Terms & Conditions
STANDARD TERMS AND CONDITIONS OF SALE
PLEASE NOTE THAT THE FOLLOWING TERMS AND
CONDITIONS OF SALE APPLY TO ALL SALES OF PRODUCT FROM MOCAP, INC.
1. DEFINITIONS. As used in these Terms and
Conditions, "Seller" means MOCAP Incorporated; "Buyer" means the purchaser of
any of the Products (as defined below) and all others liable for their purchase
price, and "Products" means the Products identified on the website, or in any
Quotation or Purchase Order.
2. ORDER ACCEPTANCE. Sales of Products are
expressly conditioned upon Buyer's assent to the Terms and Conditions as set
forth herein. If the Terms and Conditions in the Buyer's order, or any other of
Buyer's oral or written communications, are inconsistent with the Terms and
Conditions contained herein, Seller's acknowledgement, acceptance or performance
of said order shall not be construed as assent to any of the terms in Buyer's
order, but shall instead constitute a counter offer, and Buyer shall be deemed
to have accepted the counter offer and the Terms and Conditions set forth herein
unless it notifies Seller to the contrary in writing within five (5) business
days after receiving the Seller's acknowledgement. Printed material on the
Buyer's forms shall not constitute a sufficient writing to modify these Terms
and Conditions. No addition to or modification of the Terms and Conditions shall
be binding upon Seller unless specifically agreed to by Seller in writing. In
the event of any conflict between these Terms and Conditions and those submitted
by Buyer, the following Terms and Conditions will prevail.
3. SHIPMENT TERMS. All Products are F.O.B.
point of shipment. Unless otherwise requested in writing by Buyer, Seller shall
select the carrier. Risk of loss passes upon delivery to the carrier and Buyer
must file any claim for damage in transit with the carrier. Buyer assumes all
risks of and responsibility for loss, damage to, delay in shipment or
non-delivery of the Products after their delivery to the point of destination.
Seller assumes no responsibility to insure shipments unless requested to do so
at Buyers' expense, by Buyer.
4. PRICES AND PAYMENT TERMS. Prices stated
in this website or in a Quotation are those currently in effect and are subject
to change without notice. Buyer agrees to pay, and Products will be invoiced at,
prices prevailing at the time of shipment. Unless otherwise expressly provided
in these Standard Terms and Conditions (i) terms of payment are net cash payable
at thirty (30) days from the date of shipment as evidenced by Seller's invoice
date, and (ii) no discounts, anticipation or allowances are
permitted.
5. ASSURANCES. Shipments and deliveries of
Products are subject to the approval of Seller's Credit Department, and Seller
may at any time stop work in process, refuse to make shipment, or instruct the
common carrier or other third person in possession of the Products to hold,
store or return the Products to Seller if Buyer fails to make any payment or
perform any other obligation owed to Seller when due. Buyer warrants to Seller
that is solvent, that it is able and intends to pay each of its obligations when
due, and that all checks, drafts and other items tendered to Seller in payment
for the Products will be honored in accordance with Seller's terms. Buyer
acknowledges that Seller relies upon Buyer's representations of its solvency to
induce Seller to ship Products. As such, Buyer agrees that Seller shall have the
right to cancel any unfilled order and cancel any future orders without notice
to Buyer in the event that Buyer becomes insolvent, is adjudicated bankrupt,
petitions for or consents to any relief under any bankruptcy reorganization
statute, or becomes unable to meet its financial obligations in the normal
course of business.
6. CLAIMS. Any claim concerning Products
that could be discovered by inspection upon delivery of said Products must be
reported promptly in writing to the delivering carrier and also to Seller. In
the case of a claim against Seller, inspection shall be promptly arranged with
Seller and, where appropriate, representatives of the carrier. Buyer must settle
any damage, loss or shortage occurring in transit with the common carrier
without offset of or deduction from the purchase price of the Products affected.
Buyer shall set aside, protect and hold those Products which are the subject of
its claim without further processing until Seller has an opportunity to inspect
Products and advise Buyer of the disposition, if any, to be made of them. In no
case shall any Products be returned without first securing the written authority
of Seller.
7. DELIVERY. Delivery dates specified are
desired and not promised dates, however, Seller will make all reasonable efforts
to adhere to the delivery dates furnished by the Buyer. Seller shall not be
liable for any damages, loss or expense of the Buyer for failure to comply with
any shipping or delivery dates for any reason whatsoever. By consenting to or
accepting delivery of the Products, Buyer waives any and all claims against
Seller for damage by reason of any delay, whether subject to Seller's control or
not.
8. MODIFICATION. Buyer may not cancel,
modify or amend any terms of a Purchase Order or hold up releases after the
Products ordered are in process, except with Seller's written consent and
subject to conditions then to be agreed upon, including timely receipt of all
change orders and reimbursement to Seller for all costs, expenses and lost
profits resulting therefrom. Seller reserves the right at any time to
discontinue the manufacture of any Products, to make changes in design, or to
make improvements to the Products without incurring any obligation to correct,
modify, adjust or improve the Products previously manufactured and sold by
Seller.
9. LIMITED WARRANTY. All Products
manufactured by Seller are warranted to be free from defects in material and
workmanship at the time of delivery. This limited warranty extends only to
Buyer, and Seller's obligation under this limited warranty is strictly limited
to repairing and replacing at Seller's option any Products found to its
satisfaction to be defective, provided that a written claim has been received
from Buyer within 30 days after delivery thereof, and said Products are, upon
request, returned to Seller's factory from which it was shipped, transportation
prepaid. Neither the receipt of information from Buyer nor delivery by Seller of
the Products shall in any manner imply a warranty on the part of Seller that the
Products will be suitable for the purposes disclosed by Buyer nor any other
obligation or liability on the part of Seller respecting the suitability of the
Products. Buyer expressly agrees that Seller shall not be liable under any
warranty nor for any defects or nonconformities in the Products, if Buyer's
order is illegible, is in error, or specifications set forth therein are faulty
or improper. This warranty does not apply where any claimed defect arose as a
result of Buyer's misuse, neglect, alteration or accident with respect to the
Products. Seller will not be liable for any loss of profit, loss by reason of
plant shutdown, non-operation or increased expense of operation, loss or damage
of any nature, and Buyer expressly waives all claims for such loss or damage.
THIS WARRANTY IS EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES EXPRESS OR IMPLIED
AND SELLER SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OR MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. Buyer will hold Seller harmless from and will
be responsible for any loss, damage or injury to persons or property arising out
of the use of the Products supplied by Seller except to the extent caused by
Seller's negligence in product design or manufacture, and in no case will Seller
be liable to purchaser for special, indirect or consequential damages. These
limitations and exclusions will apply regardless of the form of action,
including misrepresentation, negligence or gross negligence.
10. LIMITATION OF LIABILITY. The uses to
which Products are put are solely within the discretion and responsibility of
the Buyer and/or end user. Buyer assumes any and all liability arising out of or
in any way connected with the use of such Products and hereby agrees to
indemnify Seller for such liability. Seller shall not be liable for incidental,
consequential or special damages, for costs of removal or disposal, or for costs
of shipment. Under no circumstance shall Seller's liability or Buyer's remedy
for damages against Seller exceed the amount of the purchase price. The price
stated for the Products is based upon and in consideration for limiting Seller's
liability. Failure of Buyer to give timely written notice of its claim shall bar
Buyer from any remedy. No claim or action arising out of these Terms and
Conditions, Buyer's order, or other document pertaining to the products may be
brought by Buyer more than twelve (12) months after the date of shipment of the
Products.
11. PATENTS/INDEMNITY. It is not the
intention of Seller to manufacture any product that is an infringement of a
patented article. When parts are made by the Seller to prints, samples or
specifications furnished by the Buyer, it is agreed that Buyer will defend and
save harmless the Seller from any and all expenses involved in any claims for
damages from infringements of patent rights by the use of, or sale of parts made
by Seller.
12. CHARGEBACK LANGUAGE. Buyer agrees not to
"chargeback" or debit sales orders without first contacting Seller's Customer
Service Department to discuss whether the alleged error resulting in Buyer's
claim for a price adjustment was a sole, direct and proximate result of error or
negligence on the part of Seller. Buyer must prove by preponderance of the
evidence that the damages allegedly sustained by Buyer are the sole, direct and
proximate result of Seller's error or negligence. Buyer agrees that any disputes
cannot be resolved amicably between Seller and Buyer shall be submitted to
binding arbitration in St. Louis, Missouri under and subject to the laws of the
State of Missouri. Under no circumstances shall a chargeback occur or sales
order debited without first contacting Seller relative to the above-outlined
procedure. In the event Buyer debits a sales order without first following the
above provisions, Seller shall be entitled to recover damages, including
attorney's fees and interest, on the debited amount.
13. CONDITIONS NOT WAIVED. Seller's failure
to enforce or declare a default or breach with respect to any particular term or
condition listed in these Terms and Conditions shall not constitute a waiver of
Seller's right to enforce or be protected by any other terms or conditions or,
on a subsequent occasion, that particular term or condition.
14. ALTERATION OF TERMS AND PAROL EVIDENCE.
The Terms and Conditions set forth herein are intended by the Buyer and Seller
as a final expression and complete and exclusive statement of their agreement,
and may be varied or modified only as provided for herein.
15. INVALID TERM. The invalidity of any term
within these Terms and Conditions shall not affect any other of its
terms.
16. GOVERNING LAW. These Terms and
Conditions and any sale hereunder shall be governed by and construed in
accordance with the internal laws and not the conflict of law rules of the State
of Missouri.
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