1. Offer, Governing Provisions and Cancellation. Any agreement between MRL Manufacturing, a Noble-X, Inc. Company (“MRL Manufacturing”) and a buyer for the sale of goods and/or services described in a MRL Manufacturing Quotation or MRL Manufacturing Order Acknowledgement will be in accordance with these terms and conditions. A MRL Manufacturing Quotation is an offer, and a MRL Manufacturing Order Acknowledgement is an offer or counter-offer by MRL Manufacturing to sell the goods and/or services described thereon and such documents are not an acceptance of any offer made by a buyer and are expressly conditioned on buyer’s assent to these Terms and Conditions of Sale. MRL Manufacturing objects to any additional or different terms contained in any purchase order or other communication previously or hereafter provided by buyer to MRL Manufacturing. No such additional or different terms or conditions will be of any force or effect. The terms contained in or incorporated into a MRL Manufacturing Quotation or MRL Manufacturing Order Acknowledgement will be the entire agreement between MRL Manufacturing and buyer on the subject of the transaction described thereon; and there are no conditions to that agreement that are not so contained or incorporated. THE OFFER BY MRL MANUFACTURING AND THE RESULTANT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF WISCONSIN AND THE U.S. (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS). THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
No accepted offer may be cancelled or altered by buyer except upon terms and conditions accepted by MRL Manufacturing in writing; and no changes will be binding unless set forth in writing and manually signed by MRL Manufacturing. An offer by MRL Manufacturing may be revoked by MRL Manufacturing at any time before it is accepted by buyer, and shall automatically expire 30 calendar days after its date if buyer has not accepted it before then. Neither buyer’s acceptance of an offer nor any conduct by MRL Manufacturing (including but not limited to shipment of goods) shall oblige MRL Manufacturing to sell to buyer any quantity of goods in excess of the quantity that buyer has committed to purchase from MRL Manufacturing at the time of such acceptance or conduct.
2. Credit Approval; Payment Terms. All payment terms set forth in this document are subject to MRL Manufacturing’s approval of buyer’s credit, in MRL Manufacturing’s discretion; and if such approval is withheld, payment shall be due in advance of MRL Manufacturing’s performance. Except as otherwise provided on the face of a MRL Manufacturing Quotation or MRL Manufacturing Order Acknowledgement or in the preceding sentence, payment is due upon buyer’s receipt of MRL Manufacturing’s invoice following shipment. Interest will be charged at the lesser of (i) 18% per year, or (ii) the highest rate permitted by applicable law, on accounts more than 30 calendar days past due. If production or shipment of completed goods, or other MRL Manufacturing performance, is delayed by buyer, MRL Manufacturing may immediately invoice, and buyer shall pay, the percentage of the purchase price corresponding to the percentage of completion; in addition, buyer shall compensate MRL Manufacturing for storage of completed goods or work in process during any such delay, whether stored at MRL Manufacturing’s facility or an independent storage company’s facilities.
3. Taxes and Other Charges. Any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, value added tax, duty, custom, inspection or testing fee, or any other tax, fee, interest or charge of any nature whatsoever imposed by any governmental authority on or measured by the transaction between MRL Manufacturing and buyer shall be paid by buyer in addition to the prices quoted or invoiced. In the event MRL Manufacturing is required to pay any such taxes or other charges, buyer shall reimburse MRL Manufacturing therefor on demand.
4. Delivery, Claims and Force Majeure. Unless otherwise provided on the face of a MRL Manufacturing Quotation or MRL Manufacturing Order Acknowledgement, goods shall be delivered to buyer F.O.B. MRL Manufacturing’s loading dock or, for ultimate destinations outside of the U.S., ex works MRL Manufacturing’s loading dock (as the latter shipping term is defined in Incoterms 2010). Delivery of products to the carrier shall constitute delivery to buyer; and regardless of shipping terms or freight payment, buyer shall bear all risk of loss or damage in transit. MRL Manufacturing reserves the right to make delivery in installments; all such installments to be separately invoiced and paid for when due in accordance with their respective invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve buyer of its obligations to accept remaining deliveries.
Claims for shortages or other errors in delivery must be made in writing to MRL Manufacturing within 10 calendar days after receipt of shipment; and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by buyer. Claims for loss of or damage to goods in transit must be made to the carrier, and not to MRL Manufacturing. All delivery dates are approximate. MRL Manufacturing shall not be liable for any losses or damages as a result of any delay or failure to deliver due to any cause beyond MRL Manufacturing’s reasonable control, including but not limited to any act of God, act of buyer, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, act of terrorism, riot, delay in transportation, or inability to obtain necessary labor, materials or manufacturing facilities. In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost because of the delay. Buyer’s exclusive remedy for other delays and for MRL Manufacturing’s inability to deliver for any reason shall be rescission of its agreement to purchase.
5. Changes. MRL Manufacturing may at any time make such changes in design and construction of products, components or parts as MRL Manufacturing deems appropriate, without notice to buyer. MRL Manufacturing may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or nonavailability of materials from suppliers.
6. MRL Manufacturing’s Limited Warranty. MRL Manufacturing’s Limited Warranty is as follows:
THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED; AND MRL MANUFACTURING EXPRESSLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
7. Patents, Trademarks and Copyrights. MRL MANUFACTURING GIVES NO WARRANTY THAT THE PRODUCTS SOLD WILL BE DELIVERED FREE OF THE RIGHTFUL CLAIM OF ANY THIRD PARTY FOR INFRINGEMENT OF ANY PATENT, COPYRIGHT OR TRADEMARK OR ANY OTHER PROPRIETARY RIGHTS.
8. Consequential Damages and Other Liability; Indemnity. IN NO EVENT SHALL MRL MANUFACTURING BE RESPONSIBLE FOR ANY OTHER OBLIGATIONS OR LIABILITIES OR ANY CONSQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PRODUCTION, LOSS OF PROFITS, OR RENTAL OF SUBSTITUTE EQUIPMENT, WHETHER ARISING OUT OF BREACH OF WARRANTY OR OTHER BREACH OF CONTRACT, NEGLIGENCE OR OTHER TORT, OR ON ANY STRICT LIABILITY THEORY OR UNDER OTHER THEORIES OF LAW OR EQUITY, WITH RESPECT TO GOODS OR SERVICES SOLD BY MRL MANUFACTURING, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. Without limiting the generality of the foregoing, MRL Manufacturing specifically disclaims any liability for property damages, penalties, special or punitive damages, damages for lost profits or revenues, down-time, lost goodwill, cost of capital, cost of substitute goods or services, or for any other types of economic loss, or for claims of buyer’s customers or any third party for any such damages, costs or losses. MRL MANUFACTURING SHALL NOT BE LIABLE FOR AND DISCLAIMS ALL CONSEQUENTIAL, INCIDENTAL, INDIRECT AND CONTINGENT DAMAGES WHATSOEVER. MRL Manufacturing’s liability with respect to the goods or services sold hereunder shall be limited to the warranty provided in section 6 of these Terms and Conditions of Sale and, with respect to any other breaches of its contract with buyer, shall be limited to the contract price.
Buyer shall indemnify and hold harmless MRL Manufacturing from and against any and all losses, liabilities, damages and expenses (including but not limited to attorneys’ fees and other costs of defense) that MRL Manufacturing may incur as a result of any claim by buyer or by buyer’s customers or by any third party arising out of or in connection with the goods or services sold hereunder, including but not limited to any such claim based upon the negligence of MRL Manufacturing in designing, manufacturing, performing and/or selling such goods or services, unless such losses, liabilities, damages or expenses are ultimately determined to be attributable solely to the willful misconduct of MRL Manufacturing.
9. Technical Information. Buyer agrees any sketches, models or samples submitted by MRL Manufacturing and any designs developed in fulfillment of Buyer’s order shall remain the property of MRL Manufacturing, and shall be treated as confidential information unless MRL Manufacturing has in writing indicated a contrary intent. Buyer agrees not to use or disclose such sketches, models or samples, or any design or production techniques revealed thereby, without the express, prior written consent of MRL Manufacturing.
10. Tools. Any dies, jigs or tools that MRL Manufacturing manufactures or acquires in connection with its performance under a MRL Manufacturing Quotation or MRL Manufacturing Order Acknowledgement shall remain the property of MRL Manufacturing, notwithstanding any charges to buyer therefor. Any such charges convey to buyer the right to have the tools, dies or jigs used by MRL Manufacturing for performance of MRL Manufacturing’s agreement with buyer, but do not convey title or right of possession or any other right.