These Terms and Conditions of Sale (these “Terms”) shall apply to all Products and services (“Services”) provided by Midwest Industrial Rubber, Inc. (“MIR”) and may be changed from time to time at MIR’s sole discretion. As used herein, the term “Products” shall mean an item or items offered for sale by MIR. These Terms and any written quotation, confirmation of sale, or invoice issued by MIR comprise the entire agreement between MIR and its Buyers, and supersede all prior or contemporaneous communications, understandings, agreements, negotiations, representations and warranties. As used herein, the term “Buyer” shall mean a person, organization, or entity that purchases Products from MIR. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products or Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
Order Acknowledgement; Cancellation:
Buyer shall submit to MIR a written purchase order for each purchase by Buyer of any Products and any associated Services, specifying the Products to be purchased, desired delivery date and shipment address. MIR may, in its discretion, accept or reject any purchase order. MIR will forward an acknowledgement of all orders entered directly, via fax, e‐mail, or phone call. A field representative or other representative has no authority to change these Terms, or to otherwise bind MIR without proper authorization from one of the following: MIR’s President, or MIR’s Regional VP’s. Buyer is required to check its order acknowledgement for accuracy immediately upon receipt of an order acknowledgment. Order acknowledgements will be considered accurate and accepted by the Buyer, unless the Buyer informs MIR of any discrepancy within 48 hours of receipt of the order acknowledgment.
Items not referred to that are supplied or performed shall be charged for separately.
In no event may changes, amendments or corrections be accepted on acknowledged orders once production has begun. Cancellation or suspension of orders by the Buyer is subject to MIR’s written approval, and Buyer shall be responsible for all costs and expenses MIR incurs up to the time of cancellation or suspension.
Terms of Payment:
Unless otherwise agreed in writing, payment terms are net thirty (30) days. Unpaid accounts may result in the interruption of supply of Products and/or Services, until such time as MIR has received payment from Buyer. In addition, interest shall accrue on any unpaid balance from the date of invoice at the rate of one and one-half percent (1.5%) per month, but in no event at a rate greater than the maximum rate permitted by applicable law. Credit card payments will be charged to the card on the day of shipment. Any payments charged to a credit card after the shipment date will be assessed a four percent (4%) handling charge. Should it become necessary for MIR to pursue or enforce collection of the amounts due from Buyer through legal proceedings or otherwise, Buyer agrees to pay all of MIR’s costs, expenses, and fees, including reasonable attorneys’ fees. In addition to all other remedies available under these Terms or at law (which MIR does not waive by the exercise of any rights hereunder), MIR shall be entitled to suspend the delivery of any Products and performance of any Services if the Buyer fails to pay any amounts when due hereunder. The Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with MIR, whether relating to MIR’s breach, bankruptcy or otherwise. As collateral security for the payment of the purchase price of the Products, the Buyer hereby grants to MIR a lien on and security interest in and to all of the right, title and interest of the Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code of the State of incorporation of the applicable selling entity.
All prices are net price, exclusive of taxes, and are subject to change without notice and are therefore considered non‐binding. In the case of verbal or written quotations, such quotations are valid for thirty (30) business days from the date of the quotation. Unless otherwise agreed upon, all Products are billed at the prices in effect at the time of shipment. Possession of price information by any person is not to be construed as an offer to sell the Products at the prices therein.
Unless otherwise agreed in a writing signed by MIR and the Buyer, delivery is F.O.B. shipping point. Transit risks and the risk of loss are borne by the Buyer, even in cases where the goods may be delivered free of charge. Delivery dates may be subject to change due to conditions beyond MIR’s control. MIR will exercise reasonable effort to meet specified delivery dates, but MIR cannot guarantee it will do so, or be held responsible for added costs or expenses which may result from such delays. Buyer may not withdraw wholly or partially from the order due to a delivery delay. If for any reason the Buyer fails to accept delivery of any of the Products on the date fixed pursuant to MIR’s notice that the Products are available for pickup or, as applicable, have been delivered, or if MIR is unable to deliver the Products on the agreed upon date because the Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to the Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) MIR, at its option, may store the Products until the Buyer picks them up, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). With respect to the Services, the Buyer shall (i) cooperate with MIR in all matters relating to the Services and provide such access to the Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by MIR, for the purposes of performing the Services; (ii) respond promptly to any MIR request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for MIR to perform Services in accordance with the requirements of this Agreement; (iii) provide such Buyer materials or information as MIR may request to carry out the Services in a timely manner and ensure that such Buyer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
Drop Ship Policy:
MIR will ship to any location requested by Buyer. Delivery charges per the terms in the Section entitled Delivery above shall apply, and Buyer shall be responsible for all licenses and other approvals necessary to ship, including without limitation those relating to customs and export controls.
Expedited shipping charges will be charged to Buyer and billed in full. If Buyer specifies special routing involving any excess expense, any freight charges therefore will be charged back in full to the Buyer on the invoice. No allowance is made for cartage. MIR reserves the right to ship from any stocking location in the United States to fulfill the delivery date requested or promised. Certain materials and substances require special D.O.T. (HazMat) approved packaging and handling. Costs for these services are additional and will be billed to Buyer, in addition to standard freight charges.
Buyer shall report claims for all shortages to MIR within five (5) days of receipt of Product. Any tardy or subsequent claims shall not be permitted.
MIR will not accept Product for return unless MIR has issued a returned Material authorization (“RMA”). Once an RMA has been issued, Buyer must return the Product to MIR within ten (10) days; otherwise MIR shall not accept the return and Buyer shall pay MIR for the Product. Buyer shall clearly note the RMA (including the RMA number) on the returned package. Restocking charges shall apply in all cases. Restocking charges shall be calculated as the greater of two hundred dollars ($200) or thirty percent (30%) of the sales price of the Product. Buyer shall bear the return freight expense and risk of shipment. Specialty fabricated materials shall not be accepted for return. Returned Product found to be not defective as a result of MIR’s manufacture will be held by MIR for thirty (30) days. After thirty (30) days, any such returned Product not claimed or requested by Buyer shall become the property of MIR. Product that Buyer orders in error will be accepted in return through the normal RMA procedure within ninety (90) days of purchased by Buyer. Once RMA has been issued, materials must be returned within 10 days and restocking charges will apply in all cases.
Blanket Order Policy:
Blanket purchase orders are limited to a 12‐month term. Blanket purchase order pricing is in effect for the duration of the Term but not to exceed twelve (12) months. A release schedule is required before a blanket purchase order can be accepted. The blanket purchase order quantity represents a firm commitment by the Buyer. Buyer will be invoiced for unreleased balance on final release date of blanket purchase orders or Hold For Release agreements.
Minimum Order Value:
The minimum order value for Product is one hundred dollars ($100.00). All orders with a total value of less than one hundred dollars ($100.00) will be invoiced at one hundred dollars ($100.00).
After hours charges will be added to any invoice requiring after hours service. After‐hours is defined as any time when MIR’s plant is closed, or no qualified associates are on premises.
All goods are inspected prior to shipment. Product proven, to MIR’s satisfaction, to be defective in either material or workmanship within one (1) year of invoicing will be repaired or replaced at MIR’s discretion, free of charge, providing the Product has been applied and used properly and in accordance with standard practices. This warranty does not cover defects caused by normal wear and tear, accidents, misuse or neglect. EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION, MIR MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Products manufactured by a third party (“Third Party Product“) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Products. Third Party Products are not covered by this warranty. For the avoidance of doubt, MIR MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. THE REMEDIES SET FORTH IN THIS SECTION SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND MIR’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.
Limitation of Liability:
IN NO EVENT SHALL MIR BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, DOWN TIME, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT MIR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL MIR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO MIR FOR THE PRODUCTS AND SERVICES THAT ARE THE SUBJECT OF THE APPLICABLE CLAIM OR $50,000, WHICHEVER IS LESS.
No waiver by MIR of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by MIR or authorized representative of MIR. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
The supplying of Products by MIR and the rights, duties, obligations and remedies of MIR and Buyer shall be governed by or construed in accordance with the laws of the state of MIR’s plant sourcing the Products.
Compliance with Law:
The Buyer shall comply with all applicable laws, regulations and ordinances. The Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. The Buyer shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by the Buyer. The Buyer assumes all responsibility for shipments of Products requiring any government import clearance. MIR may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products.
All non-public, confidential or proprietary information of MIR, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, Buyer lists, pricing, discounts or rebates, disclosed by MIR to the Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by MIR in writing. Upon MIR’s request, the Buyer shall promptly return all documents and other materials received from MIR. MIR shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party.
MIR shall not be liable or responsible to the Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of MIR including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, nationally or locally suggested or required shutdowns, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.