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1. Modifications of Sales Terms
2. Acceptance of Orders
3. Quotations
4. Prices; Price Changes
5. Taxes
6. Terms of Payment
7. Delivery; Risk of Loss
8. Excusable Delays Force Majeure
9. Storage
10. Warranties to Distributors and Industrial or Commercial Customers
11. Limitations of Liability; Consequential Damages
12. Indemnification by Buyer
13. Patent Indemnification
14. Security Agreement and Financing Statements
15. Insurance
16. Drawings: Other Design Data
17. Return of Equipment
18. Assignment
19. Cancellation
20. General
ALL QUOTATIONS ARE MADE AND ALL
ORDERS ARE ACCEPTED BY MARATHON
SPECIAL PRODUCTS CORPORATION SUBJECT
ONLY TO THESE TERMS AND CONDITIONS.
1. MODIFICATIONS OF SALES TERMS
Any Terms and Conditions contained in any
purchase order or other form of communication from
Marathon’s customers which are additional or different
from these Terms and Conditions shall be deemed
rejected by Marathon unless expressly accepted in
writing by Marathon. In general, no modification,
amendment, waiver or other change of any of these
Terms and Conditions and those contained on the
reverse side hereof and/or in attachments hereto
("Terms and Conditions"), or of any of Marathon’s rights
or remedies thereunder, shall be binding on Marathon
unless expressly accepted in writing by Marathon’s
authorized officers at Marathon’s home office. No
course of dealing, usage of trade or course of
performance shall be relevant to explain or supplement
any of these Terms and Conditions. In cases of conflict
between the Terms and Conditions printed on this page
and those contained on the face side or in attachment
hereto, the latter shall control. If any document issued
by any party hereto is sent by facsimile or another form
of electronic document transmission, the parties hereto
agree that (a) the copy of any such document printed on
the facsimile machine or printer of the recipient thereof
is a counterpart original copy thereof and is a "writing",
(b) delivery of any such other form of electronic
document to the recipient thereof by facsimile or such
other form of electronic document transmission is
authorized by the recipient thereof and is legally sufficient
for all purposes as if delivered by United States
mail, (c) the typewritten name of an authorized agent of
the party sending such document on any such
document is sufficient as a signature thereon and behalf
of such party and the intent of such signature is to
authenticate the writing, and (d) an electronically stored
and reproduced copy of any such document shall be
deemed to be legally sufficient evidence of the terms of
such document for all purposes. Top
2. ACCEPTANCE OF ORDERS
Acceptance by Marathon of Buyer’s purchase
order(s) is expressly conditioned upon Buyer’s assent
to these Terms and Conditions. Buyer will be deemed to
have assented to such Terms and Conditions unless
Marathon receives written notice of any objection within
fifteen (15) days after Buyer’s receipt of this form and in
all events prior to any delivery or other performance by
Marathon of Buyer’s order. Top
3. QUOTATIONS
Quotations by Marathon shall be deemed to be
offers by Marathon to sell the equipment described
therein subject to these Terms and Conditions, and
acceptance of such offers is expressly limited to acceptance
by Buyer of all of these Terms and Conditions within
thirty (30) days from the date of the quotation.
Purchase orders submitted by Buyer for the equipment
quoted by Marathon shall be subject to and will be
deemed to constitute acceptance of these Terms and
Conditions. All purchase orders will be subject to
approval by Marathon at Marathon’s home office. Top
4. PRICES: PRICE CHANGES
All prices are net F.O.B. shipping point and are
subject to change without notice. In the event of a
change in Marathon’s prices, the price for equipment
unshipped will be the price in effect on the date of
shipment.
If Marathon’s quoted price was based on delivery
to and acceptance by Buyer of a specified quantity of
equipment, such price shall be subject to adjustment if
Buyer does not accept the quantity at the times
specified in Marathon’s quotation, and Buyer will be
invoiced at Marathon’s standard price without quantity
discounts, if any, for the quantity of equipment actually
accepted by Buyer. Top
5. TAXES
In addition to any prices, Buyer shall pay the
amount of any present or future manufacturer’s tax,
retailer’s occupation tax, use tax, sales tax, excise tax,
duty, custom, inspections or testing fee, or any other
tax, fee or charge of any nature whatsoever imposed by
any government authority, on or measured by the
transaction between Marathon and Buyer. In the event
Marathon is required to pay any such tax, fee or charge,
Buyer shall reimburse Marathon therefor, or, in lieu of
such payment, Buyer shall provide Marathon at the time
the order is submitted with an exemption certificate or
other document acceptable to the authority imposing
such tax, fee or charge. Top
6. TERMS OF PAYMENT
All orders are subject to the approval of Marathon
at its home office. Terms of payment are cash in full no
later than thirty (30) days from date of shipment,
without discount. If, during the period of performance of
an order, the financial condition of Buyer is determined
by Marathon not to justify the terms of payment
specified, Marathon may demand full or partial payment
in advance before proceeding with the work, or
satisfactory security or guarantees that invoices will be
promptly paid when due, or, at its option without
prejudice to other lawful remedies, may defer delivery or
cancel this contract If delivery is deferred, the
equipment may be stored as provided in Section 9
hereof and Marathon may submit a new estimate of cost
for completion based upon prevailing conditions. If
Buyer defaults in any payment when due, or in the event
any voluntary or involuntary bankruptcy or insolvency
proceedings involving Buyer are initiated by or against
Buyer, then the whole contract price shall immediately
become due and payable upon demand, or Marathon,
at its option without prejudice to its other lawful
remedies, may defer delivery or cancel this contract
Prorata payments shall become due as shipments
are made. If shipments are delayed by the Buyer for any
cause, payments shall become due from the date on
which Marathon is prepared to make shipment and
storage shall be at the Buyer’s risk and expense as
provided in Section 9 hereof. If manufacture is delayed
by the Buyer for any cause, a Partial payment based
upon the proportion of the order completed shall
become due from the date on which Marathon is notified
of the delay. Top
7. DELIVERY; RISK OF LOSS
All sales are F 0.B. Marathon’s plant or other point
of shipment designated by Marathon. Shipping dates
are estimates only which are not guaranteed and are
based upon prompt receipt from Buyer of all necessary
shipping and other information, Marathon reserves the
right to make delivery in installments. All installments to
be separately invoiced and paid for by Buyer when due
per invoice, without regard to subsequent deliveries.
Delivery of equipment to a commercial carrier at
Marathon’s plant or other loading point shall constitute
delivery to Buyer, and any risk of loss and further cost
and responsibility thereafter for claims, delivery, loss or
damage, including if applicable, placement and storage
shall be borne by Buyer. When equipment is delivered
by Marathon’s truck, unloading at Buyer’s dock shall
constitute delivery to Buyer. Claims for shortages or
other errors in delivery must be made in writing to
Marathon within ten (10) days after receipt of shipment
and failure to give such notice shall constitute
unqualified acceptance and a waiver of all such claims
by Buyer. Claims for loss or damage to equipment in
transit by common carrier must be made to the carrier
and not to Marathon. Freight and handling charges by
Marathon may not reflect actual freight charges prepaid
to the carrier by Marathon due to incentive discounts
earned by Marathon based upon Marathon’s aggregate
volume of freight tendered to a carrier or when a carrier
must be used which charges a rate which is different
than the rate upon which Marathon’s freight and
handling charges were based. When shipments are
delivered in Marathon’s private trucks, Buyer will be
charged an amount approximating the prevailing
common carrier rate. Top
8. EXCUSABLE DELAYS FORCE MAJEURE
Marathon shall not be liable for any loss or damage
as a result of Marathon’s delay in or failure of delivery or
installation due to (i) any cause beyond Marathon’s
reasonable control, (ii) an act of God, act of the Buyer,
embargo or other governmental act, authority
regulation or request, fire, theft, accident, strike,
slow-down or other labor disturbance, war, riot, delay in
transportation, or (iii) inability to obtain necessary labor,
materials, components or facilities.
Should any of the aforementioned events of force
majeure occur, Marathon at its option, may cancel
Buyer’s order with respect to any undelivered
equipment or extend the delivery date for a period equal
to the time lost because of delay. Notice of such election
shall be given promptly to Buyer. In the event Marathon
elects to so cancel the order Marathon shall be released
of and from all liability for failure to deliver the
equipment including, but not limited to any and all
claims on behalf of Buyer for lost profits or any other
claim of any nature which Buyer might have.
If shipping or progress of the work is delayed or
interrupted by Buyer, directly or indirectly, Buyer shall
pay Marathon for all additional charges resulting
therefrom. Top
9. STORAGE
If the equipment is not shipped within thirty (30)
days after notification has been made to Buyer that it is
ready for shipping, for any reason beyond Marathon’s
control, including Buyers failure to give shipping
instructions, Marathon may store the equipment at
Buyer’s risk and expense in a warehouse or upon
Marathon’s premises, and Buyer shall pay all handling,
transportation and storage costs at the prevailing
commercial rates promptly following Marathon’s
submission of invoices for such costs. Top
1O. WARRANTIES TO DISTRIBUTORS AND
INDUSTRIAL OR COMMERCIAL CUSTOMERS
This warranty is extended only to Marathon’s distributors and industrial or commercial customers and
does not apply to consumer purchasers.
Warranty Period - Marathon warrants products
manufactured by it to be free from defects in materials
and workmanship and to conform to Marathon’s written
specifications for a period of twelve (12) months from
date of first use or eighteen (18) months from date of
manufacture whichever period shall expire first.
Warranty Remedies - If prior to expiration of the
foregoing warranty period, any product shall be
proved to Marathon’s satisfaction to be defective or nonconforming,
Marathon will repair or replace such defective
equipment or components thereof. F.O.B.
Marathon’s plant or other destination designated by
Marathon or will refund or credit by Marathon, the
purchase price paid therefor by Buyer, at Marathon’s
sole option. Buyer’s exclusive remedy and Marathon’s
sole obligation under this warranty shall be limited to
such repair or replacement, F.O.B. Marathon’s plant or
other destination designated by Marathon or refund or
credit by Marathon, and shall be conditioned upon
Marathon’s receiving written notice of any defect within
sixty (60) days after it was discovered or by reasonable
care should have been discovered. In no event shall
Marathon’s liability for such defective or nonconforming
products exceed the purchase price paid by Buyer
therefore.
Exclusions - This warranty does not (i) cover
shipping expenses to and from Marathon’s factory or
other destination designated by Marathon for repair or
replacement of defective equipment or any tax, duty,
custom, inspection or testing fee, or any other charge of
any nature related thereto, nor does it cover the costs of
removing defective equipment or reinstalling repaired or
replaced equipment, (ii) apply and shall be void with
respect to equipment operated in excess of rated
capacity or otherwise not in accordance with
installation, maintenance or operating instructions or
requirements, to equipment repaired or altered by
others than Marathon or Marathon’s authorized service
agencies, or to equipment which was subjected to
abuse, negligence, misuse, misapplication, accident,
damages by circumstances beyond Marathon’s control,
to improper installation (if by others than Marathon),
operation, maintenance or storage, or to other than
normal use or service, and (iii) apply to equipment or
components not manufactured by Marathon. With respect to equipment or components not manufactured
by Marathon, Marathon’s warranty obligations shall in
all respects conform and be limited to the warranty
actually extended to Marathon by its suppliers but in no
event shall Marathon’s obligations be greater than those
provided under Marathon’s warranty set forth in this
Section 10.
THE FOREGOING WARRANTIES ARE IN LIEU
OF ALL OTHER EXPRESS AND IMPLIED
WARRANTIES (EXCEPT TITLE), INCLUDING,
WITHOUT LIMITATION, THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. NO EMPLOYEE,
REPRESENTATIVE, OR AGENT OF MARATHON
OTHER THAN AN OFFICER OF MARATHON IS
AUTHORIZED TO ALTER OR MODIFY ANY
PROVISION OF THIS SECTION 10 OR TO MAKE ANY
GUARANTEE, WARRANTY, OR REPRESENTATION,
EXPRESS OR IMPLIED, ORALLY OR IN WRITING,
WHICH IS CONTRARY TO THE FOREGOING. Any
description of the equipment, whether in writing or made
orally by Marathon or Marathon’s agent, specifications,
samples, models, bulletins, drawings, diagrams,
engineering sheets or similar materials used in
connection with Buyer’s order are for the sole purpose
of identifying the equipment and shall not be construed
as an express warranty. Any suggestions by Marathon
or Marathon’s agents regarding use, application or
suitability of the equipment shall not be construed as an
express warranty unless confirmed to be such in
writing by Marathon’s authorized officer at Marathon’s
home office. Top
11. LIMITATIONS OF LIABILITY;
CONSEQUENTIAL DAMAGES
Nuclear Use Disclaimer - Equipment sold by Marathon is not intended for use in connection with
any nuclear facility or activity. If so used Marathon
disclaims all liability for any nuclear damage, injury or
contamination, and Buyer shall indemnify and hold
Marathon, its officers, agents, employees, successors,
assigns, and customers harmless from and against any
and all losses, damages or expenses of whatever form
or nature (including attorneys’ fees and other costs of
defending any action) which they or any of them may
sustain or incur whether as a result of breach of
contract, warranty, tort (including negligence) or
otherwise, by reason of such use.
Consequential Damage Disclaimer - Marathon’s
liability with respect to equipment proved to its
satisfaction to be detective within the warranty period
shall be limited to repair, replacement or refund as
provided in Section 10 hereof and in no event shall
Marathon’s liability exceed the purchase price of the
equipment involved. Marathon shall not be subject to
any other obligations or liabilities, whether arising out of
breach of contract, warranty, tort (including negligence)
or other theories of law, with respect to equipment sold
or services rendered by Marathon, or any undertakings,
acts or omissions relating thereto. Without limiting the
generality of the foregoing, Marathon specifically
disclaims any liability for property or personal injury
damages, penalties, special or punitive damages,
damages for lost profits or revenues, loss of use of
equipment or any associated equipment, cost of capital,
cost of substitute products, facilities or services,
down-time, shut-down, or slow-down costs, or for any
other types of economic loss, and for claims of Buyer’s
customers for any such damages.
MARATHON SHALL NOT BE LIABLE FOR AND
DISCLAIMS ALL CONSEQUENTIAL, INCIDENTAL
AND CONTINGENT DAMAGES WHATSOEVER.
EVEN IF THE REPAIR OR REPLACEMENT REMEDY
SHALL BE DEEMED TO HAVE FAILED OF ITS
ESSENTIAL PURPOSE UNDER SECTION 2-719 OF
THE UNIFORM COMMERCIAL CODE, MARATHON
SHALL HAVE NO LIABILITY TO BUYER FOR
CONSEQUENTIAL DAMAGES, SUCH AS LOST
PROFITS, LOST REVENUE, DAMAGE TO OTHER
EQUIPMENT OR LIABILITY OR INJURY TO A THIRD
PARTY. Top
12. INDEMNIFICATION BY BUYER
Buyer shall indemnify, hold harmless, and defend
Marathon and Marathon’s employees and agents from
and against any and all damages, liability, claims,
losses, and expenses (including reasonable attorneys’ fees, court costs, and out-of-pocket expenses) arising
out of or resulting in any way from claims by customers
of Buyer or third parties against Marathon alleging a
breach of contract or warranty by Marathon to the extent
that such damages, liability, claims, losses, and
expenses which may be payable by Marathon to Buyer
pursuant to and as limited by Marathon’s warranty and
damage obligations as contained in Sections 10 and 11
hereof so as to effectively limit Marathon’s obligations to
customers of Buyer or third parties to those set forth in
Sections 10 and 11 hereof. Top
13. PATENT INDEMNIFICATION
Marathon will at its own expense, defend or settle
any suits that may be instituted against Buyer for
alleged infringement by the equipment of any
United States patent, provided that (a) such alleged
infringements consists of the use of the equipment for
any of the purposes for which such equipment was sold,
(b) Buyer shall have made all payments for such
equipment then due hereunder, (c) Buyer shall give
Marathon immediate notice in writing of any such suit
and transmit to Marathon immediately upon receipt all
processes and papers served upon Buyer, and (d)
Buyer shall permit Marathon through its counsel, either
in the name of Buyer or in the name of Marathon, to
defend such suit(s) and give all needed information,
assistance and authority to enable Marathon to do so.
In case of a final award of damages in any such
suit, Marathon will pay such award but will not be
responsible for any compromise or settlement made
without its written consent. In case the equipment itself
is in such suit held to infringe any valid patent issued in
the United States and its use enjoined, or in the event of
a settlement or compromise approved by Marathon
which shall preclude future use of the equipment sold to
Buyer hereunder, Marathon shall, at its own expense
and, at its sole option, either (a) procure rights to
continue using such equipment, (b) modify the
equipment to render it noninfringing, (c) replace the
equipment with noninfringing equipment, or (d) refund
the purchase price paid by Buyer for the equipment
after return of the equipment to Marathon.
Notwithstanding the foregoing, Marathon shall not be
held responsible for infringements of combination or process patents covering the use of equipment in
combination with other goods or materials not furnished
by Marathon.
The foregoing states the entire liability of Marathon
for patent infringement and IN NO EVENT SHALL
MARATHON BE LIABLE FOR CONSEQUENTIAL OR
INCIDENTAL DAMAGES ATTRIBUTABLE TO AN
INFRINGEMENT nor for infringement based on the use
of the equipment for a purpose other than that for which
sold by Marathon. As to any equipment furnished by
Marathon to Buyer manufactured in accordance with
designs proposed or furnished by Buyer or any claim of
contributory infringement resulting from the use or
resale by Buyer of equipment sold hereunder, Buyer
shall indemnify Marathon against any award made
against Marathon for any patent, trademark or copyright
infringements, including attorneys’ fees and defense
costs. Top
14. SECURITY AGREEMENT AND FINANCING
STATEMENTS
To secure payment of the purchase price and of all
monies which may be due hereunder, and performance
of all of Buyer’s obligations hereunder, Buyer hereby
grants to Marathon a security interest in all equipment
sold by Marathon, and agrees to execute such other
Security Agreements and Financing Statements as
Marathon may reasonably request. Top
15. INSURANCE
Until payment in full of the purchase price, Buyer
shall maintain insurance covering all equipment sold by
Marathon to Buyer in such amounts and against such
risks as is customary by companies engaged in the
same or similar business and similarly located, and
shall, upon Marathon’s request, furnish evidence of
such insurance satisfactory to Marathon. Top
16. DRAWINGS: OTHER DESIGN DATA
All specifications, drawings, design, data,
information, ideas, methods, patterns and/or inventions
made, conceived, developed or acquired by Marathon
in connection with procuring and/or executing Buyer’s
order will vest in and inure to Marathon’s sole benefit
notwithstanding any changes therefor which may have
been or may be imposed by Marathon.
Buyer shall not give, loan, exhibit, sell or transfer to
any person not then employed by Buyer and authorized
to receive such information, or to any organization or
entity, any drawing, photograph, or specification
furnished by Marathon or reproduction thereof which
may enable such person, organization or entity to
furnish similar goods or parts therefore. Top
17. RETURN OF EQUIPMENT
No equipment or part shall be returned to Marathon
without written authorization and shipping instructions
first having been obtained from Marathon. Top
18. ASSIGNMENT
None of the Buyer’s rights under any order shall be
assigned by the Buyer to any other person, whether by
operation of law or otherwise, without Marathon’s prior
written approval. Marathon may, without the necessity
of obtaining Buyer’s prior written consent, subcontract
the production of all or any portion of the equipment. Top
19. CANCELLATION
No order submitted to Marathon may be cancelled
by Buyer without the prior written consent of Marathon,
which consent will at all times be conditioned on Buyer’s
agreement to pay Marathon’s cancellation charge. For
finished equipment which in Marathon’s judgment is
readily resalable to others, the cancellation charge shall
be 15% of the invoice price of the equipment. For all
other cancellations the cancellation charge shall
amount to all costs and expenses incurred by Marathon
and arising out of or in connection with the Buyer’s
order, net of recoverability, but in no event less than
10% of the invoice price of the equipment or more than
the invoice price. Top
20. GENERAL
Governing Law - These Terms and Conditions,
and the contract of sale between Marathon and Buyer,
shall be governed by and construed in accordance with
the internal laws of the State of Ohio. Marathon and
Buyer hereby agree that any legal action deemed
necessary by either party hereto shall be brought in the
Circuit Court in and for Wood County, Ohio and hereby
consent to the personal jurisdiction of such court in any
such action over the parties hereto. The rights and
obligations of Marathon and Buyer shall not be
governed by the provisions of the United Nations
Convention on Contracts for the International Sales of
Goods. Top
Attorneys’ Fees - Buyer agrees to pay all of
Seller’s costs and expenses of collection and related
litigation, including but not limited to attorneys’ fees and
costs.
Salvatory Clause - The invalidity, in whole or in
part, of any of the provisions of these Terms and
Conditions, shall not affect the enforceability of any of
the other provisions thereof.
Applicability - The Terms and Conditions as stated herein are applicable as of the date of this
printing and until such time as changed by Marathon.
Revised, January 2003
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