Terms and Conditions
STANDARD TERMS AND CONDITIONS OF SALE
Any and all references herein to “Seller” or the “Corporation” shall be deemed to mean McCann Fabrication, its successors and assigns. Any and all references to “Purchaser” or “Buyer” shall be deemed to mean that party(ies) purchasing services, materials, or product from the Seller, whether by written contract, purchase order, or otherwise.
- CONTROLLING PROVISION
Any product shipped to the Purchaser in any other state shall be considered as a shipment made in interstate commerce. Proposals and contracts shall be interpreted under the laws of the State of Maine. All sales (whether or not in writing or pursuant to purchase order or contract) are expressly limited to these Terms and Conditions of Sale, and the rights of the parties shall be governed exclusively by the Terms and Conditions hereof. Any reference in any purchase order or contract to terms and conditions which supersede these Terms and Conditions shall be deemed null and void. No sales shall be final until acknowledged in writing by Seller’s home office in New Gloucester, Maine. The Purchaser agrees that these Terms and Conditions of Sale apply to the transactions contemplated in any proposal or contract between the Seller and the Purchaser and the rights of the parties shall be governed exclusively by the terms hereof notwithstanding contrary terms and conditions in the Purchaser’s purchase order and/or other related documents. Issuance of a purchase order to the Seller, or request by the Purchaser for Seller’s services or work, shall constitute and be deemed to constitute acceptance of these Terms and Conditions of Sale.
- TERMS AND PRICES
- All payments are due in lawful currency of the United States in immediately available funds. All payments are due and payable in cash upon delivery. Payments are required in advance for orders requiring Seller to supply material or labor that is estimated to be of greater value than the liquidation value of Purchaser supplied material.
- Credit may be extended subject to Seller approval. Unless otherwise stated, all payments on Seller approved credit accounts are One Percent (1%) within Ten (10) days from the date of delivery or shipment, with the balance net Thirty (30) days from the date of delivery or shipment. A late charge of 1.5% per month will be due on any unpaid overdue outstanding balance. The Purchaser agrees to pay all costs of collection including, but not limited to, reasonable attorneys’ and paralegal fees and costs paid or incurred in enforcing the provisions of these Terms and Conditions of Sale.
- Prices and deliveries are EX Works New Gloucester, Maine, unless otherwise specifically stated. TITLE TO THE PURCHASED PRODUCT AND RISK OF LOSS SHALL PASS TO THE BUYER WHEN GOODS ARE PLACED AT THE DISPOSAL OF THE BUYER. Seller shall not be responsible to the Purchaser for any loss or damage to the product in transit unless the Seller is the party transporting product. Any claims for loss or damage to the product sustained during shipment in such cases are between the Carrier and the Purchaser.
- Prices do not include sales, use, excise or similar taxes. Consequently, taxes applicable to the sale or use of the Seller’s product shall be paid by the Purchaser unless the Purchaser shall have provided the Seller with a tax exemption certificate acceptable to the taxing authorities of appropriate jurisdiction.
- Prices on accepted orders covering Seller’s manufactured material and product are firm for a period of Thirty (30) days from date of acceptance of the purchase order by Seller. Seller reserves the right to increase the price at the time of shipment in the actual amount of any increase in cost to Seller of purchased product, material, or any component thereof. No such increase shall be in conflict with any applicable law or governmental regulations.
Seller will make every reasonable effort to meet shipping dates promised and to maintain production schedules consistently therewith, HOWEVER SELLER IS NOT LIABLE FOR CLAIMS OF DAMAGES DUE TO FAILURE FOR ANY REASON TO MEET SUCH SCHEDULED SHIPPING DATES AND SUCH FAILURE TO MEET SCHEDULED SHIPPING DATES SHALL NOT BE SUFFICIENT CAUSE FOR CANCELLATION WITHOUT PAYMENT OF LIQUIDATED DAMAGES AS SPECIFIED IN DARAGRAPH 5.
- INSURANCE AND INDEMNIFICATION
- At Seller’s option, the Purchaser shall provide and maintain adequate insurance for the product specified against loss or damage by fire or other causes during the time between delivery to the carrier by the Seller and the tender of full and final payment by Purchaser. Said insurance shall provide for coverage in an amount equal to the purchase price of the specified product. Loss or damage by fire or other causes within such period SHALL NOT relieve the Purchaser from Purchaser’s obligations under this Agreement. Purchaser shall provide Seller with proof of insurance prior to Seller’s delivery to the carrier. Failure to take out and maintain such insurance or to pay any of the premiums thereon as the same shall fall due shall entitle the Seller to declare the entire amount of purchase money herein mentioned to be immediately due and payable, and shall entitle the Seller to recover possession of said machinery and equipment. The provisions of this Section 4(a) shall be inapplicable in the event that the Seller assumes responsibility for delivery of the product to the Purchaser.
- Seller shall maintain and carry liability insurance, including employer’s liability, workmen’s compensation, general liability, public liability, and property damage liability, in such amounts as shall be deemed reasonable by the Seller.
- Notwithstanding anything elsewhere set forth herein, in no event shall Seller be liable for any indirect, special, punitive, consequential, or incidental damages, included but not limited to, damages for loss of use of facilities or equipment, loss of revenue, loss of profits, or loss of goodwill, regardless of whether Seller (1) has been informed of the possibility of such damage or (2) is negligent. In all events, indemnification and damages shall, in the aggregate, be limited to an amount equal to the lesser of (1) damages suffered by Buyer as the direct result of Seller’s negligence or (2) the total amount paid by Buyer to Seller for the products or services herein provided.
It is understood and expressly agreed that in the event of cancellation of work ordered or refusal by the Purchaser to accept the product once completed, the Seller shall be entitled to demand and receive from the Purchaser, as liquidated damages and not as a penalty, the price quoted by the Seller for completion of work, multiplied by the percentage of completion to the date of cancellation, plus all material costs incurred by the Seller.
- RESTOCKING CHARGE
The Seller is not required to accept any product returned for credit, regardless of whether the product is unused or in good condition. Acceptance of any product or material by the Seller shall be on such terms and conditions as the Seller, in its sole discretion, shall determine.
Seller warrants the products herein described, to the extent that said products are of Seller’s sole and exclusive manufacture, against defects of material and workmanship under normal use and service, for a period of 3 months from the date the product is placed at the disposal of the Purchaser. This warranty does not cover ordinary wear and tear, corrosion, abuse, misuse, over-loading, altered products, or materials not of Seller’s manufacture.
No person, agent, representative or dealer is authorized to give any warranties on behalf of Seller or to assume for Seller any other liability in connection with any of Seller’s products. If repairs or replacements are made by the Purchaser without Seller’s prior written consent, Seller’s warranty shall cease to be in effect. No allowance will be granted for any repairs or alterations made by the Purchaser without Seller’s prior written consent. Machinery, equipment and accessories furnished by Seller, but manufactured by others, are warranted only to the extent of the original manufacturer’s warranty to Seller.
NOTWITHSTANDING ANYTHING ELSEWHERE SET FORTH HEREIN, THE SELLER DISCLAIMS RESPONSIBILITY AND LIABILITY FOR, AND PROVIDES NO WARRANTY WITH RESPECT TO, THE USE OF ANY PRODUCT WHICH IS BEYOND THE PURPOSES FOR WHICH SAID PRODUCT WAS DESIGNED FOR USE AND SERVICE. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION IN THESE STANDARD TERMS AND CONDITIONS AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, ALL PRODUCTS ARE SOLD “AS IS WITH ALL FAULTS.” IN NO EVENT SHALL THE SELLER HAVE ANY RESPONSIBILITY FOR THE DESIGN OF ANY PRODUCT PROVIDED BY THE PURCHASER.
EXCEPT AS STATED IN SECTION 8 LIABILIPT AND SECTION 7 WARRANTY, AND EXCEPT AS TO TITLE, THERE ARE NO GUARANTEES OR WARRANTIES OF MERCHANTABILITT, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, EXPRESS, IMPLIED OR STATUTORY, AND SELLER SHALL HAVE NO LIABILITY FOR CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, HOWSOEVER CAUSED.
THE WARRANTIES SET FORTH IN THIS SECTION 7 SHALL NOT APPLY UNTIL ALL PRODUCTS HAVE BEEN PAID FOR IN FULL BY THE PURCHASER.
Seller agrees, at its option, to repair at the point of shipment or to replace without charge EX Works point of shipment, any part or parts of products of Seller’s manufacture which, within the specified warranty period, shall be proved to Seller’s reasonable satisfaction to have been defective when shipped, provided the Purchaser promptly notifies Seller, in writing, of such alleged defect.
Seller’s liability to Purchaser, whether in contract or in tort arising out of warranties, representations, instructions, or defects from any cause shall be limited to repairing or replacing of the defective part or parts as aforesaid, EX Works point of shipment. No liability whatsoever shall attach to Seller until said products have been paid for.
- LIMITATION OF TOTAL CUMULATIVE LIABILITY
The cumulative total liability of Seller, its subcontractors and its or their subcontractors, suppliers, agents, representatives and employees, with respect to claims, costs, liabilities and damages under or related to these Terms and Conditions or the Contract to which they relate, whether based on contract, warranty, tort (including negligence of any nature, whether sole or concurrent), strict liability or otherwise, shall not exceed in the aggregate an amount equal to the total price of the contract paid to Seller. To the extent any provision of any contract between the Seller and the Buyer establishes a lower limit of liability of Seller with respect to a particular component or type of liability, such lower limit of liability shall control with respect to such component or type of liability, notwithstanding the cumulative total limitation of liability set forth above. The reasonable value of any corrective work performed by or on behalf of Seller shall be included toward the cumulative total liability of Seller as provided above.
- EXCLUSION OF CONSEQUENTIAL DAMAGES
Notwithstanding any other provision of this contract, Seller shall have no liability whatsoever to Purchaser for any special, incidental, indirect or consequential loss, injury or damage of any nature such as, but not limited to, loss of income, profit, business opportunity or production or loss by reason of plant shutdown, or increased use of raw materials, energy or labor, claims of customers, increased financing costs or insurance premiums, whether based on contract, warranty, tort (including negligence of any nature, whether sole or concurrent), strict liability or otherwise.
- EXCLUSION OF PUNITIVE DAMAGES
EXCEPT TO THE EXTENT PROSCRIBED BY THE LAWS OF THE STATE OF MAINE, PURCHASER EXPRESSLY WAIVES ANY RIGHT TO CLAIM OR TO SEEK RECOVERY OF EXEMPLARY OR PUNITIVE DAMAGES FROM SELLER FOR ANY ACT OR OMISSION ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NONPERFORMANCE OF SELLER’S OBLIGATIONS UNDER ANY CONTRACT BETWEEN SELLER AND PURCHASER
- SOLE TERMS
Failure of the Seller to object to provisions contained in Purchaser’s purchase orders or other communications shall not be deemed a waiver of the Terms and Conditions hereof nor acceptance of such provisions. The printed terms hereof, together with all documents which incorporate these terms or which are executed in conjunction therewith, are the entire contract between the parties. No oral statements, warranties, representations, stipulations or terms have any binding effect or constitute a part of this contract.
These Terms and Conditions, and all documents which incorporate these Terms and Conditions, may not be changed orally, but only by an agreement in writing signed by the parties hereto.
In the event that any portion of these Terms and Conditions or any documents which incorporate these Terms and Conditions are declared void or unenforceable by a court of competent jurisdiction, the remaining portion shall remain in full force and effect, unless otherwise agreed upon by the parties.
Purchaser and Seller agree that any and all disputes or claims from one party against the other arising out of or relating to these Terms and Conditions or any contract or documents executed in conjunction therewith shall be resolved solely by means of binding arbitration conducted in New Gloucester, Maine in accordance with the Rules of American Arbitration Association governing commercial arbitration. The Purchaser and Seller shall each agree upon a single arbitrator. In the event that the parties are unable to agree upon a single arbitrator, then each party shall select one arbitrator and the two arbitrators so selected shall select a third arbitrator. The cost of any single arbitrator agreed upon by the parties shall be borne equally between the parties. Otherwise, each party shall bear the cost of the arbitrator so selected by that party and they shall share the expense of any arbitrator selected by the two arbitrators previously selected.