General Terms. These general terms and conditions of sale (these “Terms and Conditions”) are between you (hereby known as the “Buyer”) and Motion Tech Automation (hereby known as the “Seller”) and along with other written specifications, quotations or supplemental terms that may have been provided by the Seller, will control the sale of all goods and services (the “Products”) by Seller to Buyer. These terms and conditions apply unless Buyer has pre-existing terms and conditions of sale that have been signed off on by both Buyer and Seller as part of prior negotiations that govern everyday general sales between both parties. Unless otherwise agreed to in writing by the Seller, Buyer’s receipt or acceptance of delivery of any of the Products will constitute Buyer’s acceptance of these terms and conditions. No addition or modification to these terms and conditions will be binding on the Seller unless the Seller agrees in writing. Seller objects to any term or condition that may be proposed by Buyer or that may appear on or is referenced in Buyer’s purchase order, requisition or payment remittance that is in addition to or otherwise inconsistent with these Terms and Conditions.
Payment Terms. Unless otherwise agreed to in writing by Seller, all amounts payable to Seller are due no later than thirty (30) days after invoice from Seller. Any amount payable by the Buyer under this Agreement not paid when due will bear interest, payable on demand until such past-due amount is paid in full at the lower of the rate of 18.00% per annum or the highest interest rate permitted by law. Any sales, revenue, excise or other taxes imposed or increased by any present or future law on the sale of the Products shall be for the account of the Buyer, unless the Buyer furnishes Seller with tax exemption certificates in a form acceptable to the relevant taxing authorities in lieu of payment of such taxes. If after being advised by the Buyer that the purchase is tax exempt, the relevant taxing authority denies the tax exemption status, the Buyer agrees to pay Seller all applicable taxes and penalties suffered by Seller. Buyer agrees to pay all fees, costs and expenses incurred by Motion Tech Automation in collecting amounts overdue, including but not limited to reasonable attorney’s fees and expenses.
Delivery Terms. Delivery terms are F.O.B. Seller’s facility (or Supplier’s facility in the event of a direct factory shipment) or as otherwise agreed to as stated on Seller’s order acknowledgment. In all cases title transfers to Buyer upon the earlier of Seller’s delivery to the Buyer or receipt by the first carrier for transport to the Buyer, except that title to all intellectual property rights associated with the Products remains with the Seller’s suppliers or Product licensors. Seller’s acknowledged shipping dates are approximate only, based on prompt receipt of all necessary information from the Buyer, and Seller disclaims all liability for late delivery; unless otherwise agreed to in writing by the Seller. Where prepaid or special shipping is requested by the Buyer, the Buyer will be billed for said shipping as a separate invoice item.
Warranty and Intellectual Property Disclaimer. Buyer acknowledges that the Seller is an independent contractor, purchasing and reselling the Products for Seller’s own account, and not as an agent of any product manufacturer or service provider. Seller is not an agent of, and is not authorized to commit or bind, any product manufacturer or third-party service provider in any way, nor is any product manufacturer or service provider authorized to commit or bind Seller in any way. SELLER MAKES NO REPRESENTATIONS, PROVIDES NO INDEMNITIES (INTELLECTUAL PROPERTY OR OTHERWISE), AND DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, RELATIVE TO ANY GOODS OR SERVICES SOLD BY THE SELLER. The only warranty available to the Buyer will be that as may be extended directly by the original Product manufacturer or service provider (copies of any such warranties are available upon request). Seller assumes no post-sale technical support or warranty repair obligations; however, at Seller’s discretion, Seller may assist Buyer in processing warranty claims. Seller assumes no responsibility for any information, specification, claim, warranty or representation made or provided by the original manufacturer or service provider. Such information, to the extent provided by or secured from the Seller, is solely for Buyer’s convenience, and Buyer must make its own determination as to the accuracy and completeness of that information.
Disclaimer and Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SELLER WILL NOT BE LIABLE FOR ANY BUSINESS INTERRUPTION OR LOSS OF PROFIT, REVENUE, MATERIALS, ANTICIPATED SAVINGS, DATA, CONTRACT, GOODWILL OR THE LIKE (WHETHER DIRECT OR INDIRECT IN NATURE) OR FOR ANY OTHER FORM OF INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES. SELLER’S MAXIMUM CUMULATIVE LIABILITY RELATIVE TO ALL OTHER CLAIMS AND LIABILITIES FOR WHICH THE SELLER IS FOUND RESPONSIBLE, WHETHER OR NOT INSURED, WILL NOT EXCEED SELLER’S SELLING PRICE TO BUYER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR LIABILITY. SELLER DISCLAIMS ALL LIABILITY FOR INFORMATION OR ASSISTANCE GRATUITOUSLY PROVIDED BY, BUT NOT CONTRACTUALLY REQUIRED OF THE SELLER. ANY ACTION AGAINST SELLER MUST BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF ANY OTHER CONTRARY PROVISION BETWEEN BUYER AND SELLER AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, AND FURTHER WILL EXTEND TO THE BENEFIT OF SELLER’S EMPLOYEES, REPRESENTATIVES AND SUPPLIERS AS THIRD-PARTY BENEFICIARIES. EACH PROVISION BETWEEN BUYER AND SELLER THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR CONDITION, OR EXCLUSION OF DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND IS TO BE ENFORCED AS SUCH.
Prices. Prices and other information shown in Seller’s websites, catalogs and brochures (including those of Seller’s suppliers) are subject to change without notice.
Licensed Software and Firmware. Software or firmware Products may be subject to Buyer’s acceptance of separate license agreements, with no rights to use, sublicense, disclose, disassemble, decompile, reverse engineer or otherwise modify the software or firmware except as may be expressly permitted by those license agreements.
Return Policy. All claims for shortages or errors must be made immediately upon discovery of such claim, must be in writing and must specify with particularity the nonconformity. Returns require prior written authorization from Seller, and no credit will be allowed for goods returned without prior written authorization from Seller. A restocking fee may be assessed on all returned stock material. Special orders are non-returnable and non-refundable.
Order Cancellation. Cancellation by Buyer prior to shipment is permitted only by written notice and may be subject to reasonable cancellation and restocking charges. Cancellation charges associated with orders for custom Products may be subject to additional charges, not to exceed the selling price of said custom Products. Either party may cancel any order for cause upon issuing the other party written notice of such intent, in such cases that party will have thirty (30) days to rectify the cause, or be liable for associated costs incurred by the order cancellation.
Force Majeure. Neither Buyer nor Seller will be liable for any loss, damage or delay (other than for a failure to pay any amounts due) arising out of either party’s failure to perform due to causes beyond their reasonable control, including without limitation, acts of God, acts of omissions not under their direct control, acts of civil or military authority, fire, strikes, floods, epidemics, quarantine restrictions, war, riots, acts of terrorism, delays in transportation or transportation embargos.
Disputes. Buyer and Seller will attempt in good faith to promptly resolve any dispute between them by negotiations between company representatives who have authority to settle the dispute. If unsuccessful, Buyer and Seller will then attempt in good faith to settle the dispute by non-binding third-party mediation, with mediator fees and expenses shared equally between the Buyer and Seller. Any dispute not resolved by negotiation or mediation then may be submitted to a court of competent jurisdiction in accordance with these Terms and Conditions. Buyer and Seller agree that this is the exclusive procedure for the resolution of all disputes between us.
Governing Law; Jurisdiction; No Jury Trial. All disputes arising under this Agreement between Seller and Buyer will be governed by and construed in accordance with the laws of the State of Minnesota. Buyer agrees that any suit, action or other legal proceeding arising out of or related to the sale of Products by Seller to Buyer shall be brought in a court of record in the State of Minnesota or in the Courts of the United States of America having jurisdiction over the State of Minnesota; consents to the jurisdiction of each such court in any such suit, action or other legal proceeding; and waives any objection which Buyer may have to the venue of any suit, action or proceeding in any of such courts and any claim that any such suit, action or proceeding has been brought in an inconvenient forum. IN THE EVENT THAT THE PARTIES MUST LITIGATE ANY PROVISION OF THIS AGREEMENT, BUYER WAIVES THE RIGHT TO A JURY TRIAL.