GENERAL TERMS & CONDITIONS OF SALE

MOFA Group, LLC - GENERAL TERMS AND CONDITIONS OF SALE
These General Terms and Conditions of Sale (“Terms and Conditions”) are incorporated into each and every electronic and written document referencing them as if fully stated therein, except to the extent waived, amended or modified by an officer of MOFA Group, LLC (“MOFA”)
pursuant to Section I below. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM OR DOCUMENT DELIVERED BY YOU OR ON YOUR BEHALF ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS, AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN BY MOFA.
I. CONTRACTUAL TERMS: These Terms and Conditions are the exclusive terms and conditions under which MOFA sells and/or provides to you (“You” or “Customer”), and You purchase and/or accept from MOFA, products and services. These Terms and Conditions, along with any electronic or written order, confirmation or other document executed by MOFA and You, constitute the entire and only agreement between MOFA and You and any representation, affirmation of fact and course of prior dealings, promise or condition in connection herewith or usage of the trade not incorporated herein shall not be binding on either party. No waiver, alterations or modifications of any of the provisions of these Terms and Conditions shall be binding unless in writing and signed by Customer and by a specifically authorized officer of MOFA; provided that, in the event of any inconsistency between these Terms and Conditions and any electronic or written order, confirmation or other document executed by MOFA and You for the purchase of products and/or services (collectively, a “Purchase Order”), these Terms and Conditions shall govern unless such Purchase Order executed by MOFA and You expressly states its intent to supersede the inconsistent provisions of these Terms and Conditions. YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND SHALL BE DEEMED TO HAVE ACCEPTED THEM BY SIGNING AN ACKNOWLEDGEMENT OF THEM, SIGNING A PURCHASE ORDER, PLACING AN ORDER, ACCEPTING DELIVERY OF A PRODUCT AND/OR PERMITTING, EXPRESSLY OR IMPLIEDLY, A SERVICE TO COMMENCE. These Terms and Conditions are subject to change by MOFA without prior notice, except that the Terms and Conditions posted on MOFA’s website at the time You place an order will govern the order in question. These Terms and Conditions constitute a binding contract between You and MOFA (together, the “Parties” and individually, each a “Party”).
II. STANDARD AND SPECIAL TERMS: In addition to these Terms and Conditions, there may also be special terms and conditions in a Purchase Order, or in an Invitation to Bid or Request for Proposal incorporated into a Purchase Order, provided that, in the event of any inconsistency between these Terms and Conditions and any Purchase Order, these Terms and Conditions shall govern unless such Purchase Order executed by MOFA and You expressly states its intent to supersede the inconsistent provisions of these Terms and Conditions.
III. PRICING: Subject to these Terms and Conditions, pricing for products and services will be as stated on Purchase Orders executed by the Parties.
IV. PAYMENT: Unless otherwise provided in a Purchase Order, payment for products and/or services is due and payable in full thirty (30) days from the date of the invoice, subject to continuing credit approval by MOFA. Past due accounts will be assessed a service charge equal to the lower of 1½% per month (18% per annum), or the highest rate allowed by applicable law, on the entire balance. The service charge is computed for the time beginning with the “Invoice Date” to the time when payment is actually made. Partial months are treated as full months in this calculation. In the event of a default in the payment of any amounts owed pursuant to these Terms and Conditions, Customer will be responsible for all of MOFA's costs of collection, including, but not limited to, court costs, filing fees and reasonable attorneys’ fees. In addition, if payments are not received as described in these Terms and Conditions, MOFA reserves the right to suspend the sale and delivery of products and/or services until payment is received and/or terminate the future sale and delivery of products and/or services.
V. TAXES: Customer is solely responsible to pay all excise, sales, occupation or use taxes, or any and all similar taxes, fees and charges applicable to the use or sale of the purchased products and services (collectively, “Sales Taxes”), excluding, however, income taxes on profits that may be levied against MOFA and employment-related taxes of MOFA. Customer agrees to reimburse, indemnify and hold harmless MOFA for such Sales Taxes, together with any penalties and interest assessed by reason of such nonpayment of same, which may ultimately be paid by MOFA. Customer must claim any exemption from such Sales Taxes at the time of purchase and if requested by MOFA, provide MOFA with the necessary supporting documentation.
VI. DELIVERY: MOFA shall attempt to make delivery of products and services on the schedule stated in the Purchase Order, however, MOFA shall not be liable in any way for its failure to do so. Any deliver dates, completion dates, deadlines and/or estimates of time provided by MOFA in a Purchase Order or otherwise are estimates only. Unless otherwise provided in a Purchase Order, delivery terms are CIP (Incoterms 2010), subject to Section VII below.
VII. TRANSFER OF RISK: Notwithstanding any other term or condition of these Terms and Conditions or any Purchase Order, all risks (including without limitation, risk of loss) in respect to the products are immediately and without any further action transferred from MOFA to Customer as soon as the shipment leaves MOFA’s premises. All transportation of products is at the sole risk of Customer.
VIII. CANCELLATIONS AND RETURNS. Order for products or services are final and may not be cancelled without the prior written consent of MOFA, in it’s discretion, and within the first thirty (30) days of placing a Purchase Order for the products or services. Any non-custom products can be returned for credit with the prior written consent of MOFA, in its sole discretion, and within the first thirty (30) days following the invoice date. Products returned for credit will be subject to a restocking fee equal to thirty percent (30%) of the invoice value. For all special order or custom made products, Customer may not cancel orders for such products nor return such special order or custom made products.
IX. TRANSFER AND RESERVATION OF TITLE: All products sold by MOFA remain the property of MOFA until all amounts owed by Customer for such products are paid in full. Customer is not entitled to any restraints which infringe on MOFA’s rights to the products subject to the reservation of title. MOFA may peaceably enter any premises in which the products may be found and render them unusable/inoperable or remove, hold and sell them in accordance with applicable laws in satisfaction of Customer’s obligations. Notwithstanding any other term or condition of these Terms and Conditions or any Purchase Order, Customer hereby grants to MOFA, and MOFA hereby retains, a security interest in all products sold to Customer and all proceeds from the sale or other disposition of such products, until such products are paid for in full by Customer. Customer hereby authorizes MOFA and its agents to file any and all financing statements and other documents necessary to create, perfect and maintain the perfection of the security interest granted hereunder.
X. PRODUCT WARRANTY: MOFA shall only warranty that each product shall be free of defects in material (excluding normal wear parts) and workmanship for six (6) months from the date of original shipment by MOFA, when used in accordance with manufacturer’s or MOFA’s published procedures and specifications (unless otherwise indicated). This warranty does not cover normal wear and tear. In addition, this warranty shall be null and void if the products are modified, improperly stored, installed or used, or damaged by accident or neglect. Any misuse or improper application of a product, or repair by any unauthorized person shall void this warranty. This warranty is not transferable and applies only to the original user of the products. MOFA’s sole obligation under this warranty shall be to furnish parts (new or equivalent components) and labor for the repair or replacement of products that MOFA determines to be defective in material or workmanship during the warranty period. As a condition of this warranty, MOFA may determine the necessity of a service visit or a factory repair order for which Customer must (a) obtain a MOFA return authorization and (b) ship the product, together with a written detailed description of the claimed defect. products returned must be packed in the original shipping container or comparable strong container. In the event products are returned are not so packaged or if shipping damage is evident, such products will not be accepted for service by MOFA. Customer shall notify MOFA immediately of any functional peculiarity and grant reasonable access to the products to effect such correction. Freight charges remain the responsibility of Customer. Customer must have followed the guidelines specified by MOFA regarding operating, handling, storage and shelf life requirements.
EXCEPT AS EXPRESSLY STATED IN THESE TERMS AND CONDITIONS, THE PRODUCTS ARE PROVIDED BY MOFA "AS IS" WITHOUT ANY WARRANTIES WHATSOEVER, AND YOU ARE NOT RELYING ON ANY DESCRIPTIONS, STATEMENTS, SPECIFICATIONS, PHOTOGRAPHS OR OTHER DEPICTIONS REPRESENTING THE PRODUCTS, SOFTWARE AND/OR SUPPORTING DOCUMENTATION. EXCEPT AS EXPRESSLY STATED IN THESE TERMS AND CONDITIONS, MOFA HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATED TO PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF DURABILITY, TITLE, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. THIS DISCLAIMER SHALL APPLY EVEN IF THE EXPRESS WARRANTIES AND LIMITED REMEDIES SET FORTH HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. IF THERE IS ANY WARRANTY THAT THE LAW DOES NOT RECOGNIZE AS BEING DISCLAIMED OR WAIVED (IF ANY) SUCH WARRANTY IS LIMITED TO THE DURATION OF THIRTY (30) DAYS. SOME
JURISDICTIONS MAY NOT ALLOW LIMITATIONS ON HOW LONG SUCH A WARRANTY LASTS, SO THE FOREGOING LIMITATION MAY NOT APPLY TO YOU IN WHOLE OR IN PART.
XI. SERVICES LIMITED WARRANTY: MOFA warrants to Customer that the services will be performed in a good and workmanlike manner by trained professionals and in accordance with generally accepted industry standards of care and competence. Customer's sole and exclusive remedy and MOFA's entire liability with respect to this warranty will be to either (a) re-perform or cause to be re-performed, at no additional charge to the Customer, the portion of the services not in compliance with this warranty, or (b) refund amounts paid by Customer related to the portion of the services not in compliance; provided, however, in each case of alleged noncompliance, Customer notifies MOFA of the alleged noncompliance within five (5) business days of its occurrence. MOFA shall have the exclusive option to invoke provisions (a) or (b) above, except that if Customer’s notification includes a request to have MOFA invoke (a) before (b) or if Customer’s notification includes a request to have MOFA invoke (b) without (a) because MOFA’s noncompliance involves gross negligence or willful misconduct on the part of MOFA, then MOFA will honor such request.
EXCEPT AS EXPRESSLY STATED IN THESE TERMS AND CONDITIONS, MOFA MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DURABILITY, TITLE, ACCURACY OR NON-INFRINGEMENT) ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTIES AND LIMITED REMEDIES SET FORTH HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
Customer acknowledges that no representative of MOFA is authorized to make any representation or warranty on behalf of MOFA that is not in these Terms and Conditions or in an electronic or written document that is manually signed by an officer of MOFA and that expressly amends MOFA’s warranty.
XII. CONSEQUENTIAL AND OTHER LOSS OR DAMAGE: MOFA shall not, under any circumstances whatsoever, be liable to Customer and/or any other party, by reason of any breach of contract or warranty or of any act or omission on its part related to MOFA’s products, for economic loss or damages, diminution of goodwill, or any other special or consequential damages whatsoever with respect to any claim hereunder resulting from loss of use of products of MOFA or from any defect in a product of MOFA. In addition, MOFA’s liability for warranty claims shall not, in any event, exceed the invoice price of the products claimed defective.
XIII. LIMITATION OF LIABILITY: NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS AND CONDITIONS OR ANY PURCHASE ORDER, UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL MOFA BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS OR DAMAGES FOR DATA OR AS A RESULT OF USE, EVEN IF MOFA HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY; OR (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS AND CONDITIONS OR ANY PURCHASE ORDER, BUT SUBJECT TO THE FIRST SENTENCE OF THIS SECTION XIII, THE MAXIMUM AGGREGATE AND CUMULATIVE LIABILITY FOR DAMAGES THAT MOFA MAY BE RESPONSIBLE FOR SHALL IN NO EVENT EXCEED THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCTS GIVING RISE TO THE CLAIM OR THE SPECIFIC SERVICE GIVING RISE TO THE CLAIM, AS APPLICABLE.
XIV. CONSTRUCTION AND DESIGN: MOFA may change the construction or design of its product(s) without notice to Customer as long as the general function and operating specifications are not affected adversely in a material manner. Any such change shall not increase or decrease the price of such product as agreed in any Purchase Order accepted and executed by MOFA and Customer.
XV. RIGHTS: No rights to any intellectual property such as software, documentation, service manuals, operator’s manual, or any other data furnished hereunder are granted except the right to use such intellectual property. Customer will use the highest standard of care to protect MOFA’S confidential information. Customer does not have any right to copy, reproduce or disclose to others, in whole or in part, MOFA’S intellectual property without prior written permission by a specifically authorized officer of MOFA.
XVI. FORCE MAJEURE: MOFA will not be responsible for and no liability shall result to MOFA for any delays which result from any circumstances beyond its reasonable control including, but not limited to, product unavailability, systems or Internet congestion or performance, equipment failure, material changes in costs, fire, severe weather conditions, failure of power, labor problems, acts of war or hostilities, terrorism, embargo, action or inaction by Customer, acts of God or acts or laws of any government or agency. In the event of such delay, MOFA may elect to discontinue provision of products and/or services or to extend the time for performance for a period equal to the time lost by reason of the delay.
XVII. PLACE OF FULFILLMENT AND JURISDICTION: Dane County, Wisconsin, U.S.A. is the sole and exclusive jurisdiction for all disputes arising from or related to these Terms and Conditions and any Purchase Order, including any check or draft clearing issue. In the event that MOFA prevails on any part of its claim in a legal action, MOFA shall be entitled to receive in full its attorney fees, costs of litigation and court costs.
XVIII. SEVERABILITY: If any provision of these Terms and Conditions or any Purchase Order is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if these Terms and Conditions or such Purchase Order (if applicable) did not contain the particular provision held to be invalid.