MOSO NORTH AMERICA, INC.
STANDARD TERMS AND CONDITIONS
These terms and conditions govern the sale and provision of Merchandise (as defined below) by Moso North America, Inc. and its affiliates (“Seller”) as well as by third party vendors and/or service providers of Seller to any Buyer (as defined in the Purchase Order Form) (each a “Party” and collectively the “Parties”). These terms and conditions (“Agreement”) take precedence over Buyer’s supplemental or conflicting terms and conditions to which notice of objection is hereby given. Neither Seller’s commencement of performance or delivery shall be deemed or construed as acceptance of Buyer’s supplemental or conflicting terms and conditions. Seller’s failure to object to conflicting or additional terms will not change or add to the terms of this Agreement. Buyer’s acceptance of the Merchandise from Seller shall be deemed to constitute acceptance of the terms and conditions contained herein.
1.1. “Cancellation Date” has the meaning given to it in Section 6.
1.2. “Deficiencies” has the meaning given to it in Section 11.
1.3. “Inspection Period” has the meaning given to it in Section 11.
1.4. “Merchandise” means the goods and services specified on the Purchase Order Form together with all component parts thereof and all accessories, additions, containers, handbooks and related materials. References to the Merchandise shall (where appropriate) be construed as including a reference to any component thereof.
1.5. “Merchandise Inspector” has the meaning given to it in Section 11.
1.6. “Price” has the meaning given to it in Section 3, which is also set forth on the Purchase Order Form, without any deduction, set-off, counterclaim, recoupment, defense or other right which Buyer may have against any party.
1.7. “Purchase Order Form” means an order form prepared by Seller specifying at least the following: (i) the Merchandise, (ii) quantity, (iii) the Specifications, (iv) delivery date, (v) the Price, and (vi) other order terms and conditions as determined by Seller.
1.8. “Security Interest” means a purchase money security interest, together with (i) all accessions to, substitutions and replacements for the Merchandise, (ii) all proceeds of any and all of the Merchandise, (iii) all accessories, attachments, parts, equipment and repairs now or hereafter attached or affixed or used in connection with or hereafter attached or affixed or used in connection with any of the foregoing Merchandise, and (iv) all warehouse receipts, bills of lading, and other documents of title now or hereafter covering any of the foregoing Merchandise.
1.9. “Specifications” means that portion of each Purchase Order Form that provides as required detailed and objective specifications of the Merchandise, including, but not limited to, samples, requirements, design and technical specifications, feature sets, approved procedures, controls, acceptance criteria and other related information regarding, or affecting the manufacturing of, the Merchandise.
1.10. “UCC” means the Uniform Commercial Code as adopted by the State of Delaware.
2. Standard Terms and Conditions.
Unless a separate written supply agreement is entered into between Seller and the Buyer either modifying these terms and conditions or setting forth which terms will control, the following terms and conditions are part of Seller’s quotation for and acceptance of any resulting order and shall become the exclusive and binding agreement between Seller and Buyer with respect to the order of any Merchandise by Buyer and the sale of such Merchandise by Seller to Buyer, and shall apply to any Purchase Order Form, regardless of whether this Agreement or its terms and conditions are expressly referenced in that Purchase Order Form. No term or condition set forth in any of buyer’s solicitation, purchase order, or contract shall become part of any order or otherwise become binding on seller unless expressly agreed to in writing by seller. Buyer’s order is accepted solely on the condition that buyer expressly accepts and assents to the terms and conditions contained herein.
3. Quotations, Prices and Taxes.
The prices for Merchandise are set forth in Seller’s quotation to Buyer, or in the absence thereof in Seller’s currently effective suggested retail price list. In the absence of a statement to the contrary in Seller’s quotation, any prices set forth in a Seller quotation shall only be valid for ten (10) business days provided Seller does not withdraw such quotation within such period. Seller agrees to sell to Buyer and Buyer agrees to buy from Seller the Merchandise at the Price subject to the terms and conditions set forth herein. Unless otherwise specified in Seller’s quotation or Seller’s order confirmation, the Prices set forth therein do not include any applicable taxes, import duties, customs clearance, applicable licenses, certifications, ratings and other authorizations and approvals. All such taxes, import duties, customs clearance, applicable licenses, certifications, ratings and other authorizations and approvals are the sole responsibility of Buyer and shall be stated separately on Seller’s invoice to Buyer. A request by Buyer for exemption from any tax shall be accompanied by evidence satisfactory to Seller of Buyer’s eligibility for such tax exemption.
4. Purchase Order Form Accuracy.
Buyer shall ensure that the contents, descriptions and details of its order and any applicable specifications are complete and accurate.
5. Acceptance of Order.
Seller shall manifest its acceptance of a Buyer order for Merchandise, conforming to Seller’s valid quotation to Buyer for such Merchandise, upon the earlier of Seller’s commencement of performance under such order or the transmission of an order confirmation by Seller for such order.
Buyer may not cancel any order for Merchandise without Seller’s approval and then only upon payment of the cancellation charges set forth herein. Cancellation charges shall be assessed as follows: (i) for orders scheduled to ship within fifteen (15) days of the date the cancellation notice is sent to seller (“Cancellation Date”), cancellation charges shall be one hundred percent (100%) of the Price of the Merchandise being cancelled; (ii) for shipments scheduled beyond fifteen (15) days from the Cancellation Date, cancellation charges shall be fifty percent (50%) of the Price of the Merchandise being cancelled. Seller is under no obligation to accept any order cancellation and may refuse any Buyer requests for cancellation in Seller’s sole discretion. Special orders (non-stock) for merchandise may not be cancelled or changed prior to delivery or returned to seller following delivery other than for repair or replacement of damaged parts pursuant to section 14 below.
7. Change Orders.
Buyer may request to change the quantities of or specific items of Merchandise. Unless otherwise agreed to by Seller in writing, any such request will be dealt with as a request for cancellation of the applicable Merchandise and will be dealt with as set forth in Section 6 above with respect to any items being removed from the applicable order.
8. Delivery; Delays.
8.1. Unless otherwise agreed in writing by Seller, delivery of the Merchandise shall take place at the agreed port of delivery at the time of order. Buyer will take delivery of the Merchandise within fourteen (14) days of Seller giving it notice that the Merchandise is ready for delivery.
8.2. Any dates specified by Seller for delivery of the Merchandise are intended to be an estimate and shall be non-binding. Time for delivery shall not be of the essence. If no dates are so specified, delivery will be within a reasonable time.
8.3. Seller may alter or modify any delivery dates set forth in Buyer’s order upon the occurrence of any event which, in Seller’s sole discretion, makes such delivery impracticable or unreasonable, and Buyer agrees to hold Seller harmless from any claims resulting from such alteration or modification of any delivery date. Should the shipment delay exceed one hundred and eighty (180) days, Buyer may terminate the order but be subjected to payment of the cancellation charges set forth in Section 6, above. Notwithstanding anything to the contrary, Seller shall not be liable for any delay in the delivery of the Merchandise (even if caused by the Seller’s negligence) or any delay or nonperformance due to acts of God, natural casualties, war, material shortages, trade embargoes, governmental regulations, strikes, civil unrest, non-performance of subcontractors and/or other causes beyond the reasonable control Seller.
8.4. If for any reason Buyer will not accept delivery of the Merchandise when it is ready for delivery, or Seller is unable to deliver the Merchandise on time because Buyer has not provided appropriate instructions, documents, licenses or authorizations:
8.4.1. Risk and title in the Merchandise will pass to Buyer upon Buyer’s negligence in accordance with Sections 9 and 10 of this Agreement;
8.4.2. The Merchandise will be deemed to have been delivered upon Buyer’s refusal or inability to accept the Merchandise; and
8.4.3. Seller may store the Merchandise until delivery whereupon Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
9. Shipment and Risk of Loss.
Seller shall deliver the Merchandise ordered by Buyer, CIF to a United States address (unless other arrangements are made and confirmed in writing).
10. Seller’s Security Interest.
Seller hereby retains and Buyer hereby grants to Seller, Security Interest in the Merchandise until Buyer has made payment in full for the Merchandise and satisfied all of its obligations to Seller hereunder. Buyer will execute, deliver or endorse any and all instruments, documents, assignments, security agreements and other agreements and writings that Seller may at any time reasonably request in order to secure, protect, perfect or enforce the Security Interest and Seller’s rights under this Agreement. Seller shall have all of the rights of a secured party with respect to the Merchandise under the UCC and other applicable laws. Upon Buyer’s default of any payment obligation, in addition to other rights and remedies it may have under law and equity, Seller may exercise in respect of the Merchandise all the rights and remedies of a secured party on default under the UCC, including, without limitation, the right to enforce the Security Interest, to retake possession of the applicable Merchandise and to collect directly from any account obligor all amounts due Buyer with respect to such Merchandise.
11. Final Acceptance.
11.1. Buyer shall accept the Merchandise if the Merchandise complies fully with the relevant Purchase Order Form, the Specifications and with other requirements of this Agreement. Buyer shall notify Seller in writing of any particular deficiencies in the Merchandise, including any defects in the Merchandise or of any failure of the Merchandise to comply with the respective Specifications (“Deficiencies”), during an inspection period, which shall be five (5) business days immediately following the receipt by Buyer of such Merchandise (the “Inspection Period”). Where Buyer provides such notice to Seller within the Inspection Period, the Parties mutually consent to promptly refer such claim relating to the Deficiencies to an independent third party, appointed in good faith by Seller (“Merchandise Inspector”). The Merchandise Inspector shall be knowledgeable and experienced in the technology and business pertaining to the Merchandise covered by this Agreement. The Merchandise Inspector shall, and is authorized by the Parties to, inspect a sample of the Merchandise to determine whether the same materially complies with the Specifications of the Merchandise set forth in the Purchase Order Form. The Merchandise Inspector’s determination on whether the Merchandise contains any Deficiencies, and if it complies fully with the relevant Purchase Order Form, the Specifications and with other requirements of this Agreement, and consequently whether the Merchandise is ultimately deemed accepted, shall be final and binding on the Parties. Failure by Buyer to give notice of or particularize the Deficiencies within the Inspection Period shall constitute Buyer’s acceptance of the Merchandise.
11.2. Unless otherwise agreed to in writing by Seller, no Merchandise may be returned for credit by Buyer.
12. Terms of Payment.
12.1. Time for payment is of the essence. Unless Buyer is extended credit terms by Seller as indicated by Seller’s order confirmation, Buyer must pay all amounts for Merchandise prior to shipment by Seller. Where credit is being extended to Buyer, all amounts due and payable on a Seller invoice for Merchandise shall be paid in full by Buyer within thirty (30) calendar days of the issue date of a Seller invoice for such Merchandise. All such amounts shall be paid by Buyer’s check to Seller or by wire transfer to such bank or account as Seller may from time to time designate in writing. Buyer will be responsible for a 1.5% finance charge per month, or the maximum rate legally permissible under applicable law, charged on a daily basis, on past due accounts and all expenses of collections, including reasonable attorneys’ fees.
12.2. Buyer shall pay the gross amount of any present or future sales, use, excise, value-added, or other similar tax, applicable to the Price, sale, or delivery of any product or their use by Buyer unless Buyer has furnished Seller with evidence of exemption acceptable to the taxing authorities.
12.3. If Buyer fails to comply with its payment obligations Seller may, among other things:
12.3.1. suspend performance of the remainder of this Agreement or any other agreements with Buyer;
12.3.2. with prior written notice to Buyer, declare due all other sums owing by Buyer to Seller (whether under this Agreement or any other agreement or account) which at the date of such notice might not otherwise be immediately due and payable, and Buyer shall be obligated to pay the same to Seller with immediate effect; and
12.3.3. at its sole discretion, enforce the remedies provision set forth in Section 13.2 of this Agreement.
13. Pre-payment Events of Default; Remedies.
Until full payment in respect of the Merchandise is received by Seller pursuant to Section 12 of this Agreement the following shall apply:
13.1. The occurrence of any one of the following events shall offer Seller the remedies, among others, set forth in Section 13.2 of this Agreement: (i) Buyer fails to pay for any item of the Merchandise when due and payable under this Agreement or any invoice issued in connection therewith; (ii) Buyer fails or neglects to perform, keep, or observe any term, provision, condition or covenant contained in this Agreement; (iii) Buyer makes any false, untrue, incomplete or misleading representation, warranty, schedule, report, or other communication to Seller in connection with this Agreement or any transaction relating thereto; (iv) Buyer enters into any arrangement, reconstruction, or composition with its creditors or any of them or suspends payment generally or is otherwise unable to pay its debts as they become due; (v) a petition is presented or an order is made or an effective resolution is passed for the winding up or the dissolution of Buyer or Buyer ceases to carry on business as a going concern; (vi) a receiver for Buyer or any material portion of its property is appointed or steps are taken for the appointment of such receiver by any person or entity; (vii) if a bankruptcy, liquidation, insolvency or other similar proceeding is filed by or against Buyer, and in the case of an involuntary proceeding, is not vacated or set aside within sixty (60) days of its commencement; or (viii) a breach or default by Buyer occurs under any other agreement between Buyer and Seller or with respect to any other obligation of Buyer to Seller.
13.2. On the occurrence of any of the events specified in Section 13.1 hereof, or on any other termination of this Agreement, Seller may (i) immediately take all necessary steps to secure and/or to remove the Merchandise from Buyer, (ii) in lieu of return thereof to Seller, at its sole election charge to the account of Buyer at Seller’s then quoted Prices any of the unpaid Merchandise as Seller shall determine on an item-by-item basis, and/or (iii) take whatever action at law, in equity or otherwise is deemed necessary by Seller to collect any amounts then due and payable by Buyer to Seller under this Agreement and/or to enforce performance and observance by Buyer of any obligation, agreement, or covenant of Buyer hereunder. In addition, in the event of default, Seller shall have all the remedies provided under the UCC, which shall be cumulative with one another and with any other remedies which Seller may have at law, in equity, under any agreement of any type, or otherwise. In the event of the removal of the Merchandise from Buyer by Seller pursuant to this Section 13.2, Buyer shall pay all costs and expenses in connection with any such removal of the Merchandise, including transportation, handling, and insurance to Seller’s facilities. If Seller shall advance or otherwise pay any of the foregoing costs or expenses for the account of Buyer, Buyer agrees to promptly reimburse Seller for any such amounts so advanced or paid. In the event of any default by Buyer, Buyer shall pay all costs incurred by Seller in collecting any amounts due under this Agreement, including without limitation reasonable attorneys’ fees and costs including fees and costs arising from the representation of Seller in a bankruptcy of Buyer.
14. No Warranty; Disclaimer; Limitation of Liability; Indemnification.
14.1. Unless otherwise specified in writing by seller to buyer, buyer agrees that it buys the merchandise “as is” without any warranty of any kind from seller. Further, seller provides no warranty that the merchandise will be suitable for buyer’s purposes.
14.2. To the maximum extent permitted by applicable law, seller’s sole liability is expressly limited to, and shall in no event exceed, the amounts received by seller with respect to the specific defective merchandise. To the maximum extent permitted by applicable law, seller disclaims all other warranties, express, implied statutory or otherwise, including without limitation any warranty of merchantability, fitness for a particular purpose, intellectual property infringement or third party rights, or based on course of conduct or trade custom or usage, and in no event shall seller be liable for any lost profits or any consequential, special, incidental, punitive, exemplary or indirect damages, however caused and on any theory of liability arising from this agreement. The parties further agree that each and every provision of this agreement that provides for a limitation of liability, disclaimer of warranties or exclusion of damages is expressly intended to be severable and independent of any other provision since those provisions represent separate elements of risk allocation between the parties and shall be separately enforced. Buyer agrees that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy. No action, regardless of form, arising under this agreement may be brought by buyer more than one (1) year after the occurrence of the events which gave rise to the cause of action.
14.3. Buyer Indemnification. Buyer shall indemnify, defend and hold Seller harmless from and against any and all claims, actions, losses, damages, demands, liabilities, costs and expenses, including reasonable attorney’s fees and expenses, whether a suit or other proceeding is initiated or not, which may arise from, but not limited to, the following events: (i) representations or misrepresentations made by Buyer, (ii) any neglect by Buyer or end-users, (iii) Buyer’s or end-users’ use of Merchandise not in compliance with published specifications thereto or not for their intended purposes, (iv) Buyer’s or end-users’ modifications or alterations of Merchandise, (v) damage from Buyer or end-user misuse, or operation outside of the environmental specifications for the Merchandise, or (vi) any other act, or failure to act, not in accordance with the terms and conditions of this Agreement by Buyer, or any other breach by Buyer of any representations, warranties, or covenants of Buyer under this Agreement.
15.1. Governing Law; Consent to Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. Any legal suit or action arising out of or relating to this Agreement may be instituted in a state or federal court of competent jurisdiction in the State of Delaware and Buyer waives any objection which it may now otherwise have or hereafter have to the waiving of the venue of any such suit, action or proceeding and hereby subjects itself to the jurisdiction of any such court.
15.2. Attorney’s Fees. In the event a dispute arises regarding this Agreement, the prevailing Party shall be entitled to its reasonable attorney’s fees and expenses incurred in addition to any other relief to which it is entitled.
15.3. Notices. All notices, requests or other communications hereunder to any Party hereto shall be in writing and shall be deemed to by duly given or made when delivered (in the case of personal delivery), when dispatched and proper receipt of successful transmission obtained (in the case of facsimile copy or e-mail), on the day following service if sent by overnight air courier service with next day delivery with written confirmation of delivery, or five (5) days after mailing if sent by first class, registered or certified mail, return receipt requested, to such Party addressed to it at its address specified on the Purchase Order Form or at such address or at such facsimile number or e-mail address as such Party may hereafter specify for such purpose by notice in writing in any of the above manners.
15.4. Assignment. Buyer may not assign, transfer or otherwise encumber this Agreement or any part thereof without express written consent of Seller. Seller may assign and transfer this Agreement or any interest or right hereunder or any interest or right in the Merchandise and/or grant a security interest in the Merchandise, in whole or in part. Subject to the foregoing, this Agreement shall inure to the benefit of, and is binding upon, the heirs, personal representatives, successors and assigns of the Parties.
15.5. Captions. The captions of this Agreement are for convenience only and shall not be read to define or limit the intent of the provisions which follow such captions.
15.6. Survival. Each term and condition under this Agreement will remain effective for so long as may be necessary to give effect to its purpose as set forth herein.
15.7. Severability. If any provision of this Agreement shall be found to be unlawful or unenforceable, that provision shall be deleted from this Agreement and the remaining provisions shall, insofar as possible, be given full force and effect.
15.8. Entire Agreement. Buyer’s acceptance of any merchandise covered hereby shall be deemed acceptance of all the terms and conditions stated herein. Seller’s failure to object to any provisions contained in any communication from buyer shall not be deemed a waiver of the provisions contained herein. This Agreement represents the entire agreement between the parties and shall supersede all prior written or oral understandings and/or other terms in any purchase order or other document, now or hereafter delivered, except that this Agreement shall not supersede other written agreements between the parties that expressly reference this Agreement.