Mars Transformer Terms and Conditions – Sale of Equipment, Parts and Services
DEFINITIONS: As used in these Terms and Conditions or associated Purchase Order, the term “Equipment” shall mean the equipment, parts, materials and services that Seller agrees to supply; the term “Seller” shall mean the Mars Transformer entity identified in the Purchase Order as the one furnishing the Equipment; and the term “Buyer” shall mean the person or entity identified in the Purchase Order as the one purchasing the Equipment.
ENTIRE AGREEMENT: Unless otherwise agreed to in writing by Seller and Buyer, these Terms and Conditions shall apply to the supply of any Equipment by Seller and Seller specifically objects to any additional or different terms contained in any form or other document utilized by Buyer. No such additional or different terms shall apply and may not be varied, supplemented or amended by any such document, conduct, prior representation, course of dealing or usage of trade.
VALIDITY: The price and delivery/performance stated in Seller’s proposal will remain valid for a period of thirty (30) days. If Buyer has not accepted any such proposal by issuing an acceptable Purchase Order within the validity period, the stated price and delivery/performance shall be subject to adjustment by Seller.
TAXES: No amount is included in the price for any excise, privilege, use, sales, value added, or other foreign, federal, state or local taxes or assessments. The price shall be increased to include, and Buyer agrees to indemnify and protect Seller from, any such taxes or assessment for which Seller may be liable to pay with respect to furnishing the Equipment.
PAYMENT: Payment, whether due lump sum or by milestone event, shall be in U.S. Dollars without offset, back charge, retention or withholding. In the event that payment is due on the occurrence of any milestone event, including the completion of any percentage of the work to be performed, and such occurrence is delayed by Buyer through no fault of Seller, such payments shall be due when the event would have occurred had such delay not intervened. Unless otherwise agreed, payment shall be made net ten (10) days after receipt of invoice and late payments shall be subject to a penalty of one and one-half percent (1 ½%) per month until paid in full. At the request and if required by the Seller, Buyer agrees issue to an irrevocable letter of credit for the payment of the purchase price on terms and issued by a bank acceptable to Seller.
CHANGES: Buyer shall be entitled to make such changes in the specifications of the Equipment as shall be agreed between Seller and Buyer. Within a reasonable time after submission to Seller by Buyer, Seller will advise Buyer of any change in the specified price and shipment/performance date. Seller shall be entitled to proceed with its performance under the original specifications until such change is agreed in writing by Buyer and Seller.
WARRANTY: Seller warrants the Equipment from and against all defects in title, material, and workmanship and otherwise complies with the terms of any specifications set forth in the Purchase Order. The warranty term for all Equipment (other than services) shall be for a period of twelve (12) months from Buyer’s first use of the Equipment or eighteen (18) months from the date Seller is ready to ship the Equipment, whichever occurs first, and for all services provided by Seller under the Purchase Order shall be for a period of twelve (12) months from the date Seller has performed said services. Buyer to notify Seller in writing of any warranty claim no later than thirty (30) days from the initial occurrence of the defect. Any repairs, replacements or reperformance by Seller to the Equipment (including services provided) during the warranty period shall be warranted for the remainder of the original warranty term or 90 days, whichever is longer. All warranted repairs and replacements to the Equipment (other than services performed at Buyer’s site) shall be made Ex-Works Seller’s (or its supplier’s) designated facility (per Incoterms, latest version) unless otherwise agreed in writing. The duties, liabilities and obligations of Seller does not extend to any repairs, adjustments, alterations, replacements or maintenance that may be required as a result of normal wear and tear, normal degradation in the performance of Equipment (including services provided) or as a result of (a) improper repair or alteration by Buyer or other persons, (b) misuse, negligence or damage by Buyer or other persons, (c) excessive operation at peak capacity. The warranty and remedies are further conditioned upon (i) the proper storage, installation, operation and maintenance of the Equipment and conformance with the operation and instruction manuals provided by the suppliers and manufacturers and (ii) repair or modification pursuant to the instructions of the suppliers and manufacturers and as otherwise directed by Seller. This section of the Purchase Order sets forth the exclusive remedies for all claims based on failure of or defect in the Equipment (including services provided) whether the failure arises before, during or after the warranty period and whether said claim is based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. NO IMPLIED, STATUTORY, OR COMMON LAW WARRANTY OF ANY KIND, INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SHALL APPLY.
TITLE: Title to the Equipment (other than for services) shall pass to Buyer when made available to Buyer for shipment from the agreed point of delivery which shall be at Seller’s facility unless otherwise agreed in writing by Buyer and Seller. Title to any services performed by Seller shall pass to Buyer as services are performed and completed. Notwithstanding passage of title, Seller shall be responsible for risk of loss and damage to the Equipment until it is made available to Buyer for shipment from the agreed point of delivery.
SHIPMENT: Unless otherwise agreed to in writing by Buyer and Seller, the Equipment will be shipped Ex-Works Seller’s designated facility (per Incoterms, latest version). Any freight charges quoted in this proposal are estimates only and are subject to revision for freight and other transportation charges that are actually incurred by Seller. If Buyer retains Seller to provide transportation to jobsite, Seller will comply with the responsibilities identified in the applicable Incoterms, whereupon risk of loss and damage shall pass to Buyer. Seller may require Buyer to issue a separate purchase order and require payment of the estimated charges in advance of the shipment. Seller shall refund any overpayment and Buyer will fund any underpayment of the estimated charges. In no event will Seller be responsible for damages to Buyer caused by transportation delays. The shipment date specified in any proposal is based on anticipated shop loading at the time of the proposal and is subject to confirmation at the time the proposal is accepted by Buyer. In the event that all of any part of the Equipment will be shipped out of the continental limits of the US by Seller, all fees and expenses relating to the export shipment, taxes, tariffs, fees and expenses relating to importation into the country of destination, and all necessary applications, licenses, authorizations and documentation shall be the sole responsibility of Buyer. Seller shall prepare consular documents according to Buyer’s instructions but shall have no liability resulting from any incorrect information furnished by the Buyer. If any of the Equipment cannot be shipped to Buyer due to any cause not attributable to Seller, upon notice to Buyer, Seller may ship such Equipment to storage. If the Equipment is placed in storage, the following conditions apply: (a) title and risk of loss and damage shall pass to Buyer if it had not already passed, (b) any amounts otherwise payable to Seller upon delivery or shipment shall be payable upon invoice, (c) all expenses incurred by Seller for preparation for and placement into storage, handling, inspection, preservation, insurance, storage, removal, and taxes shall be payable by Buyer upon invoice, and (d) when conditions permit, and upon payment of all amounts due, Seller shall resume delivery of the Equipment to the originally agreed point of delivery.
DELAYS: The shipment/performance date and price specified are subject to adjustment for any delay resulting from: (a) Buyer’s failure to furnish Seller with any Buyer supplied components, data, shipping instructions, approved drawings or change orders as required, (b) any changes to the specifications made at Buyer’s requests, (c) Buyer’s delay in paying an invoice, (d) Buyer’s convenience, or (e) force majeure. In the event of any such delay, the shipment/performance date will be automatically extended for a period not less that the duration of the delay. Buyer shall pay Seller any additional costs incurred by Seller as a result of the delay and a reasonable rate for storage of the Equipment during such delay.
CANCELLATION: Unless otherwise stated in the agreement should the Purchase Order be canceled by Buyer for any reason other than the termination for Seller’s material breach, Buyer shall pay Seller for all costs and expenses incurred and commitments made, plus an amount equal to Seller’s expected profit on such order or, at Seller’s option, Seller may retain all amounts paid as of such cancellation date as liquidated damages.
LAW AND VENUE: The Purchase Order will be interpreted according to the laws of the State of Texas (notwithstanding its choice of laws). Any dispute between the parties shall be resolved in any federal or state court located in Texas. Seller and Buyer expressly exclude the application of the Convention on International Sale of Goods to the Purchase Order. The prevailing party shall be entitled to recover its reasonable attorney’s fees and court costs.
FORCE MAJEURE: Seller shall not be responsible for any failure or delay in delivery/performance due to causes beyond its reasonable control, including but not limited to acts of God, fire, strike, flood, military authority, government regulation or priority rating, embargoes, shortages of materials, components or labor, or other circumstances causing work slowdown or stoppages such as a local, regional, national or global epidemic or pandemic resulting from a communicable disease or other type of health or environmental crisis. In the event of such failure or delay, the delivery/performance date shall be extended for a period of time equal to the time of such delay plus such additional time as may be needed to overcome the effect of said event.
CODES AND STANDARDS: Seller specifically takes exception to any requirement to conform to any unidentified state, county, municipal or other local codes or standards. Seller will prepare comments and exceptions to the technical provisions of such codes or standards when accompanied by Buyer’s written description of the applicable sections. The parties agree to comply with all laws and regulations applicable to the furnishing of the Equipment under the Purchase Order.
LIMITATION OF LIABILITY: IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CLAIM, EXPENSE, LOSS OR DAMAGE (INCLUDING ATTORNEY’S FEES) WHETHER BASED IN CONTRACT OR TORT, INCLUDING THE NEGLIGENCE OF SELLER, IN AN AMOUNT IN EXCESS OF THE PURCHASE ORDER PRICE FOR THE EQUIPMENT. UNDER NO CIRCUMSTANCES SHALL SELLER BE RESPONSIBLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF USE, DOWNTIME, LOSS OF PROFITS OR REVENUE.
INDEMNITY: Buyer shall forever indemnify, defend and hold Seller harmless from and against any and all liabilities, claims, demands, suits, losses, damages, costs and expenses (including reasonable attorney fees and court costs) resulting from its use, operation and/or ownership of the Equipment after delivery of the Equipment by Seller to Buyer, including, but not limited to, bodily injury to or death of any person, or damage to or destruction of any property.