Orders: Quantities of the goods to be shipped by Marathon LS to Customer shall be confirmed to Customer after receipt of a purchase order from Customer and shall be shipped to Customer in accordance with the terms of this Agreement and the terms of Customer’s purchase order that pertain to quantities and types of goods ordered and delivery dates and locations, unless otherwise agreed by the parties.
Shipments: Shipment dates are based upon Marathon LS’s best judgment and are subject to factory schedules and production limitations, and hence are not guaranteed.
Delivery in Installments: Marathon LS reserves the right to make delivery in installments, unless otherwise expressly stipulated herein. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Customer of its obligation to accept remaining deliveries.
Risk of Loss: All shipments will be F.O.B. destination. Risk of loss of or damage to the goods passes to Customer upon delivery. Title remains with Marathon LS until Marathon LS receives payment for the goods.
Delays: Marathon LS shall not be liable for delays in performance caused by force majeure, act of God, fire or other casualty, accident, strike, boycotts, shortage of labor or materials, governmental action or other cause beyond Marathon LS’s reasonable control; and the time for Marathon LS’s performance shall be extended by the period of any such delay. Marathon LS reserves the right to apportion goods among its customers as it may determine.
Inspection; Claims: Customer shall examine the delivered goods upon receipt and shall notify Marathon LS, in writing, of any non-conforming goods within fifteen (15) days of receipt thereof at destination. Failure to timely give such notice shall constitute an irrevocable acceptance of the goods. No claims, of any kind, by Customer shall be valid without notice, as specified. Customer shall afford Marathon LS a reasonable opportunity to inspect the goods and repair or replace any goods determined by Marathon LS to be non-conforming. No goods shall be returned without Marathon LS’s consent.
Remedy for Non-Conforming Goods: If the goods furnished to Customer are damaged or defective or otherwise non-conforming and Customer has timely provided the notice and inspection opportunity above described, then Marathon LS, at its discretion, shall, within thirty (30) days of notice of said non-conformity, issue credit for or shall replace such non-conforming goods at the original point of delivery and shall furnish instructions for the disposition of the non-conforming goods. Any transportation charges involved in such disposition shall be for Marathon LS’s account. Customer’s exclusive and sole remedy on account of or in respect to the furnishing of non-conforming goods shall be to secure credit or replacement thereof as aforesaid. Marathon LS shall not, in any event, be liable for any special, direct, indirect, incidental or consequential damages to anyone by reason of the fact that such goods are non-conforming as determined by Marathon LS or as to any express or implied warranty herein.
- Customer shall contact Marathon LS and request return authorization within forty-five (45) days of receipt thereof at destination.
- Customer shall return ship unopened and undamaged goods to Marathon LS, at Customer’s expense, within five (5) days of receiving return authorization.
- Where returned goods are not in sellable condition or are otherwise damaged, Marathon LS reserves the right to reject the return and to assess a disposal cost to Customer’s account. No refunds or credits are available and Customer’s remedy, if applicable, shall be to file a claim with the carrier.
- Customer shall be refunded the purchase price for returns accepted by Marathon LS, less a 20% restocking fee.
Responsible Care: Both parties agree to handle, store, transport, and dispose of the goods in reasonable manner with appropriate regard for the safety of their employees and the general public, and agree to comply with all applicable environmental, transportation and safety regulations.
PRICES AND PAYMENT
Prices and Terms: Price, terms and availability of goods are subject to change without notice, including but not limited to changes caused by the fluctuations in market price, availability or quality of any of the items employed in the manufacture of the goods described herein. Marathon LS may increase the prices for goods under this Agreement after the Term by providing Customer with prior written notice. Such increased prices shall be deemed to be accepted by the Customer unless, before the effective date of such increase, Customer notifies Marathon LS in writing to the contrary, whereupon Marathon LS shall have the right to terminate this Agreement with respect to such goods or to continue shipments without such increase. Payment hereunder shall be due net thirty (30) days from the date of shipment. All amounts past due shall bear interest at the rate equal to the lower of (a) 1.5% per month or (b) the maximum rate allowable by applicable law. Marathon LS’s obligation to produce or deliver hereunder is conditioned upon the continued good credit of Customer and upon Customer’s payment when due of any sums owing by Customer to Marathon LS under any agreement between the parties. Based on Marathon LS’s reasonable judgment, if Customer’s financial condition at the time the goods are ready for shipment does not justify the terms specified, Marathon LS reserves the right to change these terms, to require full or partial payment in advance, or to ship the goods C.O.D.
Taxes: Any taxes or other government levy or charge (or any increase in same) which Marathon LS may be required to pay or collect, under any existing or future law, upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption of any of the goods, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of Customer, and may, at Marathon LS’s option, be added to the price of the goods shipped hereunder.
Credit Card Payments: Credit card payments on invoices will incur a 3% processing fee.
LIMITED WARRANTY, LIMITATIONS OF LIABILITY, INDEMNITY
Limited Warranty: EXCEPT AS SPECIFICALLY SET FORTH IN A SEPARATE WRITTEN WARRANTY PROVIDED BY MARATHON LS WITH RESPECT TO A SPECIFIC PRODUCT, IF ANY, MARATHON LS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. No agent, employee, or representative of Marathon LS has any authority to bind Marathon LS to any affirmation, representation or warranty concerning the goods sold pursuant to the terms hereof, and unless an affirmation, representation or warranty made by an agent, employee or representative is specifically included herein, it is not deemed part of the basis of this bargain and shall not in any way be enforceable.
Liability: Except to the extent that such is solely and directly caused by Marathon LS’s breach of its obligations hereunder, Customer assumes all liability arising out of compliance with any laws, rules or regulations relating to any goods or container(s) therefor. In no event shall Marathon LS be liable for incidental, consequential or other damages from alleged negligence, breach of warranty, strict liability or any other theory, whether arising from the use or handling of the goods or however and whenever otherwise caused, including, without limitation, loss of sales, revenue or profit. The sole liability, if any, of Marathon LS for any claims arising out of the manufacture, use or sales of its goods shall be for the return of Customer’s purchase price. In accepting the goods described herein, Customer shall be deemed to have declared itself familiar with the nature, hazards and use of the goods and their containers and shall assume all liability resulting from or in any way connected with the unloading, discharge, storage, handling, possession, use and disposal of any goods or container(s) therefor, including, without limitation, the use of such goods or container(s) alone or in combination with other substances, except to the extent that such liability results from Marathon LS’s gross negligence or willful misconduct.
Indemnification: Customer shall defend, indemnify and hold Marathon LS and its officers, directors, employees and agents harmless from and against any and all claims, actions, liability, expenses, costs (including, without limitation, reasonable attorneys’ fees), or losses arising from (i) Customer’s improper use or handing of the goods; (ii) Customer’s combination or use of the goods with third party goods or products; (iii) misuse of any goods by an end user; (iv) the acts or omissions of Customer hereunder; and (v) any breach by Customer of its obligations hereunder. This Section shall survive termination of this Agreement.
OTHER TERMS
Termination: Without prejudice to any other remedy, Marathon LS may immediately terminate this Agreement and any other agreement with Customer should Customer fail to timely perform any obligation hereunder.
Non-Waiver: Waiver by Marathon LS of the breach of any of the terms and conditions of this Agreement shall not be construed as a waiver of any other breach.
