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MBO America > Terms & Conditions

Additional Terms and Conditions

  1. EXCLUSIVE TERMS. Seller’s issuance of this form is expressly made conditional upon Buyer’s assent that these terms constitute the sole and exclusive agreement between Seller and Buyer. Such assent shall be deemed given upon any of (i) Buyer’s execution of this sales order, (ii) Buyer’s submission of a purchase order, (iii) Buyer’s payment of any deposit, or (iv) Buyer’s partial or complete performance of the sales transaction. Seller’s acceptance of Buyer’s order does not constitute an acceptance of provisions on any order or other form of Buyer that are different from or additional to these terms, and such different or additional provisions are hereby expressly rejected and are void. The terms of this form may not be modified, waived, superseded, or rescinded except by a writing signed by an authorized officer of Seller.
  2. MODIFICATION OF MATERIAL FURNISHED BY SELLER. All catalogs, specifications, and other material of Seller are subject to modification by Seller and are not binding unless so stated in writing by Seller. Seller reserves the right to correct clerical and typographical errors at any time.
  3. PRICES. Prices are FCA Seller’s warehouse (INCOTERMS 2000) and do not include federal, state or local taxes imposed on the equipment or its sale or use; such taxes, if any, shall be borne by Buyer. Unless Seller has stated in writing that any product price is binding for a specified period not yet expired, prices are subject to change at any time prior to the time of contract.
  4. DELIVERY. The products and services described herein, including parts, sold or delivered by Seller to Buyer are herein referred to as “Products.” Unless otherwise specified on the face hereof, delivery of the Products described herein shall be FCA Seller’s plant. Title passes when risk of loss passes pursuant to INCOTERMS 2000. Seller will use all reasonable diligence to meet the schedule dates for shipment and delivery, but does not guarantee any delivery or completion date. Buyer shall accept delivery of the Products upon notification by Seller. Seller shall not be liable for any loss, damage, expense or charge of any kind resulting from delay in meeting a scheduled shipment or delivery date.
  5. WARRANTY. Seller’s sole warranties to Buyer for its Products are as follows:
    • 36-Month Mechanical Parts Warranty for new MBO Folders: Seller will repair or, at Seller’s option, replace any mechanical part (excluding air pump and wear and tear items such as fold rollers or drive belts) in a new MBO Folder that does not conform to specifications or proves to be defective in material or workmanship under normal use (i.e. one-shift operation) within thirty-six (36) months after the original date of shipment from Seller’s warehouse.
    • 12-Month Pump Warranty for new MBO Folders: Seller will repair or, at Seller’s option, replace any pump in a new MBO Folder that does not conform to specifications or proves to be defective in material or workmanship under normal use (i.e. one-shift operation) within twelve (12) months after the original date of shipment from Seller’s warehouse.
    • 12-Month Service Labor Warranty for new MBO Folders: For the first twelve 12 months after shipment of a new MBO folder, Seller will provide all service labor for diagnosis and repair or replacement of defective parts as described under the foregoing mechanical parts warranty and the pump warranty.
    • 12-Month Mechanical Parts Warranty for Any Other New Equipment: Seller will repair or, at Seller’s option, replace any mechanical part (excluding wear and tear items, e.g. fold rollers or drive belts) in any other new equipment that does not conform to specifications or proves to be defective in material or workmanship under normal use (i.e. one-shift operation) within twelve (12) months after the original date of shipment from Seller’s warehouse.
    • 6-Month Service Labor Warranty for Any Other New Equipment: For the first six months after shipment of other new equipment, Seller will provide all service labor for diagnosis and repair or replacement of defective parts as described under the foregoing mechanical parts warranty for other new equipment.
  6. WARRANTY LIMITATIONS AND EXCLUSIONS. (i) The remedies set forth in Paragraph 5 are the exclusive remedies in the event of any breach of the warranties set forth therein. The warranties in Paragraph 5, to the extent they relate to control software, are limited to defects which makes the software unsuitable for the original intention of the software, and the remedies shall be limited to the modification or replacement of such software to achieve the original intention, and do not extend to or include revisions or enhancements. (ii) “Normal use” shall also mean use consistent with standard industry practice, within rated capacities, at correct voltage, with normal preventive maintenance, and in accordance with the applicable maintenance and operating manuals. Machine modifications not approved in writing by Seller void the terms of the warranties specified in Paragraph 5. (iii) The warranties in Paragraph 5 do not apply to used equipment or to parts subject to wear or consumption, such as rollers, belts, filter elements, fuses, lubricants, breakers, contactors, and relays. Any warranties in Paragraph 5 with respect to cutting knives or fold plates are void if these items are used with materials other than paper, unless otherwise specified in writing by Seller. (iv) The warranties in Paragraph 5 do not apply to parts not normally included in standard products and options. For non-standard parts or components specified by Buyer, the Buyer shall have only the warranty provided by the manufacturer of such part or component. (v) The warranty for parts is subject to verification of an actual defect by return of the part to Seller at Buyer’s expense or by inspection by Seller’s authorized service personnel. Diagnosis beyond the original start-up of the Product, which does not result in the identification of specific warranty claims, may result in service call charges at Seller’s discretion. (vi) Parts replaced under the terms of such warranties are covered for the remainder of the applicable warranty term, but no fewer than ninety (90) days, and will be shipped to Buyer, at Seller’s expense, by standard ground transportation. Additional costs for any other shipping option chosen by Buyer shall be at its expense. (vii) Component parts used in the manufacture of post-press finishing equipment may be either new or rebuilt in compliance with original design specifications. EXCEPT AS STATED IN PARAGRAPH 5, IT IS EXPRESSLY AGREED THAT THERE ARE NO WARRANTIES GIVEN BY SELLER, EITHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
  7. NO CONSEQUENTIAL ETC. DAMAGES. Seller shall not be liable under any circumstances, whether for breach of warranty, delay in or failure of delivery or other breaches of contract, negligence or other tort, strict liability in tort, or any other theory of recovery, whether currently or in the future enacted or existing, for lost profits, damages for loss of production, business or reputation, or for any other indirect, incidental, consequential, exemplary, or punitive damages.
  8. LIMITATIONS OF REMEDIES AND LIABILITIES. Buyer agrees that Seller’s liability pursuant to any claim of any kind by affiliates or agents, for direct damages, whether directly or by way of indemnity or contribution, including but not limited to a claim in breach of contract (other than breach of warranty, for which remedies are limited by Paragraph 6), negligence, strict liability, or any other theory of recovery, against Seller or any of its affiliates, shall be limited to the price attributable to the Product which gives rise to the said claim.
  9. INSTALLATION AND START-UP. Buyer shall be responsible for receiving and unloading the Product, preparing the installation site, and providing all necessary media according to Seller’s specifications. At Buyer’s request, Seller will, as soon as reasonably possible, provide service technicians to perform the installation of the Product and assist Buyer in proper start-up of the Product, along with necessary training. If such start-up and training services require more than five (5) man days, or if any operating assistance is thereafter requested of Seller, Buyer shall be charged for the labor and travel time standard rates in effect at the time such services are provided.
  10. RULES, REGULATIONS. The Occupational Safety and Health Act (OSHA) imposes certain requirements on an employer including many relating to the use of machinery. The interpretation and applicability of the regulations issued pursuant to OSHA is directly related to the conditions and manner in which the equipment is used. Seller believes that its Products can be used in a manner that complies with OSHA and its associated regulation, but cannot and does not so warrant, and makes no warranty of any kind other than the  warranties set forth in Paragraph 5 hereof.
  11. DOWN PAYMENT. A down payment of twenty percent (20%) of the total order value is required on all orders and is due upon Buyer’s execution of the Sales Order or delivery of Buyer’s purchase order, as the case may be. The down payment may be partially refundable, without interest, on any permitted order cancellation depending on the cancellation charges assessed and deducted from the down payment.
  12. PAYMENT TERMS. Payment is due in accordance with any agreed upon payment schedule or, if no schedule has been agreed upon, within thirty (30) days after the invoice date. If, in Seller’s judgment, Buyer’s financial condition changes after order acceptance, or if any undisputed invoice (or undisputed portion thereof) on this or any other order of Buyer with Seller is not paid within ten (10) days after the due date, Seller may stop work until revised financial arrangements are made or payment of the past due amount is made, as the case may be.
  13. SECURITY. To secure the payment of (A) all amounts due in connection with the sale of Products to Buyer (whether under this or any other order) and (B) all costs of collection of any such amounts or the enforcement of the security interest, including reimbursement of attorneys’ fees and expenses (collectively the “Secured Obligations”), Buyer hereby grants to Seller a first priority security interest in the Products, any subsequently delivered replacement or accessory components or parts, additions, or improvements, and proceeds resulting from any disposition of any of the same and any insurance proceeds payable resulting from any damage or destruction of any of the same (collectively, the “Collateral”), and such security interest shall be retained by Seller until all Secured Obligations have been fully performed. Until such time that Buyer fully performs such Secured Obligations: (i) Buyer shall keep the Collateral at the location designated herein and not remove it without prior written consent of Seller; (ii) the Collateral shall remain personalty and Buyer shall not attach or affix it to the premises; (iii) Buyer shall not assert against an assignee of Seller any claim or defense which Buyer might assert against Seller; (iv) Buyer shall maintain the Collateral in good condition and fully insured against casualty; and (v) Buyer shall not cause or permit any prior, competing or subordinate interest, lien or claim on the Collateral, whether by consent or legal process, and shall obtain an executed waiver of landlord’s lien or subordination agreement upon demand by Seller. Buyer acknowledges and agrees that Seller has the irrevocable power and right to execute, deliver, and file, manually or electronically, all documents or instruments necessary or appropriate in order to perfect, continue, amend, and enforce the above security interest, including without limitation the giving of notice to other creditors in order to establish or enforce Seller’s security interest.
  14. SOFTWARE LICENSE. System Operation Control Programs (“Programs”) supplied with the Products, whether provided in transportable media or embedded within the Products, shall remain Seller’s property. Buyer is granted a non-exclusive right to use the Programs only in the Product Seller designates. Unless being supplied with its associated products hereunder, no Program, regardless of the form in which it is embodied when received by Buyer, shall be made available to others without Seller’s prior written consent. The ownership of all Programs at all times remains with Seller. In the event Buyer makes an unconsented use, duplication or transfer of any Program, Seller may at once terminate the right granted, and Buyer shall, upon and in accordance with Seller’s request, return or destroy all copies of Programs then in its possession or under its control. Seller’s right to terminate the right granted shall be in addition to Seller’s other rights and remedies for unconsented use, duplication or transfer, including Seller’s right to seek damages for same. In the event an unauthorized change or modification to the Programs affects the safety of the Products, Buyer agrees to indemnify and save Seller and its affiliates harmless from and against any loss, damage, claim, expense or cause of action resulting from any personal injury or property damage resulting therefrom.
  15. FORCE MAJEURE. Seller shall not be liable for any delay in performance or nonperformance which is due to war, fire, flood, acts of God, acts of third parties, acts of governmental authority or any agency or commission thereof, accident, breakdown of equipment, differences with employees or similar or dissimilar causes beyond our reasonable control including, but not limited to, those interfering with production, supply or transportation of product, raw material or components or our ability to obtain, on terms we deem reasonable, material, labor, equipment or transportation expense or cause of action resulting from any personal injury or property damage resulting therefrom.
  16. APPLICATIONS. The Terms and Conditions contained herein are intended to apply only to sales by Seller of Products intended to be installed and in fact installed in the continental United States or the District of Columbia. If any Product sold hereunder is installed outside the continental United States and the District of Columbia, the warranties set forth in Paragraph 5 shall be void and without force or effect, and the Product shall be deemed sold “as is.”
  17. CANCELLATION. This sale is not subject to cancellation by Buyer other than for (i) an event of force majeure which delays performance by Seller for more than ninety (90) consecutive days; or (ii) breach of contract by Seller which remains uncured by Seller for more than thirty (30) days after written notice by Buyer to Seller of the existence and nature of such breach. If Buyer purports to cancel the sale in contravention of the terms of the first sentence of this Paragraph 17 in respect of any Products which have been or are being specially manufactured for Buyer, Seller, in addition to all other remedies available under applicable law, shall be reimbursed by Buyer for all direct costs of labor, raw materials and parts purchased or contracted to be purchased and overhead costs incurred by Seller in the manufacture of said Products, and Buyer agrees that Seller’s calculation of the costs shall be accepted by the parties hereto. In addition, Seller shall have the right to complete and sell to a third party any specially manufactured Products, the order for which has been purportedly cancelled by Buyer, without any liability whatsoever to Buyer.
  18. ASSIGNMENT. Neither party may assign this Agreement without the prior written consent of the other party, provided, however, that Seller may arrange for all or certain parts of this sales transaction to be performed by affiliates or agents of Seller without obtaining Buyer’s prior consent.
  19. GOVERNING LAW. The interpretation, validity and effect shall be construed and determined in accordance with the laws of the State of New Jersey, except that the provisions of the UN Convention on Contracts for the International Sale of Goods are excluded in their entirety.
  20. LITIGATION. Any action by Buyer against Seller for breach of contract must be commenced within one year after the cause of action has accrued, and the exclusive jurisdiction for any such action by Buyer shall be in the state or federal courts located in the State of New Jersey. BUYER HEREBY WAIVES THE RIGHT TO A JURY TRIAL.
    • This Sales Order shall become a contract only upon signature of officer at seller’s business office.