Contract of Sale
1. Contract. This Contract applies to all goods purchased ("Product") from Midwest Fluid Power LLC ("MFP"). By clicking the "Accept" button or pressing the "Return" or "Enter" key or using an electronic agent to do so, a buyer ("Buyer") authenticates the Buyer's agreement to this Contract. This Contract includes the Rules of Use of Site and the Privacy Policy for this Site, and governs over all other documents (paper or electronic) and preprinted forms exchanged between the parties.
2. Warranties; exclusive remedy; Buyer's inspection obligations.
(a) Manufacturer's warranty. Buyer has the benefit the manufacturer's warranty of the Product. MFP assigns to Buyer all warranties and remedies by the manufacturer of the Product. (b) No warranties. MFP makes no express warranties. MFP does not warrant that the specifications stated on this website or that MFP may give to Buyer. MFP makes no implied warranties except the implied warranty of title. MFP makes no implied warranty of merchantability and no implied warranty of fitness for a purpose. Buyer is solely responsible for verifying that a Product is suitable for Buyer's purposes. (c) Exclusive remedy; no consequential damages; damages limits. Buyer's exclusive remedy is the remedy under the manufacturer's warranty, if any. Consequential damages are excluded. Buyer assumes all risk of liability for consequential damages, damage to property, and injury to persons arising in any way out of Buyer's transportation, storage, and use of the Product (including using the Product in manufacturing, incorporating the Product in Buyer's products, and selling Buyer's products), and in disposing of the Product.
Under no circumstances may Buyer recover from MFP damages exceeding the purchase price for the Product actually paid to MFP by the Buyer. No limitations on remedies against MFP apply to a manufacturer. In its discretion, MFP may assist Buyer in enforcing remedies under a manufacturer's warranty but is under no obligation to do so. (d) Remedy procedure. Within 30 days of receipt, Buyer shall inspect the Product and notify MFP in writing of any defective Product and how it fails to conform to the Contract. Failure to inspect the Product and to notify MFP in writing of defective Product within 30 days of receipt constitutes a waiver of the defect for the benefit of MFP. Buyer shall do all that is necessary or desirable to preserve the defective Product for inspection and testing by MFP and third parties, to avoid incurring damages for any defective Product, to assist MFP in implementing the remedy under this Contract, and to protect defective Product until MFP has agreed to its disposition or care. (e) Time limit. All proceedings against MFP by Buyer or any third party on the Product sold under this Contract must be brought within one year from shipment of the Product. Buyer waives all proceedings against MFP not brought within one year from shipment of the Product and all claims and defenses that could have been asserted in such proceedings.
3. Taxes, disputed amounts owing. Buyer shall reimburse MFP for all taxes (including excise taxes) and other governmental charges that are required to be paid on or that are measured by the sale, production, transportation, or use of any Product. All communications concerning disputed debts and all checks and other instruments tendered in full satisfaction of debts must be sent to Midwest Fluid Power Company, 5702 Opportunity Drive, Toledo, OH 43612.
4. Risk of loss. Delivery to Buyer occurs, and risk of loss passes to Buyer, upon delivery to the carrier.
5. Buyer responsible for specifications. Before ordering any Product and again before using any Product, Buyer, not MFP, shall insure that the Product is adequate for Buyer's needs, that the Product specifications are complete and correct for Buyer's intended use. Buyer acknowledges that MFP's sales literature presents only summary descriptions derived from manufacturer's materials, and that Buyer may not rely on such materials as a substitute for [a] testing of Product, and [b] the manufacturer's written specifications.
6. Buyer responsible for safety and environmental law compliance. Buyer shall comply with all laws affecting the transportation, storage, use, sale, or disposal of the Product. Buyer acknowledges that the Product may be, or become, considered as hazardous materials under various laws and regulations or the Product or its use may be regulated under state or federal safety laws. Upon written request, MFP will furnish to Buyer a Material Safety Data Sheet (Form OSHA20 or similar) covering any materials supplied under this Contract.
7. Indemnity. Buyer shall indemnify MFP and hold MFP harmless from all claims arising out of or in connection with this Contract or the Product (including, but not limited to, claims for personal injury and property damage arising out of breach of this Contract, negligence, and strict liability) or the transportation, storage, use, sale, or disposal of the Product, and the costs and expenses (including attorneys' fees and other expenses) arising out of such claims, regardless of the merit of the claims.
8. Applicable law. MFP is located in Ohio, the Contract was negotiated by MFP from Ohio, the Product will be supplied to Buyer from Ohio, and Buyer will direct payments to MFP in Ohio. Accordingly, the internal laws of the State of Ohio will govern the interpretation and enforcement of this Contract. Buyer consents to exclusive jurisdiction and exclusive venue for any state or federal court sitting in the geographical area of the United States District Court for the Northern District of Ohio, Western Division, and waivers all other jurisdiction and venue.
9. Force majeure. MFP shall not be liable to Buyer for any delay or failure in shipment reasonably beyond MFP's control, including, but not limited to, Product and raw materials shortages (including power and fuel shortages); unavailability of transportation; fire, floods, and other acts of God; strikes, lockouts, and other work stoppages; wars; sabotage; accidents; plant shut down; equipment failure; and voluntary or involuntary compliance with any law. During the period of delay, MFP will be excused from delivery of Product or may allocate available Product among all of MFP's customers (including MFP's divisions, departments, and affiliates) as MFP determines.
10. Successors and assigns. This Contract shall be binding upon and inure to the benefit of the respective successors and assigns of MFP and Buyer. Buyer may not assign this Contract without the prior written consent of MFP.
11. Warranty of solvency. Buyer is solvent and able to pay its debts before they are past due. Buyer's acceptance of each shipment of Product constitutes a reaffirmation of this warranty.