Horizons Incorporated (DBA MPC) Master Terms and Conditions of Sale
- Terms of Sale
The sale of goods or services by Horizons Incorporated and its affiliates (“Seller”) is subject to the terms and conditions contained herein (“Terms”). The Terms contained herein take precedence over any terms and conditions which are proposed by a buyer of goods or services (“Buyer”) whether contained on a purchase order or otherwise. The terms and conditions contained herein, together with any Quotation/Pro-forma, Order Confirmation or Invoice delivered by Seller to Buyer (the “Sales Confirmation”), is the entire contract between the Buyer and Seller and shall supersede any and all other agreements and understandings between the parties with respect to the subject matter hereof. Seller hereby rejects any and all terms and conditions proposed by Buyer, whether or not contained in any of Buyer’s business forms (including any purchase order). Seller’s acceptance is limited to these Terms and is expressly conditional on Buyer’s acceptance of these Terms, and any additional or different terms proposed by Buyer are automatically rejected unless expressly assented to in writing by an authorized representative of Seller.
All prices for goods are F.O.B. Origin. Unless otherwise set forth in the Sales Confirmation, the prices for goods will be the prices in effect on the date of shipment. Prices are subject to change without notice, unless otherwise expressly agreed in signed writing by Buyer and Seller. All prices are stated in United States Dollars unless otherwise stated and do not include taxes.
- Terms of Payment.
Unless otherwise stated in the Sales Confirmation, terms of payment are net thirty (30) days from the date of invoice. Buyer agrees to pay interest on overdue invoices at the greater of: (i) one and one-half percent (1-1/2%) per month or (ii) the highest rate permitted by law.
- Cancellation or Modification of Orders.
Orders shall not be subject to cancellation or modification by Buyer in whole or in part (a) without Seller’s prior written consent and (b) payment of a reasonable cancellation charge for applicable costs of purchased materials and engineering costs incurred or for which Seller is obligated prior to cancellation or modification. Notwithstanding the foregoing, if special or custom products are ordered from Seller, Buyer shall not be able to cancel or modify the order under any circumstances.
When requested by Seller, Buyer shall provide Seller with a reasonable estimate of its future volume or quantity requirements for the goods during the term of the order (“Projections”). Buyer will issue release orders in accordance with the Projections to Seller and Buyer will specify the quantities needed, delivery locations and shipment dates for the goods (each a “Release” and together “Releases”).
Unless otherwise agreed in writing by the parties, Seller reserves the right to select the mode of transport and the identity of the carrier. Neither Buyer nor any consignee shall have the right to direct or reconsign any shipment to any destination other than that specified in the bill of lading without Seller’s written consent. Buyer shall be responsible to pay for all shipping and transportation costs.
The delivery date provided by Seller for the goods is only an estimate and is based upon prompt receipt of all necessary information from Buyer. Delivery times may vary depending on available production capacity and material availability at the time of the purchase order placement. Seller will not be responsible for any delays, loss or damage in transit and failure to deliver within the time estimated will be not be a material breach of contract on Seller’s part.
- Title and Risk of Loss
Unless otherwise expressly agreed in signed writing by Buyer and Seller, risk of loss passes to Buyer upon delivery of the goods to the carrier at the Seller’s location or after three (3) days’ notice by Seller to Buyer that the goods are available. Title passes to Buyer upon completion of delivery or notice period and Buyer’s payment in full for goods.
- Limited Warranty/Exclusive Remedy
(a) Seller warrants that the goods are free from defects in material and workmanship at the time of shipment. If, after written notice by Buyer of defect and inspection of the goods by Seller, the goods are determined to be defective then Seller will, at its option, repair or replace the defective good or refund an appropriate portion of the purchase price for the defective good. Seller shall have no obligation with respect to any defect in any such goods unless it is notified within ninety (90) days after shipment of the goods (one (1) year from shipment for membrane switch electrical components) pursuant to Section 23. The remedy of repair, replace or refund provided for herein is the sole and exclusive remedy of Buyer for a defective good.
(b) All services, including, without limitation, installation services, direct part marking services or inventory management services, best practices implementation, website/software products or labeling and tagging services (collectively, the “Services”) are provided free of any material defects in workmanship at the time the Services are performed. If, after written notice by Buyer of defect and after inspection by Seller of the Services, the Seller determines there is a material defect in the Services, Seller, at its option, will redo the Services orrefund an appropriate portion of the Service price for the defective Service. The remedy of redoing or refunding the Services provided for herein is the sole and exclusive remedy of Buyer for defective Services.
(c) THE FOREGOING WILL BE THE SOLE AND EXCLUSIVE REMEDY OF BUYER WHETHER IN CONTRACT, TORT, OR OTHERWISE, AND SELLER WILL NOT BE LIABLE FOR INJURIES OR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM ANY CAUSE WHATSOEVER. THIS LIMITATION APPLIES TO ALL GOODS AND SERVICES. To the extent the limitation or exclusion of liabilities or damages contained herein is not permitted under applicable law, this limited warranty will apply to the maximum extent allowed by applicable law.
(d) Seller does not warrant performance of its products in any environment. Buyer is solely responsible for determining appropriateness of goods purchased for their use and application.
- Limitation of Warranty.
Seller assumes no warranty liability with respect to defects in any goods caused by: (a) improper installation or maintenance of the goods; (b) repairs to the goods by anyone other than Seller or its authorized agent; or (c) negligent or other improper use, processing, handling and/or storage of the goods including the storage of goods in conditions not specified. Seller does not make any warranty and assumes no warranty liability for goods that are not manufactured by Seller.
No agent, distributor or representative is authorized to make any warranty repair on behalf of Seller or to assume for Seller any other liability in connection with any of Seller’s goods.
Any use of goods is at the sole risk of the Buyer and/or end user.
- Disclaimer of Warranties and Limitation of Liability.
THE WARRANTY IN SECTION 8 IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND ALL OTHER OBLIGATIONS OR LIABILITIES OF SELLER, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALL OTHER WARRANTIES ARE DISCLAIMED AND EXCLUDED BY SELLER.
UNDER NO CIRCUMSTANCES WHATSOEVER, SHALL THE SELLER BE OBLIGATED OR LIABLE FOR ANY DIRECT, INDIRECT CONSEQUENTIAL OR OTHER LOSSES OR DAMAGES, OR FOR ANY EXPENSES INCURRED OR SUSTAINED BY THE BUYER AND/OR ANY OTHER PERSON OR PERSONS IN CONNECTION WITH OR RESULTING FROM THE USE, SALE, HANDLING AND/OR STORAGE OF ANY OF THE GOODS OR SERVICES COVERED HEREBY (INCLUDING ANY “DEFECTIVE” OR UNSATISFACTORY GOODS OR SERVICES) IN ANY AMOUNT IN EXCESS OF THE NET AMOUNT ACTUALLY RECEIVED BY THE SELLER FROM THE BUYER IN CONNECTION WITH THE SALE OF SUCH GOODS OR SERVICES.
- Seller Intellectual Property
Seller retains ownership of any patent, know-how, trade secret, trademark, service mark, copyright, or other intellectual property right that is related to the goods or Services or is otherwise developed by or provided to Buyer in connection with the supply of the goods or Services.
Seller will have no obligation with respect to any infringement claim based upon any: (i) misuse or modification of the goods by Buyer or its employees or agents, (ii) use of the goods in combination with other materials, goods, products, or services, (iii) failure of Buyer to implement any update provided by Seller that would have prevented the claim, (iv) goods that Seller made to Buyer’s specifications or designs.
- Buyer Intellectual Property.
If words, symbols or designs are provided to Seller by Buyer for printing on a particular good then the Buyer represents that the words, symbols and designs are either in the public domain or are the property of Buyer and do not infringe on the trademarks or copyrights of others. Buyer shall defend, indemnify and hold Seller harmless from and against any and all loss, cost, expense, claims, demands, suits and judgments (including, but not limited to, attorney fees) arising from actual or alleged infringement of any third party intellectual property right for any products manufactured to Buyer’s specifications or for any words symbols or designs provided by Buyer to Seller to be incorporated on a particular product.
- Credit Approval.
All shipments to be made hereunder shall at all times be subject to the approval of Seller’s credit department. Seller may invoice Buyer and recover for each delivery made of goods or Services made as a separate transaction without regard to any other delivery. If Buyer is in default under any agreement with Seller, or if, in Seller’s sole judgment, the financial responsibility of Buyer is or becomes unsatisfactory, then Seller may at its option and without prejudice to any of its other remedies (i) defer or decline to make any shipments hereunder except upon receipt of satisfactory security or cash payments in advance, or (ii) terminate any order of goods or services that may have been placed by Buyer. Buyer shall reimburse Seller for any costs incurred by Seller, including reasonable attorney’s fees, to collect amounts due by Buyer to Seller.
- Force Majeure.
Seller shall not be liable for failure to perform or delays in performance, of orders or contracts or in the delivery of shipment of goods or performance of Services or for any losses, damages or expenses incurred or sustained by the Buyer and/or any other person or persons by reason of such non-performance or delay, when such non-performance or delay is directly or indirectly caused by or in any manner arises from acts of God; war (declared or undeclared), riot or act of terrorism; fire, explosions or floods; strikes, work stoppages, slow-downs, or other labor difficulties; shortage of vehicles, fuel, power, material or labor; embargo or delay in transportation; accidents; compliance with any order or request by a government agency or official thereof; or any other event or contingency beyond its reasonable control. In the event of the occurrence of any of the foregoing, the time for performance shall be extended for such time as may be reasonably necessary to enable Seller to perform. Seller, may, during any period of shortage due to any of the above contingencies, allocate its available supply of goods among itself and its customers in such manner as Seller, in its reasonable judgment, deems fair and equitable.
In addition to any remedies that may be provided under these Terms, Seller may terminate this or any agreement, order or Release for which partial shipment has been made with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under the agreement, order or Release; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
- Confidential Information.
All non-public, confidential or proprietary information of Seller, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with these Terms or any agreement, order or Release is confidential, solely for the use of performing such agreement, order or Release and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
Buyer shall not assign any of its rights or delegate any of its obligations under any agreement, order or Release without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No permitted assignment or delegation relieves Buyer of any of its obligations under any agreement, order or Release.
- Limitation of Actions.
Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of this agreement by Seller shall be barred unless commenced by Buyer within one year from the date of shipment.
- Governing Law/Jurisdiction.
All matters arising out of or relating to these Terms or any agreement, order or Release between Buyer and Seller is governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio in each case located in the City of Cleveland and County of Cuyahoga, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
- Relationship of the Parties.
Nothing contained in any agreement, order or Release between Buyer and Seller shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- Third Party Beneficiary.
This agreement, order or Release between Buyer and Seller is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
If any provision of these Terms or any agreement, order or Release between Buyer and Seller shall be held to be unlawful or unenforceable, the remaining portions of such any Terms, agreement, order or Release between Buyer and Seller shall remain in full force and effect. No other agreement between Buyer and Seller or understanding shall modify this agreement in any way or shall be binding upon Seller unless contained in a writing signed by Seller’s authorized representative.
- Product Return Policy.
Products returns submitted for credit must either be deemed defective or in the original packaging, unused, undamaged and in saleable condition, both as determined by Seller. Seller reserves the right to reject any return requests in its sole discretion.
Product return requests must be initiated within 90 days from date of purchase and authorized returns must be shipped back within 30 days of issuance of authorization to qualify for credit, unless otherwise indicated.
To submit a product return, submit a Materials Return Request (MRR). Provide all requested information, including part number(s) effected, quantity of sheets or parts, batch, lot or serial numbers, related sales order number, nature of the defect, etc.
Product returns may be subject to restocking fees.