Mediatech Terms and Conditions of Sale
The terms and conditions for the sale contained herein shall apply to all quotations and offers to sell and purchase orders accepted by Mediatech, Inc. (“Mediatech”, “we”, or “us”). Our acceptance of any proposal to purchase or purchase order issued by the buyer identified on the quotation or order acknowledgement to which these terms relate (hereinafter, such buyer is referred to as “you”) expressly is made conditional on the terms and conditions of sale as set forth herein, irrespective or whether you accept them in writing, by implication or by acceptance of and payment for the goods sold hereunder. These terms and conditions of sale shall govern the contractual arrangement entered into between Mediatech and you with respect to the goods sold to the exclusion of any terms or conditions of purchase proposed by you.
1. Prices. Unless otherwise agreed to by Mediatech all prices quoted are exclusive of transportation, insurance, taxes, customs fees, duties, and other charges related thereto, and you shall report and pay any and all such charges and hold Mediatech harmless therefrom. Prices quoted relate only to the goods referenced herein and do not include intellectual property, industrial property, or patent rights of any kind. Any tax or related charge that Mediatech shall be required to pay to or collect for any government in connection with this Agreement, including, without limitation VAT, sales tax or use tax (though excluding tax incurred based on the net income of Mediatech) will be billed to you and paid by you. Unless otherwise agreed, prices shall be quoted and invoices shall be paid in US currency. Unless otherwise stated in writing by Mediatech, Mediatech’s reserves the right to change prices and other terms to those in effect at time of shipment with notice to you at time of shipment request.
2. Shipment and Title. Unless otherwise agreed to by Mediatech the delivery term for the goods is F.O.B. Mediatech’s facility and freight charges incurred by Mediatech shall be invoiced to you. Title and all risk of loss or damage to the goods is assumed by you F.O.B. Mediatech’s facility. Mediatech will use reasonable efforts to comply with your requests as to method of transportation, but we reserve the right, if such method is not available or is otherwise not reasonably satisfactory to us, to use an alternate method. Mediatech reserves the right to divide an order into separate shipments and invoice such shipments, in which case each shipment shall be deemed a separate contract and payment therefore shall be due in accordance with these terms. If for any reason we are unable to supply the total demand for a product, we may allocate viable supply among any or all customers on such basis as we may deem fair and practical, without liability for any failure of performance which may result therefrom.
3. Payment Terms and Security. Unless otherwise agreed to by Mediatech you shall pay the invoiced amount within thirty (30) days from the date of Mediatech’s invoice. Mediatech may exercise an option to assess an interest charge of up to 1.5% per month. In the event of default in the payment of the purchase price or otherwise, of this or any other order, Mediatech, without prejudice to any other lawful remedies, may defer delivery, cancel this Agreement, or sell any undelivered products on hand and apply such proceeds as a credit, without set-off or deduction of any kind, against the contract purchase price, and you agree to pay the balance then due to Mediatech on demand.
4. Order Termination or Change. You may not terminate, suspend performance, reschedule, cancel delivery, or issue a hold order under this Agreement in whole or in part, without Mediatech’s prior written consent and upon terms that will compensate us for any loss or damage resulting from such action. Your liability shall include, but not be limited to, the price of product manufactured, delivered or held for disposition, any custom materials purchased or held for a custom production order, or the price of services already performed. If delivery of the good referenced is delayed by you, Mediatech may invoice you for the goods when Mediatech is prepared to ship and you will reimburse us for any storage costs incurred.
5. Product Use. Mediatech’s products are intended for limited uses, as is specified for a particular product in Mediatech’s catalog and on the product’s label. You acknowledge that Mediatech has not tested products for safety and efficacy in food, drug, medical device, cosmetic, commercial or any other use. You expressly represent and warrant that you will properly test, use, manufacture and market any products purchased from us and/or materials produced with such products in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable laws and regulations, now and hereafter enacted. You agree to indemnify and hold harmless Mediatech, our affiliates, officers, employees, agents, successors, directors, shareholders, and assigns, from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that we may sustain or incur as a result of any claim against us brought by you, your affiliates, officers, employees, agents, successors, directors, shareholders, or assigns, by your customers, by end users, by auxiliary personnel (such as freight handlers, etc.), or by other third parties, arising, directly or indirectly, out of the use of our products, or by reason of your failure to perform your obligations contained herein. You shall notify Mediatech in writing within fifteen (15) days of your receipt of knowledge of any accident, or incident involving our products which results in personal injury or damage to property, and you shall fully cooperate with us in the investigation and determination of the cause of such accident and shall make available to us all statements, reports and tests made by you or made available to you by others. The furnishing of such information to Mediatech and any investigation by us of such information or incident report shall not in any way constitute any assumption of any liability for such accident or incident.
6. Custom Orders. For customer-provided formulation or production orders, you are responsible for confirming the correctness of the product’s formulation, manufacturing procedures, and other specifications, as we shall not assume liability for incorrect information provided and or approved by you. All requests regarding expiration and for-use labeling are subject to our review and we reserve the right to not accept these requests in whole or in part. If you do not provide an expiration date, then only the manufacture date will be applied. Mediatech will not be liable for customer- requested label content. Custom product and service orders are subject to a delivered quantity +/-10% of the quantity ordered as appropriate. For refrigerated products packaged in bottles, Mediatech may elect to store product up to six consecutive days at room temperature during the QC hold period, unless specified or instructed otherwise by the customer.
7. Product Warranty. Mediatech warrants only that the goods referenced herein are free of defects in material and when delivered to you conform to specifications published by Mediatech for such goods. The foregoing warranty is conditioned upon proper handling, storage, and use of the goods and upon you making a written claim for break of warranty within twenty (20) days of receipt of the goods. Mediatech must have a reasonable opportunity to investigate all claims. In the event that Mediatech delivers any non- conforming goods, Mediatech will, at our option, provide a free replacement, or grant an appropriate credit. Either of these alternatives shall be your sole and exclusive remedy in the event of delivery of non-conforming goods and Mediatech shall not be liable to you or any other party for any other losses or damages, whether directly or indirectly incurred, even if such losses or damages are reasonably foreseeable. No warranty or representation or guaranty is made by Mediatech as a result of the delivery of any sample, prototype, product information sheet, sale or marketing material, custom, trade practice, or statement by a representative of Mediatech. Any goods returned to Mediatech must be shipped in compliance with our return shipment instructions. The warranty and remedies provided in this paragraph shall apply to the exclusion of any other warranties (express or implied, including the warranties of merchantability and fitness for a particular purpose) or remedies that might otherwise be available under applicable law.
8. Limitation of Liability. IN NO EVENT WILL MEDIATECH BE LIABLE TO YOU OR ANY OTHER PARTY, UNDER ANY CIRCUMSTANCES, FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES SUCH AS LOSS OF CAPITAL, LOSS OF USE, SUBSTITUTE PERFORMANCE, LOSS OF PRODUCTION, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY, OR ANY OTHER CLAIMS FOR DAMAGES, EVEN IF SUCH LOSSES OR DAMAGES ARE REASONABLY FORSEEABLE.
9. Intellectual Property. With respect to intellectual property and industrial property matters, Mediatech’s sole and exclusive liability is to indemnify you only against valid claims based upon infringement of validly issued U.S. patents and then only with respect to goods comprising our regularly established line of products and only in the form in which sold by us. Mediatech’s sole obligation under this indemnification shall be the assumption of the defense of any such suit brought against you and we shall be given exclusive control of the defense of such claim, including settlement. Mediatech’s total liability hereunder shall be limited to its out- of-pocket costs up to, but not exceeding, the amount paid by you as the purchase price for the goods sold hereunder.
10. Export Control. You acknowledge that the goods sold by Mediatech are subject to export control laws and regulations of the United States of America. Mediatech will have no obligation to sell or deliver goods until you have obtained all required export authorizations, if required. You agree that you will not use, distribute, transfer, or transmit the goods except in compliance with United States laws and regulations and the laws and regulations of any other jurisdiction.
11. Government Subcontract. If this contract is a subcontract under a United States government prime contract, Mediatech accepts only those terms and conditions that are required to be included in subcontracts entered into by you with respect to such United States government prime contract and no others. Mediatech accepts no terms or conditions with respect to adjustment of price, patent warranty or licenses, warranty, limitation of your liability, or other item except as appear herein or where the subject of a separate letter agreement that has been duly executed by an authorized officer of Mediatech.
12. Choice of Law. These terms and conditions and the transactions contemplated hereunder shall be governed by the laws of the Commonwealth of Virginia, without regard to its conflict of laws principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply.