Magna Industries Inc., Terms and Conditions of Sale Product(s) have been sold to the Buyer on these Terms and Conditions of Sale. Acceptance: Buyer's action in acceptance of all the Terms and Conditions set forth by Magna Industries Inc., hereafter referred to as Magna. If any of the Buyer's terms are in conflict with these Terms and Conditions of Sale, the terms of Magna shall govern, unless buyer's terms are accepted in writing by Magna. No verbal agreement or understanding shall in any way modify the Terms and Conditions of Sale contained herein.
DELIVERY: Unless otherwise specified, in writing, by Magna, all prices are F.O.B. manufacturers warehouse: Transportation will be by method, route and carrier selected by Magna. All freight charges will be the responsibility of the buyer. Buyer shall bear (or shall reimburse Magna) for all taxes and/or excises or other government charges or levies, Magna shall not be liable for delay in or failure of delivery where delivery has been made impossible or impractical by the occurrence of a contingency such as war, intervening government regulations, civil commotion, riot, disorder, strike or other labor stoppage or difficulty, fire, flood, storm, accident, production failure, raw material shortage, transportation failure or act of God. In any event, Magna may, at its sole discretion allocate products among buyers. Magna's count of goods shipped shall govern except in case of proven error.
DAMAGED MERCHANDISE: For damage and/or loss in transit Buyer MUST sign that the items received are damaged. Failure to do so will result in the Buyer being held responsible for re-shipping charges. Our responsibility for shipment ceases with acceptance by carriers. If any goods called for on the Bill of Lading are short or damaged, do not accept them until the freight agent makes a damage notation on your freight bill. Thoroughly inspect the shipment as soon as received - if any concealed loss or damaged is discovered, notify your freight agent at once and request an inspection. This is absolutely necessary. Unless you do this, the transportation company will not entertain any claim for loss or damage. If the agent will not make an inspection, then; you should make an affidavit that you notified him (on a certain date) and he failed to do so. This, with other papers, will properly support your claim.
CLAIM PROCEDURES: In no event shall Magna be liable on any claim unless written notice of the claim, sent certified mail, return receipt requested, is received by Magna within thirty (30) days after delivery. Failure of Buyer to assert claim within such time shall be deemed a waiver by the buyer of all claims with respect to such products. Buyer shall have the right to reject nonconforming products or to make claim for monetary adjustment, or at Magna's option, to return nonconforming goods and disputed products to Magna, but (1) in no event shall nay claim of any kind be greater than the purchase price of the product in respect of which damages are claimed, and (2) in no event may any product be returned to Magna without Magna's prior written consent. Buyer shall afford Magna prompt and reasonable opportunity to inspect all material as to which any claim is made. No claim shall be allowed after the product has been processed in any manner.
PAYMENTS: Terms are 50% deposit with order balance prior to or on delivery unless previous credit terms are arranged. Interest shall be charged at the rate of 1.75% per month, or maximum allowed by law, whichever is greater, from the due date on all past due accounts. If, in the judgement of Magna, the financial credit of the Buyer at the time does not justify continuance of the production or shipment of the product based on payment terms herein specified, Magna may require full or partial payment prior to completion or shipment.
INDEMNITY: In addition to each and every item and condition herein which refers to some type of indemnity requirement of Buyer in favor of Magna, Buyer shall exculpate, defend indemnity and hold harmless Magna for all losses, damages, or liabilities resulting. Manga warrants to the original purchaser that its equipment will be free from defects in the material and/or workmanship for the period of one (1) year from the date of original invoice, provided the equipment is reported installed on a registration card and returned to Magna. The purchaser is responsible for; having the equipment properly installed, operated under normal conditions with proper supervision and the performance of periodic preventive maintenance. Magna's obligation under this warranty shall be replacement or repair of defective parts within the warranty period. After thorough examination, the decision of Magna's service department shall be final. Any defective parts to be repaired or replaced must be returned to Magna within thirty (30) days of installation of the replacement part, transportation charges are to be prepaid, and the parts must be properly packaged and tagged. The serial number and model number of the equipment, and the date of original installation must be given. We will not, however, assume responsibility for any expenses (including labor) incurred in the field incidental to the repair or replacement of equipment covered by this warranty. Our obligation thereunder to repair or replace a defective part is the exclusive remedy for breach of this warranty; and we will not be liable for any damages or claims including consequential damages. No representative, dealer, distributor or any other person is authorized or permitted to make any other warranty or obligate Magna to any liability not strictly in accordance with this policy. All equipment manufactured by others, but included as part of this contract, will be subject to standard warranty as issued by the original manufacturer thereof and is not warranted by Seller.
PAST DUE ACCOUNTS may be subject to service charge of 1.75% per month (21% annual).
COLLECTION COSTS: Customer will be liable for any collection costs equal to 30% of any outstanding balance due.
WAIVER: Waiver by Magna or Buyer of a breach of any condition shall not be constructed as a waiver of that or any other condition.
GOVERNING LAW: The purchaser shall be construed in accordance with and governed for all purposes by the laws and public policy of the State of New Jersey, where Magna is incorporated, applicable to contracts executed and to be performed wholly within such state.
ENTIRE AGREEMENT: Magna's invoice contains the entire agreement of the parties with respect to the purchase covered by the Terms and Conditions and supersedes all prior agreements and understandings between the parties with respect of such purchase; and may not be amended, supplemented, canceled or discharged without prior written notice sent certified, return receipt requested, by party affected.
TITLE AND RIGHT OF POSSESSION: The title and right of possession of the product herein specified shall remain with Magna until all payments have been fully made in cash to Magna at its office in Lakewood, New Jersey. It is understood and agreed that the above product shall remain in Magna's personal property whatever the mode of its attachment is to realty or otherwise fully paid for in cash. An express Materialman's and Mechanic's lien is hereby conveyed and granted to Magna upon the building of real property in which the above described personal property is to be erected for the purpose of securing payment of all sums becoming due under the contract; and the prosecution of any one remedy by Magna shall not be to the exclusion of any other remedy, but all rights and remedies of Magna are expressly retained, and are cumulative of each other. In the even Magna is compelled to bring action to court against Buyer to enforce any of the provisions of this agreement, Buyer agrees to pay Magna's reasonable and customary attorney fees and court costs in addition to all other sums due to Magna.
CHANGES OR CANCELLATIONS: Changes or cancellations without liability of this proposal after acceptance by the Buyer can be made only with Magna's agreement in writing. In the event of cancellation or suspension of manufacture of product at the buyer's request the Buyer agrees as a cancellation charge to reimburse Magna promptly for all expenditures for materials used or appropriated, labor and engineering service, a proportionate share of indirect manufacturing, engineering, selling and general and administration expenses incurred in connection with such manufacture so far as it has been completed, and contemplated normal profit on this proposal in accordance with invoice to be rendered by Magna. In the event of change of specifications at the Buyer's request, the Buyer agrees to reimburse Magna for all services, labor or material discarded because of such changes. In addition, the Buyer also agrees to reimburse Magna for extraordinary costs and other expenses attributable to such changes, suspension or cancellation.
RESTOCKING CHARGE: Upon cancellation of an order, after shipment, before uncrating, Buyer is liable for a restocking fee of not more than twenty-five percent (25%) provided (I) written permission to return product is obtained; (II) equipment is returned to the warehouse within thirty (30) days from date of shipment; (III) initial delivery and return transportation charges have been paid by Buyer in full.
ASSIGNMENT: Neither Magna or buyer have the right or interest in Magna's quotation or any resulting contract unless such an agreement in connection with the transfer of all or substantially of the assignor's business.
OWNERSHIP: The specifications, drawings, manufacturing data and other information transmitted between Magna and Buyer in connection with Magna's quotation and any resulting sale are property of the original party, and are disclosed in confidence on the condition that they are not to be reproduced, copied or used for any purpose detrimental to the interest of the other.
SPECIAL ORDERS: All equipment manufactured upon Buyer's written order shall be invoiced at the time of the equipment's arrival at Magna's warehouse. Special orders are not subject to cancellation.