Mars 2000, Inc./Mars Plastics Terms & Conditions Mars and Customer agree that the following Terms & Conditions (“Terms”) apply to their transactions.
- Definitions.
- Applicability.
- Tooling/Molds.
- Products/Samples. Product and samples other than shot samples (see Sec. 3(a)) provided to Customer will be deemed approved unless Mars is notified of rejection within twenty-four (24) hours of Customer’s receipt of samples or production.
- Product Deliveries.
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- Invoice Payments. Mars may terminate or suspend all current and future production if Customer fails to pay invoices within stated terms. All invoice amounts not paid when due will be subject to a late charge at the monthly rate of one and a half percent (1.5%). Customer shall be responsible for Mars’ costs and expenses of collection, including reasonable attorneys’ fees. All invoices, including but not limited to invoices for services rendered, tool repairs, finance charges, etc., must be paid in full before Mars will release any tooling, fixtures, or product.
- Title and Risk of Loss. Title and risk of loss passes to Customer upon delivery of the goods, tooling, or molds at the delivery point. Mars shall not be responsible for goods, tooling, or molds upon delivery at the delivery point and, in all events, its liability for loss shall be limited to $10,000. Customer is responsible to obtain insurance or otherwise protect itself from loss. As collateral security for the payment of the purchase price of the products, Customer hereby grants to Mars a lien on and security interest in and to all of the right, title, and interest of Customer in, to, and under its tooling, products, and other personal property 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 Rhode Island Uniform Commercial Code. Mars is authorized to perfect its security interest under the Rhode Island Uniform Commercial Code by filing a Uniform Commercial Code Financing Statement where appropriate. Upon any breach by Customer of any of its obligations to Mars, Mars shall have the rights and remedies under the Uniform Commercial Code.
- Tooling Storage. Unless otherwise requested, Mars will provide no cost storage for Customer’s tooling. Mars’ liability with respect to such tooling is limited to its gross negligence or willful misconduct.
- Warranty. Mars warrants that the goods to be sold under this Agreement will conform to the description of the goods as provided to or by Customer, and will be of Mars’ standard quality. Customer represents that it has used its own independent skill and expertise in connection with the selection and use of the goods purchased pursuant to this Agreement, and that it will independently determine the suitability for each use for which it is purchased. THIS WARRANTY IS EXCLUSIVE, AND EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, MARS MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO WAIVER, ALTERATION, ADDITION, OR MODIFICATION OF THIS WARRANTY SHALL BE VALID UNLESS MADE IN WRITING AND SIGNED BY AN OFFICER OF MARS. IN THE EVENT THE GOODS ARE NOT IN COMPLIANCE WITH THIS WARRANTY, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY SHALL BE A CREDIT FOR THE COST OF THE GOODS OR, AT MARS’ OPTION, REPLACEMENT OF THE GOODS. MARS, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, AND EMPLOYEES SHALL UNDER NO CIRCUMSTANCES, WHETHER FOR A FAILURE OF ITS LIMITED REMEDY OR OTHERWISE, BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR SPECIAL, INCIDENTAL, DIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES EVEN IF MARS HAS BEEN ADVISED OF OR SHOULD REASONABLY ANTICIPATE THE POSSIBILITY OF SUCH DAMAGES. This warranty shall not be effective if Mars has determined, in its sole discretion, that Customer has misused the goods in any manner, has failed to use the goods in accordance with industry standards and practices, or has failed to use the goods in accordance with instructions, if any, furnished by Mars. All warranty claims must be brought within one year of shipment, regardless of their nature.
- Intellectual Property. By submitting to Mars any art concept or design (“Submitted Design”), Customer represents and warrants that it currently owns, or has rights sufficient to authorize Mars’ use and/or reproduction of, any and all intellectual property incorporated in the Submitted Design, that the Submitted Design does not infringe any trademark, copyright, design patent, or other intellectual property right of anyone else, and that there are no known claims adverse to its ownership of the Submitted Design. Mars assumes no liability for infringement of any trademark, copyright, design patent, or other intellectual property in relation to its use or reproduction of the Submitted Design.
- Indemnification. Customer shall, at its expense, defend, indemnify, and hold harmless Mars, its parents, subsidiaries, and assigns, and their respective officers, directors, shareholders, employees, and agents from and against any and all claims, demands, actions, proceedings, judgments, orders, liabilities, damages, losses, costs, and expenses, including reasonable and actual attorneys’ fees, which are incurred by Mars as a result of Customer’s alleged breach of a representation, warranty, covenant, or other obligation contained in these Terms, and/or which may arise in connection with Customer’s use, distribution, marketing, or sale of any product produced by Mars.
- Inspection and Rejection of Nonconforming Goods. Notice of any discrepancies, quality issues, or other problems must be made in writing to Mars within 3 business days from date of delivery. Customer will be deemed to have accepted the goods unless it notifies Mar in writing of any nonconforming goods within 3 from the date of delivery. If timely notice is given and the parties agree, an RA will be issued for a credit. No credits may be taken without an RA.
- Waiver and Modification. No Waiver by Mars of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Mars. 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. Mars reserves the right to modify or add to these Terms at any time and from time to time. Modifications and additions shall be effective as to all pending and future transaction occurring after the same are received by Customer.
- Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Mars. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
- Compliance with Law. Customer shall comply with all applicable laws, regulations, and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Customer shall comply with all export and import laws of all countries involved in the sale of the products under this Agreement or any resale of the products by Customer. Customer assumes all responsibility for shipments of products requiring any government import clearance. Mars may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on the products.
- Relationship of the Parties. The relationship of 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.
- 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.
- Governing Law. This is the sole and complete agreement between the parties regarding the subject matter of this agreement, and may not be modified or amended except by a writing signed by an officer of Mars. All matters relating to this agreement shall be governed by the laws of the State of Rhode Island, without regard to its conflict of laws rules, and exclusive jurisdiction, sole venue, and forum for all such matters shall be in courts located in the State of Rhode Island.
- 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.
- Survival. Provisions of these terms and conditions which by their nature should apply beyond the term of this Agreement will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions, Governing Law and Survival.