Terms and Conditions of Sale
1. Offer, Governing Provisions and Re-orders.
Any order for products ("Products") and/or services, including engineering and design services ("collectively "Services") which is placed with MEC International Corporation or any of its subsidiaries or affiliates, including but not limited to Milwaukee Electronics Corporation; Milegon, LLC; MEC Southwest, LLC; Milegon de Mexico; and San Diego PCB Design, LLC ("Seller"), regardless of how placed, is subject to these terms and conditions. Any future orders regardless of how placed, will also be subject exclusively to these terms and conditions. No modified or other conditions will be accepted by Seller unless specifically agreed to in writing and failure of Seller to object to provisions contained in any purchase order or other communications from buyer shall not be construed as a waiver of these terms and conditions, nor an acceptance by Seller of any such provisions. No order accepted by Seller may be altered or modified by buyer unless agreed to in writing by Seller, and no such order may be cancelled or terminated except upon payment of Seller's loss, damage and expense arising from such cancellation or termination, as set forth in Section 6 hereof. IT IS RECOGNIZED THAT BUYER MAY HAVE FORMS THAT HAVE TERMS AND CONDITIONS PRINTED THEREIN WHICH DIFFER FROM OR ADD TO THE TERMS AND CONDITIONS CONTAINED HEREIN, AND THAT SUCH ORDER FORMS MAY LIMIT ACCEPTANCE OF THE TERMS AND CONDITIONS TO SUCH ORDER FORMS. IN THE INTEREST OF ECONOMY AND CONVENIENCE, IT WILL BE PERMISSIBLE FOR BUYER TO PLACE AN ORDER WITH SELLER ON SUCH PURCHASE ORDER FORM, BUT IT IS EXPRESSLY UNDERSTOOD THAT NONE OF THE TERMS AND CONDITIONS THEREIN SHALL BE DEEMED EFFECTIVE AND THAT IN THE CASE OF CONFLICT, THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE DEEMED EFFECTIVE AND AGREED TO BETWEEN SELLER AND BUYER SHALL SUPERCEDE CONTRARY TERMS ON THE BUYER'S ORDER FORM, AND THAT ACCEPTANCE OF SUCH FORM SHALL NOT BE DEEMED TO BE AN ACCEPTANCE OF THE TERMS AND CONDITIONS OF SUCH FORM.
2. Delivery, Claims and Delays.
Unless otherwise specified on the face hereof, delivery of Products to a carrier at Seller's plant or other loading point shall constitute delivery to buyer, and regardless of shipping terms or freight payment, all risk of loss or damage in transit shall by borne by buyer. Buyer hereby grants to Seller a security interest in the Products delivered until payment in full is made for all quantities ordered and appoints Seller its agent and attorney in fact to take all such action and to execute all such documents and instruments as may be necessary or reasonably requested by Seller to perfect and continue perfected Seller's security interest hereunder.
Claims for shortages, defects or other errors in delivery of Products must be made in writing to Seller within 30 days after receipt of shipment and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by buyer. Claims for loss or damage to Products in transit should be made to the carrier and not to Seller.
Seller will use commercially reasonable efforts to meet shipment schedules. However, any shipment quote or forecast on an order acknowledgement is Seller's best estimate of the time required to make shipment and Seller will not assume liability, consequential or otherwise, because of any delay or failure to deliver all or any part of any order for any reason, including its negligence of any kind, and whether or not arising from a force majeure cause. Seller reserves the right to allocate current production, reduce quantities to be delivered or Services to be performed, delay shipments, or allocate such Products or Services among customers in Seller's sole discretion in any way it deems necessary. Should Seller be unable to deliver Products or perform Services when estimated, Seller will not be liable for failure to deliver or perform by such estimated dates unless expressly agreed to by Seller in writing. Buyer may not cancel, push-out, or reschedule any purchase order placed with Seller, except with Seller's written consent.
3. Shipment and Storage.
Buyer shall specify in writing the method of shipment preferred and, in the absence of such specification, Seller may ship in any manner it elects. All shipping and delivery dates are approximate.
4. Prices and Payments.
Any prices quoted are f.o.b., Seller's plant, unless otherwise agreed to in writing. Written quotations shall expire unless accepted by buyer within 60 days from the date quoted. Prices shown in catalogues or other publications, including on the internet and/or on the Seller's website, shall not be considered offers; all Products and Services shall require a specific price quotation. All prices are subject to change without notice. Seller reserves the right to require full or partial payment in advance of or upon delivery of any shipment or prior to the performance of any Services, and the right to require additional security or collateral to secure payment. If Buyer fails to pay any invoice when due, Seller may at its option (1) delay further shipments, or performance of any Service, to or for buyer until such invoice is paid, (2) terminate any or all contracts with buyer, or to (3) require full or partial payment in advance and suspend any further deliveries or continuance of any Services until such payment has been received. All invoices are due and payable in net cash thirty (30) days from the date of invoice. Any invoice that is not paid during such thirty (30) day period shall bear interest at the rate of one and one-half percent (1½%) per month from the due date or the highest amount allowed by applicable law, whichever is less. Buyer shall be responsible for and shall remit to Seller all costs, expenses and reasonable attorney fees incurred by Seller in obtaining payment of any invoice or portion thereof or otherwise in enforcing its rights.
5. Taxes and Other Charges.
Any sales tax, excise tax, duty custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between Seller and buyer shall be paid by buyer in addition to the prices quoted or invoiced. In the event Seller is required to pay any such tax, fee or charge, buyer shall reimburse Seller therefor.
No order may be cancelled or altered or delivery deferred by buyer except on terms and conditions acceptable to Seller, as evidenced by Seller's written consent. In the event of such approved cancellation by buyer, Seller shall be entitled to the full contract price, less any expenses saved by reason of such cancellation.
7. Warranties and Limitations.
Seller warrants that its Products will be free from defects in material and workmanship and shall be manufactured in compliance with IPC-A-610 Class 2 Workmanship, and that Seller's Services shall be as provided in the applicable contract. If the Services are for engineering design work, Seller warrants in addition that engineering design work performed by it shall be in accordance with good engineering design practices and in conformance with applicable codes and standards of care and diligence normally practiced by recognized engineering design firms in performing engineering design services of a similar nature for similar prospects at the time the engineering design services are performed.
THE FOREGOING WARRANTIES ARE IN LIEU OF ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; AND SELLER SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES WHATSOEVER, EITHER IN CONTRACT OR ON ACCOUNT OF NEGLIGENCE, WITH RESPECT TO THE PRODUCTS OR SERVICES OR OBLIGATIONS ARISING HEREUNDER. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THESE TERMS AND CONDITIONS, UNLESS AGREED TO IN WRITING BY SELLER.
Without limiting the generality of the foregoing, Seller specifically disclaims any liability for property damage or personal injury damages, penalties, special or punitive damages, damage for lost profits or revenues, loss of use of Products or any associated equipment, delays, cost of capital, cost of substitute products, facilities or services, down-time, shut-down costs, recall costs, lost opportunities, or any other types of economic loss, or for claims of buyer's customers or any third party for any such damages.
Any claim under this warranty section and any obligation of Seller hereunder is conditioned upon Seller receiving written notice from buyer of any alleged defect within ten (10) days after its discovery. The warranty will expire according to the following product and service lines:
Custom Manufactured Products - 1 year
Design Engineering Services - 90 days
PCB Board Layout Services - 30 days
Automation Controls Group Products:
Motors - 3 years
Controllers - 1 years
Integrated Motors and Controllers - 2 years
Fluid Level Sensor - 90 days
No agent of Seller is authorized to make any warranty in addition to or contrary to the foregoing.
This warranty provided in this Section 7 is made to the original purchaser only and is nontransferable, and may only be modified or amended by a written instrument signed by a duly authorized officer of Seller.
Products may not be returned to Seller for any reason after delivery to buyer without written approval of Seller.
9. Warranty Liability and Limitation of Damages.
Seller's liability with respect to the Products and/or Services sold hereunder shall be limited to the warranty provided in Section 7 hereof and, with respect to that or other performance of any contract between the parties, shall be solely limited to, at Seller's option, either (i) the amount of the contract price attributable to the part of the performance which is nonconforming, delayed or not made or the contract price, whichever is less, or (ii) replacement or repair of the nonconforming Product or revision of the nonconforming Service, so it conforms to the warranty.
No warranty is provided by Seller in the event the Products have been (i) repaired, worked on, or altered by persons not authorized by Seller so as, in Seller's sole judgment, to injure the stability, reliability, or proper operation of such Products; (ii) subject to misuse, negligence or accident; or (iii) connected, installed, used or adjusted otherwise than in accordance with the standards for such Products.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, IN NO EVENT WILL SELLER'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED HEREUNDER (INCLUDING BUT NOT LIMITED TO ANY WARRANTY OR INDEMNITY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY BUYER TO SELLER HEREUNDER FOR THE PRODUCTS OR SERVICES ACTUALLY GIVING RISE TO SUCH LIABILITY (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN SUCH ACTION). THIS LIMITATION IS CUMULATIVE, WITH ALL PAYMENTS TO BUYER FOR CLAIMS OR DAMAGES BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT. NO CLAIM, SUIT OR ACTION WILL BE BROUGHT AGAINST SELLER MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS TRANSPIRED.
BUYER ACKNOWLEDGES THAT SELLER HAS SET ITS PRICES AND FEES AND AGREED TO SELL PRODUCTS AND SERVICES TO, OR IN RELIANCE UPON THE LIMITATIONS OF LIABILITY, DISCLAIMER OF WARRANTIES, EXCLUSION OF DAMAGES AND EXCLUSIVE REMEDIES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH SELLER WOULD NOT HAVE AGREED TO SELL PRODUCTS AND/OR SERVICES TO BUYER. BUYER AGREES THAT SUCH PROVISIONS WILL SURVIVE AND APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
Buyer shall indemnify Seller against any and all losses, liabilities, damages and expenses (including without limitation, attorneys' fees and other costs of defending any action) which Seller may incur as a result of any claim by buyer or others arising out or in connection with the Products and/or Services sold hereunder and based on Product or Service defects not proven to have been caused solely by Seller's negligence.
In the event an order is for creation of a prototype, and whether involving Products or Services, Seller reserves the right to cease work on the prototype if, in Seller's sole opinion, continued work on the prototype is technically or economically not feasible. In such instance, the sole remedies of the parties shall be that Buyer shall pay for Seller's work up to the point of cessation, and upon payment Seller shall provide to Buyer its work product related solely to the prototype.
11. Deliveries to Third Parties.
In the event buyer requests Seller to deliver Products to third parties, Seller at its discretion may do so, but such delivery shall be subject to these terms and conditions, and Seller shall have no liability which arises in whole or in part as a result of buyer's failure to inspect Products due to their direct transmittal to a third party. Seller shall have no liability for costs incurred by buyer with such third parties whatsoever, and buyer shall indemnify and hold Seller harmless from any claims or liabilities, including reasonable attorneys fees and costs, arising from such third parties.
12. No Proprietary Rights.
Unless provided for by separate written agreement, Seller retains all rights in and to Seller developed specifications, designs, engineering details, discoveries, inventions, patents, copyrights, trademarks, trade secrets and other intellectual and proprietary rights relating to the Products and Services it provides. Sale of any Products or provision of any Services by Seller does not confer upon buyer a license under any of Seller's developed patents, trade secrets, trademarks or copyrights to combine any Product furnished under these terms with any other product or to modify any Product furnished under these terms.
Unless provided for by separate written agreement, the design or development of Products and provision of Services under these Terms will not be deemed to be a "work made for hire" or "commissioned work" and Seller retains for itself all intellectual property and proprietary rights in and to all designs, engineering details, and all other data and materials pertaining to any of Seller developed Products or Services supplied by Seller and to all discoveries, inventions, patents and other proprietary rights arising out of the work done by Seller in connection with the Seller developed Products or Services or with any and all Products developed by Seller as a result thereof, including the sole right to manufacture any and all of Seller's developed Products and buyer covenants and warrants it will not manufacture or engage to have manufactured such Products.
13. Trade Secrets/Confidential Information.
"Confidential Information" is information owned, possessed or developed by Seller which is not known to the public generally. Seller expends considerable resources to develop, acquire and safeguard its Confidential Information. Any Confidential Information that is disclosed to buyer is disclosed in the strictest confidence and buyer shall not disclose any Confidential Information to any person, firm, corporation or other entity.
Buyer shall not copy, duplicate or use any Confidential Information for its own use or benefit. Buyer shall use the same degree of care to avoid disclosure of Confidential Information as it uses with respect to its own highest level confidential information and, in any event, no less than a reasonable degree of care. Confidential Information shall include, but not be limited to, all information, regardless of the form in which it is transmitted or stored, relating to Seller's research, development or business information, products, product specifications and trade secrets, as defined by law.
Seller's tools involve a certain amount of engineering and special techniques that are not for sale. Tool charges are made with the understanding that tool costs are for use of the tools, do not include the cost of the tools, and therefore the tools are to remain Seller's sole property.
15. Patent Indemnity.
Buyer shall hold Seller harmless against any expense, liability or loss, including attorneys fees and costs, resulting from infringement of patents or trademarks of third parties arising from Products or Services provide by Seller in compliance with Buyer's design, specifications or instructions.
16. Construction and Venue.
This contract shall be governed and construed in all respects by the laws of the State of Wisconsin. The parties hereto agree that the exclusive venue for any cause of action arising hereunder, regardless of whether commenced by Seller or buyer, shall be in the state or federal courts of the State of Wisconsin located in Milwaukee County, Wisconsin, and buyer hereby consents to such exclusive jurisdiction.
In the event that any provision of this contract is declared void or unenforceable by any competent legislative or judicial authority, said declaration shall not affect the enforceability of any other provision of this contract, it being the intent of the parties that this contract shall be severable and applied as if such void or unenforceable provision had not been included herein
18. Safety-Critical and Military Applications.
Unless expressly specified by Seller in writing in the specifications for the applicable Product, no Products will be designed for, and buyer will not allow such Products to be used in connection with, any applications where the failure of such
Products would reasonably be expected to cause significant personal injury or death ("Safety-Critical Applications") without the specific written consent of an officer of Seller. Safety-Critical Applications include, without limitation, life support devices and systems, equipment or systems for the operation of nuclear facilities and weapons systems. Buyer will fully defend (at Seller's option), indemnify and hold Seller harmless from and against any cost, loss, liability, or expense arising out of or related to use of the Products in Safety-Critical Applications.
Further, unless provided for by separate written agreement, Products are neither designed nor intended for use in military or aerospace applications or environments. Buyer acknowledges and agrees that any such use of Products is not authorized or approved by Seller unless provided for by separate written agreement, is used solely at buyer's risk, and that buyer is solely responsible for compliance with all legal and regulatory requirements in connection with such use.