Magnus Engineered Equipment, LLC Terms & Conditions
Applicability: These terms and conditions (these Terms) are the only terms that govern the provision of goods and services by Magnus Engineered Equipment, LLC (Magnus) to (Customer). Magnus and Customer are each a Party and collectively the Parties. A resulting Sales Order (Sales Order) from this proposal and these Terms (collectively, this Agreement) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the resulting Sales Order, these Terms shall govern. These Terms prevail over any of Customer’s general terms and conditions regardless of whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
Payment: Payment terms for orders resulting from this quote are 50% down payment with submission of Purchase Order and 50% Payment prior to shipment. Scope Magnus shall provide the equipment, parts, and/or services to Customer as described and specified in the Quote (the Work), in accordance with these Terms.
Performance Dates: Magnus shall use reasonable efforts to meet any performance dates specified in the Sales Order. However, Customer agrees and acknowledges that any performance dates provided by Magnus shall be estimates only
Customer’s Obligations: Customer shall cooperate with Magnus in all matters relating to the Work and provide such access to Customer’s premises, and such office accommodation and other facilities as may reasonably be requested by Magnus, for the purposes of performing the Work, respond promptly to any Magnus request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Magnus to perform the Work in accordance with the requirements of this Agreement, provide Customer materials or information as Magnus may reasonably request to carry out the Work in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation t the Work before the date on which the Work is to start.
Customer’s Acts or Omissions: If Magnus’ performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Magnus shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay. Change Orders. If either party wishes to change the scope or performance of the Work, it shall submit details of the requested change to the other party in writing. Magnus shall, within a reasonable time, provide a written estimate to Customer of the likely time required to implement the change, any necessary variations to the fees and other charges for the Work arising from the change, the likely effect of the change on the Work, and any other impact the change might have on the performance of this Agreement. Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a Change Order). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Change Orders. Magnus may, from time to time change the Work without the consent of Customer provided that such changes do not materially affect the nature or scope of the Work, or the fees set forth in the Sales Order. Magnus may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the Sales Order.
Fees and Expenses: Payment Terms; Interest: In consideration of the provision of the Work by Magnus and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the resulting Sales Order. Customer agrees to reimburse Magnus for all reasonable travel and out-of-pocket expenses incurred by Magnus in connection with the performance of the Work. Customer shall pay all invoiced amounts due to Magnus in accordance with the Sales Order. In the event payments are not received by Magnus within thirty (30) days after becoming due, Magnus may charge interest on any such unpaid amounts at a rate of 6% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and suspend performance for all Work until full payment is made.
Taxes: Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.
Intellectual Property: All intellectual property rights, including copyrights, patents, patent applications, patent disclosures and inventions (whether patentable or not), discoveries, inventions, trademarks, service marks, trade secrets (as defined in 18 U.S.C. 1839(3)), know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, and all intellectual property of any kind together with all of the goodwill associated therewith, derivative works and all other rights (collectively, Intellectual Property Rights) in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Magnus in the course of performing the Work, including any items identified as such in the Sales Order (collectively, the Deliverables) shall be owned by Magnus. Magnus hereby grants Customer a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Work.
Confidential Information: All non-public, confidential or proprietary information of Magnus, including, but not limited to, tools, methods, methodologies, techniques, designs, specifications, computer source code, computer programs, technical drawings, algorithms, processes, ideas, customer lists, pricing information, marketing plans, personnel information, financial information and business strategies, products and proposed products, product developments, forecasts, strategies, formulas, contractual agreements, Intellectual Property Rights, and any other non-public information that either Party designates as proprietary and/or confidential that is related to this Agreement, the Work, and/or the Deliverables (collectively, Confidential Information), disclosed by Magnus to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as confidential, in connection with the provision of the Work and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of Magnus. Confidential Information does not include information that is: (i) in the public domain; (ii) known to Customer at the time of disclosure; or (iii) rightfully obtained by Customer on a non-confidential basis from a third party. Customer agrees to use the Confidential Information only to make use of the Work and Deliverables. Magnus shall be entitled to injunctive relief for any violation of this section.
Representation and Warranty Limited Warranty: Magnus will provide Customer with a one (1) year Limited Warranty. The one (1) year period for the Limited Warranty begins when the equipment specified in the Sales Order is delivered to Customer. Magnus warrants that the equipment will be free from material defects and will perform in accordance with the specifications set forth in the Sales Order. Customer agrees that Magnus is not liable, including under the Limited Warranty, for any loss, damage, or expense, of any kind or nature, including, without limitation, delays, interruptions of service, loss of use, loss of business or damage, whatsoever and however caused, by Customer’s: (a) misuse of the equipment or its component parts; (b) modification of the Equipment or its component parts; (c) assembly or disassembly of the Equipment or its component parts; or (d) unauthorized repairs, service, or adjustment of the Equipment or its component parts. Magnus shall not be liable for a breach of the warranty set forth in this section unless Customer provides written notice to Magnus, containing a reasonable description of the defective equipment, within seven (7) days of the date when Customer discovers or ought to have discovered the defective equipment. Subject to Section 11(b), Magnus shall, in its sole discretion, either repair or replace the equipment or the defective part; or credit or refund the price of such equipment or defective part. The remedies set forth in this section shall be the Customer’s sole and exclusive remedy and Magnus’ entire liability for any breach of the limited warranty set forth in this section.
Disclaimer of Warranties: Except for the warranty set forth in Representation and Warranty above, Magnus makes no warranty whatsoever with respect to the Work including any (a) warranty of merchantability; (b) warranty of fitness for a particular purpose; (c) warranty of title; or (d) 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.
Limitation of Liability: In no event shall Magnus be liable to Customer or to any third party for any loss of use, revenue, profit, loss of data, diminution in value, or for any consequential, incidental, indirect, exemplary, special, 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 Magnus has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose. In no event shall Magnus’ aggregate liability arising out of or relating to this Agreement, whether arising out of or relating to breach of contract, tort (including negligence) or otherwise, exceed the aggregate amounts paid or payable to Magnus pursuant to this Agreement and/or the applicable Sales Order. The limitation of liability set forth in this section shall not apply to: (i) liability resulting from Magnus’ gross negligence or willful misconduct; and (ii) death or bodily injury resulting from Magnus’ negligent acts or omissions.
Termination: In addition to any remedies that may be provided under this Agreement, including any rights to terminate this Agreement, Magnus may terminate this Agreement with immediate effect upon written notice to Customer, if Customer fails to pay any amount when due under this Agreement and such failure continues for fourteen (14) days after Customer’s receipt of written notice of nonpayment, has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or 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. In the event of termination of the Agreement, for whatever cause, Customer shall pay Magnus for all work completed under the Agreement and for any loss sustained by Magnus for materials, equipment, tools, component parts, engineering and administrative time and supplies, a reasonable profit which Magnus would have made on the completed order, and any other reasonable cost or expense.
Waiver: No waiver by Magnus of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Magnus. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Force Majeure: No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Magnus hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (Impacted Party) reasonable control, including, without limitation, the following force majeure events (Force Majeure Event(s)): (a) acts of God; (b) flood, fire, earthquake, epidemics, pandemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within seven (7) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this section, the other Party may thereafter terminate this Agreement upon seven (7) days’ written notice.
Assignment: Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Magnus. Any purported assignment or delegation in violation of this section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
Relationship of the Parties: The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
No Third-Party Beneficiaries: This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
Governing Law: All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule, whether of the State of Ohio or any other jurisdiction that would cause the application of the laws of any jurisdiction other than those of the State of Ohio.
Submission to Jurisdiction: Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio in each case located in the City of Willoughby and County of Lake, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Default: If either Party defaults by failing to perform an obligation arising under this Agreement, the other Party shall promptly notify the defaulting party of said default in writing. The defaulting party shall be given thirty (30) days to investigate and cure the default. Should the defaulting party fail to cure the default within the cure period, then the other Party may without prejudice to any other remedy terminate the Agreement pursuant to the Termination section.Attorneys’ Fees / Costs. Each Party shall bear its own attorneys’ fees and costs incurred in connection with the consummation of this Agreement. If any dispute arises under this Agreement or in connection with the subject matter hereof, the ultimate prevailing party in any litigation between the Parties shall be entitled to recover its reasonable attorneys’ fees and costs.
Notices: All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a Notice) shall be in writing and addressed to the parties at the addresses set forth in the Sales Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) email, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this section.
Severability: If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Survival: Subject to the limitations and other provisions of this Agreement, Sections Customer’s Obligations, Customers Act’s or Omissions, Fees and Expenses; Payment Terms; Interest, Taxes, Intellectual Property, Confidential Information, Representation and Warranty, Disclaimer or Warranties and Limitation of Liability, and any other provision that, in order to give proper effect to its intent, shall survive such expiration or termination of this Agreement.
Amendment and Modification: This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
Insurance: The Parties shall, at their own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability), worker’s compensation, and errors and omissions or professional liability coverages in a sum not less than $2,000,000.00 with financially sound and reputable insurers. The Parties shall exchange certificates of insurance with each other upon written request. Except where prohibited by law, the Parties shall require their insurers to waive all rights of subrogation against the other. Magnus shall also be named as an additional insured under Customer’s insurance policy(ies).