Terms and Conditions

General Terms and Conditions

  1. The person or entity identified on the signature page of this Agreement (hereinafter referred to as “Buyer”) is by accepting a price quotation from MPD Integration, LLC, a/k/a “Modular Power & Data or MPD” (“Seller”) or by submitting a purchase order to Seller, accepts and is bound to these Terms and Conditions. The Terms and Conditions contained herein shall constitute the entire agreement between Buyer and Seller. No additional or differing terms or conditions proposed or delivered by Buyer, whether proposed or delivered verbally, through writing, electronic communications, facsimile or any other means, shall alter the Seller’s price quotation or any of these Terms and Conditions in any way at any time. ACCEPTANCE BY SELLER OF ANY PURCHASE ORDER WITH DIFFERING TERMS OR CONDITIONS SHALL NOT BE CONSTRUED AS ASSENT TO SUCH CONTRARY OR ADDITIONAL TERMS AND CONDITIONS OR CONSTITUTE A WAIVER BY SELLER OF ANY OF THE TERMS AND CONDITIONS CONTAINED HEREIN OR IN SELLER'S QUOTATION. SELLER’S ACCEPTANCE OF BUYER’S PURCHASE ORDER IS EXPRESSLY CONDITIONED ON BUYER’S ASSENT TO THESE TERMS AND CONDITIONS. These Terms and Conditions may only be amended in writing, signed by both parties.
  2. Prices of goods or “Product(s)” and “Service(s)” stated are to the best of Seller’s knowledge accurate. If errors in pricing occur, it is Seller’s option to correct pricing without notice.
  3. The date to ship shown in the quotation is approximate only. All goods shall be packed, marked and shipped in accordance with Seller’s conventional procedures. Buyer shall be responsible for costs associated with the shipment of goods and shall have the option to ship goods freight collect or prepayment of the freight costs, or other method mutually agreed upon. All shipments are subject to Incoterms® 2020 Ex-Warehouse “EXW” or Free Carrier “FCA”. Seller shall not be liable for damage to or loss of any goods including any damage or loss in transit, and all risk of loss or damage to Product(s) in transit is the responsibility of the Buyer. For any return of any product, authorization and shipping instructions must be obtained from Seller before returning the Product(s). Those items for shipment to countries outside of the U.S. may be subject to transit costs such as but not limited to, taxes, customs duties and fees levied by the destination country ("Import Fees"). The Buyer, or duly appointed recipient of the shipment(s), shall be recognized as the importer of record in the destination country and is responsible for all Import Fees. It is the Buyers sole responsibility of title and risk of loss for the items during international transfer.
  4. Seller shall not be liable for delays in delivery or failure to manufacture or deliver goods if prevented from performing any obligation for any reason beyond its reasonable control including, without limitation, governmental laws and regulations, terrorists acts, acts of God or the public, calamities, floods, and storms, act of public authority, injunction, war, embargo, strike, lock out, failure or delay of supplier or carrier, failure of public utility, casualty, or natural disaster, or any other cause, circumstance or condition, whether pre-existing or supervening, that is beyond the reasonable control of the Seller, provided that the Seller will have used reasonable commercial efforts to avoid the occurrence and minimize its duration. To the extent failure or delay in performance is caused by such a cause, that Seller will be excused from performance under this Agreement so long as such circumstance continues to prevent performance. Seller cannot be held liable, and Buyer shall not be entitled to any damages and/or indemnifications, in case Seller is prevented, hindered, or delayed from or in performing any of its obligations resulting from the impact of the outbreak of COVID-19 or any future pandemic or epidemic for reasons not attributable to Seller. Notwithstanding the foregoing, nothing will excuse Buyer from any obligation to make the payments required hereunder.
  5. Seller agrees that it will at its own expense defend any suit that may be instituted against Buyer for alleged infringement of United States patents relating to Product(s) of Seller’s manufacture furnished the Buyer hereunder provided such alleged infringement shall consist only in the use of such Product(s) by itself, and not as part of any combination of other devices and/or parts, and provided Buyer gives the Seller immediate notice in writing of any such alleged infringement and of the institution of any such suit and permits Seller, through its counsel, to answer the charge of infringement and to defend such suit, and provided Buyer gives all needed information, assistance and authority to enable the Seller to do so, and thereupon in case of a final award of damages in any such suit the Seller will pay such award, but shall not be responsible for any compromise made without its written consent.
  6. Buyer agrees to indemnify and hold Seller harmless from any and all losses, costs (including reasonable attorney’s fees) and damages sustained or incurred by Seller by reason of or arising out of the design of any goods manufactured by Seller pursuant to Buyer’s plans and specifications, including (but not being limited to) claims for infringement or alleged infringement of any patent or copyright because of the manufacture or sale of such goods.
  7. Buyer agrees to pay Seller’s reasonable attorney’s fees incurred in enforcing the Terms and Conditions of this contract.
  8. Seller reserves the right to improve or modify its design and/or product specifications without notice.
  9. Seller warrants to Buyer that the goods sold to Buyer are, at the time of shipment to Buyer from Seller, free from defects in materials and workmanship. This "Warranty” shall be valid for a period of six (6) months from the date of shipment to Buyer. The warranty herein applies only to Buyer as the original purchaser from Seller and may not be assigned, sold or otherwise transferred to any third party. As Buyer's sole and exclusive remedy under this warranty, Seller agrees either to repair or replace, at Seller's sole option, any part(s) of such Product(s) which, under proper and normal conditions of use, prove(s) to be defective within the applicable warranty period. Alternatively, Seller may at any time, in its sole discretion, elect to discharge its warranty obligation hereunder by accepting the return of any defective Product(s) pursuant to the terms set forth herein and refunding the purchase price paid by Buyer. In order to permit Seller to properly administer this warranty, Buyer shall (a) notify Seller promptly in writing of any claims; (b) provide Seller with an opportunity to inspect and test the Product(s) claimed to be defective (such inspection may be on Buyer’s premises or Seller may request Buyer to return the Product(s) at Buyer’s expense; such expense will be reimbursed if the Product(s) is found to be defective); and (c) Buyer will not return Product(s) without prior written approval from Seller.
  10. The warranty expressed herein excludes any equipment or accessories which are identified on applicable price lists, quotations, special promotional materials, or on the face hereof, for which this limited warranty may be further limited. Included within this category are items produced by third-party manufacturers (as to which Seller passes to Buyer the warranty it has been provided by the manufacturer). This warranty does not cover loss, damage or defects resulting from: transportation to the Buyer's facility or otherwise, improper or inadequate maintenance by Buyer, Buyer-supplied software or interfacing, unauthorized modification or misuse, or operation outside of the environmental specifications for the Product(s). No warranty is made with respect to used, reconstructed, refurbished or previously owned Product(s), which will be so marked on the face hereof and, unless otherwise indicated on the face hereof, shall be sold “As Is”. The warranty herein applies only to goods within the country of original delivery. Products transferred outside the United States , either by Seller at the direction of Buyer or by Buyer’s actions subsequent to delivery, may be subject to additional charges prior to warranty repair or replacement of such Product(s) based on the actual location of such Product(s) and Seller’s warranty and/or service surcharges for such location(s). For products shipped internationally, please note that any manufacturer warranty may not be valid; manufacturer service options may not be available; product manuals, instructions and safety warnings may not be in destination country languages; the products (and accompanying materials) may not be designed in accordance with destination country standards, specifications, and labeling requirements; and the products may not conform to destination country voltage and other electrical standards. Buyer is responsible for assuring that the product can be lawfully imported to the destination country. Buyer, or its duly appointed recipient, is the importer of record and must comply with all laws and regulations of the origin and destination country.
  11. ANY AND ALL WARRANTIES OF MERCHANTABILITY, EXPRESS OR IMPLIED, ARE HEREBY DISCLAMED AND EXCLUDED AND THERE ARE NO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, EXPRESS OR IMPLIED, WHICH EXTEND BEYOND THE DESCRIPTION OF THE PRODUCT(S) STATED HEREIN. THE REMEDIES OF THE BUYER SET FORTH IN THIS CONTRACT ARE EXCLUSIVE AND ARE ITS SOLE REMEDIES FOR ANY FAILURE OF SELLER TO COMPLY WITH ITS OBLIGATIONS HEREUNDER. NOTWITHSTANDING ANY PROVISION IN THIS CONTRACT TO THE CONTRARY, IN NO EVENT SHALL SELLER BE LIABLE IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE FOR DAMAGE TO PROPERTY OR EQUIPMENT OTHER THAN PRODUCTS SOLD UNDER THIS AGREEMENT, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF PRODUCTS, LOST PRODUCTION, COST OF CAPITAL, LOSS OF DAMAGE TO ,OR UNAUTHORIZED ACCESS TO DATA, BREACH OF SYSTEM SECURITY, FAILURE TO TRANSMIT OR RECEIVE DATA, BUSINESS INTERRUPTION, CLAIMS OF CUSTOMERS OF THE BUYER OR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL, AND LIQUIDATED DAMAGES WHATSOEVER, REGARDLESS OF WHETHER SUCH POTENTIAL DAMAGES ARE FORESEEABLE OR IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY OF SELLER ARISING FROM OR RELATED TO THIS CONTRACT WHETHER THE CLAIMS ARE BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, SHALL NOT EXCEED THE PRICE OF THE PRODUCT OR SERVICES ON WHICH SUCH LIABILITY IS BASED.
  12. Seller shall not be responsible for a breach of data or electronic system security, including, but not limited to, a system intrusion or interference, virus or malicious code attack, loss of data, data theft, unauthorized access to confidential information and/or non-public personal information, hacking incident or any acts of data ransom, caused by any third-party equipment, modification made to a goods other than by Seller.
  13. Many states and localities have codes and regulations governing sales, construction, installation and/or use of products for certain purposes, which may vary from those in neighboring areas. While Seller attempts to assure that its product(s) comply with such codes, it cannot guarantee compliance, and cannot be responsible for how the product(s) are installed or used. Before purchase and use of a product, please review the product application, and national and local codes and regulations, to be sure that the product, installation, and use will comply with them. Compliance with all such codes and regulations are solely the responsibility of Buyer.
  14. Buyer shall be responsible for inspection of shipments for damage and loss in transit and any claims therefore filed with the carrier.
  15. Buyer shall inspect Products immediately upon receipt and shall, within five (5) business days after receipt, give written notice to Seller of any claim for shortage or that the goods do not conform with the Seller’s quote. If Buyer shall fail to give such notice, the goods shall be deemed accepted and to conform with the terms of this contract of sale, and Buyer shall be bound to pay for the goods in accordance with this contract of sale. Buyer’s written notice rejecting any goods, shall clearly identify which goods and recognized the condition of discontinuity, to be shipped to Seller, at Buyer’s expense, provided that such rejection is otherwise proper under the Terms and Conditions of this contract. Buyer agrees that goods may not be returned for credit or replacement without the prior written consent of Seller. All accepted returns are subject to a 20% handling and re-stocking charge; additional reasonable charges may be assessed depending upon condition at time of receipt. In no event will the return result in a monetary refund.
  16. Buyer agrees that if any credit balance is issued to Buyer, such credit balances issued will be non-interest bearing and applied within one (1) year of its issuance. IF NOT APPLIED WITHIN ONE (1) YEAR, ANY BALANCE REMAINING WILL BE CANCELLED, AND SELLER SHALL HAVE NO FURTHER LIABILITY.
  17. Unless otherwise agreed to within the terms of this agreement, payment shall be due net thirty (30) days from invoice date. If partial shipments are made, invoices shall become due and payable thirty (30) days from date of each invoice. Buyer shall not be entitled to credit or financing arrangements unless agreed to in writing by Seller. Seller reserves the right to charge a late payment fee of one and one-half (1½%) per month on invoices not paid within thirty (30) days of invoice date.
  18. Unless taxes or governmental fees have been expressly included in the price quoted or Purchase Order itemization, Buyer shall remit all such taxes which may be due as a result of the sale or delivery of the goods included herein to the proper taxing authority. Buyer agrees that it shall be responsible for any such taxes that may become due as a result of the sale or delivery of the goods included herein and that unless expressly stated within the prices listed, do not include such taxes. Buyer agrees to reimburse Seller for any such taxes for which Seller is held liable.
  19. No waiver of any breach or any provision hereof shall constitute a waiver of any other breach or of such provision.
  20. Seller reserves the right to terminate this contract in whole or in part: (a) if Buyer (1) fails to comply with the Terms and Conditions of this contract; (2) shall become insolvent or shall commit an act of bankruptcy; (3) has a voluntary or involuntary petition of bankruptcy filed against it; or (4) has legal proceedings instituted for the appointment of a receiver, trustee or assignee for it or its property; (b) if the credit of the Buyer shall at any time in the Seller’s judgment became impaired, Seller shall have the right to require payment in advance for any shipments to be made hereunder. Seller reserves the right to change the method of payment hereunder if it deems such a change appropriate. If Buyer shall fail to make any payment when due or shall fail to make payments in advance as hereinabove required, Seller shall, in addition to its other remedies provided by law, have the right to terminate this order as to any remaining shipments and apply any previously applied credits or property of Buyer held in the care custody and control of the Seller to offset any default of the Buyer.
  21. Title to goods sold hereunder shall not pass to Buyer until receipt of payment in full for such goods by Seller.
  22. Seller certifies that goods were produced in compliance with all applicable requirements of sections 6, 7 and 12 of the Fair Labor Standards Act, as amended, and of regulations and orders of the United States Department of Labor issued under Section 14, thereof. Seller offers no warranty and makes no representation that its goods comply with the provisions or standards of the Occupational Safety and Health Act of 1970, or any regulation issued thereunder. In no event shall Seller be liable for any loss, damage, fines, penalty or expenses arising under said Act.
  23. This contract of sale shall be governed by and construed in accordance with the laws of the state of Wisconsin, without regard to its principles of conflict of laws. Any disputes relating to the contract of sale between Buyer and Seller shall be adjudicated in the state or federal courts in the state of Wisconsin and Dane County, and both parties hereby consent to the exclusive jurisdiction of said courts for purposes of any such litigation.