1. ENTIRE AGREEMENT
This document contains all of the Terms of the agreement between Magnet Applications. and Buyer to the exclusion of any other statement agreements, and to the un-exclusion of any terms and conditions incorporated in Buyer’s order and in acknowledgement documents. Magnet Applications’ acceptance of Buyer’s order is expressly conditioned on Buyer’s acceptance of these terms and conditions, and Buyer, upon placing an order, is presumed to have accepted all these terms and conditions without modification.
Shipment is F.O.B. / F.A.S. Magnet Applications plant or other place of manufacture, unless otherwise specified. The risk of loss of the products (including damage or destruction thereto) passes to Buyer upon shipment, or as soon as Buyer is notified that the products are ready for shipment, whichever occurs first. Unless Buyer specifies shipping arrangements, Magnet Applications will make reasonable arrangements for shipment.
Magnet Applications will make every effort to fill orders with the time stated, but the stated delivery date is approximate only, and Magnet Applications reserves the right to re-adjust shipment schedules. Under no circumstances will Magnet Applications be responsible for or incur any liability for damages, costs or expenses of any nature (weather general, consequential, as a penalty or as liquidated damages or otherwise) due to any delays in delivery, or failure to make delivery at an agreed or specified time due to circumstances beyond Magnet Applications’ reasonable control. Acceptance by Buyer of the products when received waives any claim for loss or damage resulting from a delay, regardless of the cause of the delay. If shipment is delayed or suspended by Buyer, Buyer shall pay the invoice price for the products as per payment terms, together with Magnet Applications’ handling and storage charges in effect and demurrage charges if loaded on rail cars.
4. TERMS AND PRICES
Unless otherwise specified, payment terms are net thirty (30) days from invoice date, with a twelve percent (12%) per annum finance charge on overdue amounts. In addition to the purchase price, Buyer shall pay any federal, state and local sales, excise, privilege, use or other taxes arising from the sale or delivery of the products or the use thereof. Prepaid freight, if applicable, will be added to the purchase price and invoiced separately. If the price includes transportation or other shipping charges, any increase in transportation rates or other shipping charges from date of quotation or purchase order shall be paid by Buyer requests changes in the products or delays progress of the manufacture or shipment of the products, the contract price shall be adjusted to reflect increases in the selling price caused thereby.
5. RETENTION OF TITLE
Title to the products sold hereunder shall remain in Magnet Applications until the purchase price shall have been fully paid in cash, and the products shall remain personal property, whatever maybe the mode of attachment to realty or other property and Buyer shall perform all acts necessary to perfect Magnet Applications security interest against third party interest. In case of failure by Buyer to make any payment when due, Magnet Applications shall have the option to take exclusive possession of the products wherever found, in addition to any and all other rights and remedies provided by law.
Magnet Applications warrants that at the time of shipment the products manufactured by it will be merchantable and free from defects in materials and workmanship. Magnet Applications’ sole obligation to Buyer under this warranty is the repair or replacement, at Magnet Applications’ option, of any products or parts thereof which, under normal use and proper maintenance, have proven defective in material or workmanship. This warranty does not cover ordinary wear and tear, abuse, misuse, overloading, alteration, or products, which have not been operated or maintained in accordance with Magnet Applications’ written instructions. No claims under this warranty will be valid unless Buyer notifies Magnet Applications in writing within a reasonable time of the Buyer’s discovery of such defect, but in no event later than twelve (12) months from date of shipment to Buyer. When a warranty claim arises, Buyer must contact Magnet Applications to arrange return shipment, freight prepaid by Buyer. If the defect comes under the terms of this limited warranty, the products will be repaired or replaced and returned freight collect. Freight charges paid by buyer to return products to Magnet Applications’ factory will be credited to Buyer only if the products are confirmed to be covered by this limited warranty. The risk of loss of any products or parts thereof returned to Magnet Applications will be on Buyer.
THE ABOVE LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FACE THEREOF.
The remedy of repair or replacement provided for herein is Buyer’s exclusive remedy. MAGNET APPLICATIONS SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OR FOR ANY LOSS, DAMAGE OR EXPENSE ARISING FROM THE SALE, USE OR INSTALLATION OF THE PRODUCTS OR FROM ANY OTHER CAUSE WHATSOEVER, WHETHER BASED ON WARRANTY (EXPRESSED OR IMPLIED) OR OTHERWISE BASED ON CONTRACT, OR ON TORT, and regardless of any advice or representation not in writing that may have been rendered by Magnet Applications concerning the sale, use or installation of the products.
Buyer agrees to cause the products to be installed in accordance with Magnet Applications’ instructions and will indemnify Magnet Applications against any and all damages, demands, suits, causes of action, claims and expenses arising directly out of Buyer’s failure to cause the products to be so installed.
Magnet Applications may, at its option, make changes in the design, construction, arrangement or components of the products if, in Magnet Applications’ judgement, such changes will be beneficial to the operation of the products. Buyer may not make any changes in the specifications for the products unless Magnet Applications approves of such changes by a signed writing, in which event Magnet Applications may make additional charges for such changes.
9. NOTIFICATION OF CLAIMS
Buyer must notify Magnet Applications and the carrier within seven (7 products of any damage to, or partial loss, of the products during transit. Buyer must notify Magnet Applications and the carrier within fourteen (14) days from the date of shipment of any non-delivery of the products. Failure to give such notification waives all claims, which Buyer may otherwise have against Magnet Applications for loss or damage in transit.
If delivery is made in installments, claims which Buyer may have as to any one installment do not relieve Buyer of the obligation to accept delivery of the remaining installments, or permit Buyer to cancel or rescind the remaining installments.)
All documents supplied by Magnet Applications to Buyer is for internal use between Buyer and Magnet Applications. Written consent must be obtained from Magnet Applications for any parts of the documentation to be released to the public.
Magnet Applications agrees at its own expense to defend and hold Buyer harmless from and against all damages, costs or expenses whatsoever on respect of, or arising from any claim of infringement of any patent, trademark registered design, or other intellectual property rights relating to the products originally manufactured by Magnet Applications, provided Buyer (i) has not modified such products, (ii) gives Magnet Applications immediate notice in writing of any claim or installation of threat of suit, and (iii) permits Magnet Applications to defend or settle the same, and gives all immediate information, assistance and authority to enable Magnet Applications to do so.
In the event Magnet Applications elects to defend any suit and the product is held to infringe any United States patent and if Buyer’s use thereof is enjoined. Magnet Applications shall, at its expense and option: (i) obtain for Buyer the right to continue using the product, (ii) supply a non infringing product for installation by Buyer, (iii) modify the product so that it becomes non infringing, or (iv) refund the then market value of such product. In no event shall Magnet Applications’ liability exceed the sales price of the infringing product.
Buyer shall defend and hold Magnet Applications harmless from and against all damages, costs and expenses whatsoever arising from infringement of intellectual property rights relating to products incorporating a design or modification requested by Buyer.
Any name plates or other form of identification which Magnet Applications has affixed to or marked upon any of the products may not be removed by Buyer or by anyone on Buyer’s behalf without Magnet Applications’ written consent.
Buyer may not cancel orders placed with Magnet Applications, except with Magnet Applications’ written consent and then only if Buyer makes payment to Magnet Applications to indemnify it against loss, including but not limited to expenses incurred and commitments made by Magnet Applications.
14. LOSS, DAMAGES OR DELAY
Magnet Applications shall not be liable for loss, damage or delays resulting from causes beyond its reasonable control or caused by strikes or labor difficulties, lockouts, acts or omissions of any governmental authority or Buyer, insurrection or riot, war, fires, floods, Acts of God, breakdown of essential machinery, accidents, embargoes, cargo or material shortages, delays in transportation, or inability to obtain labor, materials or parts from usual sources. In the event of any such delay, performance shall be postponed by such length of time as may be reasonably necessary to compensate for the delay. In the event performance by Magnet Applications under this agreement cannot be accomplished by Magnet Applications due to any action of governmental agencies, or any laws, rules or regulations or the United States government, Magnet Applications may, at its option, cancel this contract without liability.
15. WORK BY OTHERS; ACCESSORIES AND SAFETY DEVICES
Unless agreed in writing, Magnet Applications, being the supplier of the products, shall have no responsibility for labor or work of any nature relating to installation and operation or use of the products, all which shall be performed by Buyers or others. It is the responsibility of Buyer to finish such accessory and safety devices as may be desired by it and/or required by law (including OSHA standards) relating to Buyer’s use of the products. Buyer shall be responsible for ascertaining that the products are installed and operated in accordance with all applicable laws, regulations, and rules and ordinances.
(a) No modification or waiver of this agrement or any of its provisions is valid unless expressly agreed to by Magnet Applications in writing. No waiver by Magnet Applications of any default under this agreement is a waiver of any other or subsequent default.
(b) No agreement is formed hereunder unless Buyer’s order is accepted by Magnet Applications in writing.
© The unenforceability or invalidity of one or more of the provisions of this agreement will not affect the enforceability or validity of any other provision of this agreement.
(d) THE COMPLETE AGREEMENT BETWEEN MAGNET APPLICATIONS AND BUYER IS CONTAINED HEREIN AND NO ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS STATED BY BUYER SHALL BE BINDING UNLESS AGREED TO BY MAGNET APPLICATIONS IN WRITING. No course of dealing, usage of trade or course of performance shall be relevant to supplement or explain any terms used in this agreement.
(e) This agreement shall be governed by and constructed in accordance with the laws and Commercial Code as enacted by the state of Pennsylvania.