MOTION & CONTROL ENTERPRISES, LLC STANDARD TERMS AND CONDITIONS OF SALE

ENTIRE AGREEMENT/ORDERS
These Standard Terms and Conditions of Sale (the “Terms and Conditions”) are between Motion & Control Enterprises, LLC, and its divisions/subsidiaries and its affiliates (collectively “MCE”) and Purchaser. No order for MCE’s goods or services (collectively “Products”) shall be binding upon MCE until acknowledged in writing by MCE. Such written acknowledgement and the Terms and Conditions constitute the entire agreement between MCE and Purchaser. Any purchase order, offer or counter-offer made by Purchaser before or after MCE’s written acknowledgement is rejected and all documents exchanged prior to MCE’s written acknowledgement are merely preliminary negotiations and not part of any agreement between the parties. For example, orders submitted on Purchaser’s own purchase order forms modifying, adding to, contrary to, or inconsistent with these Terms and Conditions are expressly rejected and of no force or effect and acceptance is expressly made conditional upon assent to these Terms and Conditions. In no event, will MCE be deemed to have in any way changed, enlarged or modified its liabilities or obligations as fixed by these Terms and Conditions including, without limitation, situations in which MCE satisfies an order submitted on Purchaser’s own purchase order form.

Purchaser shall have been deemed to agree to these Terms and Conditions upon the earlier of acceptance of MCE’s quotation, acceptance of delivery of the Products or the issuance of a purchase order to MCE.

PRICES
Until acceptance of a purchase order is acknowledged in writing by MCE, all prices are subject to change. Written quotations expire thirty (30) calendar days from the date of quotation unless specified otherwise. Verbal quotations are non-binding on MCE. Quoted prices do not include sales, excise, municipal, state or any other government taxes. All taxes and other governmental charges regarding the Products are the responsibility of Purchaser and shall be paid by Purchaser to MCE unless Purchaser furnishes MCE with exemption certificates acceptable to the relevant taxing authorities. Purchaser agrees to reimburse MCE for all reasonable travel and out-of-pocket expenses incurred by MCE in connection with the performance of any services to Purchaser. MCE reserves the right to revise final quoted prices of work in process due to any change in the order on the part of Purchaser or any factor beyond the control of MCE. Typographical and/or clerical errors made by MCE are subject to correction.

TERMS OF PAYMENT
Payment for Products are due net thirty (30) days from the date of invoice unless specified otherwise and approved in writing by MCE.  Depending on the situation and customer, discounts for early payment may be offered. In the event that the purchase order between Purchaser and MCE permits partial payments to be made by Purchaser, Purchaser shall pay those required amounts in a timely manner or MCE will be permitted to suspend, without penalty or liability of any kind, delivery of future Products to the Purchaser even though partial payment for such undelivered Products may have already been received by MCE.

Past due accounts will bear interest at the rate of 1.5% per month (18% per annum) of the invoiced amount or the maximum legal rate on all amounts not received by the due date. All invoices are payable in U.S. dollars, unless specified otherwise and approved by MCE in writing. Acceptance of bank drafts, checks or other form of payment shall be subject to immediate collection of the full face amount thereof. MCE may, at its discretion, impose a transaction fee on payments processed via wire transfer, ACH or by Letter of Credit. MCE reserves the right at any time to suspend credit or to change credit terms provided herein when in its sole opinion, the financial condition of Purchaser so warrants. In such case, in addition to any other remedies provided herein or by law, MCE may request cash payment or satisfactory security from Purchaser prior to providing Products.

In the event of nonpayment of an invoice when due, and without prejudice to other lawful remedies, MCE shall have the right, without penalty or liability of any kind, to suspend further work or the delivery of Products, including Products under other purchase orders until such invoice is paid in full; provided, however, that if such invoice remains unpaid for more than five (5) days after written demand by MCE, MCE may terminate all outstanding orders with Purchaser without penalty. Purchaser shall reimburse MCE for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Purchaser shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with MCE, whether relating to MCE’s breach, bankruptcy or otherwise.

DELIVERY
MCE shall not be liable for any damages as a result of any non-delivery or delay in delivery. MCE reserves the right to substitute suitable alternative materials and components where necessary.
Where the services are to be performed on Purchaser’s premises, Purchaser agrees to provide MCE on a timely basis with such access, machine downtime, utilities and equipment as MCE shall reasonably require in order to perform the services. If Purchaser fails to perform its obligations or shall fail to perform them in a timely manner, Purchaser acknowledges and agrees that MCE shall be entitled to delay performance of the services, without penalty or liability of any kind, until such time as Purchaser has complied in all respects with its obligations and to increase the price for the services to reflect any increased cost to MCE caused by Purchaser’s failure to perform or late performance.

If for any reason Purchaser fails to accept delivery of any of the goods or performance of the services or if delivery of any of the goods is delayed or deferred by Purchaser beyond the scheduled date because Purchaser has not provided appropriate instructions, documents, licenses or authorizations, (i) payment shall be due in full when MCE is prepared to ship the goods or perform the services; (ii) risk of loss to the goods shall pass to Purchaser; (iii) the goods shall be deemed to have been delivered; and (iv) MCE, at its option, may store the goods until Purchaser picks them up, whereupon Purchaser shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

If the applicable purchase order bears the notation “Customer Pick-Up” or if Purchaser is otherwise required under the terms of the applicable purchase order to take delivery of any goods from any MCE facility, MCE will notify Purchaser when such goods or any portion of such goods are available for receipt by Purchaser or its freight carrier and Purchaser or its designated freight carrier shall take delivery of such goods or any portion of such goods within five (5) calendar days of receipt of such notice.  If Purchaser does not take delivery of such goods or any portion of such goods within five (5) calendar days of receipt of such notice, then MCE shall have the right, at its election, to ship the goods or any portion of such goods directly to Purchaser at Purchaser’s sole expense or, alternatively, to store such goods or any portion of such goods at any MCE facility subject to handling and storage fees reasonably determined by MCE.

MCE may at certain times provide Products to Purchaser prior to the issuance, delivery and acceptance of a corresponding purchase order. In such cases, MCE will notify Purchaser that these Terms and Conditions shall apply to such transactions and Purchaser shall be deemed to have accepted such Terms and Conditions upon MCE’s delivery of goods or performance of services.

SHIPMENT/RISK OF LOSS
Unless otherwise noted, delivery terms are ExWorks MCE’s shipping point (Incoterms 2010). Title to all goods shall pass upon receipt of payment for the goods under the respective invoice. As collateral security for the payment of the purchase price of the goods, Purchaser hereby grants to MCE a lien on and security interest in and to all of the right, title and interest of Purchaser in, to and under the goods, 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 from which MCE shipped the goods.

MCE will use commercially reasonable efforts to meet delivery dates stated in advance of actual shipment of goods or performance of services, but in no event, shall such quoted delivery dates be deemed to represent fixed or guaranteed delivery dates. Method and route of shipment will be at the discretion and responsibility of Purchaser.  MCE shall not be liable for any loss or expense (consequential or otherwise) incurred by Purchaser or Purchaser’s customer if MCE fails to meet the specified delivery schedule. Claims for shortage or other quantity errors must be made in writing to MCE within five (5) days after receipt of shipment. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Purchaser.
MCE, in its sole discretion, may accommodate Purchaser requests for delivery of goods in installments, if such requests are confirmed in writing by MCE. Such installment deliveries, when separately invoiced, shall be paid for when due per invoice without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Purchaser of its obligations to accept remaining deliveries.

TOOLS/DIES/CRIMPERS
All tools, patterns and other equipment used in the manufacture of any of MCE’s goods or performance of any of MCE’s services shall remain the property of MCE unless otherwise expressly agreed upon in writing. Purchaser shall not permit any third party to use such equipment nor disclose to any third party any technical, dimensional or design details, or any other information in respect of such equipment at any time.

Crimping equipment may be provided to customer under an approved Parker Crimper Placement Agreement at a reduced price.  Legal title to the Crimper and or die sets covered by the Crimper Placement Agreement remain the property of MCE.  Crimpers may be removed from Customer’s sites without any liability to MCE if the Customer does not meet minimum purchase levels of fittings or hose as specified in the Crimper Placement Agreement or does not allow inspection and re-calibration to meet Parker Hannifin performance standards.

WARRANTY/CLAIMS
Purchaser acknowledges that it has selected and ordered Products based on its own skill and judgment and agrees that it is solely responsible for ensuring that the Products selected are fit for Purchaser’s purpose.

Subject to the following sentence, MCE warrants to Purchaser that the (i) Products shall materially conform to the description in MCE’s written documentation and shall be free from defects in material and workmanship and (ii) the services shall be performed in a workmanlike manner. Determination of suitability of goods for any use by Purchaser shall be the sole and exclusive responsibility of Purchaser. The foregoing warranty shall not apply to any Products that are not manufactured, as to which (i) MCE hereby assigns to Purchaser, to the extent assignable, any warranties made to MCE and (ii) MCE shall have no other liability to Buyer under warranty, tort or any other legal theory. MCE warrants (I) the goods for the shorter of (y) thirty (30) days from delivery of the goods or (z) immediately prior to the installation of such goods into any other products or systems, and (II) the services for thirty (30) days from the performance of services (collectively, the “Warranty Period”). If Purchaser gives MCE prompt written notice of breach of this warranty within the Warranty Period, MCE shall, at its sole option and as Purchaser’s sole and exclusive remedy, repair or replace the subject goods, re-perform the service or refund the purchase price. Unless otherwise agreed to in writing by MCE, (i) Purchaser shall be responsible for any labor required to gain access to the goods so that MCE can assess the available remedies and (ii) Purchaser shall be responsible for all costs of installation of repaired or replaced goods. If MCE determines that any claimed breach is not, in fact, covered by this warranty, Purchaser shall pay MCE its then customary charges for any repair or replacement made by MCE. Seller’s warranty is conditioned on Purchaser’s (a) operating and maintaining the goods in accordance with MCE’s instructions, (b) not making any unauthorized repairs or alterations, and (c) not being in default of any payment obligation to MCE. MCE’s warranty does not cover damage caused by improper operation, failure to follow MCE’s storage procedures for the goods or improper handling or operation, misuse or improper installation (unless installed by MCE). THE WARRANTIES SET FORTH IN THIS SECTION ARE MCE’S SOLE AND EXCLUSIVE WARRANTIES AND ARE SUBJECT TO THE LIMITATION OF LIABILITY PROVISION BELOW. MCE MAKES NO OTHER WARRANTIES OF ANY KIND REGARDING THE PRODUCTS, INCLUDING WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCTS, ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, 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.

No goods are to be returned to MCE without prior written consent of MCE and the assignment of a return goods authorization number by MCE.
Purchaser is liable to pay for all associated costs incurred by MCE due to Purchaser’s selection of noncompliant or defective designs and materials. These associated costs are calculated based on: (a) a fixed administrative charge to cover all handling, data entry and reporting activities resulting from the selection of noncompliant or defective products and (b) any additional costs incurred by MCE in managing the noncompliant or defective products, including, but not limited to, all reworks, investigations and other consequential costs.

MCE shall not be responsible for any other vendor selection made by Purchaser that relates to the Products provided by MCE to Purchaser hereunder and will not have any liability to Purchaser for any loss, damages, costs or expenses suffered by Purchaser as a result thereof.
All remnants sold by MCE to Purchaser shall be “as is” and “with all faults” except as may be provided in writing by MCE to Purchaser with respect to each such shipment of remnants.

No agent, employee or representative of MCE has authority to bind MCE to any affirmation, representation or warranty concerning the goods sold.

PURCHASER SUPPLIED MATERIALS
Purchaser warrants that any materials, inserts, or parts supplied to MCE will conform to all indicated specifications and will be timely delivered. MCE shall not be liable for any damages related to parts or materials supplied by Purchaser, including damage to the part or material itself, or damage caused by defective materials, inserts, or parts. MCE extends no warranty and shall not be liable for any MCE goods that are defective as a result of Purchaser supplied materials, inserts, or parts and Purchaser shall be required to purchase any goods into which MCE incorporates any Purchaser supplied materials, inserts, or parts at the then applicable price for such goods.

LIMITATION OF LIABILITY/INDEMNITY
MCE’s liability on any claim for loss or damage arising out of any transactions under this Agreement or from the performance or breach thereof or connected with any PRODUCTS supplied hereunder, or the sale, resale, operation or use of goods, whether based on agreement, warranty, tort (including negligence) or other grounds, shall not exceed the price actually paid by Purchaser for such PRODUCTS or part thereof involved in the claim, regardless of cause or fault. Purchaser’s exclusive remedies are limited to, in the sole discretion of MCE, the return of non-conforming goods and repayment of the price or to the repair and replacement of non-conforming goods, subject to the provisions of these Terms and Conditions and in the case of MCE services, in the sole discretion of MCE, the reperformance of the services or the repayment of the fees paid to MCE for such non-conforming services. This limitation of liability and remedies reflects a deliberate and bargained-for allocation of risks between MCE and Purchaser and constitutes the basis of the parties’ bargain, without which MCE would not have agreed to the price or terms of this transaction.

MCE SHALL NOT IN ANY EVENT BE LIABLE WHETHER AS A RESULT OF BREACH OF AGREEMENT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHER GROUNDS FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF GOODS OR ASSOCIATED PRODUCTS, BUSINESS INTERRUPTION, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES OR SERVICES, DOWNTIME COSTS, OR CLAIMS OF CUSTOMERS OF PURCHASER FOR SUCH DAMAGE.

In addition, if MCE furnishes Purchaser with advice or other assistance regarding any Products supplied hereunder, or any system or equipment in which any such goods may be installed, and which is not required pursuant to this transaction, the furnishing of the advice or assistance will not subject MCE to any liability, whether based on agreement, warranty, tort (including negligence) or other grounds.

In the event Purchaser modifies MCE goods or incorporates MCE goods into another product or component part, Purchaser agrees to hold harmless and indemnify MCE from any and all claims, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) involving personal injury or property damage. Purchaser also agrees to hold harmless and indemnify MCE from any patent or other intellectual property claims related to (i) any MCE goods made in accordance with Purchaser’s designs or specifications; or (ii) the use of any drawings provided to MCE by Purchaser for use in the manufacture, production or assembly of such goods.

Purchaser shall comply with all applicable laws, regulations and ordinances. Purchaser shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under the Agreement.

WAIVER AND CHOICE OF LAW
The failure of MCE to insist in any one or more instances, upon the performance of any of the Terms and Conditions as set forth herein or the failure of MCE to exercise any of its rights hereunder shall not be construed as a waiver or relinquishment of any such terms, conditions or rights and shall not effect MCE’s right to insist on strict performance and compliance with regard to any future performance of these Terms and Conditions. All transactions shall be governed by the laws of the Commonwealth of Pennsylvania, excluding conflict law rules. The provisions of the United Nations Convention on Agreements for the International Sale of Goods shall not apply.
Purchaser agrees that any litigation or arbitration relating to any claim must be commenced within one (1) year after date of shipment by MCE. Purchaser hereby expressly assumes all liability for all damage and injury occurring before and after said time periods if notice is not made pursuant to this Agreement.

DISPUTE RESOLUTION/EXCLUSIVE JURISDICTION/ATTORNEYS’ FEES
Any dispute, controversy or claim arising out of or related to this transaction where the amount in controversy does not exceed the sum of $50,000, exclusive of interest and costs, shall be resolved by means of binding arbitration. A demand for arbitration shall be served on the other party by certified mail. Within forty-five (45) days after a party demands arbitration, the parties shall select a single arbitrator. The selected arbitrator shall conduct the arbitration in a manner substantially similar to the procedures set forth in the Commercial Arbitration Rule of the American Arbitration Association (“AAA”). If the parties are unable to agree on an arbitrator, the party demanding arbitration shall file a demand for arbitration with the AAA and the arbitration shall then proceed in accordance with the Commercial Arbitration Rules of the AAA. In all circumstances, the arbitration shall take place in Pittsburgh, Pennsylvania.

Any dispute, controversy or claim arising out of this transaction where the amount in controversy exceeds the sum of $50,000, exclusive of interest and costs, shall be adjudicated exclusively by a court of competent jurisdiction in Pittsburgh, Pennsylvania. Purchaser consents to personal jurisdiction and venue in Pittsburgh, Pennsylvania and agrees not to take any action to challenge such jurisdiction or venue.

In the event of any action or proceeding related to a transaction subject to this Agreement where MCE is determined to be the prevailing party with regard to some or all claims, Purchaser agrees to pay all of MCE’s attorney’s fees and litigation costs up through and including any appeal.

CONFIDENTIALITY
All non-public, confidential or proprietary information of MCE, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by MCE to Purchaser, 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 the Agreement is confidential, solely for the use of performing the Agreement and may not be disclosed or copied unless authorized in advance by MCE in writing. Upon MCE’s request, Purchaser shall promptly return all documents and other materials received from MCE. MCE 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 Purchaser at the time of disclosure; or (c) rightfully obtained by Purchaser on a non-confidential basis from a third party.

ASSIGNMENT, WAIVER, ENTIRE AGREEMENT, SEVERABILITY
Neither party shall assign or delegate any of its rights or obligations under this Agreement without the prior written consent of the other party, which such consent shall not be unreasonably withheld, except that either party may assign or delegate its rights or obligations hereunder to an Affiliate without the other party’s consent. As used herein, the term “Affiliate” shall mean any entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with the entity specified. In addition to any remedies that may be provided under the Agreement, MCE may terminate this Agreement with immediate effect upon written notice to Purchaser without any further liability to Purchaser if (a) Purchaser fails to pay any amount when due under the Agreement; (b) Purchaser has not otherwise performed or complied with any of the terms of the Agreement, in whole or in part; (c) Purchaser becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors; or (d) there is a change of control of Purchaser. The Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior oral or written representations or agreements by the parties with respect to the subject matter of this Agreement. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Neither the Agreement nor any of its provisions may be modified, amended or waived, whether orally, through the parties’ course of performance, course of dealing or course of conduct, or manifested in any other way, unless in writing and signed by an authorized officer of MCE. It is the express intention of the parties that such requirement for written modifications, amendments or waivers be strictly enforced notwithstanding judicial precedent or statutory provisions to the contrary. Any provision found invalid or unenforceable will not affect the validity or enforceability of any other provision and the invalid provision may be judicially modified to the extent enforceable.

EXPORT COMPLIANCE
Purchaser acknowledges that MCE is required to comply with applicable export laws and regulations relating to the sale, exportation, transfer, assignment, disposal and usage of the goods provided under this Agreement, including any export license requirements. Purchaser agrees that such goods shall not at any time directly or indirectly be used, exported, sold, transferred, assigned or otherwise disposed of in a manner which will result in non-compliance with such applicable export laws and regulations. It shall be a condition of the continuing performance by MCE of its obligations hereunder that compliance with such export laws and regulations be maintained at all times. PURCHASER AGREES TO INDEMNIFY AND HOLD MCE HARMLESS FROM ANY AND ALL COSTS, LIABILITIES, PENALTIES, SANCTIONS AND FINES RELATED TO NON-COMPLIANCE WITH APPLICABLE EXPORT LAWS AND REGULATIONS.

Last Updated: July 15, 2017