MBX SYSTEMS TERMS & CONDITIONS
These standard terms and conditions (these “Terms and Conditions”) govern the sale of goods and/or materials and/or the provision of any services (“Goods and/or Services”) by MBX Systems (“MBX”) to the person or business entity buying such Goods and/or Services (“Buyer”). These Terms and Conditions are incorporated into each and every purchase order received from Buyer. Purchase orders received from Buyer and accepted by MBX may establish essential commercial terms (such as quantity ordered and delivery destination) (“Commercial Terms”) solely to the extent such Commercial Terms do not conflict with these Terms and Conditions. These Terms and Conditions (together with the Commercial Terms) are the sole terms and conditions binding on the parties. Buyer and MBX expressly agree that MBX may modify these Terms and Conditions from time to time upon notice to Buyer, and such modifications shall be binding upon Buyer. Each request for quote, order, acceptance of Goods and/or Services and/or payment to MBX by Buyer shall be deemed an acknowledgment and acceptance by Buyer of these Terms and Conditions as then in effect. These Terms and Conditions, as may be subsequently modified by MBX from time to time as set forth in these Terms and Conditions, are incorporated by reference into all documents issued by MBX to Buyer in connection with the sale and/or provision of Goods and/or Services.
1. NO MODIFICATIONS/ ENTIRE AGREEMENT
MBX’s provision of credit to Buyer, if any, acceptance of any purchase order and/or sale or provision of any Goods and/or Services to Buyer are all expressly conditioned upon Buyer’s acceptance of these Terms and Conditions as then in effect. ANY TERMS OR CONDITIONS WHICH ATTEMPT TO ALTER, MODIFY, CHANGE, SUSPEND, CONTRADICT OR ADD TO ANY TERM OR CONDITION CONTAINED HEREIN SHALL BE OF NO FORCE OR EFFECT WHATSOEVER AND SHALL NOT BE BINDING ON MBX. MBX OBJECTS TO AND REJECTS ANY DIFFERENT, INCONSISTENT, CONFLICTING, SUPPLEMENTAL OR ADDITIONAL TERMS OR CONDITIONS, WHETHER CONTAINED IN PREVIOUS OR SUBSEQUENT PROPOSALS OR COMMUNICATIONS (WHETHER ORAL OR WRITTEN) FROM OR WITH BUYER OR IMPLIED BY TRADE, CUSTOM, PRACTICE, COURSE OF DEALING OR USAGE IN THE TRADE. BUYER AND MBX AGREE THAT THESE TERMS AND CONDITIONS ARE ACCEPTED IN GOOD FAITH BY BOTH PARTIES AS THE COMPLETE AND FINAL EXPRESSION OF THE TERMS AND CONDITIONS GOVERNING TRANSACTIONS BETWEEN THEM, AND FURTHER AGREE THAT THERE SHALL BE NO “BATTLE OF THE FORMS” AS DESCRIBED IN SECTION 2-207 OF THE UNIFORM COMMERCIAL CODE.
Buyer may not cancel or modify an order in whole or in part without MBX’s prior written consent, to be given or denied in MBX’s sole and absolute discretion, and which MBX may condition upon an adjustment of price and/or other terms and Buyer’s reimbursement to MBX of its costs and damages in connection with the order and its cancellation. Orders by telephone or email are accepted at the risk of Buyer, and shipments made before receipt of written confirmation are for the convenience of Buyer. To avoid the possibility of duplication, Buyer’s confirming order must be clearly marked “Confirmation.” Confirmation orders not so marked may, at MBX’s election, be treated as original open orders.
The purchase price of any Goods and/or Services sold and/or provided shall be as stated on the applicable MBX order acknowledgment or accepted purchase order; provided, however, that MBX may upon prior notice to Buyer assess a surcharge on the sale of any Goods and/or Services and/or without prior notice choose to pass along any price increase in MBX’s cost of the subject Goods and/or Services or surcharge imposed on MBX by its supplier(s) (including, but not limited to, any such surcharge predicated upon an increase in the cost of components), all after the date of the applicable MBX order acknowledgment or accepted purchase order. Such a surcharge by MBX or by MBX’s supplier(s), as well as any price increase, which is passed along will result, respectively, in an increase in price effective for any Goods and/or Services scheduled for shipment beginning immediately on either the date established by MBX as the effective date of such surcharge as noted in the notice provided or on the date such increase in MBX’s cost of the subject Goods and/or Services or surcharge is imposed on MBX by its supplier(s). Any price change resulting from a pass along of a surcharge or an increase of MBX’s cost may, as previously noted in this Section 3, be made effective by MBX with prior notice to Buyer and may be further adjusted by MBX periodically to reflect additional changes in costs to MBX. In any case, MBX shall be bound as to purchase price only upon shipment and/or acceptance by Buyer of all or any part of the Goods and/or Services ordered.
4. DELIVERY AND PERFORMANCE
Unless specifically agreed to by MBX in a separate signed writing, MBX does not guarantee any certain date of delivery and MBX shall not be liable to Buyer for any losses, costs, damages, charges or expenses incurred by Buyer or any other person or entity arising directly or indirectly out of a failure to deliver on any particular date. Further, no delay entitles Buyer to terminate or rescind its purchase unless such delay exceeds sixty (60) days. MBX reserves the right to defer delivery, to cancel the order or reduce the volume of Goods and/or Services delivered, all without liability of any kind whatsoever to Buyer, if MBX is prevented from or delayed in the carrying on of its business due to causes beyond MBX’s control, including, without limitation, strikes, lockouts or other labor difficulties, floods, fires, earthquakes, hurricanes or other unusually severe weather conditions, embargoes, war or other outbreak of hostilities, acts of terrorism, acts of God, acts of Buyer, market shortages, unavailability of Goods and/or Services or necessary materials, supplies or transportation services, any shift in raw material costs that prohibit or materially reduce the supply of Goods and/or Services or necessary materials or supplies from MBX’s suppliers, inability to obtain shipping space, machinery breakdowns, delays of carriers or suppliers, governmental acts and regulations or other contingency the non-occurrence of which was a basic assumption on which the purchase order was accepted. In such a case, MBX shall have no obligation to purchase substitute goods or make other substitute arrangements in order to complete delivery to Buyer or to ship substitute goods.
5. DELIVERY IN INSTALLMENTS
Unless otherwise expressly agreed with Buyer by MBX in a separate written document, MBX shall have the right to make delivery in installments. All installments shall be separately invoiced and paid as billed without regard to subsequent deliveries. Failure of Buyer to pay for any installment when due shall excuse MBX from making further deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept and pay for remaining installments.
6. WARRANTY; DISCLAIMER
All warranty and support services shall follow the current MBX LIMITED WARRANTY AND SUPPORT SERVICE POLICY. MBX will furnish a copy of said policy upon request.
MBX MAKES NO OTHER REPRESENTATIONS OR WARRANTIES REGARDING THE GOODS OR SERVICES. MBX EXPRESSLY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
7. LIMITATION OF MBX’S LIABILITY
IN NO EVENT SHALL MBX’S LIABILITY, REGARDLESS OF THE CAUSE THEREOF, EXTEND BEYOND REPLACEMENT OR REPAIR OF GOODS AND/OR SERVICES, NOR SHALL MBX HAVE ANY LIABILITY FOR LOSS OF PROFITS, LOSS OF TIME, COST OF LABOR EXPENDED, OR FOR ANY SEPARATE, SPECIAL, PUNITIVE, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL DAMAGES RESULTING FROM REJECTION OF FINISHED GOODS OR SERVICES BY BUYER OR BUYER’S CUSTOMER(S), EVEN IF MBX HAS BEEN WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE, AND EVEN IF ANY OF THE LIMITED REMEDIES IN THESE TERMS AND CONDITIONS FAILS OF ITS ESSENTIAL PURPOSE. FURTHERMORE, IN NO EVENT WILL MBX BE LIABLE FOR COSTS FOR PROCUREMENT OR MANUFACTURE OF SUBSTITUTE PRODUCT BY BUYER, OR FOR THE VALUE OF THE INTERNAL TIME OF BUYER TO REMEDY A BREACH.
To the fullest extent permitted by law, Buyer shall, at Buyer’s sole cost and expense, indemnify, defend, release and hold harmless MBX, its officers, directors, agents and employees, from and against any and all claims, demands, lawsuits or proceedings of any kind brought or threatened against MBX and/or its officers, directors, agents and employees based on any claim, in whole or in part, that the Goods as assembled by MBX and/or Services as performed by MBX in accordance with drawings, specifications or other information provided by Buyer (i) cause any actual or alleged injury or damage to any person (including death) or property, (ii) infringe or misappropriate the intellectual property rights of any third party (iii) fail to comply with any law, rule or regulation pertaining thereto and/or (iv) fail to be adequate for any particular purpose or use to which the Goods and/or Services are put after shipment by MBX to Buyer; and Buyer shall pay all costs, expenses, damages, liabilities and losses incurred by MBX, its officers, directors, agents and/or employees, as a result of any such actual or threatened claim, demand, lawsuit or proceeding, including, but not limited to, reasonable attorney’s fees.
9. LITIGATION AND COLLECTION
If any default is made in payment of amounts due for the sale of Goods and/or Services or upon any other breach of these Terms and Conditions, Buyer agrees to pay MBX’s reasonable costs of collection and/or compliance, including, but not limited to, reasonable attorneys’ fees and costs, not to exceed the amount allowed by any applicable statute.
10. FREIGHT CHARGES
MBX shall not be responsible for freight, transportation, insurance, shipping, storage, handling, demurrage or similar charges. If such charges are by the terms of sale included (whether in the price itself or as a separate line item), any increase in rates, including, but not limited to, any increase in applicable fuel surcharges, whether assessed by MBX or passed along by MBX to Buyer from a third-party carrier, becoming effective prior to the shipment date of the Goods and/or Services ordered, shall be the responsibility of Buyer.
11. TAXES, DUTIES, BROKERAGE AND OTHER FEES
In addition to the agreed purchase price for Goods and/or Services, Buyer shall pay to MBX any and all applicable taxes imposed by any present or future law on the sale, manufacture, delivery, use and/or other handling of Goods and/or Services, whether such taxes are characterized as goods and services tax, sales tax, use tax, excise tax, value added tax, business transfer tax or otherwise, but excluding income taxes normally paid by MBX.
12. FINANCIAL RESPONSIBILITY
Reasonable doubt on the part of MBX concerning the financial responsibility of Buyer (including, but not limited to, Buyer’s failure to pay on the net due date for Goods and/or Services) shall entitle MBX to stop operation/production, stop shipment, or stop any Goods and/or Services in transit without any liability whatsoever to Buyer, until such time as the Goods and/or Services have been paid for in full or until MBX is furnished reasonably satisfactory proof of Buyer’s financial responsibility, as determined in MBX’s sole and absolute discretion. If MBX suspends performance and later proceeds with fulfillment of such order, MBX shall be entitled to such extension of time for performance as is necessitated by the suspension. If MBX has agreed with Buyer to accept payment for any shipment by credit card, such credit card shall be charged at the time of sale upon Buyer’s confirmation that such shipment is to be paid for in such manner.
Notwithstanding delivery and passing of risk, Goods and/or Services sold by MBX to Buyer shall remain the property of MBX until Buyer has paid to MBX the agreed purchase price therefor (together with any accrued interest) and no other sums whatsoever are due from Buyer to MBX therefor. Until title to the Goods and/or Services passes to Buyer in accordance with this Section 13, Buyer shall: (i) hold the Goods and/or Services on a fiduciary basis and shall not part with possession otherwise than in the ordinary course of business; (ii) take proper care of the Goods and/or Services; (iii) take all reasonable steps to prevent damage to or deterioration of the Goods and/or Services; and (iv) keep the Goods and/or Services free from any charge, lien or other encumbrance. From delivery until title to the Goods passes to Buyer, Buyer shall retain risk of loss for the Goods, shall insure the Goods for their full value with a reputable insurer, and on request, shall produce the policy or policies of insurance to MBX. Further, until title to the Goods passes to Buyer, Buyer shall hold the proceeds of any claim under any such insurance policy or policies in trust for MBX and shall immediately account to MBX with the proceeds.
14. PURCHASE MONEY SECURITY INTEREST (“PMSI”)
In accordance with the UCC, Buyer hereby grants, and MBX hereby retains, a PMSI in all Goods sold by MBX to Buyer, along with any products into which such Goods are converted or included by Buyer and the proceeds of sale or other transfer by Buyer of any and all said products or of the Goods themselves, until such time as MBX is fully paid all amounts owing by Buyer for such Goods and any related Services, at which time said PMSI shall be immediately released. In the event MBX is not timely paid for any Goods and/or Services, in addition to any other rights to which MBX may be entitled hereunder or at law or equity, MBX shall have all rights granted under the UCC regarding enforcement of its PMSI. MBX reserves the right to, and Buyer acknowledges and agrees that MBX may, notify any of Buyer’s secured creditors of MBX’s PMSI. Buyer also authorizes MBX to file with appropriate authorities financing statement(s) and/or other documents deemed necessary by MBX to give notice of MBX’s PMSI. Buyer shall take all reasonable steps and cooperate with MBX in perfecting MBX’s PMSI.
If, at any time, (i) Buyer fails to pay to MBX any amount in full when due, or otherwise fails to perform any other obligation owed to MBX; (ii) Buyer becomes insolvent or makes an assignment for the benefit of creditors or is adjudged bankrupt or a receiver or trustee of Buyer’s property is appointed; or (iii) a levy, execution or attachment is made of any material portion of Buyer’s property, MBX may, in its sole and absolute discretion, terminate these Terms and Conditions and refuse to make further deliveries and/or repossess any Goods and/or Services for which MBX has not been paid in full (in cash or cleared funds) or continue to perform but refuse to make any shipments except upon the receipt of payment in full (in cash or cleared funds) prior to shipment. All amounts payable to MBX are due immediately upon termination pursuant to this Section 15 despite any other provision to the contrary herein.
16. CONTROLLING LAW
These Terms and Conditions and the contract by and between Buyer and MBX for the purchase and sale of Goods and/or Services created hereunder is deemed made in Illinois and shall be governed as to validity, interpretation, construction, effect, and in all other respects, by the laws of the State of Illinois, without giving effect to the conflict of laws principles thereof. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions or the sale of goods or services from MBX to Buyer.
Neither any failure nor any delay on the part of MBX in exercising any rights hereunder shall operate as a waiver of any of MBX’s rights. Any waiver by MBX of any breach of, or any default under, any provision of these Terms and Conditions by Buyer will not be deemed a waiver of any subsequent breach or default. All rights and remedies granted herein are in addition to all remedies available at law or in equity.
18. EQUAL OPPORTUNITY AND AFFIRMATIVE ACTION
MBX agrees that it:
- (a) Will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. MBX will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. In furtherance of this goal, MBX will comply with Executive Order 11246, as amended, and its implementing regulations, along with Department of Labor regulations. MBX incorporates by reference herein the equal opportunity clause contained in 41 C.F.R. § 60-1.4(a).
- (b) Will not discriminate against any employee or applicant for employment because he or she is a special disabled veteran (as the term is defined in 41 C.F.R. § 60-250.2(n)(1)), disabled veteran (as the term is defined in 41 C.F.R. § 60-300.2(n)), veteran of the Vietnam era (as the term is defined in 41 C.F.R. § 60-250.2(p)), recently separated veteran (as the term is defined in 41 C.F.R. §§ 60-250.2(r) and 60-300.2(q)), other protected veteran (as the term is defined in 41 C.F.R. §§ 60-250.2(q) and 60-300.2(p)) or Armed Forces service medal veteran (as the term is defined in 41 C.F.R. § 60-300.2(r)) in regard to any position for which the employee or applicant for employment is qualified. MBX agrees to take affirmative action to employ, advance in employment and otherwise treat qualified disabled individuals without discrimination based on their status as a special disabled veteran, disabled veteran, veteran of the Vietnam era, recently separated veteran, other protected veteran or Armed Forces service medal veteran in all employment practices. In furtherance of this goal, MBX will comply with Section 402 of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, and its implementing regulations, along with Department of Labor regulations. MBX incorporates by reference herein the equal opportunity clauses contained in 41 C.F.R. §§ 60-250.5(a) and 60-300.5(a).
- (c) Will not discriminate against any employee or applicant for employment because they are an individual with a disability (as the term is defined in 41 C.F.R. § 60-741.2(n)(1)) regarding any position for which the employee or applicant for employment is qualified. MBX agrees to take affirmative action to employ, advance in employment and otherwise treat qualified individuals with disabilities without discrimination based on their physical or mental disability in all employment practices. In furtherance of this goal, MBX will comply with Section 503 of the Rehabilitation Act of 1973, as amended, and its implementing regulations, along with Department of Labor regulations. MBX incorporates by reference herein the equal opportunity clause contained in 41 C.F.R. § 60-741.5(a).
19. PAYMENT TERMS
Payment in full is due at time of delivery. Issuance of credit to Buyer by MBX shall be in MBX’s sole and absolute discretion. If credit is extended to Buyer, standard payment terms shall be net thirty (30) days, unless otherwise stated in a separate writing signed by an authorized agent of MBX. Time shall be of the essence in payment. No payment shall be deemed to have been received until MBX has received cleared funds.
In the event Buyer fails to make payment to MBX of any amounts due and owing (including any applicable surcharge or freight charge) by the net due date, MBX may charge interest on the outstanding balance at an annual rate of 18% or the highest rate allowed by law (whichever is less) until paid in full. Payments after accrual of such interest charges shall be applied first against such interest charges and secondly against past due invoices. In the event of any such failure to make timely payment, MBX reserves the right to revoke credit terms, if any, extended to Buyer. Buyer’s account shall also be charged with any fees associated with insufficient funds.
Buyer shall make all payments due to MBX for Goods and/or Services sold without any deduction whether by way of set-off, counterclaim, abatement or otherwise, unless Buyer has a valid court order requiring an amount equal to such deduction to be paid by MBX to Buyer.
In no event shall MBX be responsible for any costs associated with the processing of invoices to Buyer with a third party or otherwise at Buyer’s request and any such costs shall be separately paid or handled by Buyer at its sole cost and expense.
If Buyer exports the Goods and/or Services outside of the United States, Buyer agrees to comply with all relevant laws and regulations, including, but not limited to, those of the United States Department of Commerce and the United States Export Administration Act, so as to ensure that the Goods and/or Services are not exported in violation of any applicable law or regulation.
Buyer may not assign its rights or obligations hereunder (whether voluntarily, involuntarily, by operation of law, transfer of majority or controlling interest or otherwise) without the prior written consent of MBX. These Terms and Conditions shall be binding upon Buyer and its successors and permitted assigns.
If any provision of these Terms and Conditions shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and Conditions, and the remaining Sections shall continue in full force and effect.
23. EXCLUSIVE AGREEMENT
The contract by and between Buyer and MBX for the purchase and sale of Goods and/or Services created hereby constitutes the entire agreement by and between Buyer and MBX with regard to the subject matter hereof and shall exclusively determine the rights and obligations of Buyer and MBX with regard to the purchase and sale of Goods and/or Services until such time as a formal Master Services Agreement and applicable Statement of Work is executed and may not be modified by Buyer except in separate writing signed by an authorized agent of MBX.