MPE’s Terms & Conditions of Sale

Overview

All Midwest Products and Engineering Inc. (“MPE”) products are rendered exclusively on the basis of the following terms and conditions, which will apply to both this and all future business transactions with any customer with whom MPE does business (hereafter referred to as “Buyer”). Buyer acknowledges that any deviations from these terms and conditions (including Buyer terms and conditions of purchase) not explicitly acknowledged in writing by MPE, will not be binding on MPE, even if MPE fails to object thereto in a particular instance.

Prices and Extra Charges

Unless otherwise indicated, all prices quoted are Ex Works.
Pricing is for immediate acceptance only and is subject to change without notice any time before purchase orders are accepted by MPE.
Buyer shall be solely responsible for all taxes, duties, excises or other similar charges payable to any government organization (federal, state, or local), regardless of whether MPE is responsible for collection or payment thereof, unless satisfactory evidence of an exemption for the payment thereof is supplied by Buyer.

Acceptance of a Purchase Order

Purchase orders and other agreements must be confirmed in writing, signed or acknowledged by MPE, with only the contents of this confirmation being effective. If no written confirmation is made, the purchase order will be deemed to have been accepted upon acceptance of the shipment by the Buyer, and/or the Buyer’s agent or a carrier acting on Buyer’s behalf.
Buyer cannot reschedule the delivery date of a purchase order or cancel a purchase order without specific written agreement with MPE; in such cases, the Buyer will be responsible for any and all costs of reschedule or cancellation.

Terms of Payment

All invoices are due for payment in full 30 days after the invoice date. Any deviation to terms of payment will be subjected to separate written agreement. MPE may, in its sole discretion modify Buyer payment terms based upon Buyer payment history and/or credit assessment.
MPE is entitled to refuse to render any further product or service until all past due payments are received or if the Buyer’s financial solvency comes into question.
Interest shall accrue on all overdue amounts at the rate of one and one half percent (1.5%) per month, or the maximum percentage allowed under applicable law, whichever is less. Buyer shall be obligated to reimburse MPE for all costs of collection on all past due amounts including without limitation, reasonable attorney’s fees.
Buyer shall not have the right to set off any amount owing from Buyer to Seller against any other amount due from Buyer to Seller.

Passage of Risk and Shipment

Title to and risk of loss of all products sold will pass to the Buyer upon shipment from MPE, Ex Works.
Unless specifically agreed to by MPE in writing, Buyer shall be solely responsible for arranging and paying for the transportation of all products purchased from MPE
If MPE agrees in writing to pay the cost of freight for a particular purchase order, then MPE shall have the right to select the carrier, routing and means of transportation.
Buyer shall inspect all product deliveries before unloading, in order to confirm the amount of product delivered, and to determine if there is any product damage and/or loss. In the event of short shipments of product, the non-conformance must be communicated to MPE within 5 business days, and subsequently confirmed in writing so that the surrounding facts and circumstances can be confirmed on site by MPE, at its option. All Ex Works shipments resulting in a claim for damage or loss of shipment during transportation to the Buyer must be reconciled with the Buyer’s requested common carrier.
Buyer shall be responsible for providing MPE with written shipping and delivery instructions, which will become binding only if accepted by MPE in writing.
Unforeseen circumstance (i.e., force majeure) such as, Acts of God, power outages, strikes, lock-outs, and other operational disturbance as well as other obstacles beyond MPE’s control which prevent the timely completion of a purchase order shall extend delivery deadlines as the circumstances reasonably warrant.

Warranty

MPE warrants that the design, manufacture and delivery of products for sale comply at all times with applicable federal, state and local laws, rules and regulations. MPE also warrants that for a period of 6 (six) months from the date of invoice all products are properly manufactured per the Buyer approved product, packaging and labeling specifications, excluding cosmetic requirements. MPE further warrants that for a period of 45 days all products will meet the approved cosmetic specifications. Where no customer specifications exist, products will be manufactured to industry and/or MPE internal standards and specifications.
Buyer will indemnify MPE for any property damage, bodily injury, intellectual property infringement, or any other right of a third party, because of MPE’s compliance with the specifications furnished by Buyer. Buyer, upon MPE’s written request, will defend any such action brought against MPE at Buyer’s sole cost and expense.
MPE has the right at its option to cure any product defect within a reasonable period or to replace the product concerned. Should it be impossible to remedy the non-conformity or to replace the non-conforming product, Buyer’s sole remedies shall be to negotiate with MPE a mutually acceptable reduction or credit for non-conforming product. Except as herein provided, MPE’s liability for a product defect is limited to the price paid for the product and MPE shall have no other liability of any kind whatsoever to Buyer.
Should the product be damaged or lost after the risk has passed to Buyer due to improper storage or handling, MPE will neither be obliged to nor required to remedy the damage, replace the product, grant a reduction in price, or cancel the purchase order
EXCEPT AS EXPRESSLY PROVIDED UNDER THESE TERMS AND CONDITIONS OF SALE, IN NO EVENT WILL MPE BE LIABLE TO BUYER FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, AND MPE’S LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO A SPECIFIC PRODUCT SALE SHALL NOT EXCEED THE TRAILING TWELVE (12) MONTHS OF MPE’S NET BILLINGS TO BUYER FOR THE SPECIFIC PRODUCT.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO SUPPLIER IN SPECIFICATIONS, DRAWINGS, OR OTHERWISE.

Order Acknowledgement Statement

Buyer confirms that the products ordered are not intended or will be marketed for use as a medical device unless explicitly stated in the purchase order unless MPE is notified otherwise. If any of the products are intended for use as a medical device in the configuration that they are received the purchaser must notify MPE in writing prior to delivery and provide all relevant information, including but not limited to, the intended use, regulatory status, and any applicable certifications or approvals. MPE will not be responsible for any regulatory or legal consequences arising from the use of the products as medical devices unless such use was explicitly approved in writing by MPE.

Miscellaneous

Buyer may not disclose, publish or advertise to any person outside its employ, nor use for purposes other than performance of this purchase order, any information pertaining to the terms of this purchase order including, but not limited to, the price, or the identity, and the drawings, blueprints, descriptions, or specifications related to this purchase order without prior written consent MPE. Both parties agree to maintain in confidence those materials and information either has designated as being confidential or proprietary information.
Buyer shall carry Comprehensive General Liability insurance, including coverage for contractual liability, products liability, bodily and personal injury and property damage with minimum limits of (US) $1,000,000 per occurrence and with limits of (US) $2,000,000 in the annual aggregate. Buyer shall submit certificates of insurance covering all required insurance to MPE upon request. In case of failure to furnish said certificates of insurance, as aforesaid, MPE may terminate open purchase orders with no liability.
The Parties are independent contractors with respect to each other. The transactions entered into between the parties pursuant to these Terms and Conditions of Sale do not create any partnership, joint venture, or agency between the Parties.
These Terms and Conditions of Sale shall be governed by the laws of the Country, state or province where the Buyer is located (“Locale”) applicable to contracts made and to be performed wholly within the Locale without reference to principles of conflicts of laws. The courts sitting in, or having principal jurisdiction over the Locale have exclusive jurisdiction of all disputes. To the extent such laws are not enforceable to settle or adjudicate any dispute between the parties hereunder, both parties expressly submit to the applicable commercial laws and the jurisdiction of the U.S. District Court for the Eastern District of Wisconsin, waiving to any other jurisdiction that may be applicable to either of them because of their present or future domiciles or any other reason whatsoever.
If any provision of these Terms and Conditions of Sale is adjudged to be unenforceable in whole or in part, such adjudication shall not affect the validity of the remainder of these Terms and Conditions of Sale. Each provision of these Terms and Conditions of Sale is severable from every other provision and constitutes a separate, distinct and binding covenant.
Provisions of these Terms and Conditions of Sale which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms and Conditions of Sale unless otherwise superseded by written agreement of the Parties.