terms and conditions
I. MALCOM COMPANY INC. TERMS AND CONDITIONS.
A. SALES POLICY FOR PRODUCTS
1. Description of Sales. Malcom Company Inc. (“Malcom”) sells Industrial products.
2. Prices. Prices listed may include freight, handling fees, and the industrial funding fee, and are subject to correction or change on GSAadvantage.com without notice. Market sensitive commodity products will be priced according to current market conditions and shall remain in effect for 30 days after the date of quotation, unless otherwise stated by Malcom. Customer should contact Malcom directly or check online at www.gsaadvantage.com for current pricing. Export orders may be subject to other special pricing. Malcom reserves the right to accept or reject any order.
3. Sales Tax.. Any current or future tax or governmental charge (or increase in same) affecting Seller's costs of production, sale, or shipment, or which Seller is otherwise required to pay or collect in connection with the sale, purchase, delivery, storage, processing, use or consumption of Goods, shall be for Buyer's account and shall be added to the price or billed to Buyer separately, at Seller's election
4. Payment and Credit Terms. Malcom accepts cash (US Currency), checks, money orders, Visa, and MasterCard, and American Express with an additional fee. For customers with established Malcom credit, payment terms are net thirty (30) days from the date of invoice. All credit extended by Malcom to customer, and the limits of such credit, is at Malcom’s sole discretion, and may be reduced or revoked by Malcom at any time, for any reason. As a condition for the continued extension of credit, customer agrees to provide Malcom with current credit information and the latest annual financial statement within five (5) business days following request by Malcom. Malcom reserves the right to charge a convenience fee for late payments. Malcom further reserves the right to charge customer a late payment fee at the rate of one and one-half percent (1.5%) of the amount due for each month or portion thereof that the amount due remains unpaid, or such amount as may be permitted under applicable law. Anticipation and cash discounts are not allowed. Export orders are subject to special export payment terms and conditions identified in Section III. All payments must be made in U.S. dollars. Malcom has the right of set-off and deduction for any sums owed by customer to Malcom.
If customer fails to make payment within thirty (30) days of shipment or pick-up, or fails to comply with Malcom’s credit terms, or fails to supply adequate assurance of full performance to Malcom within a reasonable time after requested by Malcom (such time as specified in Malcom's request), Malcom may defer shipments until such payment or compliance is made, require cash in advance for any further shipments, demand immediate payment of all amounts then owed, elect to pursue collection action (including without limitation, attorneys’ fees and any and all other associated costs of collection), and/or may, at its option, cancel all or any part of an unshipped order. Additionally, customer, and each of its subsidiaries and affiliates, agrees to provide to Malcom proper authorization necessary for Malcom to request any financial information from third parties.
Customer agrees to assume responsibility for, and customer hereby unconditionally guarantees payment of, as provided herein, all purchases made by customer, its subsidiaries and affiliates. Each of customer’s subsidiaries and affiliates purchasing from Malcom are jointly and severally liable for purchases with customer, and customer is also acting as agent for such subsidiaries and affiliates.
5. Security Interest. Customer hereby grants to Malcom a first priority purchase money security interest and/or chattel mortgage in the products and any accounts receivable or cash from resale thereof until full payment is made to Malcom. Customer agrees to file, and it permits and authorizes Malcom to file, any financing statements or other appropriate documents with its governmental authorities to perfect the validity, priority, and enforceability of Malcom’s lien or security interest.
6. Credit Balance. Customer agrees that any credit balance(s) issued by Malcom will be applied to customer’s account within one (1) year of its issuance. IF CUSTOMER HAS NOT REQUESTED THE CREDIT BALANCE WITHIN ONE (1) YEAR, ANY REMAINING CREDIT BALANCE WILL BE CANCELLED, AND MALCOM SHALL HAVE NO FURTHER LIABILITY.
B. FREIGHT POLICY
1. Commercial. Prices stated are for the cost of the product only. Malcom charges a shipping and handling fee, (which includes internal handling and related costs), on each order which is not included in the price. COD shipments are not permitted without credit referenced preapproval from Malcom Company. Other terms and conditions may apply for other than standard ground delivery ("Other Freight Services"), including without limitation, expedited same day delivery, air freight, freight collect, export orders, hazardous materials, customer's carrier, shipments outside the contiguous U.S. or other special handling by the carrier. Any charges incurred for Other Freight Services must be paid by customer, including but not limited to, tariffs, export and import duties, and any related costs for customs. Fuel surcharges may be applied. For regular F.O.B. Origin, title and risk of loss pass to customer upon tender of shipment to carrier. For regular F.O.B. Destination, title and risk of loss pass to customer upon tender of shipment to the customer. If the product is damaged in transit, customer's only recourse is to file a claim with the carrier.
2. GSA. Prices stated are F.O.B. Destination; freight is included in the price listed on GSAadvantage. Malcom charges a shipping and handling fee, (which includes internal handling and related costs), on each order which is included in the price listed on GSAadvantage. Malcom covers shipping and handling for standard ground delivery for GSA orders within the Continental US. Shipments to Alaska, Hawaii, and Puerto Rico, or for export are F.O.B. Origin. COD shipments are not permitted without credit referenced preapproval from Malcom Company. Other terms and conditions may apply for other than standard ground delivery ("Other Freight Services"), including without limitation, expedited same day delivery, air freight, freight collect, export orders, hazardous materials, customer's carrier, shipments outside the contiguous U.S. or other special handling by the carrier. Any charges incurred for Other Freight Services must be paid by customer, including but not limited to, tariffs, export and import duties, and any related costs for customs. Fuel surcharges may be applied. For regular F.O.B. Origin, title and risk of loss pass to customer upon tender of shipment to carrier. For regular F.O.B. Destination, title and risk of loss pass to customer upon tender of shipment to the customer. If the product is damaged in transit, customer's only recourse is to file a claim with the carrier.
C. PRODUCT WARRANTY POLICY
Malcom Company warrants goods supplied under the order conform to specifications supplied and are MERCHANTABLE and fit for the particular purposes for which goods are ordinarily employed.
1. Seller further warrants to the Buyer and to any party ultimately using any item whether such third party is a customer of Buyer or not, that all items delivered under the order will be free from defects in material and workmanship and will conform to applicable specifications, drawings, samples and descriptions.
2. The foregoing express warranties shall be, in addition to any warranty customarily made by Seller of its products and any implied warranties shall be construed as conditions as well as warranties.
3. Seller’s warranty shall extend for a period of 12 months (365 days) after the item is delivered and accepted by buyer. Heating elements, carbon brushed and any electronic replacement parts are not covered by the terms of this warranty.
4. The warranties represented and covenants of parties outlined shall survive the delivery of the goods or completion of the work or services provided and are fully enforceable thereafter. Seller’s warranty is part consideration for the order; any payment by buyer is conditional upon warranty remaining in effect and no modification or other change of this warranty shall be valid unless evidenced by Buyer’s written change order.
5. Seller undertakes to repair free of charge and damage occurring to tools that is established by Seller to result from defects in production. In order for repair to be affected in accordance with the provisions currently valid, tools must be returned with authorization from the Seller to Seller’s works carriage paid and free of charges.
6. No replacement will be effected in the event of incorrect use, unauthorized repair interference with the product and normal wear and tear.
7. Seller’s liability will exclusively comply with the sections specified under warranty, as well as the currently valid general conditions of business and terms of delivery. Any claims on the part of the buyer for compensation of damages against Seller, which are not expressly granted in the above sections, irrespective of the sort of claim or its basis in law, particularly claims arising from violation of accessory contractual obligations, for loss and damage in transit, from positive breach of contract, for consequential loss of damage arising from defects (in as much as these are not covered by contractual guarantee), from buyer’s claims of recourse resulting from product liability, from buyer’s claims for commercial material damages due to defective products, etc., are excluded unless these are the result of unlawful intent or gross negligence.
8. Manufacturer’s Warranty. For information on a specific manufacturer's warranty, please contact Malcom Company Inc. at 1-800-289-7505.
9. Service. Any request for service repair must be authorized by the Malcom Company Service Department before the item is returned to the Company for Service. The buyer shall pay any freight charges that may be incurred. Please go to the Malcom website: www.malcom.com, and download the service form. Any questions regarding warranty issues, operation, maintenance, repairs, parts service and accessories can be directed to Malcom Company through Malcom’s website, www.malcom.com, email email@example.com, or through the toll free number from the USA at 1-800-289-7505or from other parts of the world by calling 401-683-3199.
10. Product Compliance and Suitability. Jurisdictions have varying laws, codes and regulations governing construction, installation, and/or use of products for a particular purpose. Certain products may not be available for sale in all areas. Malcom does not guarantee compliance or suitability of the products it sells with any laws, codes or regulations, nor does Malcom accept responsibility for construction, installation and/or use of a product. It is customer's responsibility to review the product application and all applicable laws, codes and regulations for each relevant jurisdiction to be sure that the construction, installation, and/or use involving the products are compliant.
11. Cross-Reference Information. Product cross-reference comparisons do not imply that products are available or perfectly comparable. CROSS-REFERENCED PRODUCTS ARE NOT REPRESENTED OR WARRANTED AS FUNCTIONAL OR PERFORMANCE EQUIVALENTS. Customer shall review all cross-referenced product specifications prior to purchase and use to determine suitability of the product for customer's intended use.
1. Catalog/Website Information. Product depictions in the catalogs and websites are for illustrative purposes only. Possession of, or access to, any Malcom catalog, literature or websites does not constitute the right to purchase products. Malcom reserves the right to revise publishing errors in its catalogs or any of its websites. Despite our efforts, occasional pricing errors may occur in the Malcom catalogs and websites. Malcom reserves the right to cancel any and all orders resulting from such pricing errors, even if customer has received an order confirmation from Malcom.
2. Product Substitution. Products and/or country of origin may be substituted and may not be identical to descriptions and/or images published in the catalog or on the website.
3. Material Safety Data Sheets. Material Safety Data Sheets (“MSDS”) for OSHA defined hazardous substances are prepared and supplied by the manufacturers. MALCOM MAKES NO WARRANTIES AND EXPRESSLY DISCLAIMS ALL LIABILITY TO ANY CUSTOMER OR USER WITH RESPECT TO THE ACCURACY OF THE INFORMATION OR THE SUITABILITY OF THE RECOMMENDATIONS IN ANY MSDS. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY RELIANCE ON OR USE OF ANY INFORMATION, AND FOR USE OR APPLICATION OF ANY PRODUCT.
4. California Proposition 65. The State of California requires that certain warnings be given concerning products subject to Proposition 65. For products denoted with a symbol the following warnings apply: Warning: This product contains a product known to the State of California to cause cancer. Warning: This product contains a chemical known to the State of California to cause birth defects or other reproductive harm.
5. MSDS and Proposition 65 Regulated Product Requests. Information on MSDS and Proposition 65 regulated products are available: (i) at Malcom’s Sales office; (ii) by contacting Malcom, Government Products Manager & Administrator, 207 High Point Avenue Unit 7B, Portsmouth, RI 02871; (iii) or by calling Malcom’s Government Products Manager and Administrator line at 1-800-289-7505. A complete list of Proposition 65 regulated chemicals is available by logging on to www.oehha.ca.gov.
6. Important Notice to Federal Customers Re: Country of Origin. While all products listed on GSAAdvantage® meet the requirements of the Trade Agreements Act (“TAA”), as implemented by Federal Acquisition Regulations Part 25, other products sold by Malcom may not meet the requirements. At the time of purchase, Malcom will advise customer with proper identification as an authorized schedule customer whether or not a product is “TAA-compliant.” Any federal customer purchasing a non-TAA item will be making an “open market” purchase that is not covered by any contract. Federal customers are advised that the open market purchases are NOT GSA schedule purchases. By purchasing any product on the open market, customer represents that it has authority to make such purchase and has complied with all applicable procurement regulations.
7. ARRA Orders. It is customer's responsibility to advise Malcom whether this order is funded in any part by funds from or related to the American Reinvestment and Recovery Act (“ARRA”) (Pub. L. No. 111-5) (i.e., Stimulus Funds). Upon request, Malcom will provide country of origin information so that customer may determine compliance with any applicable requirements under ARRA Section 1605 or any other applicable regulations.
E. GENERAL TERMS
1. Electronic Data Interchange. If Malcom and customer mutually agree to use an Electronic Data Interchange (“EDI”) system to facilitate purchase and sale transactions, customer agrees that it will not contest: (i) any contract of sale resulting from an EDI transaction under the provisions of any law relating to whether agreements must be in writing or signed by the party to be bound thereby; or (ii) the admissibility of copies of EDI records under the business records exception to the hearsay rule, the best evidence rule or any other similar rule, on the basis that such records were not originated or maintained in documentary form. Malcom and customer will negotiate and agree on technical standards and methods to use in making EDI purchases, and will use reasonable security procedures to protect EDI records from improper access. In the event of a conflict, the business records maintained by Malcom regarding EDI purchases made by customer shall be deemed to be conclusive.
2. Third Party Payment Provider. If customer elects to use a third party payment system provider (“Third Party Provider”) and Malcom is charged fees by the Third Party Provider, Malcom reserves the right to seek reimbursement from customer for any and all costs paid to the Third Party Provider for the transfer of funds, retrieval of payment detail, or any other purpose from the Third Party Provider.
3. Intellectual Property. Customer shall have no right, title, or interest in the trade names, trademarks, trade dress, copyrights, patents, domain names, product names, catalogs or any other intellectual property rights reserved by Malcom, or any trademarks or service marks owned by suppliers to Malcom. All materials contained on Malcom’s websites are subject to the ownership rights of Malcom and its suppliers. Customer shall have no right to copy or use any of the intellectual property of Malcom or its suppliers without Malcom's permission.
4. Independent Contractors. Malcom and customer are independent contractors and not principal and agent. Nothing contained in these terms and conditions shall be construed to create a partnership, dealership, reseller, agency, employment or joint venture relationship. Customer does not have the right to bind or otherwise obligate Malcom in any manner, nor may customer represent to anyone that it has the right to do so.
5. Sourced Product. Malcom may procure product not available through the Malcom catalog or available on Malcom’s websites for a customer from other sources (“Sourced Product(s)”). Sourced Product is priced according to current market conditions on a per order basis, and is shipped F.O.B. Origin with freight and handling fee paid by Malcom and charged to customer. Sourced Product may not be returned without a return goods authorization issued by Malcom. Malcom, at its sole discretion, may withhold the issuance of such authorization. A restocking fee may apply for any returned Sourced Product. MALCOM’S LIMITED WARRANTY TERMS INCLUDED IN THESE TERMS AND CONDITIONS DO NOT APPLY TO SOURCED PRODUCTS. THE PRODUCT WARRANTY PROVIDED BY THE MANUFACTURER AND/OR SUPPLIER WILL BE CUSTOMER'S SOLE REMEDY.
6. Custom Product. Malcom may offer products manufactured or assembled to customers specifications (“Custom Product(s)”). Malcom is not responsible for verifying or confirming the accuracy of specifications provided by customer to Malcom for Custom Products. MALCOM’S LIMITED WARRANTY TERMS INCLUDED IN THESE TERMS AND CONDITIONS DO NOT APPLY TO CUSTOM PRODUCTS. THE PRODUCT WARRANTY PROVIDED BY THE MANUFACTURER AND/OR SUPPLIER WILL BE CUSTOMER'S SOLE REMEDY, AND ALL OTHER WARRANTIES ARE DISCLAIMED UNDER SECTION 1.C. ABOVE. All Custom Products are sold on a “FINAL SALE” basis only, and no cancellations, returns, refunds or credits are allowed.
7. Cancellation. All product order cancellations, if not prohibited above, must be approved by Malcom, and may be denied or subject to restocking fees and other charges.
8. Product Return. Product returns, if not prohibited above, must be made within one (1) year from date of purchase, unless otherwise indicated. Customer should call Malcom Company Inc., for instructions. Returned product must be in original packaging, unused, undamaged, and in saleable condition. Proof of purchase is required in all cases. Product returns may be denied or made subject to restocking fees and other charges by Malcom.
9. Materials of Trade. Customer represents that if it is purchasing products as its “materials of trade,” as defined in the Hazardous Materials Regulations in Title 49 of the Code of U.S. Federal Regulations, the products shall be used in direct support of its business, such business does not concern transportation, and such products shall not be resold or transported in a vehicle other than one owned by itself.
10. Force Majeure. Malcom shall not be liable for any delay in, or impairment of, performance resulting in whole or in part from any force majeure event, including but not limited to natural disaster, labor disruptions, acts of war, acts of terrorism (whether actual or threatened), governmental decrees or controls, insurrections, epidemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to procure or ship product or obtain permits and licenses, inability to procure supplies or raw materials, severe weather conditions, catastrophic events, or any other circumstance or cause beyond the reasonable control of Malcom in the conduct of its business.
11. Assignment. Customer shall not assign any order, or any interest therein, without the prior written consent of Malcom. Any actual or attempted assignment without Malcom's prior written consent shall entitle Malcom to cancel such order upon notice to customer.
12. No Third Party Benefit. The provisions stated herein are for the sole benefit of the parties hereto, and confer no rights, benefits or claims upon any person or entity not a party hereto.
13. Waiver, Choice of Law and Venue. The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent non-performance of any such term or condition by the other party. All transactions shall be governed by the laws of the State of Massachusetts, excluding its conflict of law rules, and venue shall either be in the state courts in Essex County or the federal courts for the District of Massachusetts.
14. Severability. If any portion of these terms and conditions is found to be invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable term shall be severed from these terms and conditions, and the remaining terms and conditions shall be valid and fully enforceable as written.
15. Modification of Terms. Malcom’s acceptance of any order is subject to customer’s assent to all of the terms and conditions set forth herein. Customer's assent to these terms and conditions shall be presumed from customer's receipt of Malcom’s acknowledgment, or from customer’s acceptance of all or any part of the products ordered. No additions or modifications of Malcom’s terms and conditions by customer shall be binding upon Malcom, unless agreed to in writing by an authorized representative of Malcom. If a purchase order or other correspondence submitted by customer contains terms or conditions contrary or in addition to the terms and conditions contained herein or in Malcom’s acknowledgment, Malcom’s fulfillment of any such purchase order shall not be construed as assent to any of the terms and conditions proposed by customer, and will not constitute a waiver by Malcom of any of the terms and conditions contained herein or in Malcom’s acknowledgment.
16. Complete Agreement. The terms and conditions in: (i) Malcom’s forms; (ii) acknowledgments; (iii) quotations; (iv) invoices; (v) websites; (vi) catalogs; and (vii) extension of credit are incorporated herein by reference, and constitute the entire and exclusive agreement between customer and Malcom.
II. ADDITIONAL TERMS AND CONDITIONS RELATED TO THE PERFORMANCE OF SERVICES
IN ADDITION TO THE STANDARD TERMS AND CONDITIONS IN SECTION I, PERFORMANCE OF SERVICES WILL BE GOVERNED BY THE FOLLOWING ADDITIONAL TERMS AND CONDITIONS (“ADDITIONAL SERVICE TERMS”). SERVICES MAY BE PERFORMED BY:
(i) MALCOM, ITS EMPLOYEES AND AGENTS (“MALCOM PERSONNEL”);
(ii) MALCOM SUBSIDIARIES OR AFFILIATES (“MALCOM SERVICE ENTITIES”); OR THIRD-PARTY SUBCONTRACTORS ("THIRD-PARTY PROVIDERS").
FOR PURPOSES OF THIS SECTION II, MALCOM PERSONNEL, MALCOM SERVICE ENTITIES AND THIRD-PARTY PROVIDERS ARE EACH REFERRED TO AS A “SERVICE PROVIDER” AND EACH SERVICE PROVIDER, TOGETHER WITH ITS PERSONNEL, IS REFERRED TO AS “SERVICE PROVIDER PERSONNEL.”
THE TERMS AND CONDITIONS CONTAINED IN THS SECTION II ARE EXTENDED SOLELY BY THE SPECIFIC SERVICE PROVIDER PERFORMING SERVICES, AND ANY OBLIGATIONS CONTAINED IN THIS SECTION II DO NOT APPLY TO ANY OTHER SERVICE PROVIDER REFERENCED IN THE FOREGOING PARAGRAPH.
DEPENDING UPON THE NATURE OF THE SERVICES PROVIDED, THE APPLICABLE SERVICE PROVIDER MAY REQUIRE CUSTOMER TO EXECUTE ADDITIONAL CONTRACTUAL DOCUMENTS PRIOR TO THE PERFORMANCE OF SERVICES. IN THE EVENT OF A CONFLICT BETWEEN THE STANDARD TERMS AND CONDITIONS IN SECTION I AND THE ADDITIONAL SERVICE TERMS IN SECTION II, THE ADDITIONAL SERVICE TERMS IN SECTION II SHALL PREVAIL FOR THE PERFORMANCE OF SERVICES.
1. LIMITED SERVICES WARRANTY. ALL SERVICES WILL
(I) BE PERFORMED IN A WORKMANLIKE MANNER;
(ii) CONFORM TO THE SPECIFICATIONS (IF ANY) PROVIDED BY THE SERVICE PROVIDER IN A STATEMENT OF WORK; AND
(iii) BE WARRANTED FOR A PERIOD OF THIRTY (30) DAYS AFTER PERFORMANCE OF SERVICES (“LIMITED WARRANTY PERIOD”). IF SERVICES ARE IMPROPERLY PERFORMED AND CUSTOMER NOTIFIES THE SERVICE PROVIDER OF THE IMPROPERLY PERFORMED SERVICE DURING THE LIMITED WARRANTY PERIOD, THEN THE SERVICE PROVIDER WILL RE-PERFORM THOSE SERVICES, IN WHOLE OR IN PART, AS NECESSARY TO CURE THE PARTICULAR BREACH, OR AT THE SERVICE PROVIDER'S SOLE OPTION, REFUND THE AMOUNT PAID BY CUSTOMER FOR THE SERVICES DIRECTLY ATTRIBUTABLE TO THE PARTICULAR BREACH. THE SERVICE PROVIDER'S RE-PERFORMANCE OR REFUND OF AMOUNTS PAID BY CUSTOMER FOR THE SERVICE DIRECTLY ATTRIBUTABLE TO THE PARTICULAR BREACH SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY.
2. WARRANTY DISCLAIMER AND WAIVER FOR SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION II FOR SERVICES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND THE SERVICE PROVIDER DISCLAIMS, AND CUSTOMER WAIVES, ALL OTHER WARRANTIES FOR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY.THE WARRANTIES SET FORTH IN THIS SECTION II ARE EXPRESSLY CONDITIONED UPON THE USE OF THE SERVICES FOR THEIR INTENDED PURPOSE AND SHALL NOT APPLY TO SERVICES WHICH HAVE BEEN SUBJECT TO MODIFICATION BY CUSTOMER OR ANY THIRD PARTY.
3. LIMITATION OF LIABILITY. THE SERVICE PROVIDER EXPRESSLY DISCLAIMS ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES IN THE PERFORMANCE OF SERVICES. THE SERVICE PROVIDER'S LIABILITY IN ALL CIRCUMSTANCES IS LIMITED TO, AND SHALL NOT EXCEED, THE PURCHASE PRICE FOR THE PERFORMANCE OF THE PORTION OF SERVICES THAT GIVES RISE TO ANY PARTICULAR LIABILITY.
4. Payment and Credit Terms. Except as otherwise agreed to by the parties, customer will be invoiced upon completion of services. Payment terms are net thirty (30) days from the date of invoice. All other payment terms are as set forth in Section I.A.4.
5. Termination. Either party may terminate the service agreement at any time and for any reason upon thirty (30) days' written notice to the other party. If terminated by customer, customer shall pay Service Provider an amount equal to the greater of (i) Ten percent (10%) of the total project cost quotation thereto (the “Total Project Cost”), or (ii) an amount equal to the Total Project Cost multiplied by the percentage completion for such project at the time the notice of termination is given, as determined by Service Provider.
6. Indemnity. Customer shall defend, indemnify and hold harmless Service Provider and its respective officers, directors, employees, subcontractors and agents (each individually, an “Indemnified Party”) from and against any and all any claims, suits, liabilities, damages, settlements, charges, taxes and any other losses or expenses (including reasonable attorneys' fees) (collectively “Liabilities”) for physical injury to, illness or death of, any third party regardless of status and damage to or destruction of any tangible property which the third party may sustain or incur, to the extent such Liabilities relate to the services; except for such Liabilities relating to or arising out of a final judgment of gross negligence or willful misconduct of the Indemnified Party. In any action, suit or proceeding brought against an Indemnified Party by reason of any such claim as specified above, customer shall resist and defend such action, suit or proceeding by counsel of its choice, at the sole expense of customer, provided that (i) the Indemnified Party notifies customer promptly in writing of the claim; (ii) customer's counsel does not give rise to a conflict of interest with respect to the Indemnified Party; (iii) customer has the sole control of the defense and all related settlement negotiation but shall keep the Indemnified Party reasonably informed of status; and (iv) the Indemnified Party provides customer with all reasonably necessary assistance, information, and authority to perform the foregoing at customer's expense.
7. Access to Customer’s Premises. To the extent access to customer's premises is required, customer shall provide Service Provider Personnel access to customer's premises free of charge as necessary for performance of services supplied by Service Provider. Prior to starting any work at customer's premises, customer will: (i) provide documentation that identifies any existing hazardous materials, or dangerous or potentially dangerous conditions on or about customer's premises; and (ii) allow Service Provider Personnel, at its option, reasonable access to customer's premises to perform or have performed a visual site inspection. Service Provider will have no responsibility or liability for the actual existing conditions; or identifying, correcting or advising customer of existing conditions on customer's premises (“Pre-Existing Conditions”), and customer shall be responsible for and shall indemnify each Service Provider and each of the Service Provider Personnel from and against any Liabilities arising out of or relating to any Pre-Existing Conditions, regardless of whether previously disclosed to any Service Provider or Service Provider Personnel. Customer shall not attempt to condition the right of Service Provider Personnel to obtain free access to customer's premises upon the signing of any agreement, waiver, or release which in any way purports to affect the legal rights or obligations of Service Provider or Service Provider Personnel. If any Service Provider Personnel signs such an agreement, waiver, or release, it shall be of no force and effect.
8. Health and Safety Matters. Customer shall take all precautions, at all times, for the health and safety of Service Provider Personnel at customer's premises, including but not limited to identifying to Service Provider all hazardous materials or safety or health hazards to which Service Provider Personnel on customer’s premises may be exposed; (i) providing to Service Provider Personnel for review, and instructing Service Provider Personnel regarding customer’s safety practices; and (ii) proper and safe handling of, and protection of, Service Provider Personnel from exposure to hazardous materials or dangerous conditions. Customer agrees to provide Service Provider Personnel with all safety health and other protections required by law for customer’s own employees, including, without limitation, all protections required by federal, state and local laws, standards, regulations, orders and other requirements under OSHA, and similar workplace safety and health statutes and programs.
9. Right to Subcontract. Customer agrees that the Service Provider may subcontract the performance of services to third parties. Customer authorizes the Service Provider to disclose all information to the subcontractor, including confidential information necessary for such performance of services by the subcontractor.
10. No Third Party Reliance. Customer acknowledges and agrees that any advice, recommendation, information or work product provided to customer by Service Provider in connection with the services is for the sole use of customer and may not be relied upon by any third party; and customer is prohibited from making such advice, recommendation, information or work product available to any third party without prior written consent from Malcom.
III. ADDITIONAL TERMS AND CONDITIONS RELATED TO EXPORT OF MALCOM PRODUCTS.
IN ADDITION TO THE STANDARD TERMS AND CONDITIONS IN SECTION I, EXPORT SALES OF MALCOM PRODUCTS WILL BE GOVERNED BY THE FOLLOWING ADDITIONAL TERMS AND CONDITIONS RELATED TO EXPORT OF MALCOM PRODUCTS (“ADDITIONAL EXPORT TERMS”). IN THE EVENT OF A CONFLICT BETWEEN MALCOM’S STANDARD TERMS AND CONDITIONS IN SECTION I AND THE ADDITIONAL EXPORT TERMS IN SECTION III, THE ADDITIONAL TERMS IN SECTION III SHALL PREVAIL FOR EXPORT SALES OF MALCOM’S PRODUCTS.
1. Order Acceptance. Customer acknowledges that no order shall be deemed accepted unless and until it is verified and accepted by Malcom, or any of its U.S. affiliates and divisions, at a continental U.S. facility or at any of its websites. Customer further consents that submission of its order shall subject customer to the jurisdiction of the federal courts of the U.S. and of the State where acceptance occurred in the U.S.
2. Sales Tax and Duties, Import Fees. Malcom is required to charge federal, state, local tax, applicable duties, and import fees on products, or for providing a valid exemption certificate. Customer assumes responsibility for, and unconditionally guarantees payment or reimbursement of, all applicable taxes, fees, licenses, import duties, and expenses as may be applicable. When placing an order, customer shall indicate which products are tax exempt.
3. Payment and Credit Terms. Payment terms are net thirty (30) days from the date of shipment. All other payment terms are as set forth in Section I.A.4. Customer agrees to inform Malcom immediately if it intends to use any import or export financing, or has or will be granting a lien or security interest on its inventory to any third party.
4. Shipping Charges and Freight Policy. All Malcom export orders are shipped under INCOTERMS® 2010 rules as defined by the International Chamber of Commerce. Unless otherwise stated and agreed, default shipping term is Malcom Sales shipping location, excluding export customs clearance. Freight is prepaid to U.S. airport or port of exit for single shipment orders of U.S. $1,500 or more of product (before tax and freight) using routing of Malcom’s choice. Other shipments are freight collect from any Malcom facility. Customer shall be responsible for obtaining insurance. At Malcom’s option, this freight policy may be subject to special terms and conditions for certain export orders. If any item is backordered that qualifies for freight prepayment, that item will be shipped prepaid as customer's exclusive remedy. Title and risk of loss for products shall pass when made available to customer on delivery to carrier in the U.S.; provided that if payment has not been made at the time of shipment, Malcom shall retain title (but not risk of loss) until payment has been made. If product is damaged in transit, customer's only recourse is to file a claim with the applicable airline, carrier, vessel and/or insurance company; provided, however, that if Malcom has not received payment in full at the time the product is damaged in transit, customer shall be liable to Malcom to make payment for the product, and Malcom shall also, if customer fails to make payment, have the exclusive right to file a claim with the applicable airline, carrier, vessel and/or insurance company.
5. Export Controls and Related Regulations. Customer represents and warrants that it is not designated on, or associated with, any party designated on any of the U.S. government restricted parties lists, including without limitation, the U.S. Commerce Department Bureau of Industry and Security (“BIS”) Denied Persons List; Entity List or Unverified List; the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”) Specially Designated Nationals and Blocked Persons List; or the U.S. State Department Directorate of Defense Trade Controls (“DDTC”) Debarred Parties List. Customer shall comply with all applicable U.S. economic sanctions and export control laws and regulations, including without limitation, the regulations administered by OFAC, the Export Administration Regulations administered by BIS, and the International Traffic in Arms Regulations administered by DDTC.
6. Foreign Principal Party in Interest; Freight Forwarder and Documentation. It is specifically agreed that customer shall be the foreign principal party in interest and/or that its freight forwarder shall act as customer's agent in such capacity for purposes of the Foreign Trade Regulations or other regulatory purposes, and customer and its freight forwarder are responsible for all routed export transactions documentation, including but not limited to the filing of the required Electronic Export Information/Automated Export System records. At Malcom’s request, customer or its freight forwarder shall provide copies of any export, shipping, or import documentation prepared by customer or its freight forwarder related to sales to customer by Malcom.
7. U.S. Foreign Corrupt Practices Act. Customer acknowledges that it is an independent contractor and represents, warrants, and covenants that it has not paid, offered or agreed to pay, authorized the giving of, or caused to be paid, directly or indirectly, money or anything of value to any foreign official (as defined in the U.S. Foreign Corrupt Practices Act, as amended), a foreign political party or party official, or any candidate for foreign political office in connection with the purchase and resale of the products ordered from Malcom.
8. Dispute Resolution. Actions by Malcom for non-payment by customer of the purchase price of products sold by Malcom, or for redress of other breaches by customer of these terms and conditions, may be brought by Malcom, at its option, before any U.S. or foreign judicial court of competent jurisdiction. At Malcom’s option, disputes between customer and Malcom, including all claims for non-performance by Malcom, shall be finally settled by arbitration in the state of Rhode Island, Newport County. United States of America, in accordance with the Commercial Arbitration Rules (“Rules”) of the American Arbitration Association, by a single arbitrator appointed in accordance with said Rules, applying these terms and conditions and consistent provisions of the federal and state laws (except conflict of law rules) of the State of Massachusetts, U.S. The language of the arbitration shall be English.
9. Country of Importation and Anti-diversion. Customer represents that it is purchasing products from the U.S. and importing them to the country specified in the customer and Malcom documentation. Customer agrees that the products will be shipped to the specified destination in compliance with the laws of such destination and the U.S., and that the products will not be directly or indirectly sold, exported, transferred, assigned, used, or otherwise disposed of in a manner which may result in any non-compliance with applicable U.S. laws and regulations relating to the product purchased by customer. Any commodities, technology and software will be exported from the U.S. in accordance with the U.S. Export Administration Regulations and other applicable laws or regulations. Diversion contrary to U.S. law is prohibited. If requested by Malcom, customer shall provide documentation satisfactory to Malcom verifying delivery at the designated country. Customer further agrees to inform Malcom at the time of order of any North American Free Trade Agreement or other special documentation, packaging or product marking or labeling, but Malcom shall not be responsible for providing any such documentation, packaging, marking or labeling other than such documents that are necessary under U.S. export laws and regulations for export, unless Malcom expressly agrees to do so.
10. Permits, Export, and Import Licenses. Customer shall be responsible for obtaining any licenses or other official authorizations that may be required by the country of importation and/or under the Export Administration Regulations, International Traffic in Arms Regulations, Toxic Substances Control Act, or other applicable laws or regulations.
11. Governing Law; Limitations. The rights and obligations of the parties under these terms and conditions shall not be governed by the provisions of the 1980 United Nations Convention of Contracts for the International Sale of Goods or the United Nations Convention on the Limitation Period in the International Sale of Goods. Rather, these terms and conditions shall be governed by the laws of the State of Rhode Island, U.S., including its provisions of the Uniform Commercial Code, but excluding its conflict of law rules. Notwithstanding the foregoing, any legal action by customer with respect to any transaction must be commenced within one (1) year after the cause of action has arisen.