1. Mason Manufacturing, LLC [MASON] shall ship the goods which are the subject of the Sales Quotation in accordance with the specific shipping terms stated in the Sales Quotation. In the absence of specific shipping instructions, delivery shall be FOB Decatur, MASON facility. Unless otherwise agreed to in writing by Buyer, prices include all charges for packing and crating. When applicable, MASON shall suitably pack, mark and ship all goods to protect the goods from damage and shall comply with any applicable customs requirements, such as importer filings prior to shipment, or requirements set by common carriers. Title to goods shall transfer to Buyer at the point of delivery and upon taking delivery shall be deemed accepted by Buyer.
2. (a) MASON makes no warranty regarding any infringement on any patent, trademark, copyright, or other proprietary or similar rights of any third party as it relates to the plans, designs and specifications provided by Buyer or any third party on behalf of Buyer. With regard to any design services provided by MASON, MASON warrants that the services furnished will not infringe any patent, trademark, copyright or other proprietary or similar rights of any third party. In the event that MASON breaches any warranty under this paragraph, MASON will, at its own expense, defend any claim or suit that may arise with respect to any aforementioned infringement or allegation thereof and will indemnify and hold Buyer harmless from loss and expense incurred on account of any alleged or actual infringement. Buyer shall notify MASON promptly of any such infringement claim made against it. If Buyer fails to give MASON reasonably prompt Notice of Claim, then any obligation on the part of MASON under this paragraph shall be discharged.
(b) All work product, fabrication prints, design drawings, and fabrication or design recommendations or other intellectual property of MASON presented by MASON to Buyer in any Request for Proposal, bid or other pre-contract communication or conveyance prepared by MASON shall be and remain the exclusive property of MASON and shall not be used, exploited or otherwise published to third parties without the express consent of MASON and without the payment of acceptable consideration to MASON, notwithstanding any other term or condition in any other communication between the parties. MASON does not surrender or otherwise compromise, in any respect, any of its intellectual property rights by the presentation of a proposal or bid. MASON shall not be deemed to have waived any rights to MASON intellectual property unless by written instrument, signed by an authorized MASON representative and expressly stating that the provisions of this paragraph 2(b) have been waived as to said RFP or Bid.
3. MASON shall have no liability to Buyer for any loss or damages, direct, consequential, or incidental, in an amount exceeding the purchase price for the goods. Under no circumstance shall MASON have any liability for lost profits, equipment rental expenses, or business interruption damages sustained by Buyer or any other party as a result of any breach by MASON of any duty. MASON shall have no liability for lost profits, equipment rental expenses, business interruption damages, or other consequential damage arising from any delay in delivery caused, in whole or part, by the breach of duty by any common carrier transporting the goods or other fault by the common carrier or any other third party or for any act, event or cause beyond the control of MASON.
4. MASON and Buyer agree that neither party shall have any contractual obligation to indemnify and hold the other harmless for liability, loss and expense, or claims, arising out of death or injury to any person or damage to any property (collectively: injury) by whomsoever suffered, resulting in whole or in part from any defect, whether latent or patent, in goods sold to Buyer hereunder including without limitation improper construction or design or failure to comply with specifications or arising from non-complying services sold to Buyer hereunder. Buyer and MASON acknowledge the sufficiency of the principles of contribution to fairly and equitably allocate any loss for injury between them in accordance with legal remedies existing at law.
5. Buyer acknowledges that MASON is not engaged to provide services at any construction site where the goods may be integrated into a structure, plant or facility owned or operated by Buyer or by a third party for whom Buyer is a contractor or subcontractor with respect to the integration of the goods into the facility, plant or structure of a third party. NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE FITNESS OF ANY GOODS SOLD OR SERVICE PROVIDED BY MASON IS INTENDED AND ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE IS HEREBY DISCLAIMED BY MASON. MASON EXPRESSLY DISCLAIMS ALL STATUTORY WARRANTIES UNDER THE UNIFORM COMMERCIAL CODE AND THE BUYER”S REMEDIES ARE LIMITED TO THE TERMS CONTAINED HEREIN.
MASON warrants that the equipment MASON fabricates shall conform to the specifications provided by the Buyer to MASON, shall comply with applicable industry Codes referenced in the Sales Quotation, including American Society of Mechanical Engineers (ASME B&PV Code) and Standards of the Tubular Exchanger Manufacturers Association (TEMA Standards), and shall be fabricated free from defects in material and workmanship under normal use and service for a period of 18 months after shipment from MASON or 12 months after start-up, whichever is earlier. If such equipment shall fail through defect in MASON workmanship or MASON supplied material and specific written notice of such failure is delivered to MASON upon discovery of the failure and within the warranty period, then MASON shall be accorded the opportunity to inspect the equipment and upon satisfactory proof of said defect, MASON, at its option, may repair or replace any equipment fabricated by MASON, or part thereof, f.o.b. MASON facility, without charge.
6. Buyer reserves the right at any time within thirty (30) days’ written notice to make changes as to: (a) specifications of any goods to be specifically manufactured for Buyer; (b) methods of shipment or packing; (c) place of delivery; (d) extending schedule of delivery; and (e) reduce, increase or cancel the quantities ordered. If any such change causes an increase or decrease in the cost of or the time required for performance of this Purchase Order, an equitable adjustment shall be made in the contract price or delivery schedule or both.
7. Buyer and/or its Customer shall have the right to inspect any work in progress and to inspect MASON’s equipment and facilities at any time during business hours in order to assess work quality in compliance with the Purchase Order; provided that reasonable notice shall be required of Buyer to arrange and facilitate inspection of MASON’s facilities. The failure of Buyer to object to performance by MASON or the failure of Buyer to identify any non-compliance or non-conformity with specifications for the goods after inspection shall constitute a waiver of any non-conformity, non-compliance or patent defect in performance by MASON. The balance due MASON shall be paid upon acceptance without any holdback or retention.
Buyer has the right to demand from MASON adequate assurance of due performance.
8. Except as otherwise provided herein, no delay or omission by any party in exercising any right or remedy hereunder shall be a waiver, unless otherwise specified, nor shall any single or partial waiver signed by any party in writing preclude its ability to exercise any other right or remedy.
9. These Standard Terms supersede all other agreements between Buyer and MASON with regard to the goods and services identified in the Sales Quotation and purchase order issued with reference thereto, and no other terms, conditions or warranties, whether express or implied, shall form a part hereof. These Standard Terms may be amended by written Sales Quotation – Special Terms executed by authorized representatives of both Buyer and MASON, however, the terms hereof shall prevail over any inconsistent term contained in any purchase order issued by Buyer which incorporates, references, or otherwise acknowledges the Sales Quotation accepted by Buyer in the purchase order. MASON conditions any undertaking to perform any work identified in a MASON Sales Quotation on the irrevocable acceptance of the terms herein by Buyer and said terms are hereby integrated into any purchase order. An electronic acceptance of the Sales Quotation shall constitute acceptance of the Standard Terms herein.
10. The provisions of this Agreement shall be deemed to be severable, and any illegality, invalidity or unenforceability of any provisions or part thereof in this Agreement shall not affect the legality, validity or enforceability of the remaining provisions or part thereof of this Agreement. Notwithstanding, Buyer shall have no rights to offset any amounts due from Buyer to MASON under another purchase order. Any wrongful offset in breach of this paragraph shall entitle MASON to interest at the rate of two percent (2%) per month for the wrongfully offset balance and a liquidated penalty in the sum of fifteen percent (15%) of the wrongfully offset balance.
11. The laws of the State of Illinois shall govern this Agreement. Venue for any dispute under this Purchase Order shall be Macon County, Illinois.
12. MASON shall invoice Buyer in accordance with the terms of the Purchase Order. Upon receiving a progress payment, MASON will execute upon request a partial lien waiver and release. Upon payment of the final invoice, MASON will execute upon request a final lien waiver and release. No partial or final lien waiver shall be effective prior to payment.
13. If Buyer fails to take delivery of the goods in accordance with the delivery specifications, then MASON shall be entitled to a storage lien with respect to said goods. If Buyer fails to take delivery in a commercially reasonable time, then MASON, at its option, may deem the Purchase Order breached and abandoned and as remedy therefore, at its election and in addition to other remedies available to MASON at law or in equity, may retake the goods in satisfaction of said storage lien or as in kind payment towards any unpaid sums due from Buyer to MASON.