Effective January 1st, 2013
1. Offer; Acceptance. All quotations covering Seller’s goods are made and all agreements or purchase orders for said goods are accepted on the condition that the terms and conditions set forth herein shall be applicable thereto and shall supersede any provision on Buyer’s purchase order or other documents received by Seller which are at variance with or purport to be in addition to these terms and conditions. All such additional or varying provisions of Buyer’s purchase order shall be deemed to be material deviations herefrom and of no force or effect. In any event, Buyer shall be deemed to have assented to all terms and conditions contained herein if part or all of the goods described herein are accepted by Buyer. All quotations are for immediate acceptance and are subject to approval if issued by a salesman or selling agent of Seller.
2. Prices. Prices are net and are not subject to trade or other discounts and do not include local, state, or federal taxes, foreign taxes or duties, costs of special packaging and insurance, which, when applicable, shall be paid by Buyer. Prices are subject to equitable adjustment upward at any time before delivery should economic factors beyond Seller’s reasonable control, such as the price of materials or governmental actions, necessitate such action.
3. Payment. Payment may be made by any valid Visa, Mastercard, American Express, or Discover credit cards or PayPal account. Buyer expressly states that he has full authority to use said charge card. In the event of the bankruptcy or insolvency of Buyer, Seller shall be entitled to cancel any order then outstanding and shall be entitled to reimbursement for all costs and expenses theretofore incurred, plus incidental and consequential damages. Payments not received when due are delinquent. Interest at a rate of 1.5% per month (18% per annum) or the maximum rate permitted by law, whichever is greater, may be assessed on a monthly basis on delinquent accounts, and Buyer agrees to pay same. Buyer further agrees to reimburse Seller for any and all expenses associated with the collection of past due invoices of Buyer including, but not limited to, attorney’s fees and collection commissions.
4. Shipment. The goods shall be shipped F.O.B. Sellers premises and Seller shall exercise sole discretion in selecting a method of shipment unless a preferred method of shipment is specified in writing by Buyer and Seller does not object to such method by notice to Buyer. Title to the goods shall pass to Buyer upon delivery thereof to the applicable carrier. Thereupon, Buyer shall be responsible therefore.
5. Time of Delivery. Quoted delivery dates are Seller’s best estimates of when the goods will be shipped. Seller assumes no liability for losses, expenses, incidental or consequential damages due to delays or failure to deliver.
A. What is covered and for how long:
Any defect in material or workmanship is covered for one year from the date of purchase. It is your responsibility to provide written notice to MISCO of any claims for warranty within ten days of detecting such defect. This warranty is null and void in the event the product is in any way disassembled by any party other than a MISCO authorized service center.
Written notice of a warranty claim should be sent to: MISCO, 6275 Cochran Road, Solon, Ohio 44139 (USA) – Attention: Service Department.
B. Who gets this Warranty:
This warranty is limited to the original end user of products operated in the United States or Canada who, within ten days of purchase, has either completed and returned the Warranty Registration Card or completed the online warranty registration information on the MISCO website (www.misco.com).
C. What this Warranty Covers:
If your MISCO product is defective in material or workmanship, we will repair it, replace it at no charge, or credit buyer with an amount equal to MISCO’s standard selling price for the product. Such remedy shall be at the sole option of MISCO. This is your exclusive remedy and MISCO’s total liability for loss, damage or defect. If we choose to repair your MISCO product, we may use new or reconditioned replacement parts. If we choose to replace your MISCO product, we may replace it with a new or reconditioned one of the same or similar design.
D. What this Warranty DOES NOT Cover:
This warranty does not cover batteries or lost screws (which are considered replacement parts), loss, damage or defects resulting from accident, falls, misuse or abuse, material incompatibility, damage from corrosive fluids, damage while in transit to or from our service location, damage resulting from alterations, problems caused by electrical power or improper electrical connections, damage caused by unauthorized repair or modification of the product or affixing of any attachment not provided with the product, damage by fire, flood or act of God, damage due to over-pressure or overheating, or damage caused by failure to follow the Instruction Manual. In addition, this warranty does not cover disassembly, reassembly, removal or re-installation of the product to other apparatus or equipment.
E. Exclusivity of Warranty and Limitation of Liability:
EXCEPT AS PROVIDED IN THE LIMITED WARRANTY SET FORTH ABOVE, MISCO EXPRESSLY DISCLAIMS ANY WARRANTY OR GUARANTY, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR OF SUITABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, OR OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY, OR THAT ANY AFFIRMATION OF FACT OR PROMISE IS MADE BY MISCO WITH RESPECT TO THE GOODS WHICH ARE SOLD PURSUANT HERETO. YOU HEREBY WAIVE ALL OTHER CLAIMS AGAINST MISCO AND UNDER NO CIRCUMSTANCES SHALL MISCO BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR LOSSES OR EXPENSES, DIRECTLY OR INDIRECTLY ARISING FROM THE DESIGN, MANUFACTURE, DISTRIBUTION, SALE, HANDLING, INSTALLATION, MAINTENANCE OR USE OF THE GOODS, OR FROM ANY OTHER CAUSE RELATING THERETO, AND MISCO’S LIABILITY HEREUNDER, IN ANY CASE, IS EXPRESSLY LIMITED TO, AT MISCO’S SOLE ELECTION, THE REPAIR OR REPLACEMENT OF GOODS, OR TO CREDITING BUYER WITH AN AMOUNT EQUAL TO MISCO’S STANDARD SELLING PRICE OF SUCH GOODS. CLAIMS AGAINST MISCO WAIVED BY BUYER INCLUDE ANY CAUSE OF ACTION OR SUIT ASSERTING ANY LEGAL, EQUITABLE, AND/OR ADMIRALTY OR MARITIME CAUSES OF ACTION (INCLUDING BUT NOT LIMITED TO NEGLIGENCE; STRICT LIABILITY; TORT; EXPRESS OR IMPLIED WARRANTY, INDEMNITY OR CONTRACT; CONTRIBUTION; OR SUBROGRATION) RELATED TO OR ARISING OUT OF THE PERFORMANCE OR NONPERFORMANCE OF THESE GOODS OR THE DESIGN, MANUFACTURE, DISTRIBUTION, SALE, HANDLING, INSTALLATION OR MAINTENANCE OR USE OF THESE GOODS.
F. How to obtain Warranty Service:
To obtain warranty service for your MISCO product, you must qualify for warranty service under subparagraph B. above, you must provide proof of the date and place of purchase of the product, and you must have, within ten days of purchase, either completed and returned the Warranty Registration Card to MISCO or completed the online warranty registration on the MISCO website.
You may obtain warranty service by returning the product (shipping prepaid) to:
MISCO, 6275 Cochran Road, Solon, Ohio 44139 (USA) – Attention: Service Department
A Return Material Authorization (RMA) form may be downloaded from the MISCO website at http://www.misco.com/rma, or may be obtained by calling MISCO Customer Service at (440)-349-1500. When returning the product, be sure to send it with the completed RMA form, proof of date and place of purchase and a description of the operating problem. After repairing or, at our option, replacing your MISCO product, we will ship it to you at no cost for the parts or labor.7. Limitations of Action Period. Buyer and end user must institute any and all legal claims and actions against Seller within one year from the date of purchase and, thereafter, all such legal claims and actions shall be barred notwithstanding any statutory period of limitations to the contrary.
8. Indemnification. Buyer agrees to indemnify, defend and hold Seller harmless against all claims, losses, causes of action, suits, judgments, awards, or damages of any nature, liability and expense (including but not limited to attorney’s fees and other legal expenses) as a result of any damage to property or injury or death of persons (including but not limited to Buyer’s employees, agents, servants or customers) arising out of Buyer’s unloading, storage, handling, installation, use, maintenance or disposal of any products sold to Buyer by Seller, caused by Buyer’s negligent, reckless or intentional acts or omissions, strict liability, products liability, in contract or tort or admiralty or maritime cause of action. In the event such loss or damage is the result of the joint negligence of the parties any such loss or damage shall be prorated between Buyer and Seller to the extent of each party’s negligence.
9. Proprietary Rights. Seller makes no warranty that the goods will be delivered free of the rightful claim of any third party by way of infringement or the like. If Seller determines, in its sole discretion, that making, using or selling the goods would result in the infringement of any proprietary right, Seller reserves the right to withdraw the quotation and to cancel this agreement, without liability on the part of Seller.
10. Waiver of Subrogation. If Buyer or any person institutes or is otherwise a party to any action, proceeding or claim and Seller is joined therein or claimed against in connection with the same, or if Buyer otherwise suffers any loss, Buyer agrees not to make a claim or bring an action against the Seller for any such loss (regardless of cause, including the negligence of the Seller) which is actually or required to be covered by insurance and for which insurance benefits are paid or are payable. Buyer agrees that such limitation of liability shall be enforceable even in the event of the fault or negligence of Seller, and shall extend to the directors, officers, shareholders, employees, agents and affiliates or subsidiary companies of Seller, and their respective heirs, personal representatives, successors and assigns.
11. Changes. Prices are subject to adjustment if Buyer requests changes in specifications, quantities or delivery requirements. All of the terms and conditions set forth herein shall apply to goods to which such changes are made, and no modification in the terms and conditions hereof shall be binding on Seller unless contained in writing signed by an officer of Seller and expressly stating both that such terms are being modified and the nature of such modification.
12. Cancellation. Buyer may cancel this order, in whole or in part, upon both written notice to Seller and payment of cancellation charges, which charges shall be the sum of: (i) the price of all goods that have been delivered and not previously paid for, plus (ii) the actual cost incurred by Seller that is properly allocable to the goods not delivered at the time of decrease or cancellation, including, without limitation the costs of materials or other items purchased for use in producing such goods plus (iii) the profit, including reasonable overhead, that Seller would have made from full performance by Buyer, plus (iv) the costs of engineering, molds, tools, dies, prototypes and other items produced by or for Buyer plus (v) the reasonable costs incurred by Seller in making settlement and effecting collection hereunder. Buyer may require delivery of any goods for which payment is made.
13. Nondelivery or Nonperformance. Seller shall not be liable for any failure to deliver or otherwise perform hereunder when delivery has been made impractical by fire, embargo, strike, difference with employees, accidents, Acts of God, inability to secure materials from usual sources of supply or any other circumstances beyond Seller’s reasonable control, either of the foregoing nature or of any other nature.
14. Compliance. The Seller represents that with respect to the production of the goods and/or performance of services stated herein, it has fully complied with all of the applicable provisions of the Fair Labor and Standards Act of 1938, as amended, including sections 6, 7, and 12, regulations under section 14, and all other applicable Administrative Regulations. In connection with the performance of work hereunder Seller agrees to comply with all provisions, including specifically paragraphs (1) through (7) Sec. 202, of Executive Order No. 11246 of September 24, 1965, as amended, and rules and regulations and other pertaining thereto.
15. Miscellaneous. This agreement and the terms and conditions stated herein contain the entire agreement between the parties relating to the subject matter hereof, and any representation, promise, condition, affirmation of fact, course of prior dealing and usage of trade not incorporated herein shall not be binding on either party. Except as may be expressly provided to the contrary in writing, the provisions of this contract are for the benefit of the parties hereto and not for any other person. The state and federal courts of Cuyahoga County, Ohio shall have exclusive jurisdiction and venue over claims or disputes arising from or relating to this agreement, except that the Seller shall at its sole discretion also have the right to invoke the courts of law having jurisdiction at the Buyer’s place of business, or seek arbitration, and Buyer hereby consents to the same. The validity and interpretation of this agreement and the terms and conditions stated herein, the legal relation of the parties hereto, and any and all claims or disputes arising out of or relating to same, shall be governed by the laws of the State of Ohio without regard to Ohio conflicts of law principles.
16. Severability. Each provision hereof is severable. If any provision is held invalid or unenforceable, the remainder shall nevertheless remain in full force and effect.