Terms and Conditions of Sale
1. Incorporation by Reference. The following "Terms and Conditions" are attached to, expressly incorporated in and made part of each and every "Document" (as that term is defined below) by reference herein.
2. Definitions. "Company" shall mean Magnum Magnetics Corporation, Magnum Magnetics Corporation dba Magnum Tapes & Films, 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 other similar document (hereinafter, all references to such documents and to 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 COMPANY AND 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 THIS DOCUMENT SHALL NOT BE AMENDED, MODIFIED OR SUPERSEDED, WHETHER BY COURSE OF DEALING OR USAGE OF TRADE, PRACTICE OR OTHERWISE, EXCEPT BY A WRITING THAT IS SIGNED BY AN AUTHORIZED OFFICER OF COMPANY, REGARDLESS OF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 COMPANY WITHOUT FURTHER NOTICE TO PURCHASER. THIS DOCUMENT IS EXPRESSLY CONDITIONED UPON PURCHASER'S AGREEMENT TO ALL THE TERMS AND CONDITIONS CONTAINED HEREIN. PURCHASER'S ACCEPTANCE OF ANY PERFORMANCE BY COMPANY SHALL BE DEEMED AS 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 set forth in 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), Company may therefore 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 Company may be required to collect and/or remit and, therefore, shall remain the exclusive liability of Purchaser. In addition, any and all permits, licenses, authorizations and/or other requirements that are necessary for Purchaser to accept and take delivery of the Goods shall be obtained in advance by 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 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 Company's sole discretion and without notice to Purchaser. In the event that Purchaser does not remit 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. In addition, in the event that Purchaser fails to make timely payment in accordance with such payment terms, Company is hereby authorized by Purchaser to use any alternative collection measures permitted by law in order 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 and to the Goods in order to secure Purchaser's payment of the purchase price and any other costs, expenses and/or fees owed by Purchaser to Company, and 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. Actual delivery date may vary. Title to the Goods shall immediately pass to Purchaser upon Company's tender of 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 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 and Company may charge 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. 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 All Warranties and/or Guarantees. By placing an order or accepting delivery, Purchaser hereby acknowledges that the Goods are sold on an "AS IS" and "WITH ALL FAULTS" basis only. NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR PURPOSES, OR WARRANTY OR GUARANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, IS MADE REGARDING PERFORMANCE, SAFETY, SUITABILITY, STABILITY, USE, COMPLIANCE WITH ANY LAW OR REGULATION OR OTHERWISE AS TO SUCH GOODS. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, LOSS OF PROFITS OR SALES, LOSS OF REVENUES, LOSS OF OPPORTUNITIES OR ANY OTHER FORM OR TYPE OF DAMAGES WHATSOEVER, WHETHER TO PROPERTY OR BODILY INJURY OR LIFE OR OTHERWISE, ARISING OUT OF OR CONNECTED IN ANY WAY WITH THE ORDER, SALE, PURCHASE, TRANSFER, DELIVERY, USE OR MISUSE OF THE GOODS (EVEN IF COMPANY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE). This Document is not intended to be all-inclusive as to the manner and conditions of use, handling, storage, disposal, application, combination, reactive properties and/or any other factors that may involve other or additional legal, physical, environmental, chemical, safety, performance or other conditions, and Company expressly disavows and assumes no liability whatsoever for the use of or reliance upon this information. By ordering or taking delivery of the Product, Purchaser understands and agrees that all safe handling and appropriate use of the Product remains the sole and exclusive responsibility of Purchaser. NO WAIVER, ALTERATION, ADDITION OR MODIFICATION OF THE FOREGOING SHALL BE VALID OR ENFORCEABLE UNLESS MADE IN A WRITING, OTHER THAN THIS DOCUMENT, THAT IS FULLY SIGNED BY AN AUTHORIZED OFFICER OF COMPANY AND DATED AFTER THE DATE OF THIS DOCUMENT.
9. Inspections and Limited Remedy. Each delivery of the Goods will be promptly inspected by Purchaser for any damage or defect. PURCHASER WILL NOTIFY COMPANY OF ALL CLAIMED DAMAGE OR DEFECT WITHIN THIRTY (30) DAYS FROM THE DATE OF DELIVERY OF THE GOODS. If Purchaser fails to promptly inspect or notify Company as provided herein, Purchaser shall be deemed to have fully accepted the Goods and to have waived any claim for damage, defect or refund. If Purchaser promptly inspects the Goods upon delivery and notifies Company as to Purchaser's claim within the period as provided herein that the Goods are subject to damage or defect, Company shall review Purchaser's claim and, if Company determines such claim to be valid, Purchaser and Company shall mutually agree as to the method and timing of curing such damage or defect. Any limited remedy of Purchaser against Company as provided herein shall be barred unless adequate notice is given in accordance with this Section 9. PURCHASER'S SOLE AND EXCLUSIVE REMEDY AGAINST COMPANY, REGARDLESS OF THE NATURE OF ANY ASSOCIATED CLAIM OR THEORY OF RECOVERY OR OTHERWISE, SHALL BE LIMITED TO THE REPAIR OR REPLACEMENT OF THE GOODS OR CREDIT FOR THE PURCHASE PRICE OF THE GOODS, AT THE EXCLUSIVE OPTION OF COMPANY, AS LONG AS PURCHASER COMPLIES WITH THE REQUIREMENTS OF THIS SECTION 9.
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, but 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 set forth 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 appreciable impact to 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. Company's right to cancel, rescind or terminate hereunder may be exercised by Company 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 representative of Company has any authority to bind Company or to make any additional or contrary terms or conditions related to this Document. Unless a term or condition is expressly set forth in this Document or is contained in a writing, other than this Document, which is signed by an authorized officer of 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; unless such disclosure: (a) is otherwise required to be provided to Purchaser's employees but only on a limited "need to know" basis in order to give effect to the intent and purposes of this Document, (b) is 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, or (c) comes after the Confidential Information is or becomes part of the public domain through no act or omission of Purchaser. 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.
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. Miscellaneous. Purchaser's orders once entered on Company's books cannot be amended, modified or canceled except with Company's written consent and upon terms and conditions that shall fully indemnify Company as set forth 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), and no right or interest in the contract arising from this Document may be assigned by Purchaser and no delegation of any obligation or right of Purchaser may be made without the prior written consent of Company, at Company's sole discretion. All rights and/or remedies of Company herein shall be cumulative and additional to any other or further rights and/or remedies as 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 3/19)