Trade Customs
CONTROLLING PROVISIONS: These terms and conditions supersede all previous terms and conditions and shall control any sale by A.Y. McDonald Industries (“Seller”). No alteration or waiver of these terms and conditions shall be valid unless specifically accepted in writing by an authorized representative of Seller.
PRICES: Billing prices are those in effect at the time the order is shipped. All prices are subject to change without notice. Possession of a price sheet shall not be construed as an offer to sell. Seller reserves the right to reject any order.
TERMS: Net 30-day payment terms. Without open credit terms, payment may be required prior to shipping. A 2% monthly service charge (or the maximum amount permitted by law) may be applied to the balance of any past-due invoice. Buyer shall pay any necessary collection fees, including reasonable attorney fees.
TAXES: Any sales tax, use tax, manufacturer tax, duty, or other costs imposed by any government entity shall, at Seller’s option, be added to the purchase price and payable by buyer. Buyer must certify any tax exemption and agree to indemnify Seller against any tax-imposed contrary to such certification.
FREIGHT: All prices are F.O.B. Seller’s factory, with full freight allowed within the contiguous United States and Canada on the orders that qualify pursuant to the Freight Program schedule. Seller reserves the right to select the carrier and route of shipment and to ship at the most economical rate. All extra charges for special handling or delivery services will be paid for by the buyer. Terms for shipment outside the contiguous United States and Canada shall be established on a case-by-case basis.
LIMITED WARRANTY: Subject to the limitations stated herein, A.Y. McDonald Industries (“Seller”) warrants that all products manufactured by Seller shall be free from defects in material and workmanship and shall perform as intended when properly installed, under normal use and ordinary conditions, for a period of one (1) year from the date of shipment from Seller’s factory (the “Warranty Period”). This Limited Warranty applies only to products manufactured by Seller and does not cover products or components not manufactured by Seller or defects or failures resulting from: (i) system design, engineering, or installation; (ii) modification without Seller’s prior written approval; (iii) failure to install or use the product in accordance with Seller’s instructions or specifications; (iv) improper installation, use, application, maintenance, repair, handling, or storage; (v) normal wear and tear; or (vi) any act, event, or cause beyond Seller’s control. Seller makes no warranties with respect to products or components not manufactured by Seller. Buyer must notify Seller in writing of any claimed defect as soon as reasonably practicable and in no event later than the expiration of the Warranty Period. Upon receipt of such notice, Seller may inspect the product at Seller’s facility or another location designated by Seller. No product may be returned without Seller’s prior written authorization and Buyer’s compliance with Seller’s return instructions. If a product is determined by Seller to be defective, Seller shall, at its option and as Buyer’s exclusive remedy: (i) repair or replace the product; or (ii) refund the purchase price paid. Seller will pay outbound shipping for repaired or replacement products on the same terms as the original shipment. Except as expressly provided herein, Buyer is responsible for all costs associated with removal, dismantling, reinstallation, and transportation. No claims will be allowed for labor, shipping, materials, or other costs incident to repair, replacement, or return of a product.
THIS LIMITED WARRANTY IS THE ONLY WARRANTY PROVIDED BY SELLER AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD.
SELLER’S LIABILITY SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCT(S) GIVING RISE TO THE CLAIM. THIS LIMITED WARRANTY PROVIDES THE EXCLUSIVE REMEDY FOR ALL CLAIMS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER ARISING FROM WARRANTIES, REPRESENTATIONS, OR DEFECTS FROM ANY CAUSE. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES.
The limitations of liability set forth herein apply regardless of Seller’s performance or failure or delay of performance and may not be expanded by any representation, agreement, or course of dealing. No employee, representative, or agent of Seller, or any other person, has authority to assume or incur any liability or obligation on behalf of Seller in addition to or inconsistent with this Limited Warranty.
This Limited Warranty extends only to buyers who purchase products directly from Seller (“Original Purchasers”), including distributors, wholesalers, utilities, and contractors, and is not assignable or transferable. Seller extends no warranty to “consumers” as defined in the Magnuson-Moss Warranty Act (15 U.S.C. § 2301 et seq.).
PRODUCT-SPECIFIC WARRANTIES: Certain products, product lines, or components may be subject to separate or additional warranties, including extended warranty periods, performance guarantees, or third-party manufacturer warranties, as expressly set forth in written documentation issued or approved by Seller. To the extent a product-specific warranty applies, it shall control solely with respect to the applicable product. This Limited Warranty otherwise remains in full force and effect. No product-specific warranty shall be effective unless expressly stated in written documentation issued or approved by Seller.
BUYER RESPONSIBILITY; INDEMNIFICATION: Buyer is responsible for the safe installation, use, operation, and maintenance of the products and shall comply with all applicable laws, regulations, and industry standards, including applicable safety requirements. Buyer shall ensure that all users follow proper operating procedures and Seller’s instructions and shall not remove or alter any safety devices, warnings, or instructions provided by Seller. Buyer shall indemnify and hold harmless Seller and its officers, employees, and agents from and against any claims, damages, losses, and expenses (including reasonable attorneys’ fees) arising out of or related to: (i) Buyer’s breach of these terms; or (ii) the installation, use, operation, maintenance, modification, or misuse of the products by Buyer or any third party, except to the extent caused by Seller’s breach of the express Limited Warranty. Buyer shall promptly notify Seller of any accident or malfunction involving the products that results in personal injury, death, or property damage and shall reasonably cooperate with Seller in the investigation of such matters.
CLAIMS: Inspect all shipments immediately upon receipt, examining products for damage and verifying quantity. Any claim of damage, shortage, or non-conformance must be made in writing within 5 business days of receipt of goods (any claim of damage or shortage must be noted on the Freight Carrier’s signed delivery receipt).
ORDERS: Seller is not responsible for and shall not be held liable for damages resulting from delays or failures in shipment, nor shall Seller be liable for any delay or failure to provide goods where occasioned by any force majeure event, including without limitation: strikes and other labor disputes; fires; acts of God; floods, snowstorms, tornados, and other storms; unusually severe inclement weather conditions; fuel, energy, carrier, or material shortages or embargoes; war; terrorism; civil disturbances; acts of civil or military authority; court order or decree; partial or complete destruction of factory or other facility; acts of buyer; inability to obtain or retain fuel, energy, carriers, materials, facilities, or labor without litigation or the payment of penalties or unreasonable prices or the acceptance of unreasonable terms and conditions; and any other cause beyond Seller’s control.
RETURNS: Goods cannot be returned without the prior written authorization of Seller. Return freight must be prepaid by buyer. After inspecting the returned goods, Seller may impose upon buyer: (1) a handling and restocking charge equal to a minimum of 30% of the invoiced cost of the returned goods; and, in addition thereto, (2) any costs required to put the goods in like-new condition, OR (3) rejection of return without credit. All credit memos are subject to cash discount terms as defined in our standard terms.
CANCELLATION: The contract resulting from Seller’s acceptance of Buyer’s order cannot be cancelled, terminated, or modified by Buyer, in whole or in part, except upon Seller’s prior written approval.
NON-STOCK PRODUCTS: Non-stock products (i.e., customized or non-standard products) may require a minimum order and buyer should make prior inquiry to Seller. Once production has begun, orders for non-stock products cannot be cancelled without the prior written approval of Seller. Seller will not accept the return of non-stock products.
CONSTRUCTION: All sales, contracts, and offers to buy or sell, all rights, remedies and duties of all persons, and the construction and effect of all provisions hereof, shall be governed by and construed according to the laws of the State of Iowa.