1. ACCEPTANCE OF TERMS – all sales to customer (“Buyer”) by Mattsco are subject to these terms and conditions (“Terms”) and no other terms and conditions shall apply unless mutually agreed to in writing and signed by an officer of Mattsco and Buyer. Any change, modification, recission, discharge, abandonment or waiver of these Terms shall subject to Article 11, “Modification of Terms”.
2. CANCELLATION OF ORDERS – Buyer may not cancel any order without the prior written consent of Mattsco. If consent is given, Buyer may be liable for all cancellation and/or restocking charges incurred by Mattsco and applied at Mattsco’s sole discretion.
3. PAYMENT TERMS – Unless otherwise mutually agreed and stated on the order, payment terms shall be due thirty (30) days after invoice date. If Buyer fails to make timely payment, then Mattsco reserves the right to apply a late charge of 1% per month on past due amounts.
4. DELIVERY TERMS – Unless otherwise mutually agreed and stated on the order, delivery terms shall be FCA shipping point (Incoterms 2010). Title and risk of loss to the goods shall pass to Buyer at shipping point.
5. RETURN OF GOODS – Credit may be allowed for goods returned with prior written approval by Mattsco. A deduction may be made from credits issued for restocking fees.
6. TAXES – Prices shown do not include sales, use, excise, export/import duties, tariffs, or other taxes imposed on the sale of goods. Taxes now or hereafter imposed upon sales of goods to Buyer will be added to the Mattsco’s invoice. Buyer agrees to reimburse Mattsco for any such tax or provide Mattsco with an acceptable tax exemption certificate.
7. DELAY IN DELIVERY – Mattsco is not liable for delays in delivery caused by acts of God, failure of its suppliers to ship or deliver on time, or other circumstances beyond Mattsco reasonable control. In no event shall Mattsco be liable for any consequential, indirect, incidental, or special damages arising from any delay in shipment or delivery.
8. LIMITED WARRANTIES – Mattsco hereby assigns to Buyer all transferable warranties made to Mattsco by the manufacturer of the goods. MATTSCO MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF DESIGN, PERFORMANCE, MERCHANTABILITY AND FITNESS FOR PURPOSE.
9. LIMITATION OF LIABILITY – NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, SPECIAL, COVER, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE, BUSINESS OR BUSINESS OPPORTUNITY) RESULTING FROM OR IN ANY WAY RELATED TO THE GOODS OR SERVICES PURCHASED/SOLD HEREUNDER, THIS ORDER OR TERMINATION OF THIS ORDER. THIS LIMITATION APPLIES REGARDLESS OF WHETHER THE DAMAGES OR OTHER RELIEF SOUGHT ARE BASED IN CONTRACT OR TORT, INCLUDING BREACH OF CONTRACT INCLUDING WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY. FURTHER, NOTWITHSTANDING ANY OTHER PROVISION OF THIS ORDER TO THE CONTRARY, MATTSCO’S TOTAL AGGREGATE LIABILITY HEREUNDER SHALL BE LIMITED TO THE PURCHASE PRICE OF THE GOODS GIVING RISE TO THE CLAIM. THE FOREGOING DISCLAIMERS AND LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY ESSENTIAL PURPOSE THEREOF, AND EVEN IN THE EVENT OF THE FAULT, NEGLIGENCE, OR STRICT LIABILITY OF THE PARTY WHOSE LIABILITY IS DISCLAIMED OR LIMITED
10. INDEMNIFICATION – Buyer agrees to defend, indemnify and hold Mattsco and its officers, directors, shareholders, agents, servants, employees and insurers harmless from any and all actions, liabilities, claims, damages, and expenses which arise out of or in any way connected to the order, including without limitation, reasonable attorney’s fees, expenses, costs, judgments, settlements, contract losses, damages, injuries except to the extent the liabilities, claims or expenses arise from Mattsco’s gross negligence or willful misconduct.
11. MODIFICATION OF TERMS –No change, modification, recission, discharge, abandonment or waiver of these Terms shall be binding upon Mattsco unless made in writing and signed on its behalf by an officer of Mattsco. No conditions, usage of trade, course of dealing or performance, understanding or agreement, purporting to modify, vary, explain, or supplement these Terms shall be binding unless hereafter made in writing and signed by an officer of Mattsco. Any proposed modifications or additional terms are specifically rejected and deemed a material alteration hereof. If any document of Mattsco shall be deemed an acceptance of a prior offer by Buyer, such acceptance is expressly conditional upon Buyer’s assent to any additional or different terms set forth herein.
12. GOVERNING LAW – These Terms shall be governed by the laws of the State of Oklahoma applicable to contracts to be formed and fully performed within the State of Oklahoma, without giving effect to the choice or conflicts of law provisions thereof. All suits arising from or concerning these Terms shall be filed in the courts of Tulsa County, Oklahoma or the United States District Court for the Eastern District of Oklahoma, and no other place unless otherwise determined in Mattsco’s sole discretion. Buyer hereby irrevocably consents to the jurisdiction of such court or courts and agrees to appear in any such action upon written notice thereof. Buyer agrees that in the event legal action is necessary to enforce the Terms set forth herein, Buyer shall pay all cost incurred by Mattsco including, without limitation, attorney’s fees, and costs of experts. Lien rights shall be governed by the state law where the project is located.
13. WAIVER – The failure of Mattsco to insist upon the performance of any of the Terms of this agreement or to exercise any right hereunder shall not be deemed to be a waiver of such terms, conditions, or rights in the future, nor shall it be deemed to be a waiver of any other term, condition or right under this agreement.
14. ASSIGNMENT – Buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of Mattsco, and any such assignment, without such consent, shall be void.
15. COMPLIANCE WITH U.S. EXPORT CONTROLS AND TRADE SANCTIONS – Buyer agrees to comply with all U.S. export controls and trade sanctions requirements. Buyer will obtain, or cause to be obtained, any authorizations required by the U.S. government for transfer outside of the U.S. Buyer agrees that the products will not be transferred, directly or indirectly, to any country subject to U.S. trade sanctions, nor to any person or entity listed on the U.S. Department of Treasury Office of Foreign Assets Control Specially Designated Nationals List.