methods terms and conditions of sale
Methods Machine Tools Terms and Conditions of Sale
Methods Machine Tools, Inc. (“Methods”) offers to sell equipment (“Equipment”), software, and/or services (collectively, “Products”) to the purchaser (“Purchaser”), only on the following terms and conditions. This offer expressly limits acceptance to the terms of this offer. Notification of objection is hereby given to any term in any response to this offer that does not exactly match the terms of this offer. In the alternative, if Methods would otherwise be deemed to have accepted an offer by Purchaser to purchase Products, then Methods’ acceptance is expressly conditioned on Purchaser’s assent to any different or additional terms or conditions herein, and Purchaser’s agreement that the terms contained herein supersede Purchaser’s terms in the event of any conflict. PURCHASER’S PLACEMENT OF ANY ORDER FOR, OR ACCEPTANCE OF, ANY PRODUCT, WILL CONCLUSIVELY INDICATE ITS AGREEMENT WITH THE FOREGOING.
1. PRICES
Unless otherwise stated in writing, all prices are quoted FOB Shipping Point. Purchaser will pay all charges and assume all risks of transportation from the FOB point. In the absence of specific written instructions, Methods will route shipments.
All prices may be withdrawn at any time prior to the acceptance of Purchaser’s order by Methods’ home office; and will not be effective for more than thirty (30) days.
Prices do not include any taxes or duties of any kind. If not included in the invoice for Products, such taxes or duties may be invoiced at a later date. Purchaser must show written proof of tax exempt status prior to invoicing. Prices to Canada are quoted Canadian point of entry.
2. TERMS OF PAYMENT
Purchaser is required to pay twenty five percent (25%) of the total order amount for non-turn-key Equipment at the same time as providing the purchase order, with the balance due net thirty (30) days from the date of Methods’ invoice. Late payments are subject to an interest charge of 1 1/2% per month on the outstanding balance (or the maximum amount permitted under applicable law, if less).
For turn-key Equipment, Purchaser must pay (i) thirty percent (30%) of the total order amount at the same time as providing the purchase order, (ii) thirty percent (30%) at final design signoff, (iii) thirty percent (30%) due prior to equipment shipment from the Methods facility and (iv) ten percent (10%) due on arrival at customer’s facility.
Notwithstanding the foregoing, all payment schedules are subject to approval by Method’s credit department and Methods reserves the right to require changes to such payment schedules in its discretion. All amounts are payable in U.S. funds unless otherwise stated in writing. In the event Methods must collect any overdue amount from Purchaser, Purchaser will be liable for all collection costs and expenses, including, but not limited to, Methods’ legal fees and expenses.
3. CONDITIONS
With respect to all turn-key Equipment, all machining processes will use water-soluble coolant unless otherwise specified. Any quotation for any Product is valid for 30 days after quotation date, and does not include (and hereby expressly excludes) any requirements of any kind, other than those specifically listed and named in this document.
4. CANCELLATION CHARGES
By Purchaser. Purchaser cannot cancel or rescind its order, or otherwise cancel any purchase/sale of the Products, without written consent of Methods. Purchaser may request Methods to cancel a purchase/sale of the Products, and at Method’s sole and exclusive discretion, Methods may agree to a cancellation if the purchase order relates to (i) a standard product (as determined by Methods) and Purchaser pays to Methods an amount equal to ten percent (10%) of the sales/invoice price; or (ii) turn-key Equipment and Purchaser pays to Methods fifteen percent (15%) of the total sales/invoice price and
all costs incurred to the date of cancellation, including but not limited to, design, engineering, materials, manufacturing and tooling.
Orders for customized, made-to-order or procured-to-order, or other special or non-standard Products cannot be cancelled by Purchaser under any circumstances. No cancellations shall be allowed after the scheduled shipment date. In the event of any attempted cancellation or refusal to accept Products that are not subject to cancellation, Purchaser shall indemnify Methods for any and all losses sustained by Methods by reason of such attempted cancellation or refusal to accept Products.
By Methods. Methods reserves the right to cancel any purchase/sale and/or decline to complete any sale if in Methods opinion, Purchaser’s creditworthiness is not acceptable (or has become unacceptable) to Methods at any time prior to the shipment of the Product(s) to Purchaser.
5. DELIVERY
Methods will not be liable for any delays in shipment. Estimated delivery dates in quotations (a) are based on the assumption that drawings, special documentation, or special components, if applicable, are received from Purchaser in accordance with the schedule specified by Methods; and (b) are subject to prior sale of the Equipment in question and written confirmation by Methods’ home office.
The Products shall be kept at the premises listed on the purchase order, or if none is specified, at the Purchaser’s primary business address and shall not be removed, transferred to a third party, or gifted without Method’s prior written consent.
6. WARRANTY OF EQUIPMENT AND LIMITATION OF LIABILITY
Methods warrants only to the original Purchaser (or, if Purchaser is a dealer or distributor who is permitted by Methods to act in such capacity, and therefore resells the Equipment, to the direct buyer of such Equipment from Purchaser), but not to any other person or entity, that for a twelve (12) month period from its date of shipment of any Equipment, Methods will repair or replace any Equipment which is defective in material or workmanship, at no cost to Purchaser for any material or parts used. Replacement parts will be warranted for the remainder of the twelve (12) month Equipment warranty, or the manufacturer’s standard written warranty for such parts, whichever is longer. Equipment (i) which has been used for more than forty (40) hours per week, (ii) which has not been installed, maintained and operated under proper conditions by competent, adequately trained personnel, or (iii) which has been subject to abuse, misuse, accident, neglect, or unauthorized alteration, repair, or installation, is not covered by this warranty. Products provided by any person or entity besides Methods as well as services and normal wear items of Equipment, are not covered by this warranty. Methods will make the final determination, at its reasonable discretion, as to the existence and cause of any alleged defects. Notwithstanding the foregoing, Methods does not warranty Used Equipment, all of which is sold “as is”.
Warranties made by Methods in these Terms and Conditions of Sale are in lieu of all other warranties, oral or written, express or implied, by operation of law or otherwise, and except as explicitly set forth in these Terms and Conditions of Sale, no statement, representation, promise, affirmation of fact or specifications made by Methods or any other person or entity constitutes a warranty. Where performance specifications and/or production estimates are given to Purchaser, whether oral or written, they are estimates only, and are not warranties or guaranties of any type. All warranties of merchantability and fitness for a particular purpose are excluded from this transaction and do not apply to Products.
PURCHASER’S SOLE AND EXCLUSIVE REMEDY AGAINST METHODS FOR ANY BREACH OF WARRANTY OR FOR ANY OTHER CLAIM WITH RESPECT TO PRODUCTS, INCLUDING NEGLIGENCE OR STRICT LIABILITY, WILL BE THE REPLACEMENT OR REPAIR OF THE DEFECTIVE EQUIPMENT. The choice of the particular remedy will be made by Methods at its sole discretion. Methods will perform repairs or replacements only during regular working hours, in accordance with Methods’ normal, non-emergency service practices. Purchaser agrees that it will provide all necessary access and assistance to Methods in effecting the chosen remedy. Purchaser further agrees that there is no other remedy available to it including, but not limited to, damages for lost profits, lost sales, lost production, downtime, overhead, labor, injury or damage to person or property, spoilage or any other incidental or consequential loss.
All Equipment is sold in reliance on Purchaser’s agreement and covenant that it will be operated only when all safety and protective devices are in place, have all been properly maintained, function properly and are being used, regardless of whether such Equipment has been shown to Purchaser (in person or in photographs, films, videos, brochures or otherwise) with safety devices removed to provide better visual presentation. Neither Methods nor the manufacturer of any Equipment warrants compliance with the U.S. Occupational Safety and Health Act, nor does Methods or the manufacturer warrant compliance with Purchaser’s standards, requirements and conditions which may be part of Purchaser’s inquiry or order. Equipment may not comply with local electrical codes, Nema, ANSI, or JIC standards; and if such compliance is mandatory, Purchaser is required to so inform Methods in writing when seeking a price quotation.
Specifically and without limiting anything else in this Agreement, Methods is not liable for any damage of any kind caused by use of any Products in a manner that does not conform strictly to the applicable specifications and instructions for such equipment, including use of any cutting fluid that deviates at all from such specifications and instructions, and even if any safety system recommended by Methods or provided by Methods fails to prevent any of the foregoing damage, for any reason.
7. CLAIMS
All claims by Purchaser against Methods concerning Products must be in writing and received by Methods within the warranty period and within thirty (30) days of the date of Purchaser’s detection of the alleged basis for the claim. Failure to give written notice of any claim within the time period will constitute a waiver by Purchaser of such claim.
8. CONFIDENTALITY
All drawings, designs, specifications, manuals, and programs furnished to Purchaser by Methods shall remain the confidential and proprietary property of Methods. All such information, except as may be found in the public domain, shall be held in strict confidence by Purchaser, and shall not be disclosed by Purchaser to any third parties. Copyright in all materials made available by Methods shall remain Methods’ at all times.
9. INDEMNIFICATION
Purchaser assumes all risk, insurable interest, and liability for physical loss, damage, or injury to persons or property of Purchaser or others, arising out of the use or possession of Products prior to title passing and thereafter. Purchaser agrees to indemnify and hold Methods harmless from any and all claims or liabilities asserted against Methods in connection with the use or possession of Products. In the event that any party to this agreement initiates legal proceedings regarding any controversy or claim arising out of or relating to this agreement, or breach thereof, the prevailing party in said proceedings shall be entitled to the recovery of all costs and expenses, including, without limitation, attorney’s fees, and expert’s fees.
10. SAFETY PRECAUTIONS
Purchaser shall require all employees to use all safety devices, guards, and proper safe operation procedures set forth in manuals and instructions furnished by Methods. Purchaser shall not remove or modify any such device, guard, or sign. It is the Purchaser’s responsibility to provide all the means that may be necessary to effectively protect all employees from serious bodily injury which otherwise may result from the method of particular use, operation or set-up or service of the Products. If Purchaser fails to comply with the provisions of this paragraph or any applicable standards or regulations, Purchaser shall indemnify Methods and the Methods selling companies from and against all claims, losses, or damages arising therefrom.
11. TITLE
Title to Equipment will remain in Methods until full payment has been received. In the event of a default, Methods will have the right to repossess said Equipment, and whatever money has been paid on account will be deemed to be reasonable rental for the use thereof, to the date of such repossession. Methods will also have the right to hold Purchaser liable for a sum equivalent to the unpaid balance of the purchase price together with all expenses and damages that Methods may sustain. Purchaser will receive credit, however, for the net sum realized on the sale, if any, of Equipment after deduction of all associated costs and expenses. Alternatively, at the election of Methods, Methods may pass title to Equipment to Purchaser, in which event Methods need not repossess such Equipment, but may recover from Purchaser the unpaid balance.
Notwithstanding anything to the contrary, until Purchaser has paid in full for the Equipment, Purchaser hereby grants to Methods a first priority security interest in such Equipment and all proceeds, replacements and substitutions thereof to secure the payment obligations therefor, and irrevocably authorizes Methods at any time to file in any filing office in any Uniform Commercial Code jurisdiction, any financing statements and amendments that indicate its security interest (regardless of whether the Equipment falls within the scope of Article 9 of the Uniform Commercial Code of the state or such jurisdiction), and to provide any other information required by part 5 of Article 9 of the Uniform Commercial Code of the state or jurisdiction, and Purchaser will furnish any information reasonably required to file such financing statements or amendments, or to perfect Methods’ security interest, and execute all related documents, promptly upon request. If Methods takes action to repossess Equipment in accordance with its rights, Purchaser will pay Methods’ costs in doing so, including reasonable attorneys’ fees, and whatever money has been paid on account will be deemed to be reasonable rental for the use thereof, to the date of such repossession. This security interest will exist and remain valid until all required payments have been paid.
12. ELECTRICAL REGULATIONS
Due to differing requirements of city, county, state, and federal electrical regulations and codes pertaining to industrial equipment and its installation, Methods and the machine manufacturer are unable to certify compliance to the regulations in effect at the location of equipment installation. Should testing, inspection, or modifications to the quoted product be required to achieve compliance, it is the responsibility of the purchaser.
13. EXPORT CONTROL
The Products (and all information, technology, hardware, firmware and/or software contained therein) are sold for use and consumption within the United States only and Purchaser shall not export the same. Purchaser acknowledges that in the event the Purchaser were to export the Products, any subsequent export, transfer, resale or other disposition of the Products from the United States must be made in accordance with applicable law. Diversion contrary to US law is strictly prohibited. In furtherance hereof, in the event any such export, Purchaser shall (a) comply with all applicable export/export control laws, rules, and regulations of the United States and any other foreign countries, governments, agencies, or authorities (collectively, the “Laws”), and (b) not export or reexport the Products in violation of any such Laws, or without all necessary authorizations/licenses. Purchaser agrees that the export of the Products may require export control licenses or approvals from the U.S. government or foreign governments/governmental agencies or authorities.
In cases where licenses or approvals are required, Methods has not authorized such export(s) and as such, Purchaser shall be solely responsible for obtaining such required licenses or approvals from the appropriate governmental agencies or authorities. Purchaser shall indemnify, defend, and hold harmless Methods from and against any and all losses, damages, costs, and expenses (including reasonable attorney’s fees) sustained or incurred by Methods by reason of failure of Purchaser to comply with any such Laws. Purchaser shall bear all expenses relating to obtaining any necessary licenses and/or exemptions required under the Laws with respect to any export of the Products from the United States.
Notwithstanding the above, neither the Products nor the underlying information, technology, hardware, firmware or software, may be exported or re-exported to (a) Cuba, Iran, Sudan, Syria, or any other country subject to U.S. trade sanctions applicable to the Products, (b) individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (c) to any named party or individual on the U.S. Department of Treasury, Office of Foreign Assets Control (OFAC), Specially Designated Nationals List or on the U.S. Department of Commerce, Bureau of Export Administration
Denied Persons List or Entity List, or to any other party or individual subject to other government lists applicable to the Products (or any other similar lists that may be promulgated or maintained by the United States government from time to time hereafter).
Upon request by Methods, Purchaser shall provide Methods with all customer information and documentary and other assistance required to maintain strict compliance with the Laws. Purchaser shall take all actions as may be necessary to assure that no customer contravenes any Laws or the provisions of any such approvals/licenses or exemptions. Methods shall be relieved of all obligations to provide any Products, spare parts or technical data to Purchaser (or its customer(s)) if Purchaser (or such customer) violates any Laws, or if any approvals/licenses are suspended or revoked. Methods is firmly committed to full compliance with all U.S. export control laws and regulations, including, but not limited to, the Export Administration Regulations (“EAR”) (15 C.F.R. Parts 730-774) and the International Traffic in Arms Regulations (“ITAR”) (22 C.F.R. Parts 120-130). These laws and regulations ensure that controlled technology and products are not diverted to destinations, end-users, or end-uses inconsistent with U.S. national interests and policy. Methods has established proactive internal control procedures to ensure that exports or re-exports of any Methods commodity or technology to any non-U.S. individuals or entities do not occur without first ensuring that such transfers are authorized under U.S. law.
14. INTERPRETATION
These Terms and Conditions of Sale — together with the consistent terms covering the identity of Products, quantities, prices, delivery instructions and other items specifically agreed to in writing by Methods — constitute the entire contract of sale and purchase of the Products, and are binding on Methods’ and Purchaser’s successors and assigns. Purchaser, if it resells Equipment, will obtain the consent of the user(s) to be bound hereby and if Purchaser fails to do so, it will indemnify Methods against any loss arising therefrom. No modification of this contract will be binding upon Methods unless in writing and signed by an authorized officer of Methods, nor will any modification be effected by Methods’ acknowledgment or acceptance of any documents of Purchaser containing terms different from those set forth in this document. Any provision set forth in any of Purchaser’s documents which are inconsistent with the terms and conditions hereof is not binding on Methods and is not applicable to the Products. Any reference by Methods to Purchaser’s oral or written communications will not constitute an assent by Methods to any inconsistent term of condition in such communications.
Neither party will be liable to the other for delays or failures in performance, including late delivery and non delivery, arising from strikes, fire, war, accident, explosion, acts of God, unavoidable production delays of the manufacturer(s) of Equipment, delays in subcontractors’ deliveries, or any other cause beyond its reasonable control; provided, however, that no such cause will excuse Purchaser’s obligation to timely pay all sums of money due hereunder, with respect to which time is of the essence.
The interpretation, validity, and performance of the contract between Methods and Purchaser is governed by the laws of Massachusetts, without regard to its conflict of laws doctrine. All disputes relating hereto or arising here from will be resolved solely through arbitration before three arbitrators pursuant to the then current rules for commercial arbitration of the American Arbitration Association, with all hearings to be held in Boston, Massachusetts; provided, however, that either party may seek preliminary injunctive relief or other provisional relief in any court of competent jurisdiction prior to the resolution of such arbitration.
###