Terms & Conditions
Terms & Conditions - Revised December 30, 2015
Section 1. Introduction; Quotations and Orders
(a) These Terms and Conditions of sale shall apply to all quotations, offers to sell, and purchase orders (collectively, “Orders”) accepted by Midé Technology Corporation (“Midé”) with respect to the products, parts, and any other materials (“Goods”) referenced in any Order. Midé's acceptance of any Order issued by the buyer described in any Order (“Buyer”) is expressly made conditional on and subject to these Terms and Conditions, irrespective of whether Buyer accepts them in writing, by implication, or by acceptance of and payment for the Goods. These Terms and Conditions shall govern the contractual arrangement entered into between Midé and Buyer with respect to the Goods to the exclusion of any terms or conditions of purchase proposed by Buyer.
(b) Any price and delivery schedule quoted by Midé in any Order is valid for a period of sixty (60) days from the date of the Order. An Order prepared by Midé shall only be effective and binding on Midé if accepted by Buyer without modification within such time period. An Order prepared by Buyer shall only be effective and binding on Midé when accepted in writing by Midé.
(c) These Terms and Conditions, together with any Order, shall constitute the agreement (“Agreement”) by and between Midé and the Buyer.
Section 2. Deliveries
(a) Goods shall be made available by Midé to Buyer or Buyer’s carrier Ex Works (EXW, as that term is defined in Incoterms 2000 published by the International Chamber of Commerce) at Midé’s warehouse at 200 Boston Avenue, Medford, Massachusetts 02155, U.S.A.. Buyer shall select the carrier and other shipping companies and agents unless otherwise agreed in writing by Midé. Buyer shall be responsible for and shall pay all freight, shipping, other transportation, export clearance, brokerage, insurance, and associated expenses and duties that may be incurred in transporting any Goods to Buyer unless otherwise agreed in writing by Midé.
(b) Risk of loss with respect to the Goods purchased by Buyer shall pass to Buyer at the point where the Goods pass from Midé’s loading dock onto the vehicle used by Buyer’s carrier.
(c) Goods shall be packaged by Midé in accordance with good commercial practice for domestic shipment unless otherwise agreed in writing by Midé. Any additional handling or preparation for shipment specified by Buyer shall be at Buyer’s additional expense.
(d) Buyer may not terminate, suspend performance, reschedule or cancel delivery or issue a "hold" order in whole or in part, without Midé's prior written consent and upon terms that will compensate Midé for any loss or damage resulting from such action. Buyer’s liability shall include, but not be limited to, the price of Goods delivered or held for disposition, the price of services already performed, and for work in process, incurred costs and a reasonable allocation of general and administrative expenses, plus Midé's loss of profits. If delivery of the Goods is delayed by Buyer, Midé may invoice Buyer for the Goods when Midé is prepared to ship and Buyer will reimburse Midé for any storage costs incurred.
(e) Midé shall be excused for delays in meeting any delivery schedule if such delay or failure results from any cause beyond the control of Midé, including solely by way of example and without limitation, delays caused by Buyer, Acts of God, strikes and other labor disputes, government regulations, war, terrorism, national emergency, public disorder, and catastrophes of nature, fire and explosion, and affecting Midé or any supplier to Midé.
(f) Midé shall not be responsible for any installation, testing, maintenance, or repair of Goods purchased by Buyer unless otherwise agreed in writing by Midé.
Section 3. Export Controls and Intellectual Property
(a) Buyer acknowledges that the Goods sold by Midé are subject to export control laws and regulations of the United States of America. Midé will have no obligation to sell or deliver Goods until Buyer has obtained all required export authorizations, if required. Buyer acknowledges that the laws of the United States of America may restrict the ability of the Buyer to re-sell or otherwise transfer the Goods. Buyer agrees that it will not use, distribute, sell, re-sell, transfer, or transmit the Goods except in compliance with United States laws and regulations.
(b) Goods and the manuals and other literature (“Manuals”) which may be provided to Buyer by Midé in connection with such Goods contain proprietary information of Midé including, without limitation, copyright material, trademarks and trade names used by Midé to brand its Goods and services, trade secrets, mask works, and patented works (collectively, “Proprietary Information”). All Proprietary Information shall remain Midé property.
(c) Subject to Buyer paying Midé in full for the Goods, Midé hereby grants to Buyer a limited, worldwide, perpetual, royalty-free, and non-exclusive license to (i) use the Goods solely for the purpose for which they are intended to serve as designed by Midé and for no other purpose and (ii) use any associated Manuals solely in connection with the installation, testing, use, maintenance, and repair of the Goods.
(d) Buyer shall not reverse engineer the Goods or copy any Manuals provided by Midé, shall not attempt to do any of the foregoing, and shall not permit any of its employees, agents, or anyone else to do, or attempt to do, any of the foregoing.
Section 4. Warranties
(a) When installed, maintained, and repaired in accordance with all of the directions, instructions, diagrams, and safety warnings, cautions, and other notices set forth in Midé’s Manuals, and if not damaged by persons, actions, or inactions unrelated to Midé, Midé warrants that the Goods will be free from defects in workmanship and materials in normal use and operation within the ninety (90) calendar day period following the date of delivery of the Midé Goods to Buyer as described in Section 2(a). In the event of any such defect of which Midé is informed in writing within such ninety (90) calendar day period, Midé’s sole responsibility is, at Midé’s option, to provide replacement parts at no cost to the Buyer, to repair the Goods at Midé’s facilities, or to refund the cost of the Goods to the Buyer upon the return of the defective Goods. Requests for compliance with this express, limited warranty shall be honored only when made by the Buyer. No Goods may be returned to Midé without its prior authorization. Midé shall pay transportation charges on Goods found by Midé to be defective. This express, limited warranty shall be null and void if any modifications or alterations are made to any Goods by any person or entity other than Midé.
(b) THE WARRANTY STATED ABOVE IN SECTION 4(a) IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY MIDÉ. MIDÉ DOES NOT MAKE, AND BUYER EXPRESSLY WAIVES, ALL OTHER WARRANTIES EXPRESS OR IMPLIED. ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED BY MIDÉ. MIDÉ SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT, IN RESPECT OF GOODS, OR OTHERWISE FOR LOST PROFITS OR REVENUES, OR FOR CONSEQUENTIAL, COMPENSATORY, EXEMPLARY, INCIDENTAL, OR PUNITIVE DAMAGES, EVEN IF MIDÉ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE STATED EXPRESS, LIMITED WARRANTY DESCRIBED IN SECTION 4(a) IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF MIDÉ FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS AND ANY ORDER, THE GOODS, OR OTHERWISE.
(c) IN ANY EVENT, THE LIABILITY OF MIDÉ FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER SHALL BE LIMITED TO THE AMOUNT THEN PREVIOUSLY PAID TO MIDÉ BY BUYER FOR ANY GOODS THAT DO NOT MEET THE EXPRESS, LIMITED WARRANTY DESCRIBED IN SECTION 4(a).
(d) Midé requests immediate notification of any claims arising from damage in transit in order to determine if carrier responsibility exists.
Section 5. Buyer Indemnification
Buyer acknowledges and agrees that Buyer is responsible for the installation, testing, use, maintenance, repair, and replacement of Goods; that Midé shall not be responsible for any negligent or improper installation, testing, maintenance, repair, and replacement of Goods; and that Buyer shall defend, indemnify and hold Midé harmless from, against and in respect of any injury, damage, loss or claim, including legal fees with respect to, or arising out of, the installation, testing, maintenance, repair, and replacement of Goods.
Section 6. Invoices and Payment
(a) Unless otherwise specified in any Order, Buyer shall pay Midé for any Goods not later than thirty (30) calendar days after the delivery of the Goods as described in Section 2(a). All payments are to be made in United States dollars and shall not include any deductions for exchange fees, currency fluctuations, wire transfer, or other similar charges.
(b) Interest charges for late payments shall accrue are agreed to incur at the lesser of (i) 1.5% per month (18% per year) and (ii) the maximum rate permitted by applicable law.
(c) Non-payment of any invoice for over sixty (60) calendar days constitutes a breach of these Terms and Conditions and relieves Midé of the responsibilities defined herein and in any related Order for delivery and warranty. Buyer shall pay all of Midé’s collection costs in the event of court enforcement by Midé.
(d) The prices provided for in any Order do not include any of the following: (i) present or future United States, state, or foreign taxes that pertain to the sale, purchase, or use of the Goods including, without limitation, the Federal Manufacturer’s Excise Tax, state sales and use taxes, and value added taxes (collectively, “Taxes”), or (ii) United States or foreign import or export customs tariffs, taxes, and other duties (collectively, “Duties”). All Taxes will be invoiced to and paid by Buyer, unless paid by the Buyer directly with written confirmation thereof to Midé or Buyer submits to Midé a tax exemption certificate. All Duties shall be paid by Buyer directly to the person, entity, or government authority levying the Duties.
(e) This Agreement shall be deemed to be a security agreement by which Buyer hereby grants to Midé a purchase money security interest in the Goods pending payment in full. Buyer hereby grants to Midé a limited power of attorney solely for the purpose of executing and filing one or more financing statements, amendments thereto, and other certificates or instruments necessary for Midé to perfect such security interest.
Section 7. Miscellaneous Terms
(a) This Agreement shall be construed, interpreted ,and governed by and in accordance with the laws of the Commonwealth of Massachusetts without regard to, or application of, the Commonwealth’s rules regarding the conflict of laws. Any dispute arising between Midé and the Buyer shall be heard only in a court located in Boston, Massachusetts.
(b) These Terms and Conditions and any related Order together constitute the entire agreement between Midé and the Buyer regarding the subject matter hereof. No prior agreement, understanding, or discussion between the parties regarding any matter covered by these Terms and Conditions or by any Order shall be referenced or may be relied upon in interpreting or enforcing this Agreement. These Terms and Conditions and the terms set forth in any Order, may not be amended or terminated without the signed, written consent of Midé.
(c) All of these Terms and Conditions shall inure to the benefit of and be binding upon the respective successors and permitted assigns of Midé and the Buyer.
(d) All section headings in these Terms and Conditions or in any Order are for the convenience of the parties and in no way alter, modify, amend, limit or restrict the contractual obligations of the parties.