McCue Terms & Conditions

INTRODUCTION. The entity identified as the seller of products (“Products”) or services (“Services”) on the document to which these General Terms and Conditions of Sale (“Terms”) are attached or in which they are referenced or incorporated is referred to herein as “Seller” and the person or entity purchasing Products or Services is referred to herein as “Buyer”. These Terms are applicable to all offers, acceptances, acknowledgments, confirmations, sales and deliveries of Products and performance of Services by Seller and will form an integral part of the contract for the purchase and sale of the Products and Services between Seller and Buyer (this “Contract”). If these Terms or the document to which these Terms are attached or in which they are referenced or incorporated state any terms or conditions that are additional to or different from those stated in Buyer’s order or other purchasing document, Seller’s acceptance of Buyer’s order is conditional on Buyer’s assent to such additional and/or different terms and conditions. Buyer’s acceptance of the Products and Services will manifest Buyer’s assent to these Terms without addition or variation. If the document that contains, references or incorporates these terms is deemed an offer by Seller, acceptance by Buyer is limited to the terms and conditions contained in Seller’s offer, including these Terms. Any additional or different terms or conditions in Buyer’s order or other purchasing documents are hereby objected to by Seller.

1. Prices. Unless specifically stated otherwise in this Contract, prices are exclusive of any tax, duty or other governmental charge imposed or assessed on or in connection with the sale of Products or Services by Seller to Buyer or the use thereof by Buyer, and if any such tax, duty or charge is paid by or assessed against Seller or is required by law to be collected by Seller from Buyer (other than taxes based on Seller's net income or profit), Seller may add the same to the price of the Products and Services or invoice Buyer separately therefor. If Seller or one of its subcontractors will install the Products and, after entering into this Contract, performs a ground penetrating radar scan of the installation site which identifies subsurface conditions or obstacles (such as, without limitation, gas, electric, water, sewage, telephone, internet or other utility lines) that will impair or interfere with Seller’s ability to perform such installation, Seller reserves the right to increase the price of the Products or Services to account for any additional costs to be incurred by Seller to work around or address such conditions or obstacles or to otherwise mitigate their impact.
2. Payment Terms. Unless stated otherwise in this Contract, payment for Products and Services is due no later than 30 days from the date of Seller's invoice in the currency specified by Seller in its invoice or otherwise. If Buyer fails to make any payment when due, Seller will have the right to either terminate this Contract or to suspend further performance under this and/or other contracts with Buyer. If any amount owed to Seller is not paid when due, it will bear interest from the due date until paid at rate of 1.5% per month or the maximum rate permitted by law, whichever is lower. Buyer will be liable for all expenses, including attorneys’ fees, incurred by Seller to collect past-due amounts. Should Buyer's financial condition become unsatisfactory to Seller, cash payments or security satisfactory to Seller may be required by Seller before providing further Products or Services under this Contract. If such cash payment or security is not provided, Seller may discontinue further deliveries of Products and further performance of Services. Buyer hereby grants Seller a security interest in all Products delivered to Buyer, which security interest will continue until such Products are fully paid for in cash and Buyer, upon Seller's demand, will execute and deliver to Seller such instruments as Seller requests to evidence or perfect such security interest.
   
   
3. Delivery, Title & Risk. Shipment, delivery or performance dates quoted, acknowledged or agreed by Seller are approximate and not guaranteed. While Seller will use commercially reasonable efforts to maintain such dates as far as circumstances reasonably permit, Seller will have no liability for delay in delivery. Seller will not be bound to tender delivery of any Products for which Buyer has not provided shipping instructions and other required information. If the shipment of the Products or performance of Services is postponed or delayed by Buyer for any reason, Buyer will reimburse Seller for any and all storage costs and other additional expenses resulting therefrom. Unless otherwise stated in this Contract, the Products will be delivered FOB Seller’s dock (as defined by the ICC’s latest edition of Incoterms). Risk of loss and legal title to the Products will transfer to Buyer upon delivery.
   
   
4. Limited Warranty. Seller warrants that it will have good title to the Products at time of delivery to Buyer, free and clear of all liens. Furthermore, and subject to the conditions, exclusions and limitations set forth below in this Section 4 and in Section 5, Seller warrants that, during the Warranty Period (as defined below): (a) the Products shall (i) be free from defects in materials and workmanship and (ii) conform to Seller’s standard written specifications; and (b) if such Products are installed by Seller or by one of its subcontractors, they shall be so installed (i) using proper equipment and qualified personnel and (ii) in accordance with the written specifications or instructions contained in the Contract or, if none, with Seller’s standard written specifications. This warranty shall be supplemented by, and shall be subject to any conditions, exclusions and limitations contained in, any applicable Product-specific materials (the “Product Specific Materials”) located at mccue.com/product-materials.The Product Specific Materials are hereby incorporated into and are made a part of this warranty. Seller does not make any warranties regarding the installation of the Products unless Seller or one of its subcontractors performs the installation, in which case only the express warranty written above regarding such installation shall apply. “Warranty Period” means 1 year from the date Products are delivered to Buyer, unless Seller or one of its subcontractors installs such Products, in which case the Warranty Period shall be 1 year from the date of Product installation.
   
   This warranty does not cover or apply to any: (a) defects in or damage to Product paint, coatings, or any replaceable cover (in each case including any scratches or abrasions) in any way resulting from normal wear and tear, misuse or abuse; (b) damage to the Product cover as a result of vehicular or other impact where such Product otherwise performs as designed. Furthermore, if any Product is installed by someone other than Seller or one of its subcontractors, this warranty does not cover or apply to failure of such Product to otherwise perform as warranted where such failure is caused by improper installation. Finally, this warranty is void where Buyer, the owner or user of the facility at which the Products are installed or any of their other contractors or subcontractors alters the Products, uses the Products in a manner or application for which they were not designed, or fails to observe applicable Seller written instructions regarding shipping, storage, handling, assembly, installation, use and/or required maintenance. PRODUCTS THAT ARE BOLLARDS ARE NOT RATED TO PROTECT AGAINST VEHICLE IMPACTS EXCEPT ONLY TO THE EXTENT EXPRESSLY STATED IN THE APPLICABLE PRODUCT SPECIFIC MATERIALS.
   
   During the Warranty Period, Buyer must notify Seller in writing of any alleged breach of this warranty within 48 hours of discovery (and in any event before the expiration of the Warranty Period). Buyer shall fully cooperate with and, as soon as reasonably possible, make the applicable Product available for inspection and testing by Seller, if requested. If Seller’s inspection and testing reveals, in its sole discretion, that such Product does not conform to this warranty, Seller shall, at its option, repair, replace, or provide a credit or refund for the purchase price of such Product. Buyer’s failure to notify Seller in writing of Buyer’s warranty claim within the Warranty Period shall constitute a waiver of such claim regardless of whether the facts giving rise to such claim were first discovered during or after the Warranty Period.
   
   
5. Limitation of Warranties, Remedies & Liability. The express warranties stated in Section 4 constitute the sole and exclusive warranties given by Seller with respect to the Products and Services and are given in lieu of, and seller hereby disclaims, all other warranties, whether express, implied, statutory or otherwise, including, without limitation, warranties of merchantability and fitness for particular purpose, regardless of whether the purpose or use has been disclosed by Buyer to Seller or whether the Products have been specifically selected, designed or manufactured by Seller for Buyer’s purpose or use. The remedies stated in Section 4 are Buyer’s exclusive remedies for a breach of Seller’s warranties in Section 4. Notwithstanding any provision in this Contract to the contrary, in no event, regardless of the form of the claim or cause of action (whether based in contract, infringement, negligence, strict liability, other tort or otherwise), (A) will Seller be liable for incidental, consequential, indirect, special or punitive damages or (B) will Seller’s Liability in respect of a claim or cause of action exceed the price of the specific items or units of Products or Services giving rise to that claim or cause of action.   The damages described in clause (A) include, but are not limited to, loss of anticipated revenue or profits, business interruption, loss of use, loss of data, loss of or damage to equipment or other goods, cost of capital, damage to goodwill or reputation, and damages paid or payable by Buyer to third parties. Seller will not be liable for, and Buyer assumes all liability for and will indemnify and hold harmless Seller and is affiliates from and against, any claims, injuries, damage or losses arising out of the handling, transportation, storage, resale or disposal of the Products, or use of the Products or Services, after delivery of the Products or performance of the Services by Seller except to the extent resulting from Seller’s breach of this Contract, negligence or willful misconduct. This indemnity covers claims by Buyer’s employees and independent contractors even if Buyer’s liability to such persons is otherwise limited by workers’ compensation or similar laws or by contract. Buyer waives all immunity that may be afforded to it under such laws and/or contracts to the extent of claims, injuries, damage or losses covered by the foregoing indemnity. Buyer bears sole responsibility to determine whether the Products are suitable for Buyer’s intended purpose or use.
   
   
6. Excuse of Performance. Notwithstanding any provision in this Contract to the contrary, Seller will not be liable for any delay in performance or non-performance if performance is prevented, hindered or made commercially impracticable, directly or indirectly, by: flood, fire, explosion, weather, natural disaster or Act of God; act or omission or Buyer, its affiliates or their independent contractors; riot, civil commotion, sabotage, war or act of terrorism; epidemic or pandemic; compliance with law or government request or requirement; plant or equipment malfunction or shutdown in anticipation of malfunction; unavailability of adequate Products, raw materials, fuel, power, utilities, containers or transportation from usual sources on usual terms of supply; failure or delays of suppliers, carriers or independent contractors; strike, lock-out or other labor trouble; or any other event, whether or not of the class or kind enumerated herein, beyond the reasonable control of Seller. In the event of any of the foregoing, Seller may, upon written notice to Buyer, delay, suspend or cancel deliveries and other performance hereunder without liability, but the balance of this Contract will otherwise be unaffected. Further, if Seller determines that its ability to supply the total demand (from all sources, not just Buyer) for the Products, or to obtain raw materials used directly or indirectly in the manufacture of the Products, is prevented, hindered or made commercially impracticable, Seller may allocate its available supply of Products or raw materials (without obligation to acquire other supplies of any such Products or raw materials) among itself, its affiliates and its non-affiliate customers, including regular customers not then under contract, on such basis as Seller determines, in good faith, to be fair and reasonable without any liability for any delay in performance or non-performance that may result therefrom.
   
   
7. Further Export. Buyer shall not, and shall ensure that its affiliates and (if applicable) reseller customers do not, export, re-export, resell, ship or divert or cause to be exported, re-exported, resold, shipped, or diverted, directly or indirectly, any of the Products to any prohibited country specified by export control laws of the United States or to any foreign national, country, end-use, or end-user that requires an export license or other approval without first obtaining such license or approval
   
   
8. Insurance. Seller’s insurance policies shall not be required to have “per project” limits or to be non-contributory, nor shall Seller’s insurers be required to waive subrogation rights. Seller shall not be required to carry professional liability or pollution liability insurance. Seller shall be free to establish deductibles or self-insured retentions under its policies in its absolute discretion. Seller’s insurers shall not be required to provide advance notice of cancellation or adverse changes in coverage to additional insureds.
   
   
9. Miscellaneous. This Contract constitutes the complete and exclusive statement of the terms and conditions of the parties’ agreement with respect to the subject matter hereof, and supersedes all previous communications and agreements, verbal or written, between the parties with respect to such subject matter. This Contract may not be amended or supplemented orally, by usage of trade or by course of performance or dealing, but only by and pursuant to a writing, signed by authorized representatives of both parties, that specifically refers to, and clearly states that it is amending or supplementing (or uses words of similar meaning), this Contract. Neither party will be deemed to have waived or released any condition, right or remedy stated in or arising out of this Contract except to the extent such waiver or release is expressly stated in a writing signed by an authorized representative of such party. Buyer will not assign any of its rights or delegate any of its obligations under this Contract without the prior written consent of Seller, and any purported assignment or delegation without the prior written consent of Seller will be void. If any provision of this Contract is declared invalid or unenforceable in any jurisdiction, the remainder of this Contract will remain in full force and effect. This Contract will be governed by and interpreted in accordance with laws of the State of Massachusetts, U.S.A. without regard to or application of conflicts of law principles. The U.N. Convention on Contracts for the International Sale of Products will not apply. All suits, actions and proceedings to enforce this Contract, or to declare the parties’ rights or obligations hereunder, must be brought exclusively in the State or Federal courts sitting in or serving Suffolk County, Massachusetts, U.S.A., and Buyer consents and submits to the exclusive jurisdiction of such courts. No action, regardless of form, arising out of any transactions relating to this Contract may be brought by either party more than 2 years after the cause of action has accrued. The headings of the sections of these Terms are inserted for convenience only and will be disregarded in the interpretation of this Contract.