Standard Terms and Conditions
These Standard Terms and Conditions apply to any sale of products, equipment, parts, materials and related services (the “Products”) by Marko Radiator to a Marko Radiator customer (the “Customer”) and acceptance of these Standard Terms and Conditions is an express condition of such a sale.
These Standard Terms and Conditions, the quotation (the “Marko Radiator Quotation”) and/or order confirmation (the “Marko Radiator Order Confirmation”) issued by Marko Radiator in respect of each supply of Products and any other document expressly incorporated by reference by Marko Radiator in a Marko Radiator Order Confirmation (collectively, the “Agreement”) constitute the entire agreement between Marko Radiator and the Customer regarding a sale of Products by Marko Radiator to the Customer and supersede all other discussions, proposals, negotiations, statements, representations, understandings and the like, whether written or oral.
Marko Radiator rejects any differing or supplemental terms which may be printed or otherwise found in any purchase order or other document sent by the Customer, except as expressly accepted by Marko Radiator by the signature of an authorized representative. Unless otherwise specifically and expressly set forth in writing by a duly authorized representative of Marko Radiator, if there are inconsistencies in the documents constituting the Agreement, such documents shall take precedence in the following order: (i) these Standard Terms and Conditions, (ii) the Marko Radiator Order Confirmation, and (iii) the Marko Radiator Quotation or other contract document incorporated by reference by Marko Radiator in the Marko Radiator Order Confirmation.
Terms of Payment. Unless otherwise agreed by Marko Radiator in writing, Marko Radiator invoices for the Customer’s purchase of Products are payable within thirty (30) days of the date of the invoice. Should payment of any amount owing to Marko Radiator under the Agreement not be made to Marko Radiator when due, such payment shall bear interest at the rate of one and one-half percent (1½%) per month or the maximum rate allowed by law, whichever is lower. The charging of such interest shall not be construed as obligating Marko Radiator to grant any extension of time in the terms of payment. No cash discount shall be available to the Customer. If prior to any delivery of Products, Marko Radiator has concern regarding timely payment of the purchase price because of a material adverse change in Customer’s circumstances or otherwise, Marko Radiator may require payment of all or additional parts of the purchase price before shipment or delivery and/or Marko Radiator may require satisfactory security for the payment of the purchase price.
Title Retention. Title or ownership of the Products shall not pass to the Customer, notwithstanding delivery thereof, but shall remain vested in Marko Radiator until the purchase price of the Products is paid in full. As security for the full payment of the purchase price of the Products, the Customer hereby grants to Marko Radiator, and Marko Radiator hereby reserves, a purchase money security interest and charge in the Products and in all substitutions, replacements and additions thereto and the proceeds thereof. Until such time of full payment, the Customer shall: (a) insure the Products against loss, damage or destruction for full replacement value; and (b) execute such additional documents as Marko Radiator requests for the confirmation or perfection of Marko Radiator’s ownership or security interest and charge. Upon default by the Customer, and subject to applicable law, Marko Radiator may repossess and deal with the Products as it sees fit and retain all payments which have been made by the Customer on account of the purchase price as partial damages. Upon any such realization of security, the Customer shall remain liable for any deficiency in the purchase price and shall reimburse Marko Radiator for all costs and expenses, including reasonable legal fees, incurred in enforcing its rights. All rights and remedies of Marko Radiator are cumulative and in addition to those available at law or in equity.
Risk of Loss. Unless otherwise specified or confirmed in the Marko Radiator Order Confirmation, the risk of loss or damage to the Products including any repaired or replaced items, and the responsibility for the payment of insurance premiums and freight passes to the Customer upon Marko Radiator’s delivery of such Products to the Customer’s carrier as provided in Section 4. No loss or damage to the Products or any portion thereof shall relieve the Customer from its obligations hereunder.
Limited Warranties. Marko Radiator warrants that each Product is free of defects in material and workmanship strictly in accordance with the terms and conditions of the limited warranty statement specified or confirmed in the applicable Marko Radiator Quotation or Marko Radiator Order Confirmation at the time of purchase (the “Product Warranties”). Additional copies of Product Warranties are available from Marko Radiator upon request.
No Other Warranties. THE LIMITED PRODUCT WARRANTIES REFERRED TO IN SECTION 11 ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS IN RESPECT OF THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY OTHER WARRANTIES ARISING BY OPERATION OF LAW, COURSE OF DEALING, TRADE USAGE, REPRESENTATION, STATEMENT OR OTHERWISE. THE REMEDIES PROVIDED IN THE APPLICABLE PRODUCT WARRANTY ARE THE CUSTOMER’S SOLE REMEDIES FOR ANY FAILURE OF Marko Radiator TO COMPLY WITH ITS WARRANTY OBLIGATIONS. Applicable law may not allow exclusions of implied warranties, so the above exclusions may not apply.
Limitation of Liability. Marko Radiator SHALL NOT UNDER ANY CIRCUMSTANCE BE LIABLE TO ANYONE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS AND LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT Marko Radiator WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. IN NO EVENT SHALL Marko Radiator BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS. Marko Radiator’S MAXIMUM TOTAL CUMULATIVE LIABILITY FOR ANY REASON SHALL NOT EXCEED THE AGGREGATE PURCHASE PRICE FOR THE APPLICABLE PRODUCTS SUPPLIED UNDER THE AGREEMENT. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. CUSTOMER HAS ACCEPTED THE DISCLAIMER OF WARRANTIES IN SECTION 12 AND LIMITATION OF LIABILITY IN THIS SECTION 13 AS PART OF A BARGAIN WITH RESPECT TO THE PRICING OF THE PRODUCTS AND UNDERSTANDS THAT THE PRICING WOULD BE HIGHER IF Marko Radiator WERE REQUIRED TO BEAR LIABILITY IN EXCESS OF THAT STATED HEREIN. Marko Radiator neither assumes nor authorizes any person, firm or entity to assume for Marko Radiator any other additional liability or responsibility in connection with the Products, including any affirmation, representation, or warranty concerning the Products made by an agent, employee, or representative of Marko Radiator.
Indemnification. Customer shall defend, indemnify and hold harmless Marko Radiator, its officers, directors, agents, employees, successors, assigns and other customers against any and all losses, liabilities and expenses (including all legal fees) or judgments arising from or in connection with any claim made or action brought as a result of (a) the use, storage, sale, processing, or other disposition of the Products sold to such Customer under the Agreement, or the action or inaction of Customer or, if applicable, its employees, customers, or agents, which may cause injuries or damage giving rise to claims against Marko Radiator, or (b) an alleged infringement arises out of Customer’s use of the Products or incorporation of the Product(s) as components into any other product.
Intellectual Property. Neither Customer, nor its affiliates (nor their respective successors, assigns, licensees or other transferees) shall enforce (or attempt or purport to enforce) against Marko Radiator or its affiliates, (sub)licensees, manufacturers, and distributors any existing or future patent that claims (or purports to claim) any or part of the Products or the use, design, manufacturing, layout and packaging thereof. This nonassertion covenant shall be a covenant that transfers with any sale, license or other disposition or grant of rights under the applicable patent rights.
Re-sale of Products. Without limiting the generality of anything set forth in the Agreement, in respect of any re-sale of the Products or sale of any product which incorporates a Product as a component, the Customer shall indemnify, defend and hold harmless Marko Radiator, its officers, directors, agents, employees, successors, assigns and other customers against any and all claims, actions, losses, liabilities and expenses (including all legal fees) or judgments arising from or in connection with a representation or warranty for the Products, including in their capacity or use as a component part of other products, made by the Customer, other than as limited by the applicable Product Warranties, or arising from an allegation of patent infringement relating to Customer’s product(s) in which the Products are used as a component part.
Force Majeure. Marko Radiator is excused from the timely performance of its obligations in the sale or other supply of Products if its performance is impeded or prevented by circumstances beyond its control (a “Force Majeure Event”) and Marko Radiator is taking all reasonable steps to mitigate the effect of the delay. Following the occurrence and the termination of a Force Majeure Event, Marko Radiator shall provide the Customer with written notice and reasonable particulars of the Force Majeure Event. Either party may terminate any Agreement affected by a Force Majeure Event if such circumstances continue for more than six (6) months. Upon and notwithstanding any such termination, the Customer shall pay Marko Radiator for that portion of the Products manufactured or delivered prior to the date of the abovementioned initial notice of the Force Majeure Event. Notwithstanding anything in this Section 19, the Customer shall extend any security granted for the payment of the purchase price of Products for a period equal to the delay caused by the Force Majeure Event.