These terms and conditions of sale (these “Terms”) shall apply to the sale of goods (the “Products”) by Motorex USA Inc. (“Motorex”) to any person or entity (the “Customer”). Byplacing an order with, or accepting a quotation, Order Confirmation (as defined in Section 1) or delivery of Products from, Motorex, Customer agrees to these Terms. Any terms or other conditions contained in any purchase order or other writing of Customer that are different from, in addition to, or in any way inconsistent with, these Terms are rejected by Motorex and shall be of no force or effect. Fulfillment of Customer’s order by Motorex does not constitute acceptance of Customer’s terms and conditions and does not modify or amend these Terms.
Offers and Quotations
Motorex’s quotations are non-binding and subject to change at Motorex’s sole discretion. Quotations expire within thirty (30) days of their issuance, unless stated otherwise in the Quotations. An order for Products placed by Customer shall become binding on Motorex and
Customer (subject to the Review Period (as defined below) and Motorex’s cancellation rights set forth in Section 2) either upon Motorex’s written confirmation (“Order Confirmation”) or upon Motorex delivering the goods in accordance with the order received. Orders can be placed orally
or in writing. Customer acknowledges and agrees that the Products may differ from illustrations and descriptions in Motorex’s price lists, catalogues or other documentation as well as any samples submitted by Motorex to Customer, including due to deviations in quantity and weight
not to exceed 10% thereof.
Customer must verify that all Product specifications, quantities and shipping information in the Order Confirmation are correct and complete. Customer shall advise Motorex of errors, omissions and discrepancies on the Order Confirmation in writing no later than the third (3) business day following the date of the Order Confirmation (the “Review Period”). Except as expressly provided in the Order Confirmation, the Customer will not be entitled to any discount, allowance, commission or rebate of any kind. Orders confirmed by Motorex and not objected to by Customer within three (3) business days are binding on the parties (“Confirmed Order”).
Cancellation Policy
In addition to any remedies that may be available to Motorex under these Terms, Motorex may cancel any Confirmed Order with immediate effect upon written notice to Customer without any liability to Customer, if Customer: (a) fails to pay any amount when due under these Terms or the applicable Confirmed Order; (b) has not performed or complied with any other provision of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
Changes to Orders
Motorex shall have no obligation to make any changes to a Confirmed Order unless agreed in writing by Motorex. Changes to a Confirmed Order may result in a revised delivery date and additional charges for materials and labor, as determined by Motorex in its sole discretion.
Returns
Products may be returned within thirty (30) days of Customer’s receipt thereof, at Customer’s cost, if Customer has received Motorex’s written authorization and shipping instructions for return. To obtain a return goods authorization (“RGA”) and return instructions, the Customer
must contact Motorex at +1 (800) 243-8645 or info.usa@motorex.com. Unauthorized returns will be returned to Customer freight collect. Authorized returns are subject to a restocking charge of thirty percent (30%). An additional charge may be imposed to cover the cost of restocking damaged Products.
Delivery Terms
For distributors and resellers, Products are delivered Ex Works (EXW) Motorex’s facility in Brookfield, Connecticut (Incoterms 2020). For directly served workshops and dealers located in the States of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey and Pennsylvania], Products are Delivered at Place Unloaded (DPU) to Customer’s delivery address (Incoterms 2020). Motorex may elect to make partial deliveries and invoice each partial delivery separately. At Customer’s request, Motorex may make arrangements for transport and transport insurance for a fee to be agreed upon. In such event, dispatch and choice of freight carrier and/or insurance company shall be at Motorex’s sole
3 discretion unless otherwise agreed to by Motorex in writing. Such arrangements shall not change the delivery terms, passage of risk or other provisions of these Terms. Delivery dates are estimates and shall not be binding on Motorex. In no event shall Motorex be liable for any delay in delivery, and no delay in delivery of any Products shall relieve Customer of its obligation to accept delivery thereof and make payment of any amounts due in accordance with these Terms or the applicable Confirmed Order. Customer agrees that the time of delivery of the Products is not of the essence, and waives any and all claims arising from any delay in delivery.
Acceptance of Products
Customer must inspect Products promptly upon receipt. Customer must notify Motorex in writing of apparent discrepancies, defects or deficiencies within eight (8) calendar days from the date of receipt of the Products. Customer must notify Motorex in writing of hidden defects within five (5) calendar days of discovery during the one (1) year Product Warranty (as defined below) period set forth in Section 11. Customer’s failure to inspect the Products or to notify Motorex of any discrepancies, defects or deficiencies in the manner or within the time periods set forth above, Customer’s use, possession or control of the Products, or payment of Motorex’s invoice shall constitute Customer’s acceptance of the Products and forfeiture of the Product Warranty set forth in Section 11.
Transfer of Risk
All risk of loss or damage shall pass to Customer at the time Motorex delivers the Products pursuant to Section 5, notwithstanding any arrangements for transport and/or transport insurance Motorex may make at Customer’s request and expense.
If Customer fails to accept delivery of the Products on the delivery date confirmed by Motorex, or if Motorex is unable to deliver the Products on the confirmed delivery date because Customer has not provided shipment instructions, documents or authorizations, the Products shall be deemed to have been delivered and the risk of loss shall pass to Customer on the confirmed delivery date. At its sole option, Motorex may dispose of such Products in any manner it deems appropriate or store such Products for a monthly storage fee of five percent (5%) of the total amount invoiced for the Products or such higher amount as Motorex may specify from time to time.
Prices
All prices for Products are in U.S. dollars and – unless otherwise agreed in writing by Motorex – exclusive of all sales, use, excise or other similar taxes and charges (“Taxes”). Customer shall be responsible for all such Taxes. Motorex may collect Taxes from Customers located in all states where the collection of such Taxes is required in Motorex’s sole opinion. Prices are inclusive of drums and standard packaging with the exception of reusable
receptacles. Non-standard packaging materials are subject to an additional charge. Should factors used in determining the price for Products (such as the cost of raw materials, transportation costs, wages, customs duties, etc.) increase prior to the delivery of the Products, Motorex shall be entitled to increase the price for such Products set forth in the Order Confirmation accordingly.
Payment
Full payment for all Products ordered is due Net Thirty (30) unless otherwise agreed to by Motorex in writing. Payment is considered received as soon as and to the extent it has been credited to Motorex’s bank account, exclusive of bank charges, taxes and fees of any kind. Motorex shall be entitled to charge Customer interest at the rate of one percent (1%) per month on all amounts not paid when due. In the event that Customer’s payment is or if there are reasonable doubts as to the Customer’s solvency, Motorex shall be entitled to (i) reject any further orders of Customer and (ii) cancel or suspend any unfilled part of any Confirmed Order, in each case without incurring any liability to Customer. Customer may not set off any claims it may have against Motorex against any amounts due to Motorex unless such claims are uncontested or determined in a final and non-appealable
judgment by a court of competent jurisdiction. Without limitation, Customer is not permitted to withhold or delay payment of any amounts due to Motorex or make any deductions to invoiced amounts for alleged or actual discrepancies, deficiencies or defects.
Security Interest
Customer hereby grants to Motorex as security for the timely payment and performance of all of Customer’s payment obligations to Motorex, a first priority security interest (the “Security Interest”) in all Products delivered to Customer (the “Collateral”). Motorex shall be entitled to file any and all financing, continuation or similar statements under the Uniform Commercial Code in any jurisdiction, and take any and all other action necessary or desirable, in Motorex’s sole and absolute discretion, to perfect its Security Interest in the Collateral and to establish, continue, preserve and protect Motorex’s Security Interest in the Collateral. Customer agrees to take any and all actions and provide Customer with all information necessary to enable Motorex to perfect and enforce this Security Interest in all jurisdictions and vis-à-vis any of Customer’s creditors. This Security Interest shall remain in force until payment in full of the entire purchase price for such Products, and any other amounts due to Motorex by Customer.
Warranty, Claims and Defects
Subject to Section 6, Motorex warrants for a period of one (1) year from the date of delivery of the Products that such Products will materially conform to the specifications expressly set forth in the Confirmed Order, subject to deviations as specified in Section 1, and will be free from
material defects (the “Product Warranty”). EXCEPT FOR THE PRODUCT WARRANTY, MOTOREX MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY (A) WARRANTY OF MERCHANTABILITY; (B) FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
To make a warranty claim under the Product Warranty, Customer must contact Motorex at +1 (800) 243-8645 or info.usa@motorex.com to obtain instructions and an RGA. All Products that are returned to Motorex under the Product Warranty must be accompanied with a RGA provided by Motorex. The failure to comply with Motorex’s instructions in making a warranty claim may result in a denial of all or part of the claim. IN THE EVENT OF A VALID WARRANTY CLAIM, MOTOREX’S WARRANTY IS LIMITED TO A REPLACEMENT DELIVERY OF THE PRODUCTS.
Limitation of Liability
IN NO EVENT SHALL MOTOREX BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT MOTOREX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. MOTOREX'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY CONTRACT FOR THE SALE OF PRODUCTS, WHETHER RESULTING FROM A BREACH OF CONTRACT, TORT (INCLUDING STRICT LIABILITY) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO MOTOREX FOR SUCH PRODUCTS.
Intellectual Property
Any and all rights in and to the trademarks, service marks, trade dress, designs, images, logos, technical information, drawings, models, manuals, whether or not patentable or copyrightable or otherwise registrable, and all rights and applications or registrations derived or derivable therefrom, shown in Motorex’s catalog, price list, website, promotional and marketing materials, and other Product documentation and manuals shall be the sole property of Motorex.
Force Majeure
Motorex shall not be responsible or liable to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in the performance of Motorex’s obligations caused by, directly or indirectly, forces beyond Motorex’s reasonable control or the control of Motorex’s suppliers, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, strikes, breakdowns, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, catastrophes and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, pandemics, epidemics and public health emergences.
Governing Law and Jurisdiction
These Terms, any contract for the sale of Products and all matters arising in connection therewith shall be governed by the laws of the State of Connecticut without giving effect to its conflict of laws provisions. The application of the United Nations Convention on Contracts for the International Sales of Goods (Vienna, 1980) to these Terms is expressly excluded. All disputes arising out of or in connection with these Terms, any contract for the sale of Products and all matters arising in connection therewith shall exclusively be brought before the federal or state courts with jurisdiction in Fairfield County, State of Connecticut, and the Parties to this Agreement hereby irrevocably waive any objection to the jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non convenient. CUSTOMER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THESE TERMS.
Severability
In case any provision in these Terms shall be invalid or unenforceable, the validity and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity or unenforceability.
Waiver
Motorex’s waiver of any breach or violation of these Terms or any other agreement between Customer and Motorex shall not be construed as a waiver of any other present or future breach by Customer.
Entire Agreement
These Terms and the respective Confirmed Order comprise the entire agreement between Motorex and the respective Customer, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations, warranties, and communications, both written and oral.
Amendment and Modification
Motorex may, in its sole discretion, amend or modify these Terms at any time without prior notice.
Conflict
In the event of a conflict between the provisions of these Terms and the provisions of a Confirmed Order, the provisions of the Confirmed Order shall control.
Motorex USA Inc.
Brookfield, CT 06804-1108