Terms

Mogul Terms & Conditions

Mogul Manufacturing LLC (“Mogul” or “Seller”)’s Standard Terms and Conditions of Sale are an integral part of Sellers Quotation and/or final Order Confirmation and/or Acknowledgement of Purchaser’s Order.  Purchaser expressly accepts the then-applicable Terms and Conditions by placing an order with Seller.  These Standard Terms and Conditions are subject to change without notice.

Definitions.  “Seller” shall refer to Mogul Manufacturing LLC, a California Limited Liability Company, and any entity that owns or is owned or controlled directly or indirectly by Mogul.  “Purchaser” shall refer to the entity and/or individual that receives and accepts Sellers Quotation, and/or Order Acknowledgment and/or Product(s).  “Product” and/or “Products” shall include all goods and/or services sold, conveyed or otherwise transferred to Purchaser or their third party designate by Seller.  “Delivery” shall refer to notice provided by Seller to Purchaser (in any form including but not limited to email or telephone) that the Product/Products ordered by Purchaser have been completed and are ready to be shipped, delivered to, or picked up by Purchaser, regardless of when Purchaser actually receives or picks up such Product/Products.

Offer to Sell.  Seller’s Quotation is an offer to sell its Product on the terms and conditions stated herein, and shall not constitute acceptance of any offer or the confirmation of an existing agreement.  The quoted price in the Quotation are fixed and valid for the time period shown on the front of the Quotation and/or as specifically identified herein, subject to availability of materials and/or production scheduling at such time.  All prices quoted are exclusive of taxes, insurance, freight charges or other incidental expenses, unless otherwise noted, and shall be the responsibility of the Purchaser.  Purchaser expressly understands and agrees that no reference herein to Purchaser’s purchase order or any other document prepared by, or communication with Purchaser shall constitute Seller’s acceptance of any term or condition therein which varies from these Terms and Conditions.

Entire Agreement, Acceptance of Quotation.  Seller’s Standard Terms and Conditions of Sale may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement and may only be explained, supplemented, modified, altered, waived or superseded by a writing signed by both Parties.  These Standard Terms and Conditions, together with those of Purchaser’s terms that are not inconsistent with them and do not: (i) require Seller to take any action besides the supply of its product; (ii) impose restrictions on Seller’s activities in addition to those imposed directly by government statue, or (iii) add to Seller’s obligations, shall constitute the agreement between Purchaser and Seller (the “Additional Purchase Terms”), if any.  Terms imposing any different or additional obligations are expressly rejected.  Seller may send written confirmation of the purchase order (the “Order Acknowledgement”) but Seller hereby objects to and rejects any additional terms (other than additional terms that meet the requirements of Additional Purchase Terms) or different terms, including those contained in Purchaser’s purchase order, unless Seller expressly identifies and agree to such terms in writing in the Order Acknowledgement.  These Standard Terms and Conditions, together with the Additional Purchase Terms, constitute the Parties’ agreement (“Agreement”).  These Standard Terms and Conditions shall govern any changes made to the requirements of the Agreement, It is Seller’s intent that its Quotation be treated as an offer.  However, if Purchaser’s purchase order or any other correspondence from Purchaser is deemed to be an offer, Seller’s acceptance of Purchaser’s offer is expressly conditioned on assent to these Standard Terms and Conditions.

Payment.  Payment is due as stated on Seller’s Invoice, or, if not stated thereon, upon notice that product is ready for shipment or pickup (hereinafter, collectively “Delivery”).  Seller does not offer any ‘grace period’.  Purchaser agrees to pay interest at ten percent (10%) per annum, or the maximum rate provided by law, on all Invoices not paid in full by the due date.  Seller reserves the right to alter Purchaser’s credit limit, if any, at any time and for any reason, or to require payment for any order prior to Delivery.  Purchaser’s failure to make any payments required by Seller shall give Seller the option to cancel this Agreement or to delay delivery without otherwise affecting Seller’s rights herein.  Payment shall be made in United States Dollars (USD).  As partial payment of sums due Seller may accept any check or tender of payment without entering into ‘accord and satisfaction’ under the law, without waiver, and without prejudice to Seller’s right to full payment of the remainder due or to become due hereunder notwithstanding any terms or conditions endorsed on or stated in any communication related to such check or tender, and Seller expressly refuses acceptance of any such terms.  Seller may apply any payment tendered by Purchaser to any amount(s) owed to Seller by Purchaser, whether under this Agreement or otherwise.  These Terms shall control and supersede any notes or writings made directly on any payment instrument inconsistent with the terms of this Agreement.   Seller shall require payments over ten thousand dollars ($10,000.00 USD) to be made via wire transfer, and/or any non- United States based purchases of any amount to be made via wire transfer.  Purchaser shall be responsible for all outgoing wire transfer fees, which shall not be deducted from any amounts owed to Seller.

Inspection of Order by Purchaser.  Purchaser must check any Order Acknowledgement and immediately inform Seller in writing of any error or anomaly within three (3) days of receipt of Order Confirmation.

Deliveries.  Seller’s obligation with respect to each item and delivery date shall be separate and distinct.  Delivery dates are to be treated as estimates only.  Seller reserves the right to adjust shipment schedules from time to time with notice to Purchaser.  Seller’s failure to make delivery of any item or to meet any delivery date shall not affect either Party’s obligation with respect to any remaining items or deliveries specified in this Agreement.  Purchaser should confirm the suitability of Seller’s standard manufacturing lead times when placing orders.  With respect to each delivery obligation contained in this Agreement: (i) Tender of a shipment to any licensed carrier shall constitute delivery to Purchaser; (ii) Seller shall use its commercially reasonable efforts to deliver in accord with the schedule specified in this Agreement.  Any delivery not in dispute shall be paid for in accordance with that order’s terms to Purchaser, regardless of any dispute as to the other delivered or undelivered goods.  Seller is not obligated to package goods for outside storage.  If delivery date is requested on a weekend or an otherwise non-production day, such delivery shall be effectuated the next business day unless prior arrangements are acknowledged by both Parties.  Deliveries of up to five percent (5%) above or below quantities specified in the order shall be accepted by Purchaser and the invoice price will be adjusted accordingly.  Unless otherwise specified by Seller, delivery is made at Purchaser’s risk and expense, FOB San Fernando, CA or Origin (Shipping Point).  The delivery is regarded as complete once the Purchaser is notified that the product is ready to either ship or be picked up at Seller’s location.  At the written request of the Purchaser, Seller will insure the delivery at Purchaser’s expense.  Unless specifically instructed by Purchaser, Seller will select an appropriate method of forwarding and routing the Product.

Inspection of Product, Claims for Defects.  Purchaser shall inspect the Product it receives within ten (10) days after deliver or within the period required by applicable law or U.C.C., whichever is shorter.  Seller must be notified promptly in writing of any non-conformance.  With respect to defects discoverable upon reasonable inspection, all claims are waived if not made within ten (10) days from the date delivered.  In the event of any claim by Purchaser regarding the quality of Product delivered, such Product must be promptly offered to Seller for examination.  Seller shall have no obligation to replace or provide credit for Product claimed to be defective unless Seller receives representative samples of the Product and is provided an opportunity to examine the Product at a place convenient to the Seller.  Purchaser’s right to reject Product shall at all times be limited to that portion of the Product actually defective.  No Product may be returned without Seller’s prior written authorization and Return Material Authorization (“RMA”) number being issued by Seller.  All Products for return must be freight prepaid by Purchaser.

Title, Risk of Loss.  Unless otherwise agreed by the Parties in writing, risk of loss or damage to the Product shall pass to Purchaser upon delivery to a common carrier.  After Seller’s delivery of the Products to the common carrier, all charges of freight, handling, and insurance are the responsibility of the Purchaser.  Purchaser assumes all risk of loss or damage after delivery of the Products to the carrier; any claims for loss or damage shall be made by Purchaser directly with the carrier.  Purchaser shall take title to the Products upon Seller’s receipt of payment for the Product delivered.

Limited Warranty.  Seller warrants that at the time of delivery the Products sold hereunder shall be free from defects in materials and workmanship and shall conform to Seller’s specifications, and, if applicable, acceptance criteria to which Seller has agreed in writing.  Purchaser retains sole responsibility for determining whether Products are fit for the intended use, and for suitability of quantification and acceptance criteria.  Seller’s Limited Warranty does not cover damage due to natural wear and tear, insufficient maintenance, other influences, defective installation, or fitness for a particular purpose.  Seller’s Limited Warranty is void if Purchaser or third parties carry out modifications or repairs on the Product without the prior written agreement of Seller.  Claims for defect must be received by Seller in writing within three (3) months from Seller’s delivery of Product on which the claim is based, or such longer period as required by applicable law.  Purchaser’s exclusive remedy will be limited to repair, replacement at Seller’s facility, or refund for Products which Seller verifies as defective.  Seller shall determine which remedy shall apply in its sole discretion.  Seller will retain all replaced parts.  Except for the warranty set forth in this Paragraph 9, unless otherwise required by applicable law, SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, AND SELLER EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  Purchasers proposing to evaluate or use Products for a medical purpose must rely upon its own medical and legal judgment, and Purchaser shall be sole responsible for the suitability of Products for its application.

Limitation of Liability and InsuranceNO CLAIM BY PURCHASER OF ANY KIND FOR DAMAGES SHALL BE GREATER IN AMOUNT THAN THE PURCHASE PRICE OF THE PRODUCT IN RESPECT OF WHICH SUCH DAMAGES ARE CLAIMED.  SELLER SHALL, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF BUSINESS OR PROFIT, BASED ON ANY ALLEGED DESIGN OR MANUFACTURING DEFECT, NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, INDEMNITY, OR ANY OTHER REASON OR LEGAL THEORY ARISING OUT OF THE USE OR HANDLING OF THE PRODUCT OR ITS PERFORMANCE HEREUNDER, TO THE EXTENT THAT SUCH LIABILITY EXTENDS TO SELLER’S OBLIGATIONS BEYOND THE PRICE PAID TO SELLER FOR THE PRODUCT ON WHICH SUCH CLAIM IS BASED.  SELLER SHALL NOT BE LIABLE FOR ANY DIRECT OR INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING FROM DELIVERY DELAY, WHETHER OR NOT ARISING FROM SELLER’S NEGLIGENCE, OR FROM TRANSIT LOSS OR DAMAGE.  SELLER IS NOT OBLIGED TO OBTAIN OR MAINTAIN ANY INSURANCE NOT REQUIRED BY APPLICABLE LAW.  FOR PURPOSES OF THIS SECTION, SELLER SHALL INCLUDE SELLER’S AFFILIATES, IF ANY.  In no event, whether based on any alleged design or manufacturing defect, negligence, breach of warranty, breach of contract, strict liability, indemnity, or any other reason or legal theory, shall Seller be liable for claims of Purchaser’s customers or other subsequent purchasers or end users of Products or associated equipment (including medical devices that include any Product) for loss of business or profit, loss of revenues, loss of use of any Products or any associated equipment (including medical devices that include any Product) interruption of business, cost of capital, consequential, incidental, direct, indirect, punitive or exemplary damages (collectively “Excluded Damages”).  Purchaser shall indemnify, defend and hold Seller harmless from and against any and all such claims (including reasonable attorney’s fees of Seller related to such claims) made by Purchaser’s customer or other subsequent purchasers, third parties, or end users of Products or associated equipment (including medical devices that include any Product) against Seller for Excluded Damages.

Changes and Change Orders, Expedite and Fees.  Any changes to the specification or delivery schedule requested by Purchaser will require agreement between the Parties as to technological and production feasibility and price before Seller will be obliged to implement such change(s).  Seller reserves the right to improve and make changes to Products sold hereunder without notice or approval, except for changes that would affect the form, fit or function of the delivered Product as outlined in applicable specifications.  Requests for Change Orders must be submitted by Purchaser in writing, and shall not be valid unless price change(s) and delivery terms are agreed to in writing by both Purchaser and Seller.  Seller shall not be obligated to continue work on any Product from the date of the request for Change Order unless and until the Parties agree in writing to revised terms, if any.  Should Purchaser request delivery dates earlier than what is usual and customary with regards to Seller’s normal lead times, including but not limited to Seller’s third party vendors, at Seller’s sole discretion, Seller may require additional compensation (hereinafter “Expedite Fees”) in order to cover the costs of such expedited service.  Upon notice to Purchaser which shall include additional sums due to Seller for such expedited delivery, Expedite Fees shall be due and payable immediately upon notice to Purchaser, irrespective of any payment terms that may be in effect as-between Seller and Purchaser.

Cancellation, Right to Cover.  Purchaser has no right to terminate or cancel without Seller’s written agreement.  Orders cancelled by Purchaser other than for default of Seller will be subject to a cancellation charge.  If quantities ordered are reduced or cancelled, Purchaser agrees to pay for all product shipped not yet paid for, all finished goods in transit, all works in progress, all sub-components and raw materials associated with the reduction/cancellation of an order and any items where an NCNR agreement exists between Seller and any of its sub-suppliers that are associated with such cancellation or reduction and any other costs, expenses, losses that Seller experiences as a result of such reduction/cancellation.  Purchaser’s cancellation request(s) must be in writing, and shall only be effective as of the date acknowledged by Seller, provided however that Seller shall not unreasonably withhold acknowledgment.  Seller shall be entitled to its Right to Cover, provided however that Seller shall not be obligated to act upon same.

Custom or OE Product.  Should Purchaser engage Seller to manufacture Product in accordance with specifications or regulations in a particular field, Purchaser shall be solely responsible for non-conformance of such Product should Seller not have the required information in order to manufacture Product to such specifications or regulations.  Purchaser expressly understands and agrees that any custom Products and/or any Product that contain Purchaser’s identifying markings (including but not limited to silk screen, garment tag, embroidery, and/or custom colors) shall require, in Seller’s sole discretion, partial or full payment prior to production, and shall further be subject to Paragraph 12 hereinabove as apportioned in Seller’s sole discretion.  Quotations on custom products shall be deemed ‘estimates’ until Seller manufacturers a first article in order to confirm pricing.

Technical Data, Confidential and Proprietary Information.  All technical data with which the Purchaser is provided (leaflets, catalogues, technical documents, drawings, descriptions, reproductions, etc.) in hardcopy or electronic form (including all technical data available on Seller’s website mogulmfg.com and any associated sites) is provided for information purposes only.  Seller has no obligation to provide technical data other than its standard finished product inspection data.  Seller has no obligation to perform, and this is not an agreement for, research, developmental or experimental work.  Seller has no obligation to disclose, convey rights or allow access to technical, financial, or other information protected by it as proprietary or to indemnify Purchaser for such refusal to disclose.  Seller reserves the right to amend the technical specifications of the products and services indicated in the Order Confirmation.  All technical data transmitted to the Purchaser remains the intellectual property of Seller, and may not be reproduced nor copied, communicated to third parties nor used in any way whatsoever without prior written authorization by Seller.  Prospective Purchasers may request a standard Seller Non-Disclosure Agreement (hereinafter “Seller NDA”) prior to submittal of their own product for manufacturing quote to Seller, or their own for review and approval by Seller, provided however, that Seller is under no obligation to accept the terms of any prospective Purchaser’s agreement, in whole or in part.  The Seller NDA shall be made available solely at the discretion of Seller.

Force Majeure.  Seller shall not be liable for any delay in the delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the control either of Seller or suppliers to Seller, including but not limited to: war (declared or not), sabotage, insurrection, rebellion, riot or other act of civil disobedience, zombie apocalypse, act of public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof, judicial action, labor dispute, fire, accident, explosion, epidemic, quarantine restrictions, storm, flood, earthquake, shortage of labor, fuel, raw materials or machinery or technical failure, or any other even that would reasonably impair Seller’s ability to perform.

Representations and Certifications.  Seller makes no representations or certifications in connection with this Agreement except those which are expressly contained within these Terms of Sale and, if any, those provided separately which are signed and dated by Seller and made exclusively applicable to this Agreement.  Seller shall not be responsible for any typographical errors to this Agreement.  Pricing and Terms are subject to change without notice.

Purchaser’s Authority to Bind.  By issuing a Purchase Order to Seller, either verbally or in writing, Purchaser is warranting and certifying that all necessary authority and approvals have been obtained and that this Agreement is validly executed by an authorized officer, agent or employee of such purchasing entity, and is binding upon such Party and enforceable in accordance with its terms, including but not limited to terms of payment.

Waiver, Severability.  No failure or delay on the part of the Seller in exercising any right or remedy under this Agreement shall operate as a waiver thereof; nor shall any single or partial excuse of any such right or remedy.  No provision of this agreement may be waived except in writing signed by the Party granting such waiver.  In the event that one or more of the provisions, or part thereof, contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable by a Court of competent jurisdiction, the same shall not invalidate or otherwise affect any other provision of this Agreement, and this Agreement shall be construed to the greatest extent possible so-as to conform to the intent of the provision in question.  If the intent of such provision cannot be realized, then the Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

Remedies.  Purchaser expressly understands and agrees that any and all remedies are available to Seller to enforce this Agreement, including without limitation, temporary restraining order, preliminary injunction, injunctions (without requirement of bond), and monetary damages.  Except as otherwise provided herein, all rights and remedies herein or otherwise shall be cumulative and none of them shall be in limitation to any other right or remedy.

Applicable Law, Collection, Jurisdiction and Venue.  This Agreement shall be governed by and construed in accordance with the laws of the State of California, County of Ventura, for contracts performed wholly within.  The Parties agree that should enforcement of interpretation of this Agreement be necessary, said action can only be brought in the Courts of the State of California, without resort to its choice of law provisions.  Forum is exclusively agreed to be the Courts of the State of California.  The Parties expressly agree that this Agreement is entered into and shall be performed in the County of Ventura.  Acceptance or acquiescence in a course of performance rendered under this Agreement shall not be relevant to determining the meaning of the Agreement, even though the accepting or acquiescing Party had knowledge of the nature of the performance and an opportunity for objection.  No course of prior dealing between the Parties and no usage of the trade shall be relevant to supplement or explain any terms used in this Agreement.

These Terms and Conditions may be changed at any time without notice.

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