The following are the terms and conditions on which MW Industries, Inc., through its division Hyperco, (“Hyperco”) will sell its products (“Products”) to Buyer. Receipt of this Agreement by Buyer without prompt written objection thereto shall constitute acceptance of this Agreement by Buyer. This Agreement shall supersede all written or printed terms and conditions set forth in any purchase order issued by Buyer. This Agreement supersedes all prior written understandings, assurances, and offers. No reference herein to Buyer’s purchase order shall in any way incorporate different or additional terms or conditions which are hereby objected to.
1. PRICES AND PAYMENT:
- (i) The prices specified herein or otherwise stated by Hyperco in writing are subject to change, without notice, to prices in effect at the time of each shipment. Hyperco shall submit invoices to Buyer stating amounts due. Payment terms are net 30 days, unless otherwise agreed to in writing by Hyperco. Payment shall be made in United States dollars.
- (ii) Any tax imposed by any governmental authority on the sale of Products referred to in this Agreement shall be paid by Buyer, in addition to the selling price specified by Hyperco.
- (iii) Hyperco reserves the right to assess, at its discretion, a late payment charge equal to one and one-half percent (1.5%) per month on past due balances owed to Hyperco upon failure of Buyer to comply with this Agreement, provided, however, that if applicable governmental law sets a maximum rate for late payment fees which is less than one and a half percent (1.5%) per month, then the late payment charge assessed hereunder shall be set at the maximum rate permitted by law.
2. QUOTATIONS: Quotations are valid for thirty (30) days from date of issue, unless otherwise stated on quotation. Additions to outstanding orders will be billed at prices in effect at the time the change order is acknowledged. All published prices are subject to change without notice.
3. DELIVERY, SHIPPING, AND PACKING:
- (i) Delivery schedules are based upon current production capacities, material or component availability, and inventory, and may be changed by Hyperco as conditions require.
- (ii) Where the Buyer is located in the United States, all Products shall be sold “F.O.B. origin, Hyperco’s factory.” Where the Buyer is located outside of the United States, all Products shall be sold “EXW (Incoterms 2010) Hyperco’s factory.” In either instance, title and risk of loss shall pass to Buyer upon delivery to the carrier at Hyperco’s factory.
- (iii) All claims for loss or damage to Products while in the care, custody, and/or control of a carrier shall be the responsibility of Buyer, who shall submit any claims to that carrier.
- (iv) Shipments hereunder shall be at all times subject to the approval of Hyperco’s credit department.
- (v) Hyperco shall pack, mark, and ship the Products according to its standard commercial procedures for shipment, unless the parties agree, in writing, that Hyperco shall comply with any special instructions provided by Buyer. Compliance with special instructions may result in an increased price.
4. CHANGE ORDERS: Any change order, including without limitation any change in the specifications, design, materials or other processes, shall be subject to Hyperco’s written approval and to Buyer’s payment of any additional charges imposed by Hyperco, in Hyperco’s discretion, with respect to such change order. Rescheduling delivery dates for shipments shall not be allowed within 30 days of the originally scheduled shipping dates without the prior written approval of Hyperco.
5. HYPERCO DOCUMENTS: Any drawings or other documents submitted by Hyperco to Buyer shall remain the property of Hyperco, and Buyer will not copy such documents or use such documents for any purpose other than confirming the design of the Products to be supplied by Hyperco. The Buyer does not acquire any right, title, or interest in any such document, design information, or invention resulting therefrom. All such documents shall by kept confidential by Buyer and shall be returned to Hyperco upon Hyperco’s request.
6. TOOLING: Unless agreed to by the parties in writing, Buyer shall not obtain any ownership rights in any tooling, including, but not limited to, tools, dies, jigs, fixtures, patterns and gages, supplied by Hyperco to Buyer. Buyer shall maintain all tooling supplied to Buyer by Hyperco in a reasonably good condition. For tooling furnished to Hyperco by Buyer and possessed by Hyperco, Hyperco may scrap such tooling that has been inactive for a period of two (2) years upon sixty (60) days prior written notification to Buyer unless directions to the contrary are received within the sixty (60) days. Any resulting scrap value of tooling provided to Hyperco by Buyer shall inure to the benefit of Hyperco. Buyer shall pay to Hyperco any and all costs incurred by Hyperco in connection with the adaptation, modification or excessive maintenance of tooling furnished by Buyer.
- (i) Hyperco warrants that for the warranty period set forth below that all Products it sells will be free from defects in materials and workmanship and in conformity with Hyperco’s specifications. In addition, Hyperco warrants to the Buyer that for the life of any Product which is classified solely by Hyperco to be a coil spring for use in a vehicle suspension, the spring shall be within 2% above and 2% below the nominal specification for rate and free length. The limited warranty period for all Products is defined as one (1) year from date of shipment. Any obligation under the limited warranty is limited to the repair or replacement of the Product only. This limited warranty constitutes the fulfillment of Hyperco’s responsibility, and Hyperco is not liable for any expenses, special or consequential damages or any other obligation or liability whatsoever above and beyond the repair or replacement of the Products. Hyperco’s liability is limited to the repair or replacement of the product deemed by Hyperco to be defective. Excluded from this limited warranty are any Products which have been subjected to misuse, neglect, accident, improper application or installation, or any material or Product which has been altered or repaired outside our factory.
- (ii) All Products to be returned for warranty consideration must have and include a return authorization (RA) number, a copy of the bill of sale, and a complete description of the reason for the returned Product.
- (iii) NO OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE MADE WITH RESPECT TO THE PRODUCTS AND ALL OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- (iv) Technical advice and specifications provided by Hyperco regarding the Products shall be used by the Purchaser at its own risk. Hyperco disclaims all liability for direct, incidental or consequential damages suffered as a result of the use of such technical advice or specifications.
8. BUYER’S REMEDIES: The Buyer’s exclusive and sole remedy on account of or in respect of the furnishing of Products that do not conform to this Agreement shall be to secure replacement or repair of the Products, at Hyperco’s option, thereof. In no event shall the Hyperco’s maximum liability exceed the selling price for the Products claimed to be nonconforming.
9. LIMITATION OF LIABILITY: IN NO EVENT SHALL HYPERCO BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE OF THE PRODUCTS OR OTHER EQUIPMENT, DOWNTIME COSTS OR CLAIMS OF BUYER’S CUSTOMERS, WHETHER BASED ON CONTRACT, TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. INDEMNIFICATION: Buyer Shall defend, indemnify, and hold harmless Hyperco and Hyperco’s parent(s), subsidiaries, divisions, affiliated companies and their respective directors, officers, agents, insurers, employees and representatives (collectively referred to as the “Hyperco Group”), from and against any and all claims, suits, causes of action, liabilities, losses (including death, personal injury and property damage), judgments, obligations, fines, damages, penalties, expenses, attorneys fees, settlement funds, and consequential and incidental damages, of any kind or character regardless of theory (including, but not limited to, breach of contract, breach of warranty, tort (including negligence), strict liability, environmental laws, intellectual property rights or otherwise), arising out of or in any manner relating to or attributable to or allegedly arising out of or in any manner relating to or attributable to the Products.
BUYER MAY NOT BRING ANY ACTION ARISING OUT OF ANY CLAIMED BREACH BY HYPERCO OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN.
11. PATENT LIABILITY: Except as to Products manufactured to designs or specifications of Buyer, Hyperco agrees to indemnify and hold Buyer harmless from liability for costs and damages awarded in a final, nonappealable judgment against Buyer in any civil action for infringement of any United States patent which allegedly covers the Products in the form in which they are furnished hereunder, provided that Buyer has given Hyperco notice of any suit for infringement brought against Buyer within ten (10) days of the date of service of complaint upon Buyer and has permitted Hyperco to control the defense of such suit. In no event shall Hyperco be liable for any infringement by Buyer resulting from the use or sale of the Products where such Products are suitable for substantial non-infringing use. Buyer agrees to hold Hyperco harmless from any liability of Hyperco for infringement of patents by reason of manufacture according to Buyer’s design or incorporation of Hyperco’s materials in a more comprehensive assembly than sold by Hyperco, provided Hyperco promptly notifies Buyer of any claim of litigation, and tenders the defense thereof to Buyer. Hyperco grants no license, express or implied, other than the right of Buyer to use the specified materials or part in the form delivered by Hyperco.
12. FORCE MAJEURE: Any delay or failure of Hyperco to perform its obligations hereunder shall be excused to the extent that it is caused by an event or occurrence beyond its control such as, by way of example and not by way of limitation, acts of God, actions by any governmental authority (whether valid or invalid), governmental laws and regulations not presently in effect, fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, accidents, labor problems (including lockouts, strikes, and slowdowns) at Hyperco’s facility, its source plant or their suppliers, inability to obtain power, parts, materials, labor, equipment, or transportation, or court injunction or order.
13. NO AGENCY: This Agreement does not constitute either party the agent or legal representative of the other party. Neither party is authorized to create any obligation on behalf of the other party.
14. INSOLVENCY: In the event of the insolvency or bankruptcy of Buyer, or upon the appointment of a receiver for Buyer or its reorganization for the benefit of creditors, Hyperco may terminate this Agreement. In the event of termination in accordance with this paragraph, Hyperco shall not be obligated to deliver any Products under this Agreement.
15. ATTORNEY’S FEES: In the event Hyperco should bring an action for enforcement of this Agreement, Buyer agrees that Hyperco shall be entitled to award of its attorney’s fees, expenses and court costs associated with such enforcement proceedings.
16. CUMULATIVE REMEDIES: The rights and remedies herein reserved to Hyperco shall be cumulative and additional to any other or further rights and remedies provided at law or equity.
17. EXPORT LAWS: The Parties recognize that Hyperco may be subject to the export regulations of the United States of America regarding export and re-export of certain commodities, software, and technology from the United States. Buyer agrees that it will not export or re-export, either directly or indirectly, any information or data received from Hyperco in connection with its Products to any country in contravention of said export regulations, or which, if done by Hyperco, would violate the laws of the United States of America. Buyer represents that it is not or was not a sanctioned party under U.S. laws. To the extent any sale of Products pursuant to this Agreement may require approval of the United States Government, Hyperco’s obligations under this Agreement are conditioned upon the grant of such approval and upon compliance by Buyer with any restrictions imposed by the United States Government in connection with such approval.
18. NO INDUCEMENTS: The parties hereto represent to each other and each agrees that, neither it nor any person acting on its behalf has, in contravention of any applicable law, given or offered to give, or will give or offer to give, any sum of money or other material consideration to any person, directly or indirectly, as an inducement to obtain business hereunder or to influence the granting of licenses or other governmental permissions to enter into this Agreement or perform obligations hereunder.
19. OFFICIAL TEXT: The official text of this Agreement is in the English language. If this Agreement is translated into another language, the English text shall govern any question with respect to interpretation.
20. GOVERNING LAW: This Agreement and any disputes or controversies arising hereunder shall be governed by and construed according to the laws of the State of Indiana, United States of America, without regard to its conflict of law principles, and not including the United Nations Convention on Contracts for the International Sale of Goods. Hyperco and Buyer consent to the personal jurisdiction of courts in the State of Indiana and waive service of process under any United States or foreign law.
21. AMENDMENT; ASSIGNMENT: No agreement or understanding varying or expanding this Agreement shall be binding upon either party hereto unless it is in writing and signed by a duly authorized representative thereof. This Agreement is not assignable by Buyer without Hyperco’s prior written approval.
22. SEVERABILITY: If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable under any statute, regulation, ordinance, executive order, or other rule of law, that provision shall be deemed severed to the extent necessary to comply with such statute, regulation, ordinance, order, or rule. In the event such provision is deemed severed, the parties shall negotiate in good faith to arrive at an alternative arrangement approximating the original business objective of the parties. The remaining terms and conditions of this Agreement shall remain in effect.
23. NO IMPLIED WAIVER: The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver of either party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the same or any other provision.