Marion Process Solutions, Inc.
General Terms and Conditions

 

1. Applicability.

(a) These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the products (“Products”) and, solely to the extent the box set forth below is checked, services (“Services”) Marion Process Solutions, Inc. (“Seller”) to the buyer named in the applicable Sales Confirmation (as defined below) (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products and, if applicable, Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. In addition, Seller shall be entitled to designate one of its affiliates to provide Products and/or, if applicable, perform Services, and in such event, such affiliate shall be entitled to the same rights and protections of Seller provided herein.

 Check box if Services are to be provided to Buyer. For the avoidance of doubt, if the foregoing box is not checked, the parties hereto acknowledge and agree that no Services are being rendered by Seller to Buyer in connection with the sale of Products covered by these Terms, and Seller shall have no corresponding obligations with respect to any Services (including any warranties for any services).

(b) The accompanying confirmation of sale (the “Sales Confirmation”) 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. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.

(c) Notwithstanding anything to the contrary contained in this Agreement, if Services are to be provided hereunder, Seller may, from time to time change the Services without the consent of Buyer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Sales Confirmation.

2. Delivery of Products and Performance of Services.

(a) The Products will be delivered within a reasonable time after Seller’s delivery of a signed Sales Confirmation, subject to availability of finished Products, and any stated delivery schedule or date set forth in the Sales Confirmation or otherwise is an estimate only and not a commitment as to delivery on specific dates. Seller shall not be liable for any delays, loss, or damage in transit, and delay in delivery shall not relieve Buyer of its obligations to accept Products.

(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Products Free Carrier (FCA Incoterms 2020) to FCA 3575 3rd Ave. Marion, IA (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Products. Buyer shall take delivery of the Products within five (5) days of Seller’s written notice that the Products have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Products at the Delivery Point, and will unload and release all transportation equipment promptly so Seller incurs no demurrage or other expense.

(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.

(d) If for any reason Buyer fails to accept delivery of any of the Products on the date fixed pursuant to Seller’s notice that the Products have been delivered at the Delivery Point, or if Seller is unable to deliver the Products at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Products until Buyer picks them up, whereupon Buyer shall pay Seller $1,000.00 per day of such storage plus the amount of all related out-of-pocket costs and expenses.

(e) Seller shall use reasonable efforts to meet any performance dates to render the Services (if any) specified in the Sales Confirmation, and any such dates shall be estimates only.

(f) With respect to the Services, Buyer shall (i) cooperate with Seller in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Seller may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.

(g) Seller shall use commercially reasonable efforts to accommodate reasonable requests by Buyer in advance and in writing to have mutually agreed representatives of Buyer witness, at Buyer’s sole cost and expense and during regular business hours, Seller’s mutually agreed factory tests of Products, subject to appropriate access restrictions as determined in Seller’s sole discretion, if such witnessing can be arranged without delaying the work or otherwise interfering with Seller’s business or operations.

3. Non-Delivery.

(a) Seller shall not be liable for any non-delivery of Products unless Buyer gives written notice to Seller of the non- delivery within five days of the date when the Products would in the ordinary course of events have been received.

(b) Any liability of Seller for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.

(c) Buyer acknowledges and agrees that the remedies set forth in Section 3 are Buyer’s exclusive remedies for any non- delivery of Products.

4. Shipping Terms. Delivery of the Products shall be made FCA Delivery Point.

5. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Products at the Delivery Point. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Delaware Uniform Commercial Code.

6. Buyer’s Acts or Omissions. If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees (including as a result of Buyer’s failure to comply in a timely manner with its obligations under Section 2(f)), Seller 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 Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay, and any delivery or performance schedules for Products and/or Services shall be automatically adjusted to reflect any such prevention or delay

7. Inspection and Rejection of Nonconforming Products.

(a) Buyer shall inspect the Products within thirty (30) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Products” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.

(b) If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to Seller’s facility located at 3575 3rd Ave. Marion, IA. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Buyer’s shipment of Nonconforming Products, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Products to the Delivery Point.

(c) Buyer acknowledges and agrees that the remedies set forth in Section 7(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided under Section 7(b), all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under this Agreement to Seller.

8. Price.

(a) Buyer shall purchase the Products and, if applicable, Services from Seller at the price (the “Price”) set forth in the Sales Confirmation, or if the Price is not so specified, at the price set forth in Seller’s published price list in force as of the date of the Sales Confirmation. The Price shall be subject to adjustment on account of specifications, quantities, shipping arrangements or other terms or conditions that are not part of the Price as set forth in the Sales Confirmation.

(b) Buyer agrees to reimburse Seller for all reasonable travel and out-of-pocket expenses incurred by Seller in connection with the performance of the Services, if applicable.

(c) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personal or real property, or other assets. For the avoidance of doubt, unless otherwise specified by Seller in writing, Prices do not include domestic or international shipping charges beyond the Delivery Point, the cost of insurance during the time Buyer bears risk of loss, or charges for demurrage, port fees, pier handling, marshaling, heavy lifts, or any other costs.

9. Payment Terms.

(a) Unless otherwise expressly set forth in the Sales Confirmation, Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller’s invoice. Buyer shall make all payments hereunder by wire transfer or check and in US dollars.

(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products or performance of any Services if Buyer fails to pay any amounts when due hereunder.

(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.

10. Limited Warranty.

(a) Seller warrants to Buyer that for a period of one year from the date of shipment of the Products (“Warranty Period”), that Products will materially conform to the specifications set forth in the mutually acknowledged and signed final approval drawings with respect to the Products (the “Approval Drawings”) or, in the event that Approval Drawings are not applicable or the specifications are not set forth in the Approval Drawings, Seller’s published specifications in effect as of the date of manufacture. Seller’s limited warranty does not cover: seals, bearings, gaskets, screens, arms, blades, paddles, elastomeric-type products, controls, electronics, and other wear parts (each a “Consumable” and collectively the “Consumables”).

(b) Only in the event that the box has been checked in Section 1(a) of these Terms indicating that Seller is to provide Services, Seller warrants to Buyer that it shall perform the Services using personnel of the requisite skill and experience and in a professional and workmanlike manner.

(c) EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 10(A) AND SECTION 10(B), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY AS TO MEETING ANY PERFORMANCE STANDARDS OR SPECIFICATIONS; 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. IN ADDITION, BUYER ACKNOWLEDGES AND AGREES THAT NEITHER SELLER NOR ANY OF ITS PERSONNEL ARE LICENSED (NOR WILL THEY BECOME SO LICENSED) OR OTHERWISE AUTHORIZED BY ANY GOVERNMENTAL AUTHORITY TO PROVIDE THE SERVICES IN THE APPLICABLE JURISDICTION WHERE SUCH SERVICES ARE PERFORMED, WHETHER AS AN ENGINEER OR OTHERWISE. FURTHER, IF THE SERVICES PROVIDED HEREUNDER INCLUDE A PERFORMANCE TEST WITH RESPECT TO ANY OF THE PRODUCTS, THE PARTIES ACKNOWLEDGE AND AGREE THAT THE RESULTS OF ANY SUCH PERFORMANCE TEST ARE BASED ON HOW THE APPLICABLE PRODUCTS PERFORMED IN SELLER’S OWN TESTING LABORATORY AND NOT IN BUYER’S FACILITY; ACCORDINGLY, SELLER MAKES NO WARRANTY OR ASSURANCES OF ANY KIND WHATSOEVER THAT THE PRODUCTS WILL PERFORM IN BUYER’S FACILITY OR SYSTEMS IN A MANNER THAT IS CONSISTENT WITH THE RESULTS ACHIEVED IN SELLER’S PERFORMANCE TEST.

(d) Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Products. Third Party Products are not covered by the warranty in Section 10(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, 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. Notwithstanding the foregoing, Seller shall use commercially reasonable efforts to pass along any manufacturer warranties received by Seller with respect to Third Party Product to Buyer. In addition, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO (I) THE INTEGRATION OF PRODUCTS WITH THIRD PARTY PRODUCTS OR BUYER’S SYSTEMS OR EXISTING OPERATIONS OR (II) ANY SERVICES PROVIDED BY THIRD PARTIES IN CONNECTION WITH ANY SUCH INTEGRATION.

(e) The Seller shall not be liable for a breach of the warranties set forth in Section 10(a) and Section 10(b) unless: (i) Buyer gives written notice of the defective Products or Services, as the case may be, reasonably described, to Seller within thirty days of the time when Buyer discovers or ought to have discovered the defect; (ii) if applicable, Seller is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 10(a) to examine such Products and Buyer (if requested to do so by Seller) returns such Products to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies that the Products or Services are defective.

(f) The Seller shall not be liable for a breach of the warranty set forth in Section 10(a) or Section 10(b) if: (i) the non-conformity or defect is related to Consumables, (ii) the non-conformity or defect is the result of ordinary wear and tear; (iii) Buyer makes any further use of the Products after giving notice; (iv) Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products or use the Products in accordance with applicable instruction manuals; or (v) Buyer alters or repairs Products without the prior written consent of Seller.

(g) Subject to Section 10(e) and Section 10(f) above, with respect to any such Products during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Products (or the defective part) or (ii) credit or refund the price of defective Products (or parts) at the pro rata contract rate, provided that, if Seller so requests, Buyer shall return such Products to Seller and Seller shall reimburse Buyer for the reasonable and documented out-of-pocket expenses incurred by Buyer for any such return.

(h) Subject to Section 10(e) and Section 10(f) above, with respect to any Services subject to a claim under the warranty set forth in Section 10(b), Seller shall, in its sole discretion, (i) repair or re-perform the applicable Services or (ii) credit or refund the price of such Services at the pro rata contract rate.

(i) THE REMEDIES SET FORTH IN Section 10(g) AND Section 10(h) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 10(A) AND SECTION 10(B), RESPECTIVELY.

11. Limitation of Liability.

(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, 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 SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE LESSER OF (x) THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS AND SERVICES SOLD HEREUNDER OR (y) $250,000.

(c) The limitation of liability set forth in Section 11(b) shall not apply to liability resulting from Seller’s gross negligence or willful misconduct.

12. Compliance with Law.
Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.

13. Termination.
In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement;
(b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) 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.

14. Waiver.
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, 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.

15. Confidential Information.
All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, 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 this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

16. 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 Buyer to make payments to Seller 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, pandemic 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 actions; (e) national or regional emergency; (f) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (g) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 30 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 180 consecutive days following written notice given by it under this Section 16, either party may thereafter terminate this Agreement upon 30 days’ written notice.

17. Assignment.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

18. 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.

19. 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.

20. 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 Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware.

21. Dispute Resolution.
Any legal suit, action, or proceeding arising out of or relating to this Agreement, or breach thereof, shall be finally resolved by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “Arbitration”), and judgement on the award rendered by arbitrator may be entered in any court having jurisdiction thereof. The arbitrator in the Arbitration must have no less than 10 years of experience in complex commercial transactions governed by Delaware law.

22. 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 on the face of the Sales Confirmation 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), 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.
23. 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.

24. Survival.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: [Insurance,] Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.

25. Amendment and Modification.
These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.

26. Cancellation.
Buyer may terminate the Contract at any time, for any reason or for its convenience, effective upon Seller’s receipt of written notice. In the event of any termination pursuant to this Section, Buyer shall pay, within 30 days from date of Seller’s invoice: (a) a cancellation charge of 100% of the unit price for all Products ready for shipment per the applicable Order; and (b) cost incurred to-date plus a reasonable margin for all Products & Services where work is in process but not complete or ready for shipment.