ACCEPTANCE OF ORDERS:
The acceptance of all orders and all sales by Modern Fluid Power, Inc. are made subject to and expressly conditional upon these Terms and Conditions of Sale (“Terms and Conditions”). We only accept orders and purchases on the condition that Buyer agrees to all the terms in these Terms and Conditions.
Unless you assent to all the Terms and Conditions, this section shall be deemed a rejection of your offer and our acknowledgement of your purchase order, agreement to ship or shipment of any products to you shall not be an acceptance of any terms and conditions not set forth herein and shall constitute a counteroffer. Buyer may accept the counter offer only on these Terms and Conditions. TERMS IN YOUR ACCEPTANCE THAT ARE ADDITIONAL TO OR NOT IDENTICAL WITH THESE TERMS AND CONDITIONS OF THE COUNTEROFFER WILL NOT BECOME PART OF THE CONTRACT WITHOUT OUR EXPRESS WRITTEN CONSENT.
This quotation is firm for forty-five (45) days from date. Clerical errors are subject to correction. Acceptance of the offer represented by this quote is expressly limited to the provisions hereof. No additional or different terms in Buyer’s purchase order or other communication shall constitute a part of the quotation unless expressly agreed to in writing by Modern Fluid Power, Inc..
All prices are exclusive of all present or future federal, state and local excise, sales, use, value added, and similar taxes. These taxes shall be paid by Buyer, or Buyer shall provide Modern Fluid Power, Inc. with a tax exemption certificate, which Modern Fluid Power, Inc. in its sole and absolute discretion, finds acceptable.
TITLE AND DELIVERY:
Modern Fluid Power, Inc. shall deliver products to Buyer F.O.B. Point of Shipment, Partial deliveries shall be permitted. All shipping charges and expenses shall be paid by Buyer.
** Shipping and handling fees will be added to invoice.
Title of merchandise passes to the Buyer at FOB point. Parts damaged in shipment cannot be returned and all claims for such damage should be directed immediately to the transportation company.
Modern Fluid Power, Inc. shall not be liable for delay or failure to deliver or perform due to any cause beyond its reasonable control, or for Acts of God, acts of Buyer, acts of any governmental authority, strikes or other Buyer, acts of any governmental authority, strikes or other labor disturbances, delays in transportation, fuel or energy shortages, or inability to obtain necessary materials, components, services, or facilities from usual sources.
Any orders held, delayed, or rescheduled at the request of the Buyer will be subject to the prices and conditions of sale in effect at the time of release of the holder or reschedule, plus any additional costs incurred due to the hold or reschedule. Any such order held, delayed, or rescheduled beyond a reasonable period of time will be treated as a Buyer cancellation and be subject to paragraph 16 hereof.
SPECIAL DOMESTIC OR EXPORT PACKING:
Prices include products having standard domestic packing only. Where special domestic packing or packing for overseas shipment is required, contact Modern Fluid Power, Inc.. 8. DELAYS: Modern Fluid Power, Inc. shall not be liable for any loss or damages resulting from any shipping delay, whether or not Modern Fluid Power, Inc. agrees to a specific shipping date.
In the event the goods or any portion thereof furnished to Buyer are identified as “prototypes”, “samples”, “for approval”, “on consignment”, “for evaluation”, or in similar terms, Buyer agrees that such material or information is confidential and that it will be liable for any disclosure of such material or information other than to employees required for evaluation by Buyer.
BLUE PRINTS AND SPECIFICATION:
All assembly orders are accepted with understanding that the parts or material furnished will be in accordance with blue prints and specification on hand in Modern Fluid Power, Inc.’s files or furnished to Modern Fluid Power, Inc.. With the Buyer’s order, and which have been specifically agreed to and accepted by Modern Fluid Power, Inc. in writing as applicable to such order.
Any equipment (including jigs, dies and tool) which Modern Fluid Power, Inc. constructs or acquires for Buyer, notwithstanding any changes thereof, shall be and remain Modern Fluid Power, Inc.’s property and in Modern Fluid Power, Inc.’s possession and control, and any amounts paid in connection therewith by the Buyer, shall be considered a service charge. All such equipment Modern Fluid Power, Inc. may make such use or disposition thereof as it desires without liability to Buyer. New or additional dies or changes necessary in existing equipment to conform with changes in design ordered by the Buyer are to be paid for by the Buyer. Dies or equipment service charges applicable cover only the useful life of such dies or equipment. Any materials owned or furnished by Buyer while in Modern Fluid Power, Inc.’s possession will be carefully handled and stored by Modern Fluid Power, Inc., but Modern Fluid Power, Inc. shall have no responsibility for loss or damage thereto.
WARRANTIES AND REMEDIES:
(a) WARRANTIES: Modern Fluid Power, Inc. warrants to Buyer that its products shall be free from defects in material and workmanship and shall conform to any written mutually agreed upon specification, for a period of thirty (30) days from the date of shipment. Provided, however, that as a condition of these warranties the products shall have been stored, installed, operated and maintained in accordance with recommendations and applied in accordance with standard industry practice. Products which are “engineering samples”, are sold “AS IS”, ‘WITH ALL FAULTS”, and with no warranty whatsoever.
(b) REMEDIES: Should Buyer believe that products sold hereunder fail to meet the above applicable warranty, Modern Fluid Power, Inc., at its sole option, will repair or replace such product(s) or issue Buyer a credit or a refund in the amount of the purchase price for such product(s) (“Exclusive Remedy”) provided that: (i) Modern Fluid Power, Inc. is notified in writing by Buyer within 30 days after discovery of such failure, Buyer is to obtain a Return Material Authorization Form (“RMA”) from Modern Fluid Power, Inc. to return 1 part for test and examination to establish the reason for the products failure. At which time Modern Fluid Power, Inc. will determine whether the balance of the products may be returned using a RMA, or not: (ii) Buyer obtains a RMA from Modern Fluid Power, Inc. prior to returning any defective products: (iii) the defective products are returned to the location specified by Modern Fluid Power, Inc.: (iv) the defective products are received by Modern Fluid Power, Inc. no later than four (4) weeks following the last day of the warranty period; and (v) Modern Fluid Power, Inc. shall determine, in its sole and absolute discretion, upon examination of such products that such failures have not been caused by improper installation, application, repair, alteration, accident or negligence.
(c) The Exclusive Remedy is the Buyers exclusive remedies for claims based on defects in or failure of any products whether a claim is based in contract, tort (including negligence and strict liability), warranty or otherwise and however instituted. Upon the expiration of the applicable warranty for any products, all such liability shall terminate. EXCEPT AS EXPRESSLY SET FORTH ABOVE, Modern Fluid Power, Inc. PRODUCTS ARE PROVIDED “AS IS” AND “AS WHERE.” Modern Fluid Power, Inc. EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORALLY OR IN WRITING, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, TITLE, USAGE OR TRADE PRACTICE. The parties acknowledge that the price of Modern Fluid Power, Inc.’s products would be much greater if Modern Fluid Power, Inc. undertook more extensive liability.
(d) The above warranties shall apply only to Buyer and shall not apply to Buyer’s customers or any other third parties.
GENERAL LIMITATIONS OF LIABILITY:
Notwithstanding any other provision of these Terms and Conditions, in no event shall Modern Fluid Power, Inc. be liable under any claim, demand or action (whether in contract, tort, or otherwise) arising out of or relating to Modern Fluid Power, Inc.’s products or services for any special, indirect, incidental, exemplary, or consequential damages, including, but not limited to, loss of anticipated profits, loss of use, or loss from business disruption, regardless of whether or not Modern Fluid Power, Inc., its employees or agents have been advised of the possibility or likelihood of such damages. Modern Fluid Power, Inc.’s total liability for damages arising out of or in connection with Buyer’s purchase of Modern Fluid Power, Inc.’ products, whether in contract, tort, or otherwise, shall in no event exceed the purchase price paid as to the specific order to which the claim relates. The parties acknowledge that Modern Fluid Power, Inc. would not sell its products to Buyer without this limitation of liability.
Buyer shall indemnify, defend and hold harmless Modern Fluid Power, Inc. and its officers, directors, employees, agents, shareholders or members (collectively, “Representatives”), successors and assigns, affiliates, and their respective Representatives, successors and assigns and affiliates against any and all claims, actions, suits, liabilities, losses, damages, fines, penalties, fees, costs and expenses, including, without limitation, reasonable attorney’s fees and costs and other litigation fees, costs and expenses (collectively, “Losses”), resulting from or in connection with (i) any claim of infringement of any patent or any other intellectual property right in connection with the processing of any goods for Buyer pursuant to Buyer’s instructions and specifications regardless whether such claim is valid, (ii) designs, drawings or specifications given to Modern Fluid Power, Inc. by Buyer for the production of goods for Buyer; (iii) defective materials or products supplied by Buyer to Modern Fluid Power, Inc. and incorporated by Modern Fluid Power, Inc. into goods produced for Buyer, or (iv) the improper incorporation, assembly, use, processing, storage or handling of goods by Buyer or its customers.
U.S. GOVERNMENT CONTRACTS:
If the products are to be used in the performance of a U.S. Government contract or subcontract, no Government requirements or regulations shall be binding upon Modern Fluid Power, Inc. unless specifically agreed to in writing.
(a) All requests for cancellation of orders, changing a delivery schedule, or placing an order on hold must be made to Modern Fluid Power, Inc. in writing with the most advanced notice possible, so as to minimize cancellation charges. When a cancellation request is received by Modern Fluid Power, Inc., then Modern Fluid Power, Inc. will evaluate the cancellation charges that the Buyer shall pay, based on whether the products is standard, non standard, or a custom assembly and how far along the product is through production.
(b) Once Modern Fluid Power, Inc. gives the Buyer the cancellation fee, the Buyer shall send Modern Fluid Power, Inc. written documentation of the cancellation, reflecting the cancellation charges that the Buyer shall pay within 15 days. Modern Fluid Power, Inc. will acknowledge the cancellation in writing to the Buyer. Custom assemblies or non standard products canceled less than 30 days from scheduled shipping day will incur 100% cancellation charges. Buyer agrees to pay all cancellation charges that are included in the cancellation of the order.
U.S. EXPORT LAWS:
Buyer understands and agrees that goods sold and any technical data or services provided hereunder may be subject to export and other foreign trade controls restricting resales and/or transfer to other countries and parties, including, but not limited to, licensing requirements under applicable laws and regulations of the United States. Any other provision of this Agreement to the contrary notwithstanding, Buyer agrees that no goods, technical data or services provided hereunder will be sold, reexported or transmitted except in full compliance with all relevant governmental laws and regulations, including U.S. foreign trade controls requirements. Buyer agrees to and does assume all responsibility for obtaining any required licenses related to the export or reexport of the goods, technical data or services, including any licenses for their export from the United States and their import into any other country. Buyer further agrees that it will not export or reexport any of the goods, technical data or services of U.S. origin or containing U.S. content provided hereunder to any country, government, person, entity, organization or end-user subject to U.S. Foreign trade restrictions and, in particular, that it will not export or reexport the goods, technical data or services to: (i) any country to which such goods, data or services may not be transmitted without prior specific authorization of the Directorate of Defense Trade Controls, U.S. Department of State, pursuant to the International Traffic in Arms Regulations (22 C.F.R. Parts 120 through 130); (ii) any country to which such goods or data may not be transmitted without prior specific authorization of the Bureau of Industry and Security, U.S. Department of Commerce, pursuant to the Export Administration Regulations (15 C.F.R. Parts 730 through 774); or (iii) any country, government, person, entity, organization or end-user against which the United States government has imposed any other foreign trade restrictions, including, without limitation, economic sanctions or an economic embargo or the denial of export privileges. Any violation of this Section, as determined solely by Modern Fluid Power, Inc., shall be deemed a material breach of this Agreement and Modern Fluid Power, Inc. may terminate any and all of its obligations under this Agreement.
LIMIT OF LIABILITY:
No claim or action arising out of Buyer’s order or other document pertaining to the goods, whether in contract, tort or otherwise, may be brought by Buyer more than twelve (12) months after the date of shipment of the goods.
ASSIGNMENT – SUBCONTRACTING:
Buyer may not assign the Agreement to a third party without the written consent of Modern Fluid Power, Inc.. The Agreement may be assigned by Modern Fluid Power, Inc. at anytime and following such assignment. Modern Fluid Power, Inc. shall have no further obligations hereunder. Modern Fluid Power, Inc. may subcontract any part of the Order upon Buyer’s prior appropriate qualification and information.
(a) If an order is placed in the hands of an attorney for collection or if suit is brought to collect any of the account balance or interest thereon, the Buyer agrees to pay attorney fees and legal costs incurred.
(b) The invalidity, in whole or in part, of any provision herein shall not affect validity of any other provision herein.
(c) Any representation, warranty, course of dealing or trade usage not contained or referenced herein shall not be binding on Modern Fluid Power, Inc..
(d) No modification, amendment, rescission, waiver or other change in these Terms and Conditions shall be binding on Modern Fluid Power, Inc. unless assented to in writing by its authorized representative.
(e) The rights and obligations of the parties under these Terms and Conditions shall be governed by the substantive laws of the State of California without reference to its conflict of law provisions. The parties hereby irrevocably agree that venue as to any dispute and personal jurisdiction of the parties to such dispute shall be solely and exclusively in the State of California, Courts of the County of Orange, or if applicable, in the Federal District Court for the Central District of California, located in Orange County, California.