Motion Solutions Terms and Conditions of Sale
(Last Revised October 2020)
1. APPLICABILITY. These Motion Solutions Terms and Conditions of Sale (these “Terms”), together with terms of the Credit Application Agreement completed by Buyer (as defined below) (collectively, the “Agreement”), apply to all sales of goods or services (collectively, “Goods”) by Bearing Engineering, Inc. d/b/a Motion Solutions (“Seller”) to the buyer who issues an order for such Goods (the “Buyer”). Unless otherwise agreed in writing by Seller, the Agreement applies to all sales of Goods to Buyer from Seller. Buyer will be deemed to have accepted these Terms upon submission to Seller of a purchase order or other ordering document (collectively, “Orders”) for any Goods sold by Seller. Any additional or different terms and conditions stated in any document provided by Buyer to Seller (including, without limitation, in any Order previously or in the future issued by Buyer) are expressly rejected by Seller, will not be part of the Agreement (or any other agreement between the parties) unless, in each case, such terms and conditions are accepted in a separate writing signed by Seller’s Chief Financial Officer. The Agreement (including these Terms) may not be modified orally by any representative of Seller and any modifications to the Agreement must be made in a writing signed by Buyer and Seller.
2. ORDERS. Buyer may from time to time order Goods by placing Orders with Seller. All Orders are subject to acceptance by Seller and may be rejected by Seller. If Seller rejects an Order, Seller will notify Buyer. If Seller accepts a purchase order, Seller’s acceptance will be limited to these Terms. Unless otherwise agreed in writing by Seller, no Order will be deemed a requirements contract and Seller’s only obligation is to sell the quantity of Goods expressly set forth in the Order or, if no quantity is set forth in the Order, a quantity no less than one (1) Good.
3. PRICE. Shortly before or after delivery of the Goods, an invoice will be mailed to Buyer and the invoice will set forth the price of the Goods as agreed upon between Buyer and Seller. If there is any discrepancy between the prices agreed upon between Buyer and Seller and the prices indicated on the invoice, Buyer must, within ten (10) days of receipt of the invoice by Buyer, notify Seller by certified mail (return receipt requested) of the alleged discrepancy. Failure by Buyer to notify Seller within the applicable period will be deemed a waiver by Buyer of any discrepancy and Buyer will pay the price set forth on the invoice. Should any tax be imposed at any time by law or government agency increase the cost of the Goods, Buyer agrees to pay such tax in addition to the amount of each invoice.
4. SHIPPING/DELIVERY/TITLE. Delivery dates (whether in Order or other documents) are estimates only. Buyer is cautioned to make allowances for delays and is warned that Seller shall not be liable to Buyer for delays in delivery. Unless otherwise agreed in writing, Seller will deliver the Goods ExWorks Seller’s facility (Incoterms 2020). Title and risk of loss to the Goods will pass to Buyer at delivery. Any variation in quantities shipped over or under the quantities ordered (not to exceed 10%) will constitute compliance with an Order. Seller will not be liable to Buyer for any failure or delay in performing any of Seller’s obligations for accepted Orders if the failure or delay is caused by or results from acts beyond Seller’s reasonable control including, without limitation, acts of God, natural disasters, pandemics, epidemics, disputes with suppliers, delays or failures in delivery from carriers or supplier, strikes or labor unrest, government actions or orders, civil unrest, or unavailability of raw materials.
5. PAYMENTS. Buyer must pay for the Goods, in immediately available U.S. dollars, without setoff or deduction of any kind. Unless otherwise stated in Seller’s invoice, payment terms will be net 30 days following the earlier of (a) Buyer’s receipt the Goods or (b) the date of Seller’s invoice. Payment is to be made to Seller at its business offices address shown on the invoice. All amounts not paid when due shall bear interest at the maximum of (i) a rate of 1.5% per month or (ii) the maximum monthly interest rate allowed by law. In addition, and subject to any limitations imposed by law, a 5% deferred price differential is charged monthly on all outstanding obligations remaining outstanding and unpaid after ninety (90) days from the date of delivery. Without limiting the foregoing, if Buyer fails to make any payments when due to Seller, than all amounts due by Buyer to Seller (whether pursuant to the Agreement or otherwise) shall become immediately due and payable. Buyer agrees to pay all costs and reasonable attorney fees incurred by Seller in collecting any of Buyer’s past due invoices. Unless otherwise agreed in a writing signed by Seller’s Chief Financial Officer, Buyer agrees that any monies or payments received by Seller from Buyer (whether under the Agreement, any other agreement between Buyer and Seller, or otherwise) are intended for all debts due by Buyer to Seller and may be applied by Seller to any outstanding debt of Buyer to Seller (whether under the Agreement, any other agreement between Buyer and Seller, or otherwise) in the manner the Seller determines in its sole discretion. To the fullest extent permitted by law, Buyer waives any and all right to require or seek that Seller marshal or otherwise apply any payments or monies received by Seller from Buyer to a specific debt of Buyer. To secure payment of all sums due or otherwise, Buyer hereby grants to Seller, and Seller retains, a purchase money security interest in all Goods and the Agreement is a Security Agreement under the Uniform Commercial Code. Buyer authorizes Seller as its attorney to execute and file on Buyer’s behalf all documents Seller deems necessary to perfect its security interest.
6. CANCELLATION/CHANGES. Buyer may cancel Orders only upon Seller’s written consent and upon payment to Seller of Seller’s cancellation charges which include, among other things, all costs and expenses incurred, and, to cover commitments made, by the Seller and a reasonable profit thereon. Seller’s determination of such cancellation charges shall be conclusive and final. Buyer may request changes or additions to the Goods consistent with Seller’s specifications and criteria. In the event such changes or additions are accepted by Seller in writing, Seller may revise the price, warranties, and dates of delivery dates. Seller reserves the right to change designs and specifications for the Goods without prior notice to Buyer, except with respect to custom Goods that are unique for Buyer or Goods that are the subject of accepted Orders. Goods may not be returned without Seller’s prior written consent and the payment of a restocking fee; provided, however, customer Goods that are only usable by Buyer, as determined by Seller, may not be returned.
7. WARRANTY AND DISCLAIMER. Excluding any written limited warranty provided by Seller to Buyer (if any), THE GOODS ARE SOLD “AS-IS WHERE IS” AND SELLER MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, FOR THE GOODS, ALL OF WHICH ARE DISCLAIMED AND EXCLUDED BY SELLER INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR USE. No third party, including any employee or agent of Seller, is authorized to make any representation, promise, or warranty concerning the Goods and any statements made by those parties are not binding on Seller unless in writing signed by an authorized representative of Seller. Any technical advice furnished by Seller or its employees or agents is for Buyer’s convenience only and Seller assumes no obligation or liability for the advice given or the results obtained from that advice.
8. CLAIMS; COMMENCEMENT OF ACTIONS. Buyer agrees to inspect Goods within five calendar days of receipt and agrees to immediately notify Seller of any defects, nonconformities or shortages. All claims for defects, nonconformities, and shortages must be received by Seller in writing within the earlier of (a) fifteen (15) days after discovery or (b) one (1) month following delivery. Buyer waives any right to object to such defects, nonconformities or shortages after such time. Any claim or action against Seller based upon breach of contract or any other theory, including tort, negligence, or otherwise must be commenced within twelve (12) months from the date of the alleged breach or other alleged event, without regard to the date of discovery. A breach of contract, whether for warranty or otherwise, will be deemed to have occurred, and any claim will be deemed to have accrued, on the date the Goods are delivered to Buyer.
9. COMPLIANCE WITH LAWS. Buyer agrees to comply with all applicable laws, regulations, import and export laws and regulations of the Buyer’s country and the United States of America, including but not limited to the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR). Buyer further agrees that for any EAR or ITAR controlled Good, it shall not directly or indirectly, sell, export, re-export, transfer, divert or otherwise dispose of in any other country, or to any prohibited party, any such controlled product, either in its original form or after being incorporated into another end-item, without the prior written approval of the relevant U.S. Government authority.
10. LIMITATION OF LIABILITY; RIGHTS TO DEDUCTION. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, (I) IN NO EVENT WILL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROPERTY OR EQUIPMENT, LOSS OF PROFITS OR REVENUE, LOSS OF CAPITAL, LOSS OF PURCHASED OR REPLACED GOODS, OR CLAIMS OF CUSTOMERS WHICH, IN EACH CASE, BUYER ACKNOWLEDGES CONSTITUTE CONSEQUENTIAL DAMAGES) ARISING OUT OF, OR IN CONNECTION WITH, ANY GOODS SOLD BY SELLER, ORDERS, OR THE AGREEMENT (WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) REGARDLESS OF WHETHER THOSE DAMAGES WERE FORESEEABLE OR SELLER WAS ADVISED OF THE POSSIBILITY OF THOSE DAMAGES AND (II) SELLER’S TOTAL AGGREGATE LIABILITY UNDER THE AGREEMENT OR ORDERS, WHETHER ARISING FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, INSTALLATION, OR USE OF ANY GOODS SOLD BY SELLER OR OTHERWISE RELATED TO CLAIMS ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL NOT EXCEED THE PRICE OF THE GOODS UPON WHICH THE LIABILITY IS BASED. SELLER HAS NO, AND BUYER WAIVES ALL, RIGHTS TO INDEMNIFICATION FROM SELLER RELATED TO THE AGREEMENT, ORDERS, OR THE GOODS WHETHER UNDER THE AGREEMENT, ORDERS, ARISING UNDER COMMON LAW, IMPLIED BY LAW, OR OTHERWISE. SELLER MAY SETOFF, DEDUCT, AND RECOUP ANY AMOUNTS PAYABLE BY SELLER TO BUYER UNDER THEAGREEMENT, ORDERS, AT LAW, OR IN EQUITY AGAINST ANY AMOUNTS PAYABLE BY BUYER OR ITS AFFILIATES TO SELLER OR SELLER’S AFFILIATES UNDER THE AGREEMENT, ORDERS, OR OTHERWISE.
11. GENERAL. The Agreement: (a) supersedes all prior or contemporaneous oral or written understandings, representations and agreements between the parties and represents the entire agreement between the parties with respect to the subject matter thereof; (b) is solely for the benefit of Buyer and Seller and no other third parties; and (c) may not be assigned or transferred by Buyer (by operation of law or otherwise) without Seller’s prior written consent. Any purported transfer or assignment in violation of the foregoing will be null and void. If any clause in the Agreement is determined by a court of competent jurisdiction to be invalid, the invalidity of such clause shall not affect the validity of the remainder of the Agreement. Any waiver of any provision of the Agreement must be made in writing and any waiver of one provision on one occasion shall not be deemed a waiver on another occasion or with respect to another transaction. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. The Agreement (including these Terms) and any other agreements between the parties will be governed by and construed in accordance with the laws of the State of California, without regard to the choice of law provisions. Buyer agrees that the sole and exclusive jurisdiction for resolving any disputes with Seller will be in the state and federal courts in or having jurisdiction over Orange County, California.