Terms and Conditions of Sale
1. Incorporation by Reference. The following "Terms and Conditions" are attached to, expressly incorporated in, and made part of every "Document" (as that term is defined below) by reference herein.
2. Definitions. "Company" shall mean Magnum Magnetics Corporation, Magnum Magnetics Corporation dba Magnum Inks & Coatings, and any other Magnum Magnetics Corporation subsidiary, affiliate, or division. "Purchaser" shall mean the purchaser, buyer, distributor, broker, or customer identified in the applicable document on which these Terms and Conditions are written, to which they are attached or into which they are incorporated by reference, irrespective of whether such document is a proposal, quote, invoice, confirmation, statement, bill of sale, packing slip or another similar document (hereinafter, all references to such documents and these Terms and Conditions, collectively, shall mean the "Document"). "Goods" shall mean all goods, materials, equipment, supplies, packaging, and/or services that are sold, distributed, supplied, transferred, delivered, and/or provided by Company to or for the benefit of Purchaser as described on the face of this Document or otherwise. Purchaser and Company shall also include any and all respective owners, officers, directors, employees, agents, affiliates, subdivisions, representatives, successors, and/or assigns of Purchaser or Company.
3. Terms and Conditions Exclusive. THIS DOCUMENT CONSTITUTES THE COMPLETE AND FINAL AGREEMENT BETWEEN THE COMPANY AND THE PURCHASER WITH RESPECT TO THE GOODS. THIS DOCUMENT SHALL NOT BE AMENDED, MODIFIED, OR SUPERSEDED, WHETHER BY COURSE OF DEALING OR USAGE OF TRADE, PRACTICE, OR OTHERWISE, EXCEPT BY A WRITING THAT IS SIGNED BY AN AUTHORIZED OFFICER OF THE COMPANY, REGARDLESS OF ANY OTHER TERMS AND/OR CONDITIONS THAT MAY APPEAR ON PURCHASER'S DOCUMENTS. ALL SUCH PURCHASER DOCUMENTS ARE HEREBY EXPRESSLY OBJECTED TO AND REJECTED BY THE COMPANY WITHOUT FURTHER NOTICE TO THE PURCHASER. THIS DOCUMENT IS EXPRESSLY CONDITIONED UPON THE PURCHASER'S AGREEMENT TO ALL THE TERMS AND CONDITIONS CONTAINED HEREIN. THE PURCHASER'S ACCEPTANCE OF ANY PERFORMANCE BY THE COMPANY SHALL BE DEEMED AS THE PURCHASER'S ACCEPTANCE OF ALL THE TERMS AND CONDITIONS PROVIDED BY THIS DOCUMENT.
4. Price. Unless otherwise agreed in writing by Company and Purchaser, the prices for the Goods shall be those as outlined in the Company's pricing policies that are in effect at the time of tender of delivery of such Goods to Purchaser. In the event Purchaser desires to change its order in advance of shipment by Company (and if and when expressly permitted to do so in writing by Company), the Company may also elect to adjust such prices accordingly and at its sole discretion. Purchaser acknowledges that such prices do not include applicable fees, taxes, excises, duties, transportation, or other costs or expenses that the Company may be required to collect and/or remit. Therefore, any such costs shall remain the exclusive liability of the Purchaser. Also, any and all permits, licenses, authorizations, and/or other Purchaser requirements to accept and take delivery of the Goods shall be obtained in advance by the Purchaser at its sole cost and expense. IF THIS DOCUMENT IS PROVIDED AS A QUOTATION, THE PRICES AS QUOTED (IF ANY) SHALL BECOME FINAL ONLY IF FULLY ACCEPTED (ABSENT ANY CONTRARY TERMS OR CONDITIONS) BY THE PURCHASER WITHIN THIRTY (30) DAYS FROM THE DATE OF SUCH QUOTATION AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS DOCUMENT.
5. Payment, Collection, Security Interest. Unless otherwise agreed in writing by Company and Purchaser, payment terms for the Goods are 1% 10, net 30 days. These payment terms are subject to change in the exercise of the Company's sole discretion and without notice to the Purchaser. If Purchaser does not remit a timely payment in accordance with such payment terms, Company reserves the right to charge Purchaser an additional 1.5% per month, or the maximum rate permitted by law, on any unpaid balance until such balance is paid in full. Also, in the event that Purchaser fails to make timely payment according to such payment terms, Company is hereby authorized by Purchaser to use any alternative collection measures permitted by law to obtain payment from Purchaser of any past due payment amount. Purchaser further agrees that any and all costs, expenses, and/or fees (including, but not limited to, reasonable attorneys' fees) that are incurred by Company in an attempt to collect such past due payment amounts shall be added to such past due payment amount and shall be then due and owing by Purchaser to Company. Company hereby reserves, and Purchaser hereby expressly grants to Company, a security interest in the Goods to secure Purchaser's payment of the purchase price and any other costs, expenses, and/or fees owed Purchaser to Company. Purchaser agrees that Company may (but is not obligated to) take appropriate actions to evidence and perfect such interest, and Purchaser hereby agrees that it shall not oppose such actions by Company.
6. Delivery and Freight. Unless otherwise agreed in writing by Company and Purchaser, the Goods shall be delivered to Purchaser F.O.B. Company's plant. Any delivery date is approximate and is intended as an estimate only. The actual delivery date may vary. Title to the Goods shall immediately pass to Purchaser upon the Company's tender delivery of the Goods. If the Goods are held by Company subject to delivery instructions from Purchaser, Company may elect to invoice the Goods to the Purchaser, and therefore, Purchaser agrees to make payment in accordance with this Document. The Goods so invoiced and held at any location by Company shall remain at Purchaser's sole risk and expense. The Company may charge the Purchaser for (but is not obligated to carry) insurance, storage, shelving, and all other costs or expenses associated therewith. Purchaser shall accept and pay for partial delivery of the Goods, or any portion thereof, at Company's prices and in accordance with this Document. When Purchaser has declared or manifested an intention not to accept delivery of the Goods in accordance with this Document, no tender on the part of Company shall be necessary; however, Company may, at its sole option, give notice to Purchaser that Company is ready and willing to deliver and such notice shall constitute a valid tender of delivery.
7. Force Majeure. The Company shall not be liable for any failure to perform by reason of strikes, riots, insurrections, fires, floods, unavoidable accidents, wars, terrorism, delay in transportation, acts of God, or any other causes beyond its reasonable control. In connection with the foregoing, Purchaser acknowledges that delivery of the Goods is contingent upon Company's ability to obtain supplies, raw materials, production capacity, and other goods and/or services through its regular and usual sources and, thus, if for any reason beyond Company's reasonable control, Company is not able to meet anticipated delivery date(s) or any other performance, Purchaser acknowledges that Company shall not be liable therefor and Company may postpone the delivery date(s) under this Document for such period of time which is reasonable in the judgment of Company under the circumstances.
8. Disclaimer of Warranties; Limitation of Liability
(a) Disclaimer of Warranties. All Goods are sold by Company to Purchaser strictly "AS IS" and "WITH ALL FAULTS." COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. No oral or written information or advice given by Company or its representatives shall create any warranty. Purchaser is solely responsible for the selection, use, handling, storage, and application of the Goods. To the maximum extent permitted by law, Company shall not be liable for any loss or damage arising from Purchaser's selection, use, handling, storage, and application of the Goods, including but not limited to compliance with applicable laws, regulations, or safety standards.
(b) Limitation of Liability. Subject to Section 8(a), Company's total liability for any claim arising from the purchase of the Goods shall not exceed the purchase price paid by Purchaser for the specific Goods giving rise to the claim. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF SALES, LOSS OF REVENUE, LOSS OF OPPORTUNITIES, OR BUSINESS INTERRUPTION, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Inspection and Exclusive Remedy. Purchaser shall promptly inspect all Goods upon delivery. Any claim for defects or damage must be made in writing to Company within thirty (30) days of delivery. Failure to provide timely notice constitutes acceptance of the Goods and waiver of all claims. If Company determines, in its sole discretion, that Goods are defective and Purchaser has complied with the notice requirements above, Company will, at its option, either (i) repair the Goods, (ii) replace the Goods, or (iii) credit the purchase price paid for the Goods. This remedy is Purchaser's sole and exclusive remedy for any defect or nonconformity. Except as expressly provided above, Company shall have no other obligation or liability with respect to defective Goods. Purchaser waives all other remedies, whether at law or in equity, including but not limited to claims for damages, rescission, or specific performance.
10. Intellectual Property Infringement Indemnification. Purchaser shall fully and unconditionally defend, indemnify and hold Company as well as its owners, officers, directors, employees, agents, affiliates, representatives, successors and assigns harmless from and against any and all claims (whether actual or contingent or otherwise), demands, actions, liabilities, damages, and/or costs and expenses (including, but not limited to, attorneys' fees) (collectively a "Claim") arising out of or in connection with any alleged infringement of any United States or other foreign jurisdiction patent, trademark, copyright, trade secret or other intellectual property right (collectively "Intellectual Property") associated with the sale, distribution or delivery of the Goods by Company to Purchaser or the use of the Goods by Purchaser as long as: (a) Company gives Purchaser reasonable notice of such Claim as well as an opportunity to defend and/or settle such Claim as Purchaser may see fit (with the advice and consent of Company); and (b) in connection with such Claim, Company provides Purchaser with Company's reasonable assistance in connection with such defense and/or settlement. Company reserves the right to cancel Purchaser's order for the Goods, without any liability whatsoever, if or when Company determines, in the exercise of its sole discretion, that the manufacture, sale, distribution, or use of the Goods would infringe any such Intellectual Property.
11. General Indemnity. If any of Purchaser's owners, officers, directors, employees, agents, affiliates, representatives, successors, and/or assigns are on, in or about Company's premises or other property under Company's control, or are working with or using property owned by or under the control of Company, Purchaser is and shall remain fully and unconditionally responsible for all acts and/or omissions and agrees to indemnify and hold Company and its owners, officers, directors, employees, agents, affiliates, representatives, successors, and/or assigns full and unconditionally harmless from and against any and all liability of any nature for any Claims with respect to property, bodily injury or death to persons arising out of Company's acts or omissions including, without limitation: (a) any Claims arising from Company's alleged failure to comply with applicable statutes, regulations and laws governing security, maintenance and safety; (b) any Claims against Company by or on behalf of any of them for injury or otherwise; and/or (c) any Claims against Company resulting from Purchaser's failure to maintain workers' compensation or other public or private insurance with respect to any of them. The foregoing indemnity will also extend to, without limitation, Claims asserted under the workers' compensation laws of the State of Ohio or any other jurisdiction and any consequential increased premium or contribution costs of or for securing workers' compensation insurance, whether public or private and/or any consequential costs of or for the direct payment of any such workers' compensation benefits. Purchaser hereby expressly waives any statutory and/or constitutional immunity to which. Still, for this waiver, it might be entitled as an employer in compliance with the State of Ohio workers' compensation laws, or under any other employee benefit statute or similar laws of any jurisdiction, and hereby expressly waives any statutory right of subrogation outlined in Ohio Revised Code Section 4123.931 or successor provision.
12. Information. Purchaser acknowledges that it has received and is familiar with Company's and any other manufacturer's manuals, warnings, guidance, labeling, product data, literature, instructions, and other information related to or concerning the Goods and shall adequately and periodically instruct its employees, agents, assigns, customers and others who may come into contact with the Goods as to the safe and appropriate use, handling, storage and transportation of the Goods.
13. Permissible Variations. Company reserves the right, without notice to Purchaser, to make modifications, additions, alterations or other changes in or to the composition of the Goods which, in Company's opinion, do not have an appreciable impact on the general characteristics or properties of the Goods or are within applicable industry standards.
14. Cancellation. Company may unilaterally elect to cancel, rescind or terminate all or any part of the contract evidenced by this Document immediately if: (a) Purchaser is or becomes materially delinquent on any of its obligations hereunder or under any other order or transaction with Company; (b) Purchaser is or becomes insolvent, whether voluntarily or involuntarily; (c) a receiver under Title 11 U.S.C., as amended or related insolvency law of any other foreign jurisdiction (collectively, the "Bankruptcy Code") is appointed for or on behalf of Purchaser, or a case under any chapter of the Bankruptcy Code is commenced for, by or against Purchaser; (d) Purchaser suspends or terminates business or makes an assignment for the benefit of creditors; (e) any guarantor of the obligations of Purchaser dies, becomes insolvent or if any case under any chapter of the Bankruptcy Code is commenced for, by or against such guarantor; or (f) any event occurs, whether or not similar to the foregoing, by which in Company's good faith belief may materially impair the prospect of payment or performance by Purchaser. The company may exercise its right to cancel, rescind or terminate hereunder in its sole discretion and without liability.
15. Express Disclaimer of Other Representations. This document is fully incorporated, and its terms and conditions shall exclusively govern as between Company and Purchaser in regard to the order, manufacture, sale, and/or delivery of the Goods for or on behalf of Purchaser, whether procured directly by Company or indirectly through an authorized sales representative or agent of Company. No employee, agent, assign, or other Company representative has any authority to bind Company or make any additional or contrary terms or conditions related to this Document. Unless a term or condition is expressly outlined in this Document or is contained in writing, other than this Document, which is signed by an authorized officer of the Company, it shall not be enforceable by Purchaser or any person or entity claiming by or through Purchaser.
16. Confidentiality. Purchaser shall protect the confidentiality of this Document and shall not disclose or otherwise disseminate, directly or indirectly, by any means or method, this Document or any of its terms and/or conditions or any other information related to Company or Company's business (collectively, the "Confidential Information") that is provided to or received by Purchaser or any of its owners, officers, directors, employees, agents, affiliates, representatives, successors, and/or assigns. Purchaser may disclose Confidential Information only (a) to Purchaser's employees on a limited "need to know" basis in order to give effect to the intent and purposes of this Document, or (b) as required by law or order of a court of competent jurisdiction, after Company has been provided with reasonable notice and opportunity to contest such law, jurisdiction or court order. The terms and conditions of this Section 16 shall survive the order, sale, delivery, and/or use of the Goods or the termination, expiration, or fulfillment of the terms or conditions associated with this Document until such Confidential Information becomes part of the public domain through no act or omission of Purchaser.
17. Safety. Purchaser warrants that, in connection with the order, sale, delivery, and use of the Goods, Purchaser shall comply with all Good Manufacturing Practices, manufacturer's information and warnings, associated protocols, as well as all OSHA and other safety-related statutes, regulations, laws, standards, and requirements that are in any way applicable to the Goods as well as Purchaser's business operations.
18. Cybersecurity; Information Security; Electronic Communications. Purchaser acknowledges that the use of electronic communications, electronic data interchange (EDI), internet-based communications, email systems, cloud-based platforms, portals, software systems, and information networks involves inherent risks of interruption, delay, corruption, unauthorized access, malware, ransomware, phishing, business email compromise, data theft, and other cybersecurity incidents that may occur despite the implementation of reasonable safeguards. Each party shall maintain commercially reasonable administrative, technical, and physical safeguards designed to protect Confidential Information and electronic systems under its control from unauthorized access, disclosure, alteration, destruction, or misuse. Purchaser shall be solely responsible for the security of Purchaser's own systems, networks, credentials, users, service providers, and information technology environment. Company shall not be responsible for any cybersecurity incident arising from or attributable to Purchaser's systems, accounts, personnel, contractors, vendors, agents, or service providers. Purchaser shall promptly notify Company upon becoming aware of any actual or reasonably suspected unauthorized access to, disclosure of, or compromise involving Company's Confidential Information or systems that may affect Company. NOTHING IN THIS DOCUMENT SHALL BE CONSTRUED AS A WARRANTY OR GUARANTEE THAT COMPANY'S SYSTEMS, NETWORKS, ELECTRONIC COMMUNICATIONS, OR INFORMATION TECHNOLOGY ENVIRONMENT ARE IMPERVIOUS TO CYBERSECURITY INCIDENTS OR UNAUTHORIZED ACCESS. EXCEPT TO THE EXTENT RESULTING FROM COMPANY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, COMPANY SHALL NOT BE LIABLE FOR ANY LOSS OF DATA, LOSS OF USE, LOSS OF PROFITS, LOSS OF REVENUE, BUSINESS INTERRUPTION, DIMINUTION OF VALUE, RANSOM PAYMENTS, REGULATORY FINES, THIRD-PARTY CLAIMS, COSTS OF NOTIFICATION, COSTS OF CREDIT MONITORING, OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO ANY CYBERSECURITY INCIDENT, DATA BREACH, MALWARE EVENT, RANSOMWARE EVENT, ELECTRONIC COMMUNICATION FAILURE, OR UNAUTHORIZED ACCESS TO INFORMATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY'S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO A CYBERSECURITY INCIDENT OR DATA SECURITY EVENT SHALL NOT EXCEED THE TOTAL PURCHASE PRICE ACTUALLY PAID BY PURCHASER TO COMPANY FOR GOODS PURCHASED DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. Nothing in this Section shall relieve either party from complying with any non-waivable obligations imposed by applicable law relating to privacy, data security, or breach notification requirements.
19. Miscellaneous. Once entered into Company's books, Purchaser's orders cannot be amended, modified, or canceled except with Company's written consent and upon terms and conditions that shall fully indemnify Company as outlined in this Document. If any of the provisions of this Document are deemed to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions will in no way be affected or impaired thereby, and such remaining provisions are and shall be fully enforceable as between the parties hereto. This Document and the contractual relationship between Company and Purchaser shall be exclusively governed by and construed under the laws of the State of Ohio (without regard to Ohio conflicts of law principles). Purchaser may assign no right or interest in the contract arising from this Document. No delegation of any obligation or right of Purchaser may be made without the prior written consent of the Company at Company's sole discretion. All rights and/or remedies of the Company herein shall be cumulative and additional to any other or further rights and/or remedies provided in law or equity. In the event of any waiver by Company as to Purchaser's performance hereunder, Company's inaction with respect to Purchaser's breach of any provision of this Document, or failure of Company to enforce any provision of this Document shall not be deemed as a waiver of any other current or future compliance therewith or a course of performance modifying such provision, and such provision shall remain in full force and effect as between the parties.
IN ALL CASES, CLERICAL ERRORS ARE SUBJECT TO CORRECTION
(Rev. Date 09/26)
