GENERAL. In addition to any price quote, addenda invoice and purchase order documents attached hereto and incorporated herein by reference (the “Sales Order”), these General Terms and Conditions of Sale (collectively, with the Sales Order, the “Agreement”) are part of the agreement between Mohawk Resources Ltd. (“Mohawk”) as the seller and the buyer described on the Sales Order (the “Customer”). These General Terms and Conditions of Sale will control the sale of all goods and services (the “Product”) by Mohawk to the Customer. These General Terms and Conditions of Sale apply whether the sale occurs pursuant to verbal or paper-based orders or any form of electronic commerce. If not otherwise agreed to, receipt or acceptance of delivery of any Product alone will constitute acceptance of the Agreement, including these General Terms and Conditions of Sale. No addition or modification to the Agreement or these General Terms and Conditions of Sale, including without limitation any proposed by the Customer or that may appear on or may be referenced in the Customer’s purchase order, requisition or payment remittance, will be binding unless agreed to by Mohawk in writing with specific reference to this Section 1.
PAYMENT TERMS. Any Customer order for a custom Product requires a non-refundable deposit of at least fifty percent (50%) of the agreed price prior to commencement of production. Unless otherwise authorized by Mohawk in writing, payment in full is due prior to shipment. Payment by credit card, when permitted by Mohawk, is subject to prior credit card validation and authorization both at time of order placement and immediately prior to shipment. Mohawk will charge the Customer a credit card usage fee of 3.25% for all payments made using a credit card. Mohawk reserves the right to suspend its performance in the event payment is not made when due. Mohawk has the right to require progress payments and payment security or guaranty. No payment offset, including retainage, is permitted without Mohawk’s prior written consent. INTEREST CHARGES WILL BE ADDED TO OVERDUE INVOICES FOR ANY PRODUCT AT THE RATE OF 2% PER MONTH STARTING FROM THE DATE OF INVOICE, SUBJECT TO ANY LIMIT IMPOSED BY APPLICABLE LAW. Further, the Customer agrees to pay all collection expenses and attorney’s fees incurred in connection with the enforcement of payment terms or the collection of any amounts owing by the Customer to Mohawk. Mohawk’s failure to exercise or delay or partially exercise any right, power or privilege hereunder shall not constitute waiver of or preclude any further exercise of such rights, powers or privileges.
DELIVERY TERMS. Delivery terms are FOB Mohawk’s factory, Amsterdam, New York, unless otherwise agreed to in advance as stated in order acknowledgement. In all cases, title transfers to the Customer upon the first to occur of Mohawk’s delivery to the Customer or receipt by common carrier for transport to the Customer, except that title to all intellectual property rights associated with the Product remains with Mohawk, Mohawk’s suppliers or Product licensors, as the case may be. Mohawk’s acknowledged shipping dates are approximate only, based on prompt receipt of all necessary information from the Customer, and Mohawk disclaims all liability for late delivery. Where applicable, shipping and handling costs will be billed to the Customer, unless otherwise waived by Mohawk in writing. The Customer is responsible for inspecting all Products prior to signing the delivery receipt, freight bill or bill of lading. Mohawk is not responsible for missing or damaged Products when the Customer has signed the delivery receipt, freight bill or bill of lading. In such instances, it is up to Customer to submit a claim to the carrier hired by the Customer and it is the Customer’s responsibility to seek compensation from the carrier for damaged or missing freight.
LIMITATIONS OF WARRANTIES AND LIABILITY OF MOHAWK. The Customer acknowledges that Mohawk is an independent enterprise and not an agent or partner of any product manufacturer or service provider, including without limitation the Customer. Mohawk is not authorized to commit or bind any product manufacturer, supplier or third-party service provider in any way, nor is any product manufacturer, supplier or service provider authorized to commit or bind Mohawk in any way. Mohawk is not a general contractor, partner or agent regarding the sale of third-party branded goods and services, acting, from time to time, only in the capacity of a permitted reseller. ACCORDINGLY, EXCEPT AS SET FORTH IN THE WRITTEN MOHAWK WARRANTIES (IF ATTACHED AND AS APPLICABLE), MOHAWK MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING ANY PRODUCT. MOHAWK PROVIDES NO INDEMNITIES (INTELLECTUAL PROPERTY OR OTHERWISE) AND HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF ANY PRODUCT’S MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER IMPLIED WARRANTY. The only warranty available to the Customer will be that as may be given directly by the original Product manufacturer or service provider (copies of any such warranties are available upon request). Mohawk does not have and disclaims any post-sale technical support or warranty repair obligations. Mohawk may, in its sole discretion, assist the Customer in processing third-party warranty claims. Mohawk does not have any responsibility for any information, specification, claim, warranty or representations made or provided by the original manufacturer or service provider. That information, to the extent provided by or obtained from Mohawk, is solely for the Customer’s convenience, and the Customer must make its own determination as to the accuracy and completeness of that information. Without limiting the foregoing, Mohawk shall have no obligation or liability with respect to Products which, in Mohawk’s sole judgment, have been altered, modified, damaged, misused, abused, badly worn, lost or improperly installed or maintained by the Customer and the Customer shall indemnify, defend, and hold harmless, Mohawk and its officers, directors, employees, and agents from and against any loss, expense, liability, damage, or claim threatened, made or brought against Mohawk that arises from a Product that has been altered, modified, damaged, misused, abused, badly worn, lost, improperly installed or improperly maintained. Furthermore, Mohawk shall have no obligation or liability with respect to specifications, designs, renderings, plans, schemes or similar information (collectively, “Customer Specifications”) provided to Mohawk by the Customer and/or its agent(s), regardless of whether any such Customer Specifications are used in a Product purchased by the Customer and the Customer shall indemnify, defend, and hold harmless, Mohawk and its officers, directors, employees, and agents from and against any loss, expense, liability, damage or claim, threatened, made or brought against Mohawk that arises out of such Customer Specifications.
DISCLAIMER AND LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MOHAWK WILL NOT BE LIABLE FOR ANY BUSINESS INTERRUPTION OR LOSS OF PROFIT, REVENUE, MATERIALS, ANTICIPATED SAVINGS, DATA, CONTRACT, GOODWILL OR THE LIKE (WHETHER DIRECT OR INDIRECT IN NATURE) OR FOR ANY OTHER FORM OF INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES. MOHAWK’S MAXIMUM TOTAL LIABILITY RELATIVE TO ALL CLAIMS AND LIABILITIES FOR WHICH MOHAWK IS FOUND RESPONSIBLE, WHETHER OR NOT INSURED, INCLUDING WITHOUT LIMITATION, OBLIGATIONS UNDER ANY INDEMNITY, WILL NOT EXCEED THE LESSER OF MOHAWK’S SELLING PRICE TO OR PAYMENTS RECEVIED BY MOHAWK FROM THE CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR LIABILITY. MOHAWK DISCLAIMS ALL LIABILITY FOR GRATUITOUS INFORMATION OR ASSISTANCE PROVIDED BY, BUT NOT CONTRACTUALLY REQUIRED OF MOHAWK. UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW, ANY ACTION AGAINST MOHAWK MUST BE BROUGHT WITHIN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF ANY OTHER CONTRARY PROVISION BETWEEN BOTH PARTIES AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, AND FURTHER WILL EXTEND TO THE BENEFIT OF MOHAWK’S EMPLOYEES, REPRESENTATIVES AND SUPPLIERS AS THIRD-PARTY BENEFICIARIES. EACH PROVISION BETWEEN BOTH PARTIES THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR CONDITION, OR EXCLUSION OF DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND IS TO BE ENFORCED AS SUCH.
PRICES. Prices and other information shown in any of Mohawk’s catalogs and brochures (including those of Mohawk’s suppliers) are subject to change without notice and to confirmation by specific quotation. Catalog, brochure and website information are not offers to sell and are maintained only as a source of general information. Mohawk’s prices do not include sales, use, excise, customs, value-added or similar taxes, permits or fees. Unless provided with a valid tax exemption certificate, Mohawk will invoice the Customer as a separate line item for all such taxes as may be applicable. Services will be provided in accordance with quoted rates and supplemental terms and conditions in effect as of the date the services are provided, unless otherwise confirmed by written quotation or order acknowledgment. Unless otherwise agreed in writing by Mohawk, quoted prices provided by Mohawk will be null and void unless accepted by Customer within thirty (30) days from the date of the quotation.
LICENSED SOFTWARE AND FIRMWARE. Software or firmware Products may be subject to the Customer’s written acceptance of separate license agreements which may restrict and/or prohibit rights to use, sublicense, disclose, disassemble, decompile, reverse engineer, or otherwise modify the software or firmware, except as may be expressly permitted by any such license agreement.
CHANGES AND SUBSTITUTIONS. Customer requested changes, including those affecting the identity, scope and delivery of the Products to be purchased, must be documented in writing and are subject to Mohawk’s (or Mohawk’s supplier’s) prior approval and adjustments in price, scheduling and/or other affected terms and conditions. Mohawk reserves the right to reject any change that Mohawk or its suppliers deem unsafe, technically inadvisable or inconsistent with established engineering or quality guidelines and standards, or incompatible with Mohawk’s suppliers’ design or manufacturing capabilities. Mohawk further reserves the right to make substitutions using the latest superseding revision or series or equivalent Product having comparable form, fit and function unless the Customer prohibits or limits such substitutions in writing.
RETURNS. All returns will be at Mohawk’s discretion pursuant to and conditioned by Mohawk’s instructions, require prior written approval and a Mohawk Return Goods Authorization number. Non-warranty returns of unused, unopened and resalable Products for credit will be subject to Mohawk’s return policies in effect at the time, including a restocking charge of at least fifteen percent (15%) of the purchase price of the returned Product, together with any other conditions of return. Custom Products, 2-Post Lifts 20,000lbs or greater, 4- Post Lifts, Mobile Lifts, Parallelogram Lifts or Products specifically manufactured or sourced to Customer specification are not returnable. Products returned under the manufacturer’s warranty must be properly packed and shipped to the Mohawk factory, Amsterdam, New York at Customer’s expense. Shipping containers must be clearly marked per prior, agreed written instruction and shipped freight prepaid.
ORDER CANCELLATION. Customer cancellation prior to shipment is permitted only by written notice and upon payment to Mohawk of reasonable, agreed cancellation and restocking charges, including reimbursement for incurred direct costs. If any such cancellation is permitted, cancellation charges associated with orders for custom Products or Products specifically manufactured or sourced to the Customer’s specification may equal the actual selling price of the subject Products. Mohawk has the right to cancel any order for cause at any time by written notice, and Mohawk will be entitled to cancellation and restocking charges as described above. No termination by the Customer will be considered for “cause” or effective unless Mohawk has failed to correct the alleged cause within sixty (60) days after receipt of the Customer’s written notice specifying the cause.
FORCE MAJEURE. Mohawk and its suppliers will not be liable for any loss, liability, damage, delay or other consequences arising out of Mohawk’s failure or of Mohawk’s suppliers’ failure to perform due to causes beyond their reasonable control, including without limitation acts of God, acts or omissions or failures by the Customer or other parties not under Mohawk or its suppliers’ direction and control, acts of civil or military authority, fires, strikes, floods, epidemics, other natural disasters, quarantine restrictions, war, riots, acts of terrorism, delays in transportation, or transportation embargoes. In the event of delay, Mohawk’s performance date(s) (or that of its supplier, as the case may be) will be extended for a length of time as may be reasonably necessary to compensate for the circumstances.
EXPORT CONTROL. Products and associated materials sold by Mohawk may be subject to various export laws and regulations. It is the responsibility of the Customer or its designated exporter to comply with such laws and regulations at the Customer’s sole expense. In the event that U.S. or local law requires authorization for the export or re-export of any Product or associated technology, no delivery will be made until that authorization is obtained, regardless of any promised delivery date. In the event that authorization is denied, Mohawk (and Mohawk’s supplier, if applicable) will be relieved of any further obligation to sell or deliver the Product and shall be relieved of any and all liability of any kind to the Customer or any other party. Furthermore, in the event that authorization is denied, the Customer shall not be excused from any obligation to Mohawk with respect to payment for such Product and/or associated materials for which export or re-export was not authorized. Mohawk will not comply with boycott related requests except to the extent permitted by U.S. law and then only at Mohawk’s discretion.
DISPUTES. Both parties will attempt promptly and in good faith promptly to resolve any dispute by negotiations between representatives who have authority to settle the dispute. If unsuccessful, both parties then will attempt in good faith to settle the dispute by non-binding third-party mediation, with mediator fees and expenses shared equally between the parties. Any dispute not resolved by negotiation or mediation then may be submitted to a court of competent jurisdiction in accordance with the Agreement. Both parties agree that this is the exclusive procedure for the resolution of all disputes. If the dispute goes to court, the non-prevailing party shall be liable for the prevailing party’s reasonable legal fees, related expenses and court costs.
GOVERNING LAW AND FORUM. All of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement, including without limitation all disputes arising out of or in connection with this Agreement, shall be governed, construed and enforced in accordance with the laws of the State of New York without giving effect to any choice of law or conflict of laws rules, and shall be subject to the exclusive jurisdiction of the courts of the State of New York located in Albany County.