M-COR INC.
TERMS AND CONDITIONS OF SALE
This Agreement is effective as of the date on which M-Cor Inc. (“M-Cor”) issues an order acknowledgment (“Acknowledgment”) that is accepted by the buyer (“Customer”).
1. CONTRACT FORMATION; CONDITIONAL ASSENT
This Agreement, including the Acknowledgment and any specifications expressly attached thereto by M-Cor, constitutes the entire agreement between the parties. IMPORTANT: M-Cor’s acceptance of Customer’s order is expressly made conditional on Customer’s assent to these Terms and Conditions. M-Cor hereby objects to and rejects any additional, different, or conflicting terms contained in any Purchase Order, release, or other communication from Customer. ACCEPTANCE: Customer’s acceptance shall be deemed to occur upon the earliest of: (i) Customer’s written or electronic confirmation; (ii) Customer’s failure to object in writing within five (5) business days of receipt of the Acknowledgment; (iii) Shipment of Products by M-Cor; or (iv) Customer’s payment of any invoice issued by M-Cor.
2. PRICES AND TAXES
Prices are as stated in the Acknowledgment. Prices exclude all taxes, duties, VAT, freight, insurance, and government charges, which are the sole responsibility of Customer. Raw Material Surcharge: Prices are based on raw material costs as of the date of the Acknowledgment. If M-Cor’s raw material costs increase by more than 5% prior to production, M-Cor reserves the right to adjust the Price via a surcharge to reflect such increase. M-Cor shall provide reasonable documentation evidencing such cost increases upon request.
3. PAYMENT TERMS; INTEREST; SECURITY INTEREST
Terms: Invoices are issued at shipment. Payment is due net thirty (30) days from invoice date. Late Payments (Montana Compliant): Past due amounts shall accrue interest at 1.25% per month (15% per annum) or the maximum rate permitted by Montana law (MCA § 31-1-107), whichever is lower. Collection Costs: Customer shall reimburse M-Cor for all costs incurred in collecting past due amounts, including reasonable attorneys’ fees and court costs. Security Interest: Customer grants M-Cor a Purchase Money Security Interest (PMSI) in the Products and proceeds thereof until the full purchase price is paid. Customer authorizes M-Cor to file UCC financing statements to perfect this interest.
4. DELIVERY; TITLE; RISK OF LOSS
Incoterms: Delivery is Ex Works (Incoterms® 2020) M-Cor facility. Title and risk of loss pass to Customer upon M-Cor’s delivery of Products to the carrier. Schedule: Delivery dates are estimates only. M-Cor is not liable for delay damages. Quantity Tolerance: Due to manufacturing variances, M-Cor reserves the right to ship and invoice for quantities within ±10% of the acknowledged quantity, and the order shall be considered complete.
5. CANCELLATION AND LIQUIDATED DAMAGES
Orders are NON-CANCELLABLE and NON-RETURNABLE once an Acknowledgment is issued, except with M-Cor’s written consent. Liquidated Damages: The parties acknowledge that M-Cor’s actual damages from a cancellation are difficult to calculate with precision (MCA § 30-2-718). Therefore, if M-Cor agrees to a cancellation, Customer shall pay Liquidated Damages—agreed to be a reasonable estimate and not a penalty—equal to the sum of: (a) The contract price of all finished Products; (b) The full cost of all raw materials and components purchased or committed by M-Cor; (c) The full cost of work-in-process (WIP); (d) M-Cor’s lost profit margin on the cancelled portion of the order; and (e) Any non-recoverable engineering or tooling costs. In no event shall Liquidated Damages exceed the total Contract Price of the cancelled order.
6. INSPECTION; ACCEPTANCE
Inspection Window: Customer shall inspect all Products within fifteen (15) business days of receipt. Waiver: Failure to provide written notice of visible (patent) non-conformance within this period constitutes unqualified acceptance and a waiver of all such claims. Returns: No returns will be accepted without a valid Return Material Authorization (“RMA”) number. Authorized returns must be shipped prepaid within ten (10) days of RMA issuance.
7. LIMITED WARRANTY
Scope: M-Cor warrants that, at the time of shipment, Products will conform to the written specifications expressly identified in the Acknowledgment. DISCLAIMER: THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. M-COR HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
8. EXCLUSIVE REMEDY; LIMITATION OF LIABILITY
Remedy: Customer’s sole remedy for breach of warranty is limited to, at M-Cor’s option: (i) repair; (ii) replacement; or (iii) credit/refund of the purchase price for the non-conforming Product. Limitation of Damages: IN NO EVENT SHALL M-COR BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, LINE DOWN CHARGES, OR RECALL COSTS. Liability Cap: M-Cor’s total aggregate liability arising out of this Agreement shall not exceed the lesser of $25,000 or five (5) times the amount paid for the specific Product giving rise to the claim. Montana Statutory Exception: The limitations in this Section 8 shall apply to the maximum extent permitted by law but shall not apply to liability resulting from M-Cor’s fraud, willful injury to person or property, or violation of law (MCA § 28-2-702).
9. TOOLING
Unless otherwise agreed in a separate written agreement, all tooling, fixtures, molds, and software developed or procured by M-Cor to produce the Products remain the sole property of M-Cor, regardless of any tooling charges paid by Customer.
10. INDEMNIFICATION
Customer shall indemnify, defend, and hold M-Cor harmless from any claims, damages, or liabilities (including attorneys’ fees) arising out of: (i) Customer’s use, resale, or incorporation of the Products into other goods; (ii) M-Cor’s compliance with Customer’s designs or specifications; or (iii) Customer’s violation of applicable laws.
11. COMPLIANCE WITH LAWS
Customer represents that it is in compliance with all applicable laws and regulations, including U.S. export control laws (EAR/ITAR). Customer shall not export or re-export Products in violation of such laws.
12. CONFIDENTIALITY
Each party shall protect the other’s Confidential Information with the same degree of care it uses to protect its own, for a period of five (5) years from the date of disclosure. Trade secrets shall be protected indefinitely.
13. FORCE MAJEURE
M-Cor shall not be liable for delays or failure to perform due to causes beyond its reasonable control, including acts of God, war, terrorism, epidemics, raw material shortages, or carrier delays.
14. GOVERNING LAW; VENUE
This Agreement is governed by the laws of the State of Montana, without regard to conflict of law principles. The UN Convention on Contracts for the International Sale of Goods (CISG) is expressly disclaimed. Any dispute shall be resolved exclusively in the state or federal courts located in Helena, Montana.
15. MISCELLANEOUS
(a) Waiver: Failure to enforce any provision is not a waiver of future enforcement. (b) Severability: If any provision is held invalid, the remaining provisions remain in effect. (c) Assignment: Customer may not assign this Agreement without M-Cor’s written consent. (d) Entire Agreement: This Agreement supersedes all prior agreements and understandings.