General Terms & Conditions of Sale

These Conditions of Sale and the accompanying proposal or production order are the sole contract items for the sale by Macrodyne Technologies Inc. and Macrodyne Technologies USA Inc. (“Macrodyne”) of any presses, machinery, tools, equipment, components, parts (“goods”), or services and take precedence over any alternative terms in any other document connected with this transaction including, but not limited to, the exclusion of any inconsistent terms and conditions of the Buyer’s order or acknowledgement. These Conditions of Sale can only be altered by a separate written agreement, signed by a duly authorized officer of Macrodyne.
1. ACCEPTANCE
Buyer may accept this offer by submitting a purchase order or written acceptance. These Terms and Conditions prevail over any conflicting terms, and any changes require written agreement by Macrodyne.
2. PRICES
a) Prices/charges do not include any applicable taxes including but not limited to, Sales and Use taxes, Tariffs and Customs Duties per clause 7 below, and are subject to payment by Buyer of any applicable Governmental taxes now in force or hereafter enacted, together with penalties and expenses, if any. In lieu of the payment of such taxes, Buyer shall provide Macrodyne with a tax exemption certificate acceptable to the taxing authorities.
b) Unless otherwise quoted by Macrodyne, all prices are EXW (Incoterms® 2020), Macrodyne’s plant located in Concord, Ontario, Canada.
c) Macrodyne reserves the right to quote special terms for extended deliveries or for highly specialized services or goods.
d) Goods not manufactured and services not provided by Macrodyne will be invoiced at the prices quoted in Macrodyne’s proposal or production order, subject to an increase in price of any such goods or services by Macrodyne’s suppliers.
3. COMPLETION – DELAYS
a) Performance schedules and shipment dates are estimates only and are not binding on Macrodyne. Macrodyne shall have no liability to any Buyer or any third party for any loss, damage or expense from any failure of performance due to any cause beyond the control of Macrodyne including, but not limited to, fire, strike, accident, war conditions, pandemics, endemics, immigration restrictions, government regulation or restriction, supply chain issues, shortages in transportation, interruptions of utility services, labor or material, freight embargo, riot or civil commotion, default of a supplier or prohibitions or events which render performance difficult or impossible.
b) If Buyer requests changed shipping date(s) other than the date(s) originally specified by Macrodyne, and if Macrodyne consents to the change, Buyer shall pay any added costs incurred by Macrodyne, including, but not limited to, overtime work, outside labor costs, storage charges and any special charges and profit.
4. COOPERATION-CANCELLATION-MODIFICATION
a) Buyer shall at all times fully cooperate with Macrodyne, and furnish all specifications, drawings or information required within a reasonable time after Macrodyne’s request therefore.
b) Buyer shall not countermand or cancel the order or cause the work or shipment to be delayed or stopped, except with the consent of and upon the terms agreed to in writing by Macrodyne.
c) Buyer shall pay for all necessary costs and profit for changes required by Buyer. In the event of cancellation of an order by Buyer, Macrodyne in its discretion may charge and Buyer shall pay Macrodyne full reimbursement for all normal and customary charges, including profit.
d) Macrodyne reserves the right, through its engineering department, to make changes in design and to modify specifications, except for design and specifications provided by Buyer.
5. TERMS
All orders until shipment are subject to the approval of Macrodyne’s credit department. In the event of any proceedings by or against Buyer, voluntary or involuntary, in bankruptcy or insolvency, or for appointment of a receiver or a trustee, or an assignee for the benefit of creditors, Macrodyne shall have the right to discontinue work on the order and receive full reimbursement for all costs incurred plus profit. If Macrodyne, in its sole discretion, in good faith, is insecure as to Buyer’s payment or performance, it may refuse to perform until it receives adequate assurance of Buyer’s payment or performance.
To secure the full and timely payment and performance of all amounts and obligations owing by the Buyer to Macrodyne in connection with the equipment supplied, the Buyer hereby grants to Macrodyne a continuing security interest in, lien on, and charge against such equipment and, to the extent permitted by applicable law, all proceeds thereof, until all such amounts and obligations have been paid and performed in full.
The Buyer acknowledges and agrees that Macrodyne may take any actions reasonably necessary or advisable to create, evidence, perfect, maintain, protect, register, continue, and enforce such security interest, lien, or charge in accordance with applicable law. The Buyer shall promptly execute, deliver, and provide any documents, instruments, acknowledgments, information, authorizations, and other assistance reasonably requested by Macrodyne or required under applicable law for such purposes, including in connection with any financing statements, registrations, amendments, continuations, renewals, or similar filings.
To the extent permitted by applicable law, the Buyer hereby authorizes Macrodyne to prepare, file, register, amend, continue, renew, or otherwise maintain any financing statement, registration, or other filing relating to such security interest, lien, or charge without further authorization or signature from the Buyer. The Buyer shall not take, or permit to be taken, any action that would impair, subordinate, or otherwise adversely affect Macrodyne’s security interest, lien, or charge in the equipment without Macrodyne’s prior written consent.

6. TITLE AND DELIVERY
a) Unless otherwise agreed in writing, delivery of goods to a carrier by Macrodyne at the Ex Works (EXW, Incoterms® 2020) shipment point shall constitute complete delivery to Buyer. Thereafter, such carrier shall be deemed to be acting for Buyer, and all risk of loss or damage to the goods shall pass to Buyer upon such delivery.
b) If the parties have agreed in writing to Delivered at Place (DAP, Incoterms® 2020) terms, risk of loss or damage to the goods shall pass to Buyer upon delivery at the named place of destination.
c) Notwithstanding delivery and the passing of risk under either EXW or DAP terms, title to and ownership of the goods shall remain with Macrodyne and shall not pass to Buyer until Macrodyne has received payment in full of the contract price for the goods. Until such time as title passes, Buyer shall hold the goods as Macrodyne’s fiduciary agent and bailee and shall keep the goods properly stored, protected, and insured.
7. DUTIES, TAXES, AND IMPORT RESPONSIBILITIES
Unless otherwise expressly agreed in writing, all sales are made on an Ex Works (EXW, Incoterms® 2020) basis. Under EXW, the Buyer is solely responsible for all costs and arrangements related to transportation, insurance, export and import customs clearance, import duties, taxes, tariffs, and any other charges arising from the importation of the goods into the destination country.
If the Buyer purchases a freight option and the parties agree to Delivered at Place (DAP, Incoterms® 2020) terms, Macrodyne will arrange for transportation to the named place of destination. However, under DAP, the Buyer remains responsible for all import duties, taxes, tariffs, customs clearance, and any other charges imposed at or after arrival in the destination country. In all cases, the Buyer shall ensure timely completion of all necessary customs formalities and provide any required documentation or information to facilitate importation. Macrodyne shall not be liable for any such charges, nor for any delays or costs arising from customs clearance or the Buyer’s failure to comply with applicable import requirements.
8. INSTALLATION AND SERVICE
Unless otherwise specifically covered in Macrodyne’s proposal, Buyer shall install the goods at its own expense. Buyer shall bear any loss, damage or expense as a result of Buyer’s failure to inspect and test the goods delivered by Macrodyne. Once delivery has been made by Macrodyne, all servicing of any goods will be charged for in accordance with Macrodyne’s Standard Field Service Rate Schedule.
9. WARRANTY – WARRANTY LIMITATION – REMEDY
The warranty/guarantee for all goods and services offered by Macrodyne is detailed in Macrodyne’s New Equipment Limited Warranty, Form F301. UNDER NO CIRCUMSTANCES WILL WARRANTY COVERAGE BE PROVIDED UNLESS AND UNTIL THE FULL CONTRACT PRICE HAS BEEN RECEIVED BY MACRODYNE. FURTHERMORE, WARRANTY COVERGAGE WILL BE VOID IN THE EVENT BUYER PERFORMS ANY MODIFICATIONS OR ALTERATIONS TO THE EQUIPMENT SUPPLIED BY MACRODYNE. Notwithstanding any provision of these terms and conditions, the warranty as described in Macrodyne’s New Equipment Limited Warranty, is the only warranty extended by Macrodyne in connection with any sale by it and the warranty is provided to Buyer only and not to any successive buyers, users or third parties and is in lieu of all other warranties, express or implied, including warranties of merchantability and fitness for a particular purpose.
10. INTELLECTUAL PROPERTY RIGHTS
a) “Intellectual Property” means: (i) all discoveries, inventions (whether or not patentable), business methods, and any patents, patent applications, reissues, extensions, disclaimers, re-examinations, continuations, continuations-in-part, divisional, or other worldwide patent rights related thereto; (ii) all copyright works, images, software, machine readable code, and data (whether or not registered or registerable); (iii) industrial designs and design patents; (iv) integrated circuit topologies; (v) any confidential information, trade secrets, know-how or show-how; and, (vi) any other industrial or intellectual property right, whether available under statute or judge-made law.
b) Buyer shall own all world-wide right, title and interest in and to its original processes, e.g. processes existing prior to working with Macrodyne and products (including without limitation its component parts), specifications for its processes and products, confidential information relating to suppliers of parts or components, and all Intellectual Property related thereto.
c) Macrodyne shall own all world-wide right, title and interest in and to its methodologies, techniques and analysis regarding the specification, design, construction, implementation, installation, commissioning, maintenance and modification of Equipment, and all Intellectual Property related thereto.
d) Macrodyne shall own all world-wide right, title and interest in and to the Equipment, and any other hardware or technology provided or supplied by it: (a) developed by or for Macrodyne, or owned by it, not in conjunction with the Equipment developed under this agreement; or, (b) developed by or for Macrodyne, or owned by it, but not derived from Buyer’s Confidential Information; or, (c) developed by or for Macrodyne, or owned by it, prior to carrying out any of its obligations under this Agreement; or, (d) developed by Macrodyne, in whole or in part, which are of a generic nature and not specific solely to the products or processes of Buyer.
e) Macrodyne grants Buyer a limited, non-transferable license to use the subject matter set out in paragraphs 10 c) and 10 d) of this Agreement to the extent required to operate and maintain the Equipment as set out in the Proposal. The license set out in the previous sentence shall (i) terminate upon the termination of this Agreement, or (ii) shall become an irrevocable, fully-paid, royalty-free, perpetual license upon payment of all amounts payable under this Agreement by Buyer to Macrodyne.
f) Buyer grants to Macrodyne an irrevocable, perpetual, royalty-free, fully-paid worldwide license to the subject matter set out in paragraph 10 b) of this Agreement to enable Macrodyne to carry out its obligations under this Agreement, for any future maintenance, service, modifications or upgrades to the Equipment or Licensed Software or for future proposals to the Buyer or any of the Buyer’s affiliates.
g) Except as expressly provided for in this Agreement, the Buyer shall not reverse engineer, replicate, translate, reproduce, publicly disclose or modify either by itself or through contracting with a third party, all or any part of the Equipment, Other Materials or Licensed Software without Macrodyne’s prior written consent.
11. REMEDIES
Except as provided in paragraph 8, Macrodyne’s obligation to Buyer relating to the purchase contract, the purchase of the goods, the services performed by Macrodyne, the design manufacture or quality of the goods or their use shall be limited, at Macrodyne’s election, to the repair or replacement of goods or the crediting to Buyer of an amount not to exceed the purchase price of the goods or the amount actually paid for the goods and/or services, whichever is lower. IN NO EVENT SHALL MACRODYNE HAVE ANY LIABILITY WHATSOEVER FOR PAYMENT OF ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFITS. No allowance will be made for any expenses incurred by Buyer in repairing defective parts or supplying any missing parts, except on the written consent of Macrodyne. In any case where Macrodyne is affecting the replacement or repair of any defective parts, Buyer shall have the responsibility and bear all the costs of procuring and providing all necessary dismantling, reassembling, and handling facilities in connection therewith. Except as provided in paragraph 8, any claim made under or by reason of this agreement shall be made by written notice to Macrodyne, 311 Connie Crescent, Concord, Ontario, Canada L4K 5R2 within ten (10) days after receipt of the goods.
12. BUYER RESPONSIBILITY – INDEMNITY
a) Buyer assumes and shall bear sole responsibility for providing adequate and sufficient safeguards, work handling tools and safety devices necessary to provide a safe work place and to protect fully all personnel (including operators, helpers, set-up men, repair men, bystanders and all others in the vicinity of the goods) from bodily injury or death which otherwise may result from the use, operation, set-up or maintenance of the goods, including all actions required for compliance with applicable occupational health and safety legislation and their sequels and with other prevailing federal, state and local codes and industry excepted standards. Macrodyne shall bear no liability whatsoever for the failure of Buyer to order, install, or use such safe guards, work handling tools or safety devices. Buyer shall establish and use, train and require all persons operating the goods to use, all proper and safe operating procedures, including, but not limited to, procedures set forth in any manuals or instruction sheets whether provided by Macrodyne or other authoritative sources relating to the equipment. Buyer shall not remove or modify and devices, warning signs, or manuals furnished with, installed upon or attached to the goods.
b) With the exception of the warranty provided herein by Macrodyne, Buyer for itself and its successors and assigns waives, releases and discharges Macrodyne, and its successors, agents and employees from any liability for all claims including but not limited to liens and claims for contribution and indemnity arising out of the use or maintenance of the goods or services provided by Macrodyne.

c) Buyer shall defend, indemnify and hold harmless Macrodyne, its agents and employees from and against all claims, suits, liability, loss, settlement, judgments, damage and expense incurred by Macrodyne including, but not limited to, attorneys’ and paralegals’ fees and other expenses related to the defense of claims and lawsuits, trial preparation and trial by reason of or arising out of Buyer’s:
1) failure to equip and operate the goods in accordance with paragraph 11, a) hereof or any applicable local, state or federal law or regulation, or (2) breach of its obligations hereunder; or (3) modification or removal of any parts or component assemblies of the goods, including, but not limited to, safety devices, or of any warning signs, instructions or manuals provided with or attached to the goods by Macrodyne; or (4) failure to adequately operate, use or maintain the goods or instruct its employees on the safe operation, use and maintenance of goods; or (5) failure to retrofit any product as recommended by Macrodyne.
d) Buyer shall notify Macrodyne promptly, in writing, and in all events within ten (10) business days after its occurrence of any accident or malfunction involving any goods which results in injury or death of persons, including Buyer’s agents and employees, or damage to property, including Buyer’s property, or the loss of use thereof; and Buyer shall cooperate fully with Macrodyne in investigating and determining the cause of any such accident or malfunction.
13. LIMITATION OF LIABILITY
Notwithstanding anything contained in these terms or Purchase Order or any other document, special, incidental, consequential or other damages are expressly excluded. Macrodyne, its affiliates, its agents or subcontractors shall not be liable for consequential damages or contingent liabilities, whether direct or indirect and whether or not resulting from, or contributed to by default or negligence. Excluded damages include, but are not limited to, loss of life, personal injury, loss of crops, loss due to fire or water damage, loss of business income, downtime costs and trade or other commercial loss arising out of the failure of the product. Further, Macrodyne, its affiliates, its agents or subcontractors shall no event be liable for any sum in excess of the price received for the specific component for which liability is claimed or associated, further the total liability payable will be limited to the value of the Purchase Order or the amount actually paid for the goods and/or services, whichever is lower. Buyer agrees that any and all limitations of liability have been fully considered and negotiated as between Seller and Buyer as part of this Agreement and will not be considered unconscionable by Buyer.
14. FORCE MAJEURE
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, plague, epidemic, pandemic, natural disaster such as but not limited to violent storm, cyclone, typhoon, hurricane, tornado, blizzard, earthquake; (c) explosion, fire, destruction of machines, equipment, factories; (d) war, armed conflict, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (e) government order or law; (f) actions, embargoes, or blockades in effect on or after the date of this Agreement; (g) action by any governmental authority, including an order, rule, regulation or direction including but not limited to travel and work, curfew restriction; (h) national or regional emergency; (i) strikes, labor stoppages or slowdowns, or other industrial disturbances; (j) breakdown or shortage of adequate power or transportation facilities, telecommunication or electric current; (k) lack or failure of transportation, power, source of supply of materials or labor and other similar events beyond the reasonable control of the party impacted by the Force Majeure Event (the “Impacted Party”).
15. LOCAL LEGAL REQUIRMENTS
Except as expressly stated in Macrodyne’s proposals, Macrodyne shall not be responsible for determining or ensuring compliance with any local laws, ordinances, codes, regulations, or their interpretation (“Local Requirements”) in effect at the Buyer’s site or jurisdiction. The Buyer is solely responsible for identifying and complying with all applicable Local Requirements related to the installation, use, operation, and maintenance of the equipment. Nothing in this clause shall relieve either party from compliance with any mandatory laws that cannot be contractually excluded or waived.
16. BUYER’S MATERIAL
a) When material is furnished by Buyer with specifications requiring heat treating, flame hardening, induction hardening, and/or carburizing and hardening, this work will be subject to reputable heat-treating sources. Buyer will make no claim against Macrodyne for replacement of metal nor for breakage and straightening. The liability of Macrodyne shall not exceed Macrodyne’s charges for heat treating as performed by the heat-treating source, plus any allowances given Macrodyne by the treating source.
b) Where there is loss or spoilage of or damage to any materials, parts or components supplied by Buyer to Macrodyne, resulting from performance by Macrodyne or any subcontractor or Macrodyne, Macrodyne’s liability therefore shall not exceed Macrodyne’s cost for the work performed or that sale price of said material, parts or components, whichever is less.
17. EXPORT CONTROL COMPLIANCE
The Buyer shall notify Macrodyne in writing, in advance, if any technical data, components, parts, or other materials provided to Macrodyne for the purposes of designing, manufacturing, or fulfilling the order are subject to U.S. or Canadian export control laws and regulations, including but not limited to the International Traffic in Arms Regulations (ITAR), 22 C.F.R. Parts 120–130, the Export Administration Regulations (EAR), 15 C.F.R. Parts 730–774, and the Canadian Export and Import Permits Act (EIPA), S.C. 1985, c. E-19, including items listed on the Export Control List (ECL). Such notification must include the export classification of the technical data or items, including any relevant control list numbers. This information is necessary for Macrodyne to:
a) Verify and restrict access to authorized personnel only; b) Implement required controls, safeguards, and compliance procedures to ensure adherence to all applicable export control laws.
The Buyer acknowledges that fulfillment of any order is subject to obtaining any required export approvals or permits from the Government of Canada or other applicable authorities. Failure to provide timely and accurate export control information may result in delays or inability to fulfill the order. The Buyer is solely responsible for compliance with all applicable export control laws governing the transfer and use of such technical data or items and shall indemnify Macrodyne against any claims or penalties arising from non-compliance.
18. APPLICABLE LAW
These terms and conditions shall be governed by and construed in accordance with the laws of Ontario, Canada if the contracting entity is Macrodyne Technologies Inc., or the laws of Delaware, USA if the contracting entity is Macrodyne Technologies USA Inc. The parties submit to the exclusive jurisdiction of the courts of the applicable jurisdiction.
19. SUCCESSORS
Macrodyne’s proposal, or production order and these conditions, shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto.
20. LIMITATION ON ACTION
Any action or suit against Macrodyne arising in any way from this contract must be commenced within one (1) year after the cause of action has occurred.
21. WHOLE AGREEMENT
All previous verbal and written communications of the parties for the sale of goods or services are abrogated. The parties agree that there are no other agreements or warranties, except as contained in these conditions of sale, and the terms and specifications contained in Macrodyne’s proposals.
22. PAYMENT DEFAULT; DELAY; STORAGE; CHARGES
If Buyer fails to make any payment when due, or otherwise delays, suspends, or fails to take delivery of the Goods in accordance with this Contract, Seller may, without prejudice to any other rights or remedies available at law, in equity, or under this Contract: (a) suspend performance, production, or delivery; (b) withhold further shipments; and/or (c) store the Goods at Buyer’s risk and costs.
Buyer shall be liable to Seller for all reasonable costs, expenses, and charges arising from or related to such delay or default, including, without limitation: (i) storage, handling, warehousing, insurance, preservation, and re-handling costs; (ii) demurrage, detention, and transportation charges; (iii) administrative and carrying costs; (iv) costs, charges, price increases, penalties, or liabilities imposed on Seller by its suppliers or subcontractors as a result of Buyer’s delay or default; and (v) any other commercially reasonable costs incurred by Seller as a result of such delay or default. Seller shall have no obligation to mitigate such costs to the extent they arise directly from Buyer’s delay or default.
Any amounts not paid when due shall bear interest from the due date until paid in full at the rate of 2% per month (24% per annum) or the maximum rate permitted by applicable law, whichever is less, calculated daily and compounded monthly. Buyer shall be responsible for all reasonable costs of collection incurred by Seller, including legal fees, disbursements, and agency fees, to the extent permitted by applicable law.
If Buyer fails to take delivery of the Goods when ready, Seller may, upon written notice to Buyer, invoice the Goods as if delivered, and payment shall become immediately due notwithstanding such delay. The Goods shall thereafter be held at Buyer’s risk, cost, and expense, and Seller’s rights and remedies, including its security interest in the Goods and proceeds thereof, shall continue in full force and effect.
The rights set out in this paragraph are cumulative and in addition to any other rights and remedies available to Seller, including the right to enforce its security interest and to terminate this Contract for default.