1. APPLICABILITY AND ACCEPTANCE OF TERMS AND CONDITIONS. These Terms and Conditions apply to all transactions between MPM and Customer unless otherwise expressly agreed upon in a separate written document signed by MPM and Customer. Delivery of Products or Services, acceptance of payment or any other action by MPM shall not constitute MPM’s consent to or acceptance of any additional or different terms or conditions. Any conflicting statements or terms listed on Customer’s purchase orders, invoices or confirmations or other documents created, provided or offered by Customer (Customer’s Documents) are subject to these Terms and Conditions and all differences or additional terms and conditions contained in any Customer’s Documents are hereby expressly objected to by MPM. No agent, employee or representative of MPM has any authority to bind MPM to any affirmation, representation or warranty covering the Products sold by MPM to Customer, and unless an affirmation, representation or warranty made by an agent, employee or representative is specifically included within these Terms and Conditions or within a written document signed by authorized officers of MPM and Customer.
2. PAYMENT TERMS; LATE FEES; ATTORNEYS’ FEES AND COSTS; WAIVER. Except as otherwise agreed in writing by MPM and Customer, all sums due and owing to MPM for any Product and/or Services shall be paid on a net 30-day basis. MPM reserves the right to require the payment of an advance deposit, prior to the commencement of any work. MPM’s prices do not include sales, use, excise or similar taxes, duties or levies. Customer shall be responsible for payment of any applicable sales, use, excise or similar taxes, duties or levies now or hereafter imposed by any governmental authority on the manufacture, sale, delivery and/or use of any Products, or in lieu thereof, shall provide MPM with tax exemption certificates acceptable to the taxing authorities as required. Customer agrees to pay a Service Charge on any payments over 30 days past due at the lesser of 1 ½% per month or the maximum rate permitted by law. In the event of any default in pursuant to the terms and conditions set forth herein, Customer shall pay all costs and fees, including reasonable attorneys’ fees and costs, incurred by MPM in collecting from any unpaid amounts due MPM. MPM may, at its sole option, refuse, delay, or change the terms of shipments to Customer upon failure by Customer to timely pay any payments due MPM. The waiver by MPM of any breach hereof or default in any payment shall not constitute a waiver of any breach or default. In the event of default, MPM shall have all the remedies provided under the California Commercial Code, which shall be cumulative with any other remedies that MPM may have, without limitation, at law, in equity, under any agreement of any type. The exercise or failure to exercise any remedy shall not preclude the exercise of that remedy at another time or any other remedy at any time.
3. WARRANTIES. All Products shall be manufactured according to all plans and specifications submitted to MPM and shall be made in accordance with commercially acceptable standards.
4. CANCELLATION. PRIOR TO THE COMMENCEMENT OF ANY WORK, CUSTOMER SHALL HAVE THE RIGHT TO CANCEL, IN WRITING, ANY ORDER WITHOUT INCURRING A CANCELLATION FEE. Customer shall be responsible for the cost and payment of any work in progress or already completed, any materials purchased for any services and work already contracted for by MPM on behalf of Customer; which work has been completed and/or commenced prior to receipt by MPM of written cancellation notice. MPM shall have the right to offset or deduct from any advanced deposit or prepayment, any costs or expenses already incurred by MPM and/or on behalf of Customer.
5. BLANKET AND ADVANCE PURCHASE ORDERS. In the event of an advance or blanket purchase order which requires MPM to maintain pre-manufactured Product, on behalf of Customer, Customer agrees to purchase within a twelve (12) month period the annual usage quantity referenced in the blanket purchase order against which said Customer received special pricing. Failure to purchase such quantity will result in a retroactive upward price adjustment as determined by MPM. Furthermore, in the event of a cancellation of an advance or blanket order, Customer shall be responsible for any materials purchased, on behalf of Customer, any work in progress and/or any pre-manufactured Product, not to exceed a 1 year supply.
6. MATERIALS PROVIDED BY CUSTOMER. If goods or products are to include or incorporate items or other materials to be provided by Customer (or by any third party on behalf of Customer), MPM’s performance, and any prices quoted by MPM, are conditioned upon such items or other materials being received by MPM upon agreed times, in such quantities and condition as specified and agreed upon by MPM and Customer and with all freight, transportation and all other charges related thereto shall be prepaid by Customer. Customer shall be responsible for all defects contained in or relating to all items or other materials to be provided by Customer (or by any third party on behalf of Customer). Customer shall pay MPM for all time, labor and expense incurred by MPM, including, but not limited to, work or labor spent, or materials used, in producing or attempting to produce any goods or products, by reason of or caused by any defective items or other material to be provided by Customer (or by any third party on behalf of Customer).
7. DELIVERY; SHIPMENTS; QUANTITY. Estimates of delivery times are subject to revision upon receipt of complete ordering information by MPM. Delivery or tender of delivery of any installment of any goods or products within fifteen (15) days after the date specified for delivery shall be deemed timely performance by MPM. There shall be no liability for failure or delay of delivery due to acts of God, acts of Customer, Government action, fire, flood, war, accident, strike, casualty, lockout, boycott, embargo, embargo, terrorism, riot, labor trouble or shortage; inability to obtain material equipment or transportation, or other causes beyond the reasonable control of MPM. All express and delivery charges shall be paid by Customer without discount. Delivery or tender of ninety (90) percent of the quantity specified for an installment shall constitute performance and installments shall be accepted by Customer and paid for at contract prices and terms. Title and risk of loss or damage shall pass to Customer on delivery to Customer’s carrier or dock (Freight on Board/point of shipment.)
8. INSPECTION OF PRODUCTS. All Products must be inspected and Customer must notify MPM of any deficiencies and/or non-conforming Products within 90 days after delivery of any Products to Customer.
9. NON-CONFORMING PRODUCTS. MPM, may, at MPM’s sole option, replace any Product that does not conform to the Warranty stated in Section 3 above. If any Products are to be returned for replacement, Customer must obtain MPM’s Return Authorization and specific return or pickup instructions prior to returning such items. The Warranty stated in Section 3 above shall be void in the event the Product: (i) fails, is contaminated, adulterated or altered, degraded or is damaged, as a result of improper handling or modification; (ii) is accidentally contaminated, damaged, adulterated or altered, or subjected to abuse or improper use; or (iii) is otherwise adulterated, altered, degraded or damaged such that MPM is unable to verify such claims or defects. EXCEPT AS EXPRESSLY OTHERWISE IN WRITING BY CUSTOMER AND MPM, MPM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MPM MAKES NO WARRANTY WITH RESPECT TO WHETHER THE PRODUCTS INFRINGE ANY PATENT, COPYRIGHT OR TRADEMARK; U.S. OR FOREIGN; AND CUSTOMER REPRESENTS AND WARRANTS THAT, TO THE BEST OF ITS KNOWLEDGE, PRODUCTS OR USE OF SUCH PRODUCTS DO NOT VIOLATE ANY PATENT, COPYRIGHT OR TRADEMARK; U.S. OR FOREIGN.
10. INSPECTION BY MPM/TEST REQUIREMENTS. MPM shall provide and maintain a system that complies with ISO9001, AS9100 or other QMS appropriate to the product. MPM shall inspect and/or test as applicable, all characteristics defined by any applicable purchase order or drawing specifications applicable to the Product or Service.
11. PATENTS. Customer shall indemnify and hold MPM harmless from infringement of patents arising from compliance with Customer’s designs or instructions. MPM agrees not to copy, or cause to be copied or reproduced, either directly or indirectly, any pattern or design of Products produced by MPM for Customer, without Customer’s express written consent.
12. LIMITATION OF REMEDIES. CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY DAMAGES CAUSED BY ANY PRODUCT DEFECT OR FAILURE, REGARDLESS OF THE FORM OR ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING WITHOUT LIMITATION NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, SHALL BE: (i) FOR INFRINGEMENT, THE REMEDIES STATED IN SECTION 9; (ii) FOR DELAYS IN THE DELIVERY BY FORCE MAJEURE CAUSES, CUSTOMER’S SOLE REMEDY SHALL BE TO CANCEL THE ORDER WITHOUT INCURRING CANCELLATION CHARGES; (iii) FOR DAMAGES TO REAL OR TANGIBLE PERSONAL PROPERTY OR FOR WHICH MPM’S SOLE NEGLIGENCE WAS ALLEGED TO THE PROXIMATE CAUSE; AND FOR CLAIMS OTHER THAN THOSE SET FORTH ABOVE, MPM’S LIABILITY SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED THE PURCHASE PRICE OF THE PRODUCTS. MPM SHALL NOT BE LIABLE IN ANY EVENT FOR THE FOLLOWING TYPES OF DAMAGES: INCIDENTAL DAMAGES, PUNITIVE DAMAGES, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST SAVINGS OR LOST REVENUES OF ANY KIND WHETHER OR NOT MPM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS PARAGRAPH SHALL SURVIVE THE FAILURE OF ANY EXCLUSIVE REMEDY. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE PRODUCTS FURNISHED OR SERVICES RENDERED BY MPM, MAY BE BROUGHT BY CUSTOMER MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
13. GOVERNING LAW AND INTERPRETATION. The Agreement and performance by the parties arising from or related to the Products provided by MPM shall be construed in accordance with the laws (excluding the laws related to conflicts) of the State of California. Venue and jurisdiction in any action shall lie solely in Orange County, California.
14. ARBITRATION OF DISPUTES. In the event of any dispute arising out of or relating to any agreement between the Parties or under these Terms and Conditions, the parties’ exclusive remedy shall be binding arbitration. All such arbitration proceedings pursuant to this section shall be held in Orange County, California, with Judicial Arbitration and Mediation Services (JAMS), before single arbitration in accordance with JAMS’ expedited procedures then in effect. The decision of the arbitrator shall be final and binding. The arbitrator need not follow any particular rules of evidence or procedure, but shall be requested in good faith follow as nearly as practicable the rules of JAMS relating to the arbitration of commercial disputes. Except as provided herein, any cost of arbitration shall be borne equally by each party, with the prevailing party being entitled to recover such costs, including reasonable attorneys’ fees. The arbitrator’s decision shall be specifically enforceable in any court of competent jurisdiction. Notwithstanding any contrary provision in this section, the parties may apply to any court of competent jurisdiction for interim for provisional relief pending the arbitrator’s decision.
Last Revision Date: April 18, 2016
