Marathon’s Terms & Conditions – Purchasing

 

Acceptance:
Acceptance of this estimate, quote, proposal, sales order or invoice (hereinafter, “contract”) is validated upon customer signature or submission of initial deposit (of 40% of original contract or greater). Marathon Finishing Systems, Inc. (hereinafter, “MFS”) reserves the right to reevaluate or redetermine the validity of the contract after thirty (30) days if a deposit nor signed acknowledgement has NOT been submitted to MFS within thirty (30) days of original document date.

Approval:
Upon customer acknowledged acceptance of this contract, MFS will commit to the purchase of all materials required for the design and/or install and/or services, including a commitment tostandard design and engineering time, as required by the original contract. PROJECTS ARE NOT SCHEDULED FOR PRODUCTION UNTIL FORMAL SIGNED APPROVAL OF PRODUCT(S), SYSTEM(S) OR SERVICE(S) IS RECEIVED FROM CUSTOMER OF MFS PROVIDED APPROVAL DRAWINGS AND SPECIFICATIONS.

Changes and Delays:
If for any reason the customer requests changes or delays to the original contract (including any components thereof), the customer is responsible for any increase in pricing resulting from additional materials required and/or additional design/engineering time required and/or any increases in cost of labor. Any unforeseen costs associated with delays initiated by customer request (for any reason), lack
of customer supplied materials, services or information, shall not be the responsibility of MFS.

Cancellation:
If at any time, for any reason, a contract is cancelled by the customer, cancelled contract is subject to a minimum 50% cancellation fee (based on original contract value, plus any approved changes) or greater. A cancellation fee to be determined by MFS if total time to process, design/engineer, build, and/or otherwise fulfill your order up until date of cancellation, including any customer approved modifications to original contract, exceeds 50% of total contract value, including approved changes.

Service Charges:
A “per month” service charge of 1.5% (.015) will be charged on all remaining balances over thirty (30) days past due and must be paid by the customer.

Customer Representative:
During installation (if performed by MFS or its agents), the customer will designate a single representative to inspect the contracted work at least once every two (2) days. This designated customer representative will contact MFS immediately in the event that a problem occurs, or that the customer has a question regarding the contracted work.

Fire Protection:
Any fire protection equipment will be furnished and installed by agents of the customer. Any personnel that may be necessary for a fire watch during required cutting and/or welding processes will be provided solely by, and are to be considered an agent of the customer. Indemnification The customer agrees to indemnify and defend MFS from any and all liabilities as a result of, or in connection with, any breach of these terms and conditions by the customer. Liabilities include (but may not be limited to) all costs, claims, damages, judgments, assessments, and expenses, including reasonable attorney’s fees, filing fees, and court costs. MFS hereby agrees to indemnify and hold harmless customer from any and all liabilities as a result of or in connection with any breach of these terms and conditions by MFS. Liabilities include (but may not be limited to) all costs, claims, damages, judgments, assessments, and expenses, including reasonable attorney’s fees, filing fees, and court costs.

Governing Law/Jurisdiction:
Any dispute arising under this Agreement or related thereto shall be adjudicated exclusively in the U.S. District Court for the Central District of California or the Superior Court of the State of California, County of Riverside and both Parties hereby consent and submit to the personal jurisdiction of the State of California for such purposes and waives all objections thereto. Shipping Information and Rates‐Force Majeure MFS shall not be in default nor liable for any expense, loss or damages resulting from a delay in performance due to causes beyond its control, including, but not limited to labor disputes, floods, fire, pandemics, (or other acts of nature), transportation delays, an inability to obtain components and/or materials, or manufacturing equipment breakdown. Failure to meet shipping dates or shipping deadlines does not entitle the customer to cancel the order and claim a breach of contract, provided that MFS proceeds in good faith to meet the shipping dates, or if shipping dates cannot be met, to ship as soon as reasonably possible thereafter.

Inspection and Acceptance of Goods, Returns:
Customer agrees to inspect any goods sold to it by MFS within seven (7) days of receipt and to promptly report any damages to MFS Customer further agrees to inspect said goods withinseven (7) days of receipt to determine whether any defects exist which would justify the customer not accepting said goods. For any claims of defective goods (where the defect can reasonably be determined by inspection) , customer must give MFS notice of the defect in writing (and where possible, pictures) within seven (7) days of delivery completely describing the nature of said defect. Otherwise, customer will be deemed to have waived any objections based upon said defects and will be deemed to accept said goods. MFS shall have the right to settle claims as it deems proper, either by replacement of parts, repair, or credit. No goods shall be returned for credit without express written consent from MFS.

Limited Warranty:
All products sold by MFS are warrantied by MFS for one year and only to customer for resale, or for use in business or original manufacture, against defects in workmanship or materials.

CUSTOMER AGREES AND ACKNOWLEDGES THAT EXCEPT AS PROVIDED HEREIN THE PRODUCTS ARE PROVIDED ON AN “AS AVAILABLE” AND “AS IS” BASIS, WITH ALL FAULTS ACCEPTED, AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR DURABILITY. EXCEPT AS PROVIDED HEREIN, MFS MAKES NO OTHER WARRANTIES , EXPRESS OR IMPLIED, RELATIVE TO THIS AGREEMENT AND THE PRODUCTS. Limitation of Liability and Damages NEITHER MFS NOR ANY OF ITS SHAREHOLDERS, DIRECTORS, EMPLOYEES OR AGENTS (HAS OR SHALL HAVE) ANY LIABILITY TO PURCHASER, ANY CLIENT, CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, {INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOSS OF DATA, BUSINESS INTERRUPTIONS , LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, COMPUTER MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES), WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCTS AND SERVICES PROVIDED HEREUNDER, OR MFS PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MFS LIABILITY FOR DAMAGES SHALL BE STRICTLY LIMITED TO THE REFUND OF ANY PAYMENTS MADE TO MFS BY THE PURCHASER UNDER THIS AGREEMENT IN THE EVENT THAT THE PRODUCTS CANNOT BE REPAIRED OR REPLACED DURING THE LIMITED WARRANTY PERIOD, OR MFS CANNOT CURE ANY ALLEGED DEFAULT OF ITS OBLIGATIONS WITHIN THIRTY (30) DAYS AFTER BEING GIVEN WRITTEN NOTICE OF ANY SUCH CLAIM.

Storage:
Requests to store or hold any products will be subject to additional fees, up to $250/day.

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