Terms And Conditions Of Sale
1. Entire Sales Contract -MACH Engineering, LLC provides the following Terms and Conditions which apply to all quotes and sale of materials supplied by MACH Engineering (“MACH”). It also applies to all engineering designs, prototypes and all intellectual material provided to the buyer. All purchases by customer, owner or its agent (“Buyer”) are expressly limited and conditioned upon acceptance of the following terms and conditions and any provision, printed or otherwise, contained in any purchase order, confirmation or acknowledgment inconsistent with, different from, or in addition to, these Terms and Conditions are not accepted by MACH Engineering unless specifically agreed to in writing.
2. Quotation OR Contract – Terms and conditions for each transaction shall be specified in the Quotation or Contract sent to the buyer.
3. Offer and Acceptance – Buyer may offer to buy Products under these terms by submitting an order to MACH. MACH may accept or reject any order at its sole discretion. The terms in this contract are the sole terms governing MACH’s sale of Products to Buyer. MACH’s acceptance of Buyer’s offer is expressly limited to these terms. MACH hereby objects to and rejects any additional or different terms proposed by Buyer, including those contained in Buyer’s purchase order, unless MACH expressly agrees to such terms in writing.
4. Quotations – Unless otherwise stated, MACH Engineering’s quotation is valid for 30 days from quotation date. This quotation supersedes all previous quotations or correspondence concerning the same transaction or inquiry. Quotations contain proprietary information of MACH Engineering and are provided to Buyer with the understanding that Buyer will use the information solely for internal purposes. Quotations and the proprietary information contained therein may not be disclosed to any third party or used in any request for quotation of materials as quoted by MACH Engineering, or as a substitute for materials quoted by MACH Engineering.
5. Prices – MACH communicates pricing to customers in various ways (e.g., quotes) and confirms transaction prices with its order acknowledgements. Prior to shipment, MACH’s price may change due to adjustments in specifications, quantities, shipment arrangements, requested delivery dates, or other changes to conditions. The final price in effect on the date of shipment as stated in MACH’s invoice applies. Unless otherwise agreed, prices are in U.S. Dollars and Payment must be in U.S. Dollars.
6. Taxes – Prices do not include applicable taxes or duties. Buyer is solely responsible for paying all applicable taxes and duties. MACH will add sales taxes to the sales price where required by applicable law and Buyer will pay such taxes unless Buyer provides MACH with a duly executed sales tax exemption certificate. If Buyer is required by law to withhold any amount of tax from its Payment to MACH, Buyer will take all reasonable steps to minimize such withholding tax, provide MACH with a receipt or certificate as evidence the tax has been paid, and reimburse MACH for the amount of withholding so that MACH receives Payment for the full value of the invoice. Such amount shall be due whether or not included on the invoice and shall be collectible by MACH Engineering at any time after the sale has transpired. MACH will only take taxes for the sales which incur in the state of Texas. It will not be liable or responsible for any taxes which may incur due to the nature of the transaction in any other state. The Buyer will be liable and responsible for any such taxes.
7. Delivery – Unless MACH notifies Buyer otherwise in the contract, shipments will be delivered FCA MACH’s point of shipment. Risk of loss or damage will pass to buyer upon TI’s delivery to the MACH designated shipping point. Any subsequent loss or damage will not relieve Buyer from its obligations. Buyer is solely responsible for costs of freight and insurance after delivery to the MACH designated shipping point. If MACH incurs freight or insurance costs on Buyer’s behalf, Buyer must promptly reimburse MACH for such freight or insurance costs. Buyer is importer of record and is responsible for all import duties, taxes and any other expenses incurred or licenses or clearances required. MACH may deliver Products in installments. MACH will communicate to Buyer an Estimated Ship Date.
MACH will not be liable for any damage, loss, or expense incurred by Buyer if MACH fails to meet the Estimated Ship Date.
8. Cancellations and Rescheduling – Customer may not cancel any order for materials. There will be no refunds of any amount paid by the customer upon cancellation under any circumstances. If MACH has ordered parts on behalf of the buyer, the buyer will be responsible for the entire amount. The buyer cannot reschedule any services except upon written notice to MACH at least 72 hours prior to day. The buyer will still be responsible for all reasonable costs arising from the rescheduling.
9. Limitations of Damages – In no event shall MACH be liable for lost profits, or incidental or consequential damages, nor shall any liability arising in connection with any product or service sold under this order exceed the sales price of such product or service.
10. Payment Terms – Payment is due as specified in the Quotation or Contract OR thirty (30) days from the date of shipment with written credit approval from MACH. MACH may change or withdraw credit amounts or payment terms at any time for any reason. If Buyer fails to make Payment when due, MACH may suspend or cancel performance under any agreements, including delay or cancellation of shipment on any open orders. MACH will not be liable for, and Buyer will hold MACH harmless from, any costs or losses resulting from suspension or cancellation on account of Buyer’s failure to make Payment. Buyer may not deduct any Payment amounts on account of unresolved disputes. If shipments are delayed by Buyer, payment will become due 30 days from the date MACH Engineering issues notice of availability for shipment. Material held for Buyer because of their request or inability to receive will be at the risk and expense of Buyer. No credit will be allowed for products returned unless prior written permission has been granted by MACH Engineering.
11. Contingencies – MACH will not be in breach of this contract and will not be liable for any non -performance or delay in performance if such non -performance or delay is due to a force majeure event or other circumstances beyond MACH’s reasonable control, whether foreseeable or unforeseeable, including but not limited to, shortages of labor, energy, fuel, machinery or materials, technical or yield failures, war, civil unrest, any government act, law or regulation, including any judicial order or decree, any communication or power failure, labor dispute, natural disaster, fire, flood, earthquake, explosion, terrorist act, or Act of God. In the event of a shortage of components, MACH may, at its sole discretion, allocate Product production and deliveries.
12. Buyer’s applications and compliance – Buyer is solely responsible for the design, validation, and testing of its applications as well as for compliance with all legal, regulatory, and safety -related requirements concerning its applications. Industry best practices generally require that Buyer conducts qualification tests on actual applications taking into account possible environmental and other conditions that Buyer’s application may encounter. Buyer represents that, with respect to its applications, it has all the necessary expertise to create and implement safeguards that (1) anticipate dangerous consequences of failures, (2) monitor failures and their consequences, and (3) lessen the likelihood of failures that might cause harm, and to take appropriate remedial actions. Buyer agrees that prior to using or distributing any systems that include Products, Buyer will thoroughly test such systems and the functionality of such Products as used in such systems.
13. Safety requirements – Where MACH specifically promotes Products as facilitating functional safety or as compliant with industry functional safety standards, such Products are intended to help enable customers to design and create their own applications that meet applicable functional safety standards and requirements. Using Products in an application does not by itself establish any safety features in the application. Buyer must ensure compliance with safety -related requirements and standards applicable to its applications.
14. Limitations and Damages Disclaimer
a. General Limitations – In no event will MACH be liable for any special, collateral, indirect, punitive, incidental, consequential, or exemplary damages in the connection with or arising out of the contract or the use of the products, regardless of whether MACH has been advised of the possibility of such damages, excluded damages include, but are not limited to, cost of removal, rework or reinstallation, ancillary costs to the procurement of substitute goods or services, retesting, outside computer time, labor costs, loss of goodwill, loss of profits, loss of savings, loss of use, loss of data or business interruptions. No claims, suit or action will be bought against MACH.
b. Specific Limitations – In no event will MACH’s aggregate liability from any use of a product provided here under, including from any warranty, indemnity, or other obligation arising out of or in connection with this contract exceed the total amount paid to MACH of the particular products at issue with respect to which losses or damages are claimed. The existence of more than one claim will not enlarge or extend this limit.
15. Non – Waiver of Default – In the event of any default by Buyer, MACH may decline to make further shipments. If MACH elects to continue to make shipments, MACH’s action will not be a waiver of any such default or affect MACH’s legal remedies for any such default. Each shipment made under any order will be treated as a separate sale and transaction.
16. Governing Law and Venue – This contract is governed by and interpreted in accordance with the laws of the State of Texas. The venue for any case shall be Harris County, Texas.
17. Indemnity – If Buyer violates any of its obligations and commitments under Section 14, MACH may terminate, cancel, or otherwise be excused from performing any obligations it may have under this contract. Buyer will fully indemnify MACH and its representatives against any damages, costs, losses, and/or liabilities arising out of Buyer’s non-compliance.
18. Service Calls – Service calls, other then required by specific terms of this contract, shall be made at the expense of the buyer.
19. Assignment and Third Party Beneficiaries – This contract is not assignable by Buyer without MACH’s prior written consent. Any unauthorized assignment is null and void. No provision in this contract confers any benefits, rights, or remedies to any person other than Buyer or MACH. MACH’s affiliates and subsidiaries may perform all or any part of MACH’s obligations under this contract.
20. Warranties and Related Remedies – MACH warrants to Buyer that each Product conforms to MACH’s published Specifications for such Product. This warranty lasts for thirty (30) days after the date MACH or a MACH-authorized distributor delivers the Product. Testing and other quality control techniques are used to the extent MACH deems necessary. MACH does not necessarily test all parameters of each Product. Buyer’s claims against MACH under this Section are void if Buyer fails to notify MACH of any apparent defects in the Product within ten (10) business days after delivery, or of any hidden defects within thirty (30) days after delivery. MACH’s sole liability will be at its option to repair or replace Products that fail to conform to the warranty set forth above. MACH’s liability under this warranty will be limited to Products that are returned during the warranty period to the address designated by MACH and that are determined by MACH not to conform to such warranty. If MACH elects to repair or replace such Products, MACH will have a reasonable time to complete such actions. Repaired Products will be warranted for the remainder of the original warranty period. Replaced Products will be warranted for a new full warranty period.
Notwithstanding the foregoing, MACH will not be liable for a nonconforming Product if:
- the nonconformity was caused by neglect, misuse, or mistreatment by an entity other than MACH, including improper installation or testing, or for any Products that were altered or modified in any way by an entity other than MACH;
- the nonconformity resulted from Buyer’s design, specifications, or instructions for such Products or improper system design; or
- Buyer has not paid on time.
EXCEPT AS SET FORTH ABOVE, PRODUCTS (AS DEFINED IN THIS CONTRACT) ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” MACHDISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH PRODUCTS, INCLUDING BUT NOT LIMITED TO, ANY EPIDEMIC FAILURE WARRANTY OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
MACH may provide Buyer technical, applications, or design advice (including reference designs), quality characterization, reliability data, or other services. Buyer agrees that providing these services does not expand or otherwise alter MACH’s warranties as set forth above and no additional obligations or liabilities arise from MACH providing such services or items.
MACH PROVIDES ALL SERVICES AND ITEMS TO BUYER (OTHER THAN “PRODUCTS” DEFINED IN THIS CONTRACT) “AS IS” AND “WITH ALL FAULTS.” MACHDISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH SERVICES AND ITEMS, INCLUDING, BUT NOT LIMITED TO, ANY EPIDEMIC FAILURE WARRANTY OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
21. Trade Secret – All inventions, ideas, processes, programs, product, software, and designs (including all improvements) are MACH ‘property and are considered TRADE SECRET. The buyer can purchase the final product only. The buyer will not be the owner or have any claims on the original invention, idea, process, program, product, software and engineering design. The buyer will make to attempts to examine copy, alter, reverse engineer, temper with or misuse the product or the engineering design. The buyer will not disclose the design to another party. The buyer will treat all designs as confidential trade secret material of MACH.
22. Miscellaneous – This contract constitutes the entire agreement between the parties relating to the sale of Products and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No addition to or modification or waiver of any provision of this contract will be binding upon MACH unless made in writing and signed by a duly authorized MACH representative. Electronic communications, including emails and/or social media communications, are not signed writings for purpose of this section. No course of dealing or trade usage or course of performance will be relevant to explain or supplement any term in this contract. These terms will prevail notwithstanding any different, conflicting, or additional terms that may appear on any purchase order or other writing not expressly incorporated herein, including, but not limited to, data sheets, application notes, purchase order acknowledgements, and online communications. The section headings contained in this contract are for reference purposes only and will not affect in any way the meaning or interpretation of this contract.