ALL QUOTATIONS ARE MADE AND ALL
ORDERS ARE ACCEPTED BY MARATHON
SPECIAL PRODUCTS CORPORATION SUBJECT
ONLY TO THESE TERMS AND CONDITIONS.
1. MODIFICATIONS OF SALES TERMS
Any Terms and Conditions contained in any
purchase order or other form of communication from
Marathon’s customers which are additional or different
from these Terms and Conditions shall be deemed
rejected by Marathon unless expressly accepted in
writing by Marathon. In general, no modification,
amendment, waiver or other change of any of these
Terms and Conditions and those contained on the
reverse side hereof and/or in attachments hereto
("Terms and Conditions"), or of any of Marathon’s rights
or remedies thereunder, shall be binding on Marathon
unless expressly accepted in writing by Marathon’s
authorized officers at Marathon’s home office. No
course of dealing, usage of trade or course of
performance shall be relevant to explain or supplement
any of these Terms and Conditions. In cases of conflict
between the Terms and Conditions printed on this page
and those contained on the face side or in attachment
hereto, the latter shall control. If any document issued
by any party hereto is sent by facsimile or another form
of electronic document transmission, the parties hereto
agree that (a) the copy of any such document printed on
the facsimile machine or printer of the recipient thereof
is a counterpart original copy thereof and is a "writing",
(b) delivery of any such other form of electronic
document to the recipient thereof by facsimile or such
other form of electronic document transmission is
authorized by the recipient thereof and is legally suffi-
cient for all purposes as if delivered by United States
mail, (c) the typewritten name of an authorized agent of
the party sending such document on any such
document is sufficient as a signature thereon and behalf
of such party and the intent of such signature is to
authenticate the writing, and (d) an electronically stored
and reproduced copy of any such document shall be
deemed to be legally sufficient evidence of the terms of
such document for all purposes.
2. ACCEPTANCE OF ORDERS
Acceptance by Marathon of Buyer’s purchase
order(s) is expressly conditioned upon Buyer’s assent to
these Terms and Conditions. Buyer will be deemed to
have assented to such Terms and Conditions unless
Marathon receives written notice of any objection within
fifteen (15) days after Buyer’s receipt of this form and in
all events prior to any delivery or other performance by
Marathon of Buyer’s order.
3. QUOTATIONS
Quotations by Marathon shall be deemed to be
offers by Marathon to sell the equipment described
therein subject to these Terms and Conditions, and
acceptance of such offers is expressly limited to accept-
ance by Buyer of all of these Terms and Conditions with-
in thirty (30) days from the date of the quotation.
Purchase orders submitted by Buyer for the equipment
quoted by Marathon shall be subject to and will be
deemed to constitute acceptance of these Terms and
Conditions. All purchase orders will be subject to
approval by Marathon at Marathon’s home office.
4. PRICES: PRICE CHANGES
All prices are net F.O.B. shipping point and are
subject to change without notice. In the event of a
change in Marathon’s prices, the price for equipment
unshipped will be the price in effect on the date of
shipment.
If Marathon’s quoted price was based on delivery to
and acceptance by Buyer of a specified quantity of
equipment, such price shall be subject to adjustment if
Buyer does not accept the quantity at the times
specified in Marathon’s quotation, and Buyer will be
invoiced at Marathon’s standard price without quantity
discounts, if any, for the quantity of equipment actually
accepted by Buyer.
5. TAXES
In addition to any prices, Buyer shall pay the
amount of any present or future manufacturer’s tax,
retailer’s occupation tax, use tax, sales tax, excise tax,
duty, custom, inspections or testing fee, or any other tax,
fee or charge of any nature whatsoever imposed by any
government authority, on or measured by the transac-
tion between Marathon and Buyer. In the event
Marathon is required to pay any such tax, fee or charge,
Buyer shall reimburse Marathon therefor, or, in lieu of
such payment, Buyer shall provide Marathon at the time
the order is submitted with an exemption certificate or
other document acceptable to the authority imposing
such tax, fee or charge.
6. TERMS OF PAYMENT
All orders are subject to the approval of Marathon
at its home office. Terms of payment are cash in full no
later than thirty (30) days from date of shipment,
without discount. If, during the period of performance of
an order, the financial condition of Buyer is determined
by Marathon not to justify the terms of payment
specified, Marathon may demand full or partial payment
in advance before proceeding with the work, or
satisfactory security or guarantees that invoices will be
promptly paid when due, or, at its option without
prejudice to other lawful remedies, may defer delivery or
cancel this contract If delivery is deferred, the
equipment may be stored as provided in Section 9
hereof and Marathon may submit a new estimate of cost
for completion based upon prevailing conditions. If
Buyer defaults in any payment when due, or in the event
any voluntary or involuntary bankruptcy or insolvency
proceedings involving Buyer are initiated by or against
Buyer, then the whole contract price shall immediately
become due and payable upon demand, or Marathon, at
its option without prejudice to its other lawful
remedies, may defer delivery or cancel this contract
Prorata payments shall become due as shipments
are made. If shipments are delayed by the Buyer for any
cause, payments shall become due from the date on
which Marathon is prepared to make shipment and
storage shall be at the Buyer’s risk and expense as
provided in Section 9 hereof. If manufacture is delayed
by the Buyer for any cause, a Partial payment based
upon the proportion of the order completed shall
become due from the date on which Marathon is notified
of the delay.
7. DELIVERY; RISK OF LOSS
All sales are F 0.B. Marathon’s plant or other point
of shipment designated by Marathon. Shipping dates
are estimates only which are not guaranteed and are
based upon prompt receipt from Buyer of all necessary
shipping and other information, Marathon reserves the
right to make delivery in installments. All installments to
be separately invoiced and paid for by Buyer when due
per invoice, without regard to subsequent deliveries.
Delivery of equipment to a commercial carrier at
Marathon’s plant or other loading point shall constitute
delivery to Buyer, and any risk of loss and further cost
and responsibility thereafter for claims, delivery, loss or
damage, including if applicable, placement and storage
shall be borne by Buyer. When equipment is delivered
by Marathon’s truck, unloading at Buyer’s dock shall
constitute delivery to Buyer. Claims for shortages or
other errors in delivery must be made in writing to
Marathon within ten (10) days after receipt of shipment
and failure to give such notice shall constitute
unqualified acceptance and a waiver of all such claims
by Buyer. Claims for loss or damage to equipment in
transit by common carrier must be made to the carrier
and not to Marathon. Freight and handling charges by
Marathon may not reflect actual freight charges prepaid
to the carrier by Marathon due to incentive discounts
earned by Marathon based upon Marathon’s aggregate
volume of freight tendered to a carrier or when a carrier
must be used which charges a rate which is different
than the rate upon which Marathon’s freight and
handling charges were based. When shipments are
delivered in Marathon’s private trucks, Buyer will be
charged an amount approximating the prevailing
common carrier rate.
8. EXCUSABLE DELAYS FORCE MAJEURE
Marathon shall not be liable for any loss or damage
as a result of Marathon’s delay in or failure of delivery or
installation due to (i) any cause beyond Marathon’s
reasonable control, (ii) an act of God, act of the Buyer,
embargo or other governmental act, authority
regulation or request, fire, theft, accident, strike,
slow-down or other labor disturbance, war, riot, delay in
transportation, or (iii) inability to obtain necessary labor,
materials, components or facilities.
Should any of the aforementioned events of force
majeure occur, Marathon at its option, may cancel
Buyer’s order with respect to any undelivered
equipment or extend the delivery date for a period equal
to the time lost because of delay. Notice of such election
shall be given promptly to Buyer. In the event Marathon
elects to so cancel the order Marathon shall be released
of and from all liability for failure to deliver the
equipment including, but not limited to any and all
claims on behalf of Buyer for lost profits or any other
claim of any nature which Buyer might have.
If shipping or progress of the work is delayed or
interrupted by Buyer, directly or indirectly, Buyer shall
pay Marathon for all additional charges resulting
therefrom.
9. STORAGE
If the equipment is not shipped within thirty (30)
days after notification has been made to Buyer that it is
ready for shipping, for any reason beyond Marathon’s
control, including Buyers failure to give shipping
instructions, Marathon may store the equipment at
Buyer’s risk and expense in a warehouse or upon
Marathon’s premises, and Buyer shall pay all handling,
transportation and storage costs at the prevailing
commercial rates promptly following Marathon’s
submission of invoices for such costs.
1O. WARRANTIES TO DISTRIBUTORS AND
INDUSTRIAL OR COMMERCIAL CUSTOMERS
This warranty is extended only to Marathon’s
distributors and industrial or commercial customers and
does not apply to consumer purchasers.
Warranty Period - Marathon warrants products
manufactured by it to be free from defects in materials
and workmanship and to conform to Marathon’s written
specifications for a period of twelve (12) months from
date of first use or eighteen (18) months from date of
manufacture whichever period shall expire first.
Warranty Remedies - If prior to expiration of the
foregoing warranty period, any product shall be
proved to Marathon’s satisfaction to be defective or non-
conforming, Marathon will repair or replace such defec-
tive equipment or components thereof. F.O.B.
Marathon’s plant or other destination designated by
Marathon or will refund or credit by Marathon, the
purchase price paid therefor by Buyer, at Marathon’s
sole option. Buyer’s exclusive remedy and Marathon’s
sole obligation under this warranty shall be limited to
such repair or replacement, F.O.B. Marathon’s plant or
other destination designated by Marathon or refund or
credit by Marathon, and shall be conditioned upon
Marathon’s receiving written notice of any defect within
sixty (60) days after it was discovered or by reasonable
care should have been discovered. In no event shall
Marathon’s liability for such defective or nonconforming
products exceed the purchase price paid by Buyer
therefore.
Exclusions - This warranty does not (i) cover
shipping expenses to and from Marathon’s factory or
other destination designated by Marathon for repair or
replacement of defective equipment or any tax, duty,
custom, inspection or testing fee, or any other charge of
any nature related thereto, nor does it cover the costs of
removing defective equipment or reinstalling repaired or
replaced equipment, (ii) apply and shall be void with
respect to equipment operated in excess of rated
capacity or otherwise not in accordance with
installation, maintenance or operating instructions or
requirements, to equipment repaired or altered by
others than Marathon or Marathon’s authorized service
agencies, or to equipment which was subjected to
abuse, negligence, misuse, misapplication, accident,
damages by circumstances beyond Marathon’s control,
to improper installation (if by others than Marathon),
operation, maintenance or storage, or to other than
normal use or service, and (iii) apply to equipment or
components not manufactured by Marathon. With
Terms & Conditions
142
SECTION13 11/23/05 4:49 PM Page 142