The following terms and conditions (“Terms and Conditions”) apply to all sales of Product(s) to you, the buyer (“Buyer”) by Motion Plus LLC, (“Seller”), unless superseded by the terms of a separate written agreement between Buyer and Seller.
1. Applicability; Governing Law and Conflicting Terms. All transactions with respect to the current or future sale of any and all materials, products, supplies or other goods (the “Product(s)”) by Seller to Buyer shall be made in accordance with these Terms and Conditions and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, notwithstanding any choice of laws doctrines of such jurisdiction or any other jurisdiction which ordinarily would cause the substantive law of another jurisdiction to apply. These Terms and Conditions (a) constitute an offer by Seller to Buyer to sell the Products for the Purchase Price (as defined in Section 2 hereof) and pursuant to the terms set forth herein, and (b) are not an acceptance of the terms or conditions of any offer of Buyer. Acceptance of this offer is expressly conditioned upon and limited to the provisions of these Terms and Conditions. In the event of any additional, different or conflicting provision contained in any document of Buyer relating to the Product(s), including, but not limited to, any purchase order of Buyer, Buyer expressly agrees that (i) these Terms and Conditions shall apply and (ii) Buyer’s additional, different and/or conflicting provisions shall not become a part of these Terms and Conditions or Seller’s offer to sell the Product(s) to Buyer.
2. Purchase Price; Price Adjustments and Payment Terms. The purchase price (the “Purchase Price”) for the Product(s) shall be the total, gross amount that is set forth on Seller’s sales invoice that relates to the Product(s) (the “Invoice”) plus any surcharge and Price Adjustments (as described in this Section 2). Buyer hereby grants to Seller a security interest in all Products as security for the prompt and full payment of the Purchase Price. IN THE EVENT THAT THERE IS A CHANGE IN THE PRICE OF RAW MATERIALS, ENERGY OR PROCESS MATERIALS USED TO PRODUCE THE PRODUCTS, LABOR, OVERHEAD, TAXES, EXCHANGE RATES, DUTIES OR OTHER COSTS RELATING TO THE PRODUCT(S) OR ANY COMPONENT THEREOF (COLLECTIVELY “PRICE CHANGES”), OR IN THE EVENT THAT SELLER INCURS ADDITIONAL COSTS OR EXPENSES AS A RESULT OF DELAYS OR CANCELLATIONS FROM SUPPLIERS, MANUFACTURERS OR OTHER THIRD PARTIES (COLLECTIVELY, “ADDITIONAL COSTS”), THEN BUYER EXPRESSLY AGREES THAT THE PURCHASE PRICE SHALL BE INCREASED FOR ANY AND ALL OF SUCH PRICE CHANGES AND ADDITIONAL COSTS (COLLECTIVELY, “PRICE ADJUSTMENTS”). Accordingly, Buyer agrees and acknowledges that any and all price quotes and sales offers, whether written or verbal, may be changed for any such Price Adjustments. Furthermore, Buyer acknowledges and agrees that (a) any sales offers or price quotes from Seller must be accepted by the product manufacturer/supplier prior to Seller’s fulfilling any order for Buyer and (b) Seller will not be legally bound by any such offer or quote to Buyer that is not accepted by Seller’s manufacturer/supplier. Payment of the Purchase Price is due from Buyer within thirty (30) days following tender of delivery of the Product(s) by Seller, F.O.B. point of origin, freight collect. The parties agree that all payments still owing after the due date can bear interest at a monthly rate of one and one-half (1.5%) percent or the maximum rate allowed by law, whichever is lesser.
3. Indemnification. Buyer agrees to indemnify, defend and hold harmless Seller, its owners, officers, directors, employees, representatives and any affiliate of Seller and the owners, officers, directors, employees and representatives thereof, from and against any and all damages, claims, expenses (including reasonable attorneys’ fees), losses or liabilities of any nature whatsoever, and whether involving injury or damage to person or property, and any and all suits, causes of action and proceedings thereon arising or allegedly arising out of, based upon or attributable to the Product(s) sold hereunder or from the use thereof.
4. Disclaimer of Warranties. SELLER EXTENDS NO WARRANTIES, EITHER EXPRESS OR IMPLIED, CONCERNING THE PRODUCT(S), INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER, ANY USER OF THE PRODUCT(S), OR ANY THIRD PARTY FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER ARISING FROM THE USE OR PERFORMANCE OF THE PRODUCT(S), OR FROM THE NON-DELIVERY, DELAYED DELIVERY, DAMAGE OF PRODUCT(S) OR OTHERWISE. BUYER EXPRESSLY ASSUMES ALL RESPONSIBILITY FOR DETERMINING THE FITNESS OF SUCH PRODUCT(S) FOR BUYER’S INTENDED USE. ANY TECHNICAL INFORMATION, PRODUCT LITERATURE, SELLER TECHNICAL ASSISTANCE OR OTHER INFORMATION IS GIVEN TO AND ACCEPTED BY BUYER AT ITS OWN RISK AND IS NOT A WARRANTY BY SELLER TO BUYER.
5. Inspection; Rejection of Nonconforming Product(s). Buyer must promptly inspect the Product(s) upon delivery. Buyer may reject Product(s) which fail to conform to the requirements of the Invoice only by giving Seller notice in writing within five (5) business days after the delivery of the Product(s). The notice must state the basis of the alleged nonconformity of the Product(s) and describe the portion of the Product(s) being rejected. Buyer’s failure to provide written notice of any alleged nonconformity within five (5) business days shall constitute an unqualified acceptance of the Product(s) and a waiver by Buyer of all claims with respect thereto.
6. Returns. All returns are subject to age and condition of material. Any and all Product(s) that are returned to Seller, whether due to non-use, an alleged nonconformity, or otherwise, shall be subject to a restocking charge that will be calculated at the time of return and based on the commonality, age and condition of the product and set as a percentage between 0 and a maximum of 85% of the Purchase Price.
7. Exclusive Remedies of Buyer. The sole and exclusive remedies of Buyer, any user of the Product(s) or any third party are: (a) in the case of any breach by Seller other than Seller’s delivery of nonconforming Product(s), to receive repayment of the amount paid by Seller to Buyer, provided that such amount is not in excess of the Purchase Price; and (b) in the case of Seller’s delivery of nonconforming Product(s), to return the Product(s) and, subject to Section 6 hereof, and at Seller’s sole option, to (i) receive repaired or replaced Product(s) or (ii) receive repayment of the amount paid by Seller to Buyer, provided that such amount is not in excess of the Purchase Price. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY TO BUYER FOR ALL DAMAGES FROM ANY CLAIM, REGARDLESS OF FORM, EXCEED THE TOTAL PRICE PAID BY BUYER TO SELLER FOR THE PRODUCTS AT ISSUE. NO CLAIM SHALL BE ALLOWED FOR PRODUCT THAT HAS BEEN PROCESSED OR COMMINGLED IN ANY MANNER. FAILURE TO GIVE NOTICE OF A CLAIM WITHIN NINETY (90) DAYS FROM DATE OF DELIVERY, OR THE DATE FIXED FOR DELIVERY IN CASE OF NON-DELIVERY, SHALL CONSTITUTE A WAIVER BY BUYER OF ALL CLAIMS RELATING TO SUCH PRODUCTS.
8. Freight. All Product(s) are shipped F.O.B. point of origin, freight collect.
9. Title and Risk of Loss. Seller shall have the sole and exclusive right, exercisable from time to time and at any time, to determine the carrier(s) that will be used to ship the Product(s) (the “Carrier”). Seller shall have title to the Product(s) and bear the risk of loss of the Product(s) at all times until the Product(s) are delivered to the Carrier. Title to the Product(s) and risk of loss of the Product(s) shall be in and remain with Buyer from the date and time that the Product(s) are delivered to the Carrier.
10. Venue. Buyer agrees that any and all disputes between Buyer and Seller shall be resolved by, and Buyer consents to, the exclusive jurisdiction and venue of the Court of Common Pleas of Allegheny County, Pennsylvania and the United States District Court for the Western District of Pennsylvania. Buyer hereby waives all objections to venue in such Courts.
11. Waiver of Jury Trial. Buyer and Seller acknowledge that the right to trial by jury is a constitutional one, but that it may be waived. Each of Buyer and Seller, after consulting (or having the opportunity to consult) with counsel of its choice, knowingly voluntarily and intentionally waives any right to trial by jury in any action or other legal proceeding arising out of or relating to these terms and conditions, any purchase order or any other document pertaining to any transaction involving buyer and seller.
12. Severance Clause. In case one or more of the provisions contained in these Terms and Conditions shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision and these Terms and Conditions shall be construed as if the invalid, illegal, or unenforceable provision had never been contained in it.
13. Force Majeure; Excuse of Performance. (a) Neither Seller shall be held responsible for failure or delay in delivering, nor Buyer for failure or delay in accepting, the Product(s) if such failure or delay is caused by war, fire, accident, strike, labor trouble or shortages, equipment breakdown, governmental laws, regulations, orders or decrees (including those relating to environmental matters), unavailability of materials, containers or transportation, or acts of God or other causes beyond such party’s control, provided, however, that if Seller makes any shipment, or contracts for the carriage of any shipment, or if the producer/supplier commences the manufacture or shipment of the Product(s) before receipt of written notice from Buyer that Buyer cannot accept shipment because of any such cause, or if Seller by the exercise of reasonable diligence cannot prevent shipment or the making of a contract of carriage after receipt of such notice, Buyer shall accept and pay for the Product(s) so shipped or so manufactured.
(b) If Seller determines that Seller’s ability to deliver the Product(s) or any component thereof is hindered, limited or made impracticable, Seller may, in its sole discretion (i) suspend, delay or cancel delivery of all or any portion of the Product(s) or any component thereof and/or (ii) allocate its available supply of the Product(s) or any component thereof among itself and its purchasers on such basis as Seller determines to be equitable, all without any liability to Buyer for any such suspension, delay, cancellation, allocation, or failure of performance which may result therefrom.
14. No Waiver. Except as otherwise set forth herein, no failure to exercise any right of either party hereunder shall constitute a waiver of said right, nor shall any waiver of any right hereunder constitute a waiver of any other right, nor shall any waiver constitute a continuing waiver. Except as otherwise set forth herein, no waiver shall be binding unless executed in writing by the party making the waiver.
15. Integration; Amendment; Assignment. These Terms and Conditions, the Invoice and the Price Adjustments represent the entire agreement between the parties with respect to the matters set forth therein, superseding all prior agreements and understandings, whether written or oral. In no event shall these Terms and Conditions, the Invoice, the Price Adjustments or any provision thereof be deemed to be amended, modified or changed in any manner whatsoever (including by reason of trade usage or course of dealing) except and unless Seller provides its written agreement to such amendment, modification or change. Seller may assign any portion or all of these Terms and Conditions, the Invoice and the Price Adjustments to any of its affiliates, successors or assigns.
16. Collection Costs. If Seller retains the services of counsel in connection with enforcing Buyer’s obligations hereunder, reasonable attorneys’ fees shall be paid by Buyer to Seller. Buyer shall pay all costs, including such attorneys’ fees, incurred by Seller in connection with any proceeding to enforce Buyer’s obligations hereunder.
17. Information on Websites. Seller’s website www.motionplusmore.com contains links to the websites for the manufacturers of Product(s). Seller is not responsible for the content of the websites of the Product(s)’ manufacturers.
18. Product Performance and Compatibility. Seller is not responsible for validation and verification of product performance in Buyer’s application of products. Seller is not responsible for product compatibility between products from Seller and/or other third-party manufacturers. Seller is not responsible for incorrect product selection through product filtering or configuration tools on Seller’s website.
Motion Plus LLC
Revision Date: 06/2021