Last updated: 23rd December 2020
Standard Terms & Conditions
1. Acceptance of Orders. All quotes issued by Myonex, Inc. (the “Company”) shall be non-binding invitations for offers by the Customer. The Company’s acceptance of any purchase order of Customer or other writing is expressly conditioned on the Customer’s assent to any terms and conditions contained herein that are different from or additional to those contained in the Customer’s writing. The Company hereby objects to any terms and conditions of the Customer that attempt to vary or supplement the Company’s terms and conditions contained herein unless specifically agreed to by the Company in writing. To the extent that this writing is construed as an offer, acceptance hereof is expressly limited to the terms and conditions contained herein. The Customer’s acceptance of Products and/or services from the Company shall manifest the Customer’s assent to the Company’s terms and conditions. The contract formed pursuant to the terms of this paragraph shall be referred to herein as the parties’ “Agreement.” Services requested following finalization of this Agreement, or necessitated by a requested change in Products and/or services after finalization of this Agreement, will be billed at Company’s then standard rates, unless a lower price is set forth in this Agreement, or the Parties otherwise mutually agree to other pricing in writing.
2. Payment Terms; Late Payments. Payment shall be net thirty (30) days from the date of invoice unless otherwise specified by the Company in writing. The Customer’s payment obligations are absolute, unconditional, and not subject to reduction, set-off, counterclaim, or delay. The Company reserves the right to demand full or partial payment in advance if the Company reasonably determines that the Customer’s ability to pay debts as they become due in the ordinary course of business has become materially impaired.
3. Delivery and Tender. Shipment terms will be EXW (Incoterms 2020), unless the Company agrees to other terms in a signed writing. The Customer shall be responsible for all shipping costs, insurance costs, customs and import/export duties and fees, value-added taxes, sales and use taxes, and/or other assessments on the delivery of products and/or goods (collectively referred to as “Products”). If Company consents in writing to Customer arranging for payment of insurance costs directly, as between the Parties, Company shall have no responsibility for any risk to Product that relate to transportation of such Products or insurance on such Products, and Customer assumes all risk with respect to transportation of such Products. Customer waives any and all claims of any type against Company, its employees, representatives and agents, including without limitation any insurance carrier of Company, relating to transportation of such Products. Unless definite shipping instructions are set forth in an accepted purchase order, the method of shipment and routing will be at the Company’s discretion. The Customer will accept title for Products and risk of loss at the time the Products leave the Company’s possession. The Customer shall bear the cost of any loss, deterioration or damage of the Products as may occur after title has been transferred. Shipping dates, where stated, are approximate and not guaranteed.
4. Customer’s Acceptance of Goods. The Customer shall promptly inspect all Products purchased hereunder for damages, defects, and/or non-compliance with specifications. The Customer shall be deemed to unconditionally accept all Products purchased hereunder and waive every claim from any cause, including without limitation claims under the limited warranties contained herein, unless the Customer provides notice of such claim in writing to the Company within fourteen (14) days of delivery. Company shall have thirty (30) days from the date of such notice to cure any damages, defects, or non-conformities. Customer’s sole and exclusive remedy for Company’s failure to cure such damages, defects, or nonconformities with specifications within thirty (30) days of receiving written notice shall be, at Company’s sole discretion: (a) replacement of any non-conforming Products; or (b) refund of the purchase price. Customer shall in good faith consider any request by Company for a reasonable extension of the thirty (30) day time period if Company provides good reason for same, such as, by way of example only, time periods necessary to clear imports into some countries that are outside of Europe. In the event of any disagreement regarding specifications of Products, the Parties will be guided by the Product manufacturer’s label and other supporting information provided by the manufacturer.
5. Customer Right to Terminate. Customer will have the right to terminate this Agreement without cause subject to Customer paying (a) the purchase price for any Products shipped by Company at the time of cancellation, (b) as to any Products that have not been shipped by Company at the time of cancellation, the sum of (i) Company’s anticipated profit on such Products, which shall be considered a lost-volume sale (ii) any restocking fees and other out of pocket costs incurred by Company from third parties relating to the return or resale of any Products, (iii) a fee representing Company’s reasonable costs incurred relating to the return or resale of any Products purchased in reliance on the Purchase Order, and (iv) Company’s acquisition cost for any Products purchased in reliance on this Agreement that Company cannot return or resell through reasonable efforts; and, (c) with respect to any services, (i) the price for any services provided prior to the effective date of termination, (ii) any costs incurred by Company in reliance on this Agreement, which cannot be avoided through reasonable efforts, (iii) reasonable compensation for Company’s efforts to wind up and/or transition any services pending at the time of termination.
6. Company’s Remedies in the Event of Default. Company shall have the right, at its option, to terminate this Agreement upon the occurrence of a Default by the Customer. A “Default” includes, but is not limited to, any one or more of the following events: (i) failure to make payment when due; (ii) a material breach or repudiation of a term or condition of this Agreement, including without limitation obligations regarding cancellation of any Product order; (iii) filing of a petition for relief by Customer under any chapter of the United States bankruptcy laws; (iv) commencement of involuntary proceedings by the Customer’s creditors under the United States bankruptcy laws; (v) the dissolution of the Customer as a going concern; or (vi) a sale, transfer, or exchange of substantially all of the assets or equity of the Customer without the prior written consent of the Company. In the event of a Default, the Company shall be entitled, in addition to any other remedies permitted by applicable law, to withhold shipments, in whole or part; to recall Products in transit and retake same; to repossess all Products which may be stored by the Company for the Customer’s account; and to immediately terminate any services in process, in each case without the necessity of instituting any proceedings. The Customer consents that all Products that the Company elects, in the exercise of its discretion, to recall, retake, or repossess shall become the Company’s absolute property, provided that the Customer is given full credit therefor. Notwithstanding the foregoing, in the event that the Customer fails to perform any of its obligations hereunder, the Customer shall pay the Company all reasonably-incurred litigation and collection costs, including, but not limited to, payment of the Company’s attorneys’ fees. The Company’s rights as otherwise set forth in this Agreement are cumulative and in addition to any other rights the Company may have at law or in equity.
7. Limited Warranties. The Products that are the subject of this Agreement have been manufactured and supplied to the Company by third parties. The Company warrants that it will pass marketable title to the Products sold hereunder, which will be of the type and quantity described in this Agreement. All services will be performed by qualified personnel who will exercise reasonable care and comply with industry standards and all instructions set forth in an accepted work order.
THE COMPANY DISCLAIMS AND NEGATES ANY OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS EMPLOYEES SHALL CREATE A WARRANTY OR MAKE ANY MODIFICATION OR ADDITION TO THESE WARRANTIES.
8. Limitation of Customer’s Remedies. THE SOLE AND EXCLUSIVE REMEDY OF THE CUSTOMER FOR A BREACH OF THIS AGREEMENT OR OF ANY WARRANTY RELATING TO THE SALE OF GOODS SHALL BE, AT THE COMPANY’S SOLE DISCRETION: (A) REPLACEMENT OF ANY NON-CONFORMING GOODS; OR (B) THE CONTRACT PRICE. THE SOLE AND EXCLUSIVE REMEDY OF THE CUSTOMER FOR A BREACH OF THIS AGREEMENT RELATING TO THE PERFORMANCE OF SERVICES SHALL BE, AT THE COMPANY’S SOLE DISCRETION: (A) RE-PERFORMANCE OF THE SERVICES; OR (B) REFUND OF THE PORTION OF THE CONTRACT PRICE CORRESPONDING TO THE NON-CONFORMING SERVICES. IN NO EVENT SHALL COMPANY, ITS EMPLOYEES, AFFILIATES, AGENTS, ASSIGNS AND/OR SUCCESSORS BE LIABLE TO THE CUSTOMER, ITS PARENTS, SUBSIDIARIES, AFFILIATES, EMPLOYEES, AGENTS, ASSIGNS AND/OR SUCCESSORS, AND/OR TO ANY THIRD PARTY, FOR ANY AND ALL DAMAGES ARISING FROM AND/OR IN ANY WAY RELATED TO: (A) THE LATE DELIVERY OF GOODS; (B) THE UNAVAILABILITY OF GOODS; AND/OR (C) ANY CONDITION OR CHARACTERISTIC OF THE GOODS THAT ARE THE SUBJECT OF THIS AGREEMENT. THE COMPANY DISCLAIMS LIABILITY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUES AND/OR LOST PROFITS, EVEN IF THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS.
9. Limitation of Liability. EACH PARTY’S TOTAL LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY MISREPRESENTATION, RESTITUTION AND/OR OTHERWISE HOWSOEVER ARISING UNDER ANY LEGAL THEORY WHATSOEVER SHALL IN ALL CIRCUMSTANCES BE LIMITED TO AND SHALL NOT EXCEED: (A) FOR NON-PAYMENT OF ANY AMOUNTS DUE UNDER THIS AGREEMENT, THE AMOUNT OF THE DEBT DUE (PLUS ANY INTEREST DUE THEREON FOR LATE PAYMENT PLUS ALL COSTS (INCLUDING LEGAL COSTS) INCURRED IN RECOVERING SUCH SUMS); (B) FOR ANY OTHER TYPE OF LIABILITY, A TOTAL SUM EQUAL TO THE TOTAL VALUE OF THE SERVICES PAID UNDER THE AGREEMENT, NOT TO EXCEED TWO MILLION DOLLARS ($2,000000.00).
10. Force Majeure. The Company shall not be liable for any non-delivery or delay in delivering any of the Products or performing any of the services hereunder, if such non-delivery, delay, or non-performance shall be due to causes beyond the Company’s control, including, without limitation, one or more of the following causes: acts of God; fires; floods; strikes; lockouts; labor disputes; epidemics and pandemics; accidents; delays in transportation; shortage of modes of transportation, labor, fuel or materials; utility outages; war blockades; embargoes; foreign or domestic governmental regulations or requirements; restraining orders or decrees of any court or judge; or any other causes whatsoever, whether similar or dissimilar to those enumerated above.
11. Cost Increases and Currency Fluctuation. If, after the Company issues a quote or the Customer places a Product order or work order, (a) there is a material increase in the Company’s Product acquisition cost, or (b) the compensation to be received by Company is materially reduced by changes in currency exchange rates, the Company may, at its election: (i) terminate this Agreement in whole or in part without liability for any delay in the delivery of, or failure to deliver, the Products and/or services sold hereunder; or (ii) increase the Customer’s invoice in proportion to the increase in Company’s Product acquisition cost or the change in currency exchange rates.
12. Grant of Security Interest. The Customer hereby grants to the Company a security interest in the Products covered by this Agreement and the proceeds thereof as security for the Customer’s obligations hereunder. The Customer will, at the request of the Company, execute such financing statements pursuant to the Uniform Commercial Code or applicable foreign laws as the Company may reasonably request in order to perfect its security interest in the Products.
13. Complete Agreement. If the parties have executed a master agreement which permits the use of purchase orders, that contract shall control in the event of any conflicts between it and this Agreement as well as any purchase orders or other communications provided by Customer. The terms and conditions of this Agreement constitute the entire agreement between the parties hereto and except as set forth above, supersede any and all prior or contemporaneous communications, representations or agreements, either verbal or written, between the parties with respect to the subject matter hereof. Customer is not relying on any promises, statements, representations, or inducements other than those set forth herein.
14. Customer’s Representations and Warranties. The Customer represents and warrants that: (i) all applications, statements and credit or financial information submitted to the Company are true and correct and made to induce the Company to enter into this Agreement; and (ii) it is solvent at the time of entering into this Agreement.
15. Confidentiality. The Company and the Customer, and their respective employees and agents, will during the term of this Agreement and for five (5) years thereafter maintain the confidentiality of all proprietary, non-public information, including technical know-how, pricing information, vendor information, supplier information, business strategies, disclosed by the other and will not use or disclose such information except in connection with performing their contractual obligations and/or as required by law, court order, or other legal process(“Confidential information”). Confidential information shall not include any information (i) that is in the public domain (other than through a breach of a party’s confidentiality obligations); (ii) that a party can demonstrate by written records that it already possessed prior to disclosure; (iii) that a party independently develops without reliance on the other party’s information or (iv) that a party can demonstrate by written records was disclosed to it by a third party. Upon the expiration or termination of this Agreement, or earlier upon written request of the disclosing party, the receiving party will deliver to the disclosing party all of the disclosing party’s Confidential Information that the receiving party has in its possession or control, except that the receiving party may retain a copy of such Confidential Information for archival purposes. Any electronic back-up tapes or other electronic back-up files that may have been created by the receiving party by automatic or routine archiving or back-up procedures shall not be subject to this Section. Any Confidential Information of the other party retained shall continue to be governed by the terms of this Section.
16. Mutual Indemnification. The Company and the Customer (each, an “Indemnitor”) shall indemnify, defend, and hold harmless the other party and its officers, directors, employees, agents, successors and assigns (each, an “Indemnitee”) against any third-party claims, lawsuits, losses, or other damages (including without limitation reasonable attorneys’ fees and costs) (collectively, a “Loss”) arising from (i) the negligence or willful misconduct of the Indemnitor or its agents; (ii) any breach of the Indemnitor’s representations, warranties, or contractual obligations to an Indemnitee; and/or (iii) any violation of laws, statutes, and/or regulations applicable to the activities of the Indemnitor. In addition, the Customer shall indemnify, defend, and hold harmless the Company Indemnitees against any Loss related to the Customer’s or its agent’s use of Products or services provided by the Company. Each party agrees to notify the other party in writing within thirty (30) days of receipt of any claims made for which indemnification might be due. The recipient of such notice shall have the right, but not the obligation, to defend, negotiate, and settle such claims. If defense is provided, the Indemnitee shall provide such information and assistance as the Indemnitor may reasonably request, at the Indemnitee’s expense. An Indemnitee will not be responsible or bound by any settlement of any claim or suit made without its prior written consent; provided, however, that the Indemnitee will not unreasonably withhold or delay such consent; however, if a settlement contains an absolute waiver of liability for the Indemnitee and does not require the Indemnitee to admit liability or make any financial or material non-monetary contribution to the settlement, then the Indemnitee’s consent will be deemed given.
17. Non-Waiver. The waiver of any breach of any covenant or condition of this Agreement and/or any delay in enforcing any rights, obligations, or remedies hereunder, shall not hinder or otherwise prevent the subsequent enforcement of said covenant or condition. No course of dealing shall be, or be deemed, a waiver of any term or condition hereof.
18. Binding Effect; Assignability. These Terms and Conditions shall be binding upon and inure to the benefit of the parties’ respective successors and permitted assigns. As a matter of right, the Company may assign the obligations and benefits of the Company under this Agreement to any successor of the Company by way of reorganization, merger, consolidation, or liquidation, or to the purchaser of all or substantially all of its stock or assets. Upon said assignment, the obligations and benefits of the Company under this Agreement shall be binding and inure to the benefit of the assignees. Neither this Agreement nor any right, interest or obligation hereunder may be assigned, voluntarily transferred, delegated, or transferred by operation of law by the Customer without the prior written consent of Company.
19. Time of Claims. The Customer expressly waives any applicable statutes of limitations and agrees that any legal proceeding relating to the Products and/or services provided pursuant to this Agreement, including without limitation any claim for breach of the Agreement, shall be waived unless filed within one (1) year after the accrual of such cause of action.
20. Choice of Law; Personal Jurisdiction and Choice of Venue; Invalidity; Modification. This Agreement shall be deemed made and accepted in and governed by the laws of the Commonwealth of Pennsylvania without regard to its principles of conflicts of law. The parties hereby irrevocably consent in any suit, action or proceeding arising out of or relating to this Agreement or any party’s performance hereof to the jurisdiction of the state and federal courts sitting in the Commonwealth of Pennsylvania and to the venue of either the Court of Common Pleas of Montgomery County, Pennsylvania or the United States District Court for the Eastern District of Pennsylvania. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future law: (a) such provision will be fully severable; (b) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof; and (c) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement. This Agreement cannot be amended, supplemented or waived, in whole or in part, except by a written instrument duly executed by authorized representatives of the parties, which specifically references the parties’ intent to modify the Agreement.
21. No Benefit to Third Parties. The representations, warranties, covenants and agreements set forth in this Agreement are for the sole benefit of the Parties hereto and their successors and permitted assigns, and they will not be construed as conferring any rights on any other persons.
22. Compliance with Laws. Company and Customer will comply with all applicable laws that govern the performance of their respective obligations under this Agreement.