These Terms and Conditions (“Terms”) constitute a binding and enforceable legal contract between Makat Inc., a company incorporated under the laws of the State of Delaware including its subsidiaries or affiliated companies (collectively, the “Company”) and you, a legal entity identified in the Purchase Order (as such term is defined below) (“Customer”). Each of the Company and the Customer will be referred to herein as a “Party” and together as the “Parties”.
BY EXECUTING A PURCHASE ORDER, THE CUSTOMER EXPRESSLY AND EXPLICITLY REPRESENTS THAT CUSTOMER POSSESSES THE LEGAL AUTHORITY TO ENTER INTO THESE TERMS (AND THE INDIVIDUAL EXECUTING THE PURCHASE ORDER, TO THE EXTENT APPLICABLE, REPRESENTS THAT HE/SHE IS DULY AUTHORIZED AND HAS THE RIGHT, POWER AND AUTHORITY TO ACCEPT OR ENTER INTO THESE TERMS ON HIS/HER ORGANIZATION'S BEHALF) AND TO FORM A BINDING AGREEMENT UNDER ANY APPLICABLE LAW, AND, UPON RECEIVING THE PURCHASE ORDER CONFIRMATION FROM THE COMPANY, CUSTOMER HEREBY ACCEPTS AND AGREES TO BE BOUND BY THESE TERMS.
“Delivery Date” means the actual date whereby the Products have been delivered to Customer (whether via common carrier or picked-up directly by Customer, as stipulated under the Purchase Order).
“Products” means the products intended for purchase by the Customer, as specified in the applicable Purchase Order Confirmation.
“Company’s Suppliers” means the specific suppliers or manufacturers with whom the Company engages in order to deliver the Products to the Customer hereunder.
- Purchase Order
Company shall issue a written quote to Customer, via e-mail, based on Customer’s request regarding the purchase of certain products (“Quote”). Such Quote shall state, at minimum, the quantity and kind of the requested products, the expected delivery date, the pricing and payment terms and the delivery method, and shall include a link to these Terms which will govern the Parties engagement. Within five (5) business days following the receipt of the Quote, Customer shall accept and confirm the Quote by issuing, via email, a purchase order to the Company which will be based on the Quote and includes the exact quantity and kind of the requested products and the Customer’s relevant details (“Purchase Order”). Within two (2) business days following the receipt of the Purchase Order, Company shall, pursuant to its sole and absolute discretion, accept and confirm the Purchase Order by issuing, via e-mail, a PO confirmation to the Customer which will accept the transaction information included under the Purchase Order and includes the updated expected delivery date and a link to these Terms together with a clarification that these Terms govern and supersede any additional or contrary terms set forth in any other document (“Purchase Order Confirmation”). If such Purchase Order Confirmation is not issued by the Company within two (2) business days, the Purchase Order shall be deemed rejected and the Customer shall not have any right and/or claim against the Company with respect thereto unless otherwise communicated in writing by the company. No Quote or Purchase Order shall be deemed accepted under these Terms by the relevant Party, unless and until the Customer or Company issues the Purchase Order or Purchase Order Confirmation, respectively.
- Shipment and Delivery
- Shipment Method. As expressly agreed by the Company under the Quote and the Purchase Order Confirmation, all Products shall be delivered to Customer either (i) on Company’s Suppliers’ warehouse for direct pickups by the Customer, in accordance with the EXW Incoterms 2020; or (ii) by Company via a common carrier in accordance with the DAP Incoterms 2020. In the event that the Parties agreed under the Purchase Order that the delivery method is the second option (i.e., DAP), it is hereby clarified that the Company may ship the Products cross border, provided that Customer shall be responsible for timely obtaining all export/import permits required, handling the customs clearance process, and shall bear all related costs including those which the Company may include in the Customer’s purchase invoice issued by the Company (including, without limitation, any customs duties payable on the Products upon their arrival in the destination country).
- Delivery Date. The Company will use commercially reasonable efforts to make deliveries as scheduled, however, Customer acknowledges and agrees that the delivery date stipulated under the Purchase Order Confirmation is estimated only and is subject, inter alia, to delays in the customs clearance process and to Company’s timely receipt of: (i) the Products from Company’s Suppliers; and (ii) all necessary information from Customer (i.e., adequate delivery instructions or any other instructions that are relevant to the supply of the Products). Therefore, as further detailed under the “Force Major” section below (section no. 12), Customer acknowledges and agrees that the Company will not be liable for any delay or failure to deliver the Products resulting from such circumstances. In case the delivery is delayed or prevented under such circumstances, the delivery date stipulated under the Purchase Order Confirmation shall be extended by such time as the cause preventing or hindering delivery subsists.
- Inspection; Acceptance and Rejection
- Customer shall have 7 (seven) business days from the Delivery Date to inspect and examine whether the Products confirming the Purchase Order and as such are accepted or rather visually damaged and/or not conforming the Purchase Order (the “Inspection Period”). The Products will be deemed accepted by the Customer at the end of the Inspection Period unless Customer notifies the Company in writing of any defect or non-conformance by sending the Company a detailed inspection report via e-mail (which will include, inter alia, a description of the alleged defect, written evidence or other documentation reasonably required by the Company). Based on the Customer’s inspection report, the Company, at its sole discretion, may approve the return of the Products to its premises for conducting further inspections on its behalf, and shall notify Customer via e-mail, regarding such approval. Upon the receipt of such approval from the Company, Customer shall be liable to re-package in a proper manner the relevant Products for the collection of such Products by the Company.
- The Company will notify Customer in writing, via e-mail, whether following the Company’s internal inspection, the Customer’s above-mention claims were accepted or rejected by the Company.
- In case the Customer’s claims will be accepted by the Company (i.e., the Company’s findings stipulate that the returned Products are indeed defect or not conforming with the Purchase Order), the Company reserves the right, in its sole discretion, to either: (i) replace or modify such defective or non-confirming Products; or (ii) credit or refund the purchase price for such Products. The Customer acknowledges and agrees that the remedies set forth in this Section are Customer’s sole and exclusive remedies and Company’s sole liability for the delivery of such Products.
- In case the Customer’s claims will be rejected by the Company (i.e., the Company’s findings stipulate that the returned Products are not considered as defect or non-conforming with the Purchase Order), Company may charge from the Customer all the expenses amount resulting from such return procedure.
- Title; Risk of Loss.
- The title in the Products shall pass to Customer upon payment.
- The risk of loss shall pass to the Customer upon either the delivery of the Products to the Customer or upon the pick-up of the Products directly by the Customer, as the case may be.
- All amounts payable hereunder are exclusive of all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies and duties. All taxes, withholdings and duties of any kind payable with respect to Customer’s use of the products/services under the Purchase Order, other than taxes based on the Company’s net income, shall be borne and paid by Customer. Any amount not paid when due, shall accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law.
- The Company reserves the right, by giving notice to the Customer, to change the prices of any Product at any time (save to those already placed in the Purchase Order) to reflect any increase in the cost of the Products that is due to any factor beyond the Company’s reasonable control (including price increases on the part of the Company’s Suppliers, foreign exchange fluctuations, increases in taxes and duties, and increases in transportation)
- Technical Support
The Company may offer the Customer, at its sole discretion, certain technical support with respect to the use of the Products. It is hereby acknowledged that the Company has no obligation to provide such technical support or any other professional assistance, and shall not be held liable for the support provided by its representatives and the Customer’s use and reliance on such support.
- Use of Products
Customer represents and warrants that it (and anyone on its behalf), will comply with all applicable export control laws and shall use the Product in accordance with the manufacturer's Product specifications, and shall comply with all the terms thereunder.
- Limited Warranty
- Original Warranty. The Products will be covered by, and subject to, the terms, conditions and limitations of the express standard warranties of the Company’s Supplier’s and/or Products manufacturer’s, as stipulated under the Quote (“Original Warranty”). Customer shall be deemed to have accepted such Original Warranty upon the execution of the Purchase Order. IT IS HEREBY CLARIFIED THAT THE COMPANY SHALL HAVE NO LIABILITY TOWARDS THE CUSTOMER BEYOND THE ORIGINAL WARRANTY.
- Return Form. No later than two (2) years from the Delivery Date and only to the extent that such claims arises within such Original Warranty period, Customer may claim any defect in the Products by sending a detailed e-mail to the Company (which will include, inter alia, a description of the alleged defect, written evidence or other documentation reasonably required by the Company), all provided that such defect claim is covered under the Original Warranty terms. Customer should add to the above-mentioned e-mail a lab test report for the alleged functional defect claim. The Company will notify Customer in writing whether the Customer’s above-mention claims were accepted or rejected by the Company, and the mechanism stipulated under Section 4.2, will apply. To the extent that the Original Warranty set forth in the Quote is the warranty granted by the Product’s original manufacturer, then Customer shall approach directly to the original manufacturer, instead of sending the e-mail to the Company and the Company will not be responsible for handling such Product defects claims.
- OTHER THAN AS EXPLICITLY STATED HEREIN, THE PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS AND THE COMPANY MAKES NO WARRANTY, EXPRESS OR IMPLIED AND EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, AVAILABILITY OF THE PRODUCTS, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF THE WORK RENDERED BY COMPANY’S SUPPLIERS, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE PRODUCTS.
Customer shall indemnify, defend and hold Company harmless from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney fees) arising from (i) the Customer’s failure to comply with its obligations under these Terms; or (ii) the use of the Products in violation of these Terms.
- Limitation of Liability
- TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY, ITS LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, AFFILIATES, DISTRIBUTORS AND RESELLERS (THE “COMPANY’S REPRESENTATIVES”) SHALL NOT BE LIABLE WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO, ANY LOSS OR DAMAGE TO BUSINESS EARNINGS, LOST PROFITS, REVENUE OR GOODWILL), SUFFERED BY ANY PERSON, ARISING FROM, RELATED TO, AND/OR CONNECTED TO, ANY USE OF OR INABILITY TO USE THE PRODUCTS AND/OR THE SERVICES GRANTED HEREUNDER, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE COMPANY IS NOT LIABLE OR RESPONSIBLE FOR THE QUALITY, SAFETY, LAWFULNESS OR AVAILABILITY OF THE PRODUCTS.
- IN ANY CASE, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, THE COMPANY AND THE COMPANY’S REPRESENTATIVES TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES OR LOSSES WHATSOEVER ARISING HEREUNDER OR IN CONNECTION WITH THE PRODUCTS AND/OR SERVICES PROVIDED HEREUNDER OR CUSTOMER’S USE OR INABILITY TO USE THE PRODUCTS AND/OR THE SERVICES, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE PURCHASE PRICE OF THE PRODUCT AT ISSUE THAT GAVE RISE TO SUCH CLAIM. Inasmuch as some jurisdictions do not allow exclusions or limitations as set forth herein, the full extent of the above exclusions and limitations may not apply.
- Force major.
The Company will not be liable for any delay or failure to deliver the Products or otherwise fulfill its obligations under these Terms, resulting from (i) circumstances or causes beyond the reasonable control of the Company (i.e., force majeure events and delays caused by the Company’s Suppliers or the customs clearance process); and/or (ii) the Customer’s delay or failure to (a) obtain all required export/import permits; (b) adequately handling the customs clearance process; and/or (c) provide Company with adequate or accurate information and instructions that are necessary to the supply of the Products. The Company reserves the right to cancel without liability any Purchase Order Confirmation, the shipment of which is or may be delayed by reason of any such cause
- Term and Termination
- Term. These Terms shall enter into force and effect on the date defined under the relevant Purchase Order Confirmation as the “Effective Date” and, unless earlier terminated in accordance with these Terms, shall remain in full force and effect until all Purchase Orders expire or are terminated by either Party (the “Term”).
- Termination for Cause. Either Party may terminate these Terms with immediate effect if the other Party materially breaches the Terms and such breach remains uncured (to the extent that the breach can be cured) thirty (30) days after having received written notice thereof; except that the curing period for non-payment shall be ten (10) days following said notice. In the event that either Party becomes liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily, or shall take any action to be so declared, and such event is not cancelled within thirty (30) days, the other Party shall have the right to immediately terminate these Terms.
- Termination for Convenience. Each Party may terminate these Terms at any time by providing the other Party with thirty (30) days prior written notice.
- Effect of Termination. Upon termination or expiration of these Terms, Company will cease from providing any services hereunder, and any sums paid by the Customer until the date of termination are non-refundable, and Customer shall not be relieved of its duty to discharge in full all due sums owed by the Customer to Company under the Purchase Order until the date of termination or expiration hereof, which sums shall become immediately due and payable on the date of termination or expiration of these Terms. The provisions of these Terms that, by their nature and content, must survive the termination of these Terms in order to achieve the fundamental purposes of these Terms shall so survive. Termination of these Terms shall not limit Company from pursuing any other remedies available to it under the applicable law.
These Terms shall be construed and governed in accordance with the laws of the State of Delaware (except for conflict of law provisions) and the competent courts of the State of Delaware shall have exclusive jurisdiction in any conflict or dispute arising out of these Terms. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. These Terms represent the complete agreement concerning the delivery of the Products, the Parties rights and obligations with respect thereto and the subject matter hereof. These Terms shall govern and supersede any additional or contrary terms set forth in any Purchase Order or any acceptance, confirmation, invoice, or other document, unless duly signed by the Parties, expressly stating and identifying the specific additional or contrary terms that shall supersede the terms and conditions of these Terms. The Company may, at its sole discretion, change the Terms contained herein by providing a notice to the Customer. Such notice may be delivered via email. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of these Terms is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. Customer may not assign any of its rights and/or obligations under these Terms without the prior written consent of the Company. The Company may assign or transfer its rights and/or obligations under these Terms without restriction or notification.