TERMS OF SALE
1. General Application of Terms. All products, merchandise, goods and/or services (collectively “MLI Products”) sold by Motion Laboratories, Inc. (“MLI”) are sold pursuant the Terms of Sale (“Terms”) set forth below, except solely to the extent that, in respect of a specific sale, the Terms are modified in writing signed both by MLI and by the Buyer. In placing an order with MLI, buyers agree to be bound by the Terms.
2. Payment. All MLI Products are to be paid for in full prior to shipment, by cash, good check (subject to collection) or by Visa or MasterCard. No credit terms shall be available unless the buyer shall have submitted, and MLI shall have accepted, a credit application upon MLI’s standard form then in effect. All credit sales shall be subject to the Terms.
3. Delivery. All shipments of MLI Products shall be made at the buyer’s expense, and are made F.O.B. MLI’s Loading Dock, Cortlandt Manor, New York, with bills of lading addressed to Buyer. MLI shall choose the carrier and the mode of shipment, unless the buyer requests in writing an alternative carrier and/ or mode of shipment, and makes arrangements satisfactory to MLI for the payment of freight and other shipment costs.
4. Identification and risk of loss. The MLI Product shall be identified to the contract, and risk of loss shall pass to Buyer when the goods are placed in the hands of the carrier. A contract for the sale of the MLI Products arises upon MLI’s confirmation of an oral or written purchase order, or MLI’s beginning work pursuant to any such purchase order, whichever shall first occur, and shall not be cancelable by the Customer. Notwithstanding the foregoing, MLI shall have the right to accept cancellation of an order upon receipt of a restocking charge in an amount determined by MLI, up to 50% of the purchase price.
5. Limited One-Year Warranty; Limitations of Liability. MLI warrants to its customers that for a period of one year from delivery, MLI Products will be free of defects in material and workmanship under normal use. In the event that a defect in any MLI Product is discovered within the one-year warranty period, then the customer must notify MLI in writing within thirty (30) days of discovering the defect or before expiration of the one-year warranty period, whichever shall occur first. MLI shall have the option to repair or replace the MLI Product or any of its components solely to the extent that MLI deems it necessary to remedy the defect. Any incidental costs, including without limitation, the cost to ship the defective MLI Product or affected components to MLI, or to such other repair facility as Motion Laboratories, in its discretion, may designate, shall be the responsibility of the buyer.
This warranty shall not apply, and MLI shall have no obligations hereunder upon the occurrence of any of the following: (a) if the MLI Product is subject to any use for which it was not intended; (b) if the MLI Product is modified in any way by any party other than MLI; or (c) if any party other than MLI ATTempts to repair or replace any defect in the MLI PRODUCT or in any Component THEREOF.
To the fullest extent permitted by applicable law, this Warranty shall be for the exclusive benefit of the buyer with which or with whom Motion Laboratories is in privity of contract, and shall not inure to the benefit of any third party whatever.
Under no circumstances shall MLI be liable to any person or business entity, including the buyer, under any cause of action including, but not limited to, those based upon contract, negligence, breach of warranty or tortious conduct, for direct, indirect, incidental, or consequential damages, including any claims for lost profits.
THE ABOVE IS THE ONLY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, REGARDING ALL MLI PRODUCTS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILTY AND/OR OF FITNESS FOR A PARTICULAR PURPOSE. ANY WARRANTIES IMPLIED BY LAW ARE HEREBY EXPRESSLY DISCLAIMED.
6. Compliance with Law. Buyers shall comply with all applicable domestic or international laws, statutes, regulations, and ordinances regarding the use of any MLI products.
7. Indemnity. All buyers agree to indemnify and hold harmless MLI, and (as applicable) its affiliates, officers, directors, agents, and employees from any claim, demand, cause of action, or suit, including, without limitation, incidental costs and reasonable attorneys fees, whether arising at law or in equity, arising out of or in connection with the buyer’s use of any MLI products, or the buyer’s violation of any law or the rights of any third party.
8. No rights in Software. When software is included in the purchase or lease of any MLI product, the buyer obtains only a non-assignable, royalty free, perpetual license to use the Software in connection with the MLI Product, and for no other reason. Notwithstanding the foregoing, MLI reserves all rights in all source code, and Buyers obtain no rights therein. Buyers, by using any software obtained from MLI, Buyers expressly agree to the terms and conditions of MLI’s Software Licensing policy, all of which are incorporated herein by reference.
9. Unpaid Balances. Title to MLI Products does not pass until MLI has received payment in full. Buyers expressly consent that MLI may take such action to protect its interests, including the filing of a Financing Statement, entering upon the Buyers property to repossess the MLI Products upon the Buyers’ payment default, or as otherwise permitted by applicable law, including, without limitation, Articles 2 and 9 of the Uniform Commercial Code. Unpaid balances incur interest of 18% per annum, or such lesser amount as might correspond to the highest rate permitted by applicable law and Buyers shall be liable for all costs of collection, including collection costs and legal fees.
10. Acceptance of Goods. All MLI Products shall conclusively be deemed to have been accepted by the Buyer, unless MLI receives written notice to the contrary no later than five (5) business days from the date of delivery. In the event that the Buyer properly rejects non-conforming or defective goods, or rightfully revokes its acceptance thereof, the Buyers sole remedy shall be the return of the purchase price following the Buyers return of the affected MLI Products to MLI.
11. Merger Clause. These Terms, and the Terms of all documents incorporated herein by reference, constitute the fully integrated expression of the terms of sale, and supercede any prior agreements, written or oral, between the parties with respect to the subject matter hereof. These Terms may not be waived or modified by the terms of Buyer purchase orders or other documentation, irrespective of when they are received, but may only be waived or modified only in a writing signed by an authorized MLI representative.
12. Choice of Law. These Terms, and any and all legal issues that may arise between MLI and any Buyer shall be governed by the substantive laws of the State of New York.
13. Forum Selection. Any dispute arising out of or in connection with the MLI Product shall be adjudicated exclusively in the Supreme Court of the State of New York, County of Westchester