MAYCO INDUSTRIES STANDARD TERMS AND CONDITIONS 2017
1. Definitions. Certain terms used in these Terms and Conditions are defined below:
- A. “Customer” shall mean the customer of Mayco identified in the Sales Contract on the front of this page.
- B. “Goods” shall mean any and all goods ordered and/or purchased by Customer from Mayco from time to time.
- C. “Mayco” shall mean Mayco Industries, an Alabama corporation, having its principal place of business at 18 West Oxmoor Rd Birmingham, Al 35209.
- D. “Mayco Related Parties” shall mean Mayco’s officers, shareholders, directors, employees and agents.
- E. “Services” shall mean any and all services ordered and/or purchased by Customer from Mayco from time to time.
Except as otherwise hereafter agreed in writing by an officer of Mayco, these Terms and Conditions (a) shall apply to and govern the Sales Contract on the front of this page and the sale and/or order referenced therein, all purchase orders, invoices, statements and other agreements between Customer and Mayco, oral or written, relating to such sale, and all future sales and/or orders of Goods and/or Services made by Mayco to Customer (including without limitation, all purchase orders, sales contracts, invoices, statements and other agreements, oral or written, relating to such future sales); and (b) with respect to all sales and/or orders referenced in this Section 2, hereby supersede and replace any and all prior understandings, agreements and statements, oral or written, made in or implied from past dealings between Mayco and Customer concerning the subject matter hereof. No waiver of any provision of these Terms and Conditions shall be effective against Mayco unless authorized in a writing signed by an officer of Mayco. No amendment of these Terms and Conditions shall be effective unless made in a writing signed by an officer of each of Mayco and Customer.
3. WARRANTIES AND DISCLAIMER OF WARRANTIES. EXCEPT FOR ANY EXPRESS WARRANTIES CONTAINED IN ANY WRITTEN CERTIFICATION PROVIDED TO CUSTOMER BY MAYCO REGARDING THE CHEMICAL COMPOSITION OF MAYCO’S GOODS, MAYCO DOES NOT MAKE AND HAS NOT MADE, AND CUSTOMER ACKNOWLEDGES THAT MAYCO HAS NOT MADE, ANY REPRESENTATIONS OR WARRANTIES, DIRECT OR INDIRECT, EXPRESS OR IMPLIED, AS TO ANY GOODS OR SERVICES PROVIDED BY MAYCO (EXCEPT AS TO TITLE OF THE GOODS). EXCEPT AS IS OTHERWISE EXPRESSLY PROVIDED IN THIS PARAGRAPH, MAYCO HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES CONCERNING ALL GOODS AND SERVICES PROVIDED BY MAYCO, INCLUDING WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
If goods herein being purchased and/or ordered are being purchased and/or ordered for purposes of export, Customer must obtain from the United States federal government certain export documentation before shipping to a foreign country.
5.Title, Risk of Loss.
Unless otherwise specified in writing by Mayco, title to Goods purchased and/or ordered by Customer passes to Customer upon delivery of the Goods to Customer, except that title to Goods shipped via a carrier selected by Customer passes to Customer upon Mayco’s transfer of possession of such Goods to such carrier. Loss or damage that occurs during shipping by a carrier selected by Mayco is Mayco’s responsibility. Loss or damage that occurs during shipping by a carrier selected by the Customer is the Customer’s responsibility.
Mayco’s prices do not include sales, use, excise, property or similar taxes arising out of or relating to the sale or use of the Goods or any Services (including, but not limited to, taxes upon or measured by the receipts from the sale thereof). Customer shall defend, indemnify and hold Mayco harmless from and against the imposition and payment of all such taxes, whether or not they are stated in any sales contract or invoice for Goods or Services. Mayco, at its option, may at any time, separately bill Customer for any taxes not included in any sales contract between Mayco and Customer and/or any invoice issued to Customer by Mayco, and Customer shall pay said taxes, or in lieu thereof, shall provide Mayco with a tax exemption certificate acceptable to the relevant taxing authorities. If any such certificate furnished to Mayco is held invalid or if the sale is otherwise found to be taxable, Customer agrees to pay promptly all taxes (plus interest and penalties) found due.
7. Limitation of Liability.
CUSTOMER AGREES THAT MAYCO’S AND THE MAYCO RELATED PARTIES’ LIABILITY TO CUSTOMER OR ANY THIRD PARTY WHICH DIRECTLY OR INDIRECTLY ARISES FROM OR RELATES TO ANY PURCHASE AND/OR ORDER OF GOODS OR SERVICES FROM MAYCO BY CUSTOMER SHALL BE LIMITED TO THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER TO MAYCO FOR THE PARTICULAR GOODS OR SERVICES AT ISSUE. IN ADDITION, MAYCO AND ITS RELATED PARTIES SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE TO CUSTOMER OR ANY THIRD PARTY WHICH DIRECTLY OR INDIRECTLY ARISES FROM OR RELATES TO:
- ANY LOSS OR DAMAGE TO ANY GOODS OCCURRING AFTER DELIVERY OF SUCH GOODS BY A CARRIER SELECTED BY MAYCO IN GOOD OR USABLE CONDITION TO CUSTOMER OR CUSTOMER’S AGENT; OR, IF DELIVERY IS MADE VIA A CARRIER SELECTED BY CUSTOMER, ANY LOSS OR DAMAGE TO ANY GOODS OCCURRING AFTER THE TRANSFER OF POSSESSION OF SUCH GOODS BY MAYCO TO SUCH CARRIER; OR
- USE OR STORAGE OF ANY GOODS; OR
- ANY DELAY IN DELIVERY, OR NON-DELIVERY, OF GOODS OR SERVICES, IN WHOLE OR IN PART, CAUSED BY FIRE, FLOOD, ACCIDENT, RIOT, ACT OF GOD, WAR, GOVERNMENTAL INTERFERENCE OR EMBARGOES, STRIKES, LABOR DIFFICULTIES, SHORTAGE OF LABOR, FUEL, POWER, MATERIALS OR SUPPLIES, TRANSPORTATION DELAY, COMPLIANCE
- WITH FOREIGN OR DOMESTIC GOVERNMENTAL REGULATION OR ORDER (WHETHER OR NOT LATER DEEMED INVALID) OR OTHER CAUSE OR CAUSES (WHETHER OR NOT SIMILAR IN NATURE TO ANY OF SUCH SPECIFIED CAUSES) BEYOND MAYCO’S CONTROL.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MAYCO OR THE MAYCO RELATED PARTIES BE LIABLE TO CUSTOMER FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, DIRECT OR INDIRECT LOST PROFITS, BUSINESS INTERRUPTIONS, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS) REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE AND FRAUD), STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ASSUMES ALL RISK AND LIABILITY FOR AND FROM THE USE OF ALL GOODS AND SERVICES PURCHASED AND/OR ORDERED FROM MAYCO WHETHER USED ALONE OR IN COMBINATION WITH OTHER GOODS OR SERVICES, AND WHETHER USED BY CUSTOMER OR ANY THIRD PARTY.
8. Payment Terms.
Unless otherwise agreed to in writing by Mayco, all amounts owed by Customer to Mayco shall be due in full immediately. Interest will be charged on all unpaid amounts due over 30 days from the date of the particular invoice or bill for such unpaid amounts at the rate of 1.5% per month (18% per year), or the maximum percentage permitted by law, if less. Upon demand from Mayco, Customer shall immediately reimburse Mayco for all reasonable costs of collection (including without limitation, reasonable attorneys’ fees and costs) – whether incurred before or after litigation – relating to any late payment owed by Customer to Mayco or any breach of a sales contract or its Terms and Conditions. If Customer fails to fulfill the payment terms or if Mayco shall have any doubt or concern at any time as to Customer’s financial responsibility or ability to make payment for Goods or Services, then Mayco, in its sole discretion, may decline to make further deliveries of Goods or Services to Customer except upon receipt of cash or satisfactory security for payment. Customer hereby grants to Mayco a purchase money security interest in all Goods. Customer hereby authorizes Mayco to file all UCC financing statements, amendments and continuations deemed necessary or appropriate by Mayco from time to time to perfect and/or evidence any such security interest(s). Any term stated in any purchase order from Customer which is in addition to or different from any term herein shall not be deemed to have been accepted by Mayco unless Mayco expressly agrees to such term in writing.
9. Payment policy.
Unless otherwise agreed to in writing by Mayco, Mayco will only accept cash, Customer’s company checks (subject to verification), or wire transferred funds as payment for any and all amounts owed to Mayco by Customer. To the extent that any payment made to Mayco is declared to be fraudulent or preferential, set aside, or required for any reason to be repaid or paid over to a custodian, trustee, receiver or any other party under the Bankruptcy Code of the United States, state or federal law, common law or equitable theory or for any reason whatsoever, then to the extent of such payment or repayment, the obligation or part thereof intended to be satisfied shall be revived and continue in full force and effect as if said payment had not been made.
10. Freight policy.
Mayco’s shipping and handling charges vary depending on the size, type and other aspects of each order and are subject to change from time to time. The applicable shipping and handling charges may appear as a separate line item on the invoice for each order.
11. Return policy.
Customer may return damaged or defective Goods to Mayco for, at Mayco’s sole discretion, credit, replacement, exchange or repair, but only if (a) within five days after receiving such Goods, Customer requests written authorization from Mayco to return such Goods, (b) Customer receives written authorization from Mayco for such return, and (c) Mayco receives the authorized return within five days after Customer’s receipt of such written authorization. Customer shall not return to Mayco any Goods that are not damaged or defective.
12. Delay in Release.
Mayco reserves the right to impose a carrying charge from time to time in the event of any delay or refusal by Customer to authorize release or take delivery of Goods and/or Services ordered by Customer within the applicable delivery timeframe(s) set forth on the Sales Contract on the front of this page.
Mayco and Customer agree that the Terms and Conditions and all dealings between Mayco and Customer shall be governed by, and construed and interpreted according to, the internal laws (and not the conflict of laws provisions) of the State of Alabama; the state in which this contract is deemed to have been executed and delivered. Customer acknowledges that the agreement between it and Mayco was accepted in Birmingham, Alabama and that Mayco will be performing a substantial part of the agreement in Birmingham, Alabama. Therefore, Customer agrees that any disputes arising out of these Terms and Conditions and/or any dealings between the parties shall be litigated, if at all, in any federal or state court within Birmingham, Alabama, except to the extent that Mayco institutes litigation (or arbitration) outside Alabama or it expressly waives this provision in writing. Customer hereby waives any objection to the personal jurisdiction of any such court, and any objection to the laying of venue of any such action in any such court.
14. Costs and Expenses.
In any arbitration or litigation arising between the parties hereto, the prevailing party shall be entitled to recover from the non-prevailing party its reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees and costs. The term “prevailing party” shall mean that party whose position is substantially upheld in a final judgment or award rendered in such arbitration or litigation (as the case may be), or, if the final judgment or award is appealed, that party whose position is substantially upheld by the decision of the final appellate body to consider the appeal.
If in any arbitration or litigation, any provision (or part thereof) of these Terms and Conditions or of any sales contract or other agreement between Mayco and Customer is deemed invalid or unenforceable, such provision (or part thereof) shall be enforced to the maximum possible extent under applicable law, and the remaining provisions shall remain in full force and effect.
Customer agrees to defend, indemnify and hold harmless Mayco and the Mayco Related Parties from all claims, damages, losses, liabilities, injuries and expenses (including without limitation the defense of all claims, lawsuits, and arbitrations, and attorneys’ fees and costs) arising from or relating to these Terms and Conditions, any sales contract or other agreement between Mayco and Customer, and/or any other dealings between Mayco and Customer, and/or any act or omission by Customer or its employees or agents (including without limitation negligent acts or omissions) in connection with Customer’s order, purchase, use, sale, transfer, ownership or possession of any Good(s), or Customer’s order, purchase, receipt or use of any Service(s).
The sales contract is subject to the terms and conditions stated above.
Agreed and accepted by the customer Mayco Industries
Customer PO# ________________