1. GENERAL. All orders for products supplied by Marketing Assistance, Inc. ("Marketing Assistance") shall be subject to these Terms and Conditions Of Sale (“Conditions”). All transactions shall be governed by the laws of the Commonwealth of Massachusetts. No modifications hereto will be binding unless agreed to in writing by Marketing Assistance and Marketing Assistance hereby expressly rejects all additional, different or contrary terms and conditions. These Conditions are of a continuing nature and shall apply equally to all future orders and shipments, whether explicitly, stated or not until such time as Marketing Assistance agrees to new Terms and Conditions in writing and signed. THESE CONDITIONS OF SALE SHALL TAKE PRECEDENCE OVER ANY TERMS AND CONDITIONS WHICH APPEAR IN THE BUYER’S ORDER OR IN ANY DOCUMENTS INCORPORATED BY REFERENCE IN THE BUYER’S ORDER. No term or condition of the Customer’s order additional or different from these Conditions Of Sale shall become part of any contract unless explicitly agreed to in writing by Marketing Assistance. Retention by the Customer of any Products delivered by or for Marketing Assistance, Receipt of the Customer of any Services performed by Marketing Assistance or payment by the Customer of any invoice rendered hereunder, shall be conclusively deemed acceptance of these Conditions. Marketing Assistance’s failure to object to any provision contained in any communication from the Customer shall not be construed as a waiver of these Conditions nor as an acceptance of any such provision.
2. CUSTOMER. The term "Customer," as used herein, means the first distributor, resale dealer, original equipment manufacturer or first end-user customer that purchases the Marketing Assistance products and not any subsequent purchaser or user.
3. WARRANTY CLAIMS. Products carry the manufacturer’s warranty starting on the date of shipment to the Customer from Marketing Assistance. Marketing Assistance OFFERS NO WARRANTY ITSELF and acts solely as a manufacturer’s agent to handle warranty claim information and facilitate warranty transactions.
In the event that a product proves to be defective, Marketing Assistance's sole obligation shall be, to present defective product and/or information on a warranty claim to the product’s manufacturer for approval of the warranty claim. If the product’s manufacturer approves the warranty claim, the repaired or replacement product will be shipped CPT Customer's destination facilities, freight prepaid by manufacturer and/or Marketing Assistance.
When a claim is approved, manufacturer and/or Marketing Assistance shall pay standard lowest cost freight charges for return to Customer. Any non-standard or additional freight charges shall be for Customer's account. Return of any defective product for warranty service requires return of the entire appliance with the production batch number clearly visible, together with evidence of billing and shipping numbers.
No employee, agent or representative of Marketing Assistance has the authority to waive, alter, vary or add to the terms hereof without the prior written approval of an officer of Marketing Assistance. It is expressly agreed that (a) this section constitutes the final expression of the parties' understanding with respect to the warranty and (b) this section is a complete and exclusive statement of the terms of the warranty. Marketing Assistance shall have no obligation under the warranty set forth above in the event that:
(a) The Customer fails, within the warranty period to notify Marketing Assistance in writing and provide Marketing Assistance with evidence satisfactory to Marketing Assistance of the alleged defect within five (5) days after it becomes known to the Customer;
(b) Product manufacturer’s warrantee conditions apply for products sold under these Conditions.
(c) Items manufactured by other parties but installed in or affixed to products sold by Marketing Assistance are not warranted by Marketing Assistance and bear only those warranties, express or implied, which are given by the manufacturer of such items, if any.
THE WARRANTY CLAIM INFORMATION SET FORTH ABOVE IS INTENDED SOLELY FOR THE BENEFIT OF THE CUSTOMER AND DOES NOT APPLY TO ANY THIRD PARTY. ALL CLAIMS MUST BE MADE BY THE CUSTOMER AND MAY NOT BE MADE BY ANY THIRD PARTY. THIS WARRANTY MAY NOT BE TRANSFERRED OR ASSIGNED, IN WHOLE OR IN PART, BY THE CUSTOMER FOR ANY REASON WHATSOEVER. ANY SUCH ATTEMPTED TRANSFER OR ASSIGNMENT SHALL BE NULL AND VOID.
Marketing Assistance, MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF USE AND ALL OBLIGATIONS OR LIABILITIES ON THE PART OF Marketing Assistance FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE, REPAIR OR PERFORMANCE OF THE PRODUCTS.
Marketing Assistance SHALL NOT BE RESPONSIBLE FOR NOR HAVE ANY FINANCIAL RESPONSIBILITY FOR UNINSTALLING, INSTALLING, REPLACING OR REPAIRING ANY OTHER PRODUCTS OR APPLICATIONS.
PRODUCTS SOLD BY Marketing Assistance ARE NOT INTENDED FOR NOR SUITABLE FOR AERONAUTIC OR AEROSPACE APPLICATIONS. IN THE EVENT CUSTOMER KNOWS OF OR INTENDS SUCH USE, IT MUST SO ADVISE Marketing Assistance FOR A CUSTOM ORDER FOR SPECIALLY MANUFACTURED PRODUCTS, IF AVAILABLE.
4. MODIFICATIONS. Marketing Assistance reserves the right, without notice to the Customer, to (a) change the specifications of any product, (b) improve a product in any manner that Marketing Assistance deems necessary or appropriate and (c) discontinue the manufacture of any product.
5. PURCHASE ORDERS. All quotations and prices from Marketing Assistance are subject to change until a purchase order has been accepted by Marketing Assistance. The Customer will submit purchase orders for the products to Marketing Assistance in writing, whether by mail, telefax or eMail which shall set forth, at a minimum: (a) an identification of the products ordered, (b) prices for such products, (c) quantities, (d) requested delivery dates and (e) shipping instructions and shipping addresses.
6. ACCEPTANCE OF ORDERS. (a) All purchase orders received from the Customer are subject to acceptance by Marketing Assistance in writing (b) ACCEPTANCE IS CONDITIONED UPON CUSTOMER"S ACCEPTANCE OF THE TERMS AND CONDITIONS AND PRODUCT MANUFACTURER’S WARRANTY TERMS AS WELL AS Marketing Assistance’s WARRANTY CLAIM TERMS SET FORTH IN SECTION 3 HEREIN.
7. MODIFICATION OF ORDERS. No accepted purchase order shall be modified or canceled except upon the written agreement of Marketing Assistance and the Customer. Mutually agreed cancellations shall be subject to reasonable charges based upon expenses already incurred by Marketing Assistance and commitments made by Marketing Assistance. Mutually agreed change orders shall be subject to all provisions of these Terms and Conditions of Sale.
8. PRICE INCREASES. Marketing Assistance may increase Its prices for the products. Increased prices for products shall not apply to purchase orders accepted prior to the effective date of the price increase unless such orders provide for delivery more than three (3) months after the date of acceptance of the order.
9. PRICING AND DELIVERY TERMS. All products are delivered Ex Works Marketing Assistance's warehouse facility in Massachusetts, or such other facility as Marketing Assistance may designate. Orders are then shipped per Marketing Assistance's choosing at lowest cost standard freight rates. Marketing Assistance shall have no further responsibility for the products and all risk of damage, loss or delay shall pass to the Customer Ex Works. In the event Customer issues special shipping instructions, Customer shall be responsible for such and any additional expenses caused thereby and may be asked to prepay such or accept collect shipment.
10. PAYMENT TERMS. For repeat Customers ordering quarterly or more frequently, Net 30 days. All orders will be shipped either prepaid by the Customer or C.O.D., at Marketing Assistance"s option, unless the Customer has established a previously approved credit line. If Marketing Assistance approves a credit line for the Customer, all payments shall be due within thirty (30) days of the date of the invoice. If any invoice is not paid in full within such thirty (30) day period, then finance charges shall be assessed at the rate of one percent (1%) per month (twelve percent (12%) per year). If such rate is deemed to be usurious at anytime, it shall be reduced to the maximum rate permitted by applicable law. Marketing Assistance may stop or withhold shipment of products if the Customer does not fulfill its payment obligations. If Marketing Assistance is insecure about payment for any reason, Marketing Assistance may require full or partial payment in advance and as a condition to the continuation of its delivery of products.
Customer shall not deduct, offset or otherwise withhold full and prompt payment by reason of any credits or claims for credits or other claims without the express written consent of Marketing Assistance.
Customer shall be responsible for any sales, use, value-added or other excise tax on the products.
11. SECURITY INTEREST. Unless and until the products are paid for in full, Marketing Assistance reserves a purchase money security interest in them to secure the unpaid balance of the purchase price. The Customer hereby grants to Marketing Assistance a power of attorney, coupled with an interest, to execute and file on behalf of the Customer all necessary financing statements and other documents required or appropriate to protect the security interest granted herein.
12. ACCEPTANCE OF PRODUCTS. The Customer will conduct any incoming inspection tests as soon as possible upon arrival of the products, but in no event later than ten (10) days after the date of receipt. Any products not rejected by written notice to Marketing Assistance within such period shall be deemed accepted by the Customer and Marketing Assistance shall not be liable for any additional costs, expenses or damages incurred by the Customer, directly or indirectly, as a result of any shortage, damage or discrepancy in a shipment.
13. LIMITATION OF REMEDIES.
(a) Marketing Assistance SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DELAY IN FURNISHING THE CUSTOMER WITH PRODUCTS.
(b) IN NO EVENT SHALL Marketing Assistance's LIABILITY INCLUDE ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES, EVEN IF Marketing Assistance HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. 14. MADE-TO-ORDER PRODUCTS. Marketing Assistance reserves the right to revoke and amend any price quotations offered to the Customer for made-to-order products, provided that such price quotations have not been accepted by the Customer prior to the date of revocation or amendment.
14. SPECIFICATIONS. Marketing Assistance reserve all rights of trademark, ownership, copyright and other industrial property rights to any trade or service names, specifications, technical data, drawings, illustrations, catalogues, models, documents and sales literature that it owns. Customer may not make use of any such or in any manner reproduce such without the express written consent of Marketing Assistance.
16. REGULATORY LAWS AND STANDARDS. Marketing Assistance makes no representation that its products conform to state or local laws, ordinances, regulations, codes or standards except as may be otherwise agreed to in writing by Marketing Assistance.