contracts as damages to Seller. If the rating of Buyer’s credit by a recognized credit information service deteriorates after the date of this contract, Seller may demand acceptable guaranty of payment or collateral as a condition to delivery of goods.
13. If the purchase price for any goods sold hereunder is not paid when due, Buyer agrees to pay a service charge of (1%)percent per month on the amount past due until paid, and, in addition. if Seller shall have retained an attorney to collect such past due indebtedness, Buyer shall also pay all costs and expenses incurred by Seller in respect of collection including attorneys’ fees equal to twenty (20%)percent of the sum then past due.
14. Any tooling charges listed on the face side hereof cover a portion of the expense to be incurred by Seller in modifying and supplementing its existing equipment and tooling to produce the goods affected by this contract. Payment of this charge does not convey ownership or the right to remove equipment or tools from the Seller’s possession.
15. Upon any default of breach of this contract by Buyer, Seller. at its option by giving notice in writing to Buyer of it selection so to do, may, as to this contract. and such other contracts as then may exist between Buyer and Seller, do anyone or more of the following: cancel any or all of such contracts, defer shipment or delivery of all or any part until such default or breach is cured, cancel any undelivered portions thereof. demand immediate payment of all outstanding bills of Buyer. If Seller elects to Cancel, Seller shall have the right to recover damages against Buyer by reason of Buyer’s default or breach of this contract and it may sell all or any part of the undelivered goods without notice to Buyer, at public or private sale, holding Buyer liable for any damage or loss. including incidental expenses and attorney’s fees.
16. This contract shall be deemed to have been made in and shall be governed by and construed in accordance with the laws of the State of New York. In any action of proceeding brought thereunder, the parties consent to the exclusive jurisdiction over them of a court, having jurisdiction over the subject matter, located in the County of Westchester, State of New York. Buyer hereby waives personal service of process in any such action or proceeding consents to service of process by certified or registered mail addressed to Buyer at Buyer’s address designated herein.
17. If any excise tax or other tax not or here after imposed on increased by any governmental authority or agency upon the goods, or upon the production, sale, transportation or delivery thereof. is required to be paid or collected bySeller, directly or indirectly, the amount there of should be added to Seller’s standard price as above provided and shall be paid by Buyer.
18. Unless otherwise clearly specified herein, Seller will supply goods of its regular standard quality and within its standard tolerances as to dimensions.
19. Seller reserves the right to ship 10% more or less than the specified quantity unless otherwise specified on the order.
20. Seller reserves the right to make a cancellation charge to cover labor and materials expended in Seller’s plant prior to cancellation.
MCF-102A – REV. B 04/27/2022