These Terms of Service are entered into by MetsCube LLC of 4309 Wheeler Ave, Alexandria, VA
22304, USA (“MetsCube”) and the entity executing this Agreement (“You”). This Agreement
governs Your use of our Services (the “Service”).
Definitions
“Carrier” means the agent or the carrier designated by you, or if none, the agent or the carrier
chosen by us on your behalf who will accept delivery of the Merchandise and/or your Property
on your behalf and transport the same to you. “Change Order” means any change to the
Contract that has been approved in writing by you and us.
“Contract” means any contract between you and us for the supply of the Services, resulting from
your request or order placed by you, on these terms and conditions and the terms on the face of
the document under which it is accepted by us.
“Services” means any services agreed in the Contract to be provided to you by us (including any
part or parts of them).
“us” or “we” or “our” or “MetsCube” means MetsCube LLC of 4309 Wheeler Ave, Alexandria, VA
22304, USA (“MetsCube”).
“you” or “your” means the person(s), firm, company or corporation who purchases the Services
from us.
Basis Of Order And Acknowledgement
The Contract is subject to these terms and conditions to the exclusion of all other terms and
conditions (including any terms and conditions you purport to apply in any Contract).
Any quotation provided by us shall be valid for fourteen (14) days only or such other time as we
may specify in writing. Any quotation provided by us is not an offer and may be withdrawn or
modified at any time.
A Contract shall not be effective until we have issued written acknowledgment and acceptance of
such Contract (notwithstanding any earlier confirmation of receipt). We may in our sole
discretion decline any purchase order placed by you. No change or modification of the Contract
shall be allowed after acceptance by us unless authorized by a Change Order delivered by you
and accepted in writing by us.
If there is any conflict between our quotation and our acknowledgment of the Contract then the
latter shall take precedence.
Description And Specification Of The Services
The description, and/or specification of the Services shall be set out in our quotation or our
acknowledgement of the Contract.
All drawings, descriptions and advertising issued by us (for example, on our website) are issued to
provide an approximate idea of the Services described in them and do not form part of the
Contract unless expressly stated in the Contract or otherwise agreed to in writing by us.
You shall determine the suitability of the Services for your use and/or application. You shall be
solely responsible for the accuracy and regulatory compliance of your specifications and other
data supplied to us by you, even if we examine, inspect, study or comment to you regarding any
such specifications or other data.
Delivery And Acceptance
Unless agreed otherwise by us in writing or expressly stated in the applicable price list or
quotation provided to you, you will arrange for the Carrier to transport the Merchandise at your
risk and cost, and delivery will take place at our facility; delivery dates for the supply of the
Services are estimates only and time is not of the essence. We will not be liable for any loss
(including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any
delay in the delivery of the Services, nor will any delay entitle you to terminate or rescind the
Contract. If for any reason we are unable to deliver the Product, your Property or the Services on
the estimated delivery dates because you have not provided appropriate instructions,
documents, licenses, authorizations, then such Merchandise and/or your Property will be
deemed to have been delivered and risk shall pass to you. We may at our option:
(a) store such Merchandise and/or your Property until actual delivery whereupon you will be
liable for all related costs and expenses (including without limitation storage and insurance);
and/or
(b) invoice you for all related costs and expenses incurred by us.
You shall promptly notify the Carrier of any damage to, loss from, or non-receipt of any
Merchandise and/or your Property if transportation has been arranged by or on your behalf. We
shall not be liable for any such damage, loss or non-receipt.
You may arrange for inspection of the Merchandise before shipment at our facility. If you have
conducted such inspection, we shall not be liable for any claim made after shipment in respect to
any defect in the Merchandise which would have been apparent upon such inspection.
You shall be responsible for checking that all documentation supplied by us to you is accurate and
free from error. We agree to remedy any inaccuracies/errors in such documentation provided
that you have notified us of the inaccuracies/errors within thirty (30) days of receipt of the
relevant document(s). Beyond such period, we reserve the right to charge an administration fee
for any amendments made.
Passing Of Risk And Title
Full legal, beneficial and equitable title to the Merchandise shall remain vested in you.
We shall hold the Merchandise on a fiduciary basis as your bailee and shall store the
Merchandise at our premises and keep them clearly identifiable as belonging to you; and we may, on demand and without prior notice, repossess and resell the Merchandise if any sum due to us from you is not paid when due and for this purpose.
Our rights and remedies set forth herein are in addition to and shall not in any way prejudice,
limit or restrict any of our other rights or remedies under the Contract or in law or equity. We
shall be entitled to maintain an action against you notwithstanding that legal, equitable and
beneficial title to and property in the Merchandise has not passed to us.
Title to your Property shall at no time pass to us unless you specifically agree otherwise in
writing.
Risk in your Property shall pass to us on delivery to us and remain with us at all times while in our
possession or control.
Contract Price
We reserve the right to adjust prices where necessary before a Contract is accepted
notwithstanding the prices stated in any price list or quotation. The price charged in respect of
the Services supplied shall be the price that is current at the date of agreement. We shall not
normally perform Services until you have confirmed your agreement to the estimated price.
We reserve the right, by giving notice to you at any time before delivery, to increase the price of
the Services to reflect any increase in the cost to us which is due to any factor beyond our control
(such as, without limitation, any increase in the costs of labour, materials, or other costs of
manufacture or supply); any change in the quantities of the Merchandise requested by you; any
change in the delivery dates of the Merchandise and/or Services requested by you; or any delay
or cost caused by any of your instructions or failure by you to give us adequate information or
instructions.
Unless otherwise agreed in writing, the price for the Services shall be exclusive of any taxes
(including sales tax) or levies and you will pay all costs and charges in relation to packaging (other
than standard packaging), loading, unloading, carriage, freight and insurance, together with
export and/or import charges or duties, where appropriate.
Payment Terms
Unless agreed otherwise by us in writing or expressly stated in the quotation provided to you,
payment for the Services and other charges is payable on receipt for this Contract.
You shall pay the amount stated in our invoice in the currency required by the invoice in
immediately available funds, without any deduction whether by way of set-off, withholding,
counterclaim, discount, abatement or otherwise. Payment must be made to us at the address or
account stated on the invoice. Time of payment is of the essence.
We reserve the right to revise payment terms at any time and to request guarantees, security,
stage payments or cash in advance for the Services. We may, at our discretion, refuse or limit
deferred payment terms to you.
We may agree to accept payment for the Services by credit card provided that you shall in
addition to the price of the Services pay any charge levied by the credit card company in respect
of such transaction.
Notwithstanding any other provision, all payments payable to us under the Contract shall
become due immediately upon termination of the Contract for whatever reason.
If any sum owed by you under the Contract, or any other contract, is not paid to us on or before
the due date for payment, then all sums that you owe to us or any of our affiliates shall become
due and payable immediately and, without prejudice to any other right or remedy available to us,
we and any of our affiliates shall be entitled to:
(a) cancel or suspend performance of the Contract or any other contract or order placed with us
or any affiliate including suspending deliveries of the Product, Services and/or any other goods
until arrangements as to payment or credit have been established which are satisfactory to us;
and/or
(b) require you to pay for the Services prior to shipment; and/or
(c) charge you a flat Late Fee monthly on all overdue invoices (both before and after
judgment) until payment is made in full; and/or
(d) charge you the full cost of engaging a collection agency to recover any any overdue amounts.
Exclusion And Limitation Of Liability
These terms and conditions set out our entire liability (including any liability for the acts or
omissions of our sub-contractors) in respect of the Services supplied by us and any
representation, statement or tortious act or omission including negligence arising under or in
connection with the Contract.
Nothing in these terms and conditions shall exclude or limit our liability for death or personal
injury caused by our negligence or for fraudulent misrepresentation or for any liability that
cannot legally be excluded or limited.
Any limitation or exclusion of liability shall apply to the extent permitted under applicable law. In
no event shall we be liable for: (1) any loss of anticipated profits; (2) any loss of actual profits,
(direct or indirect); (3) any loss of anticipated savings; (4) any loss of business or revenue; (5) any
economic loss of whatever nature; (6) any indirect, special or consequential loss or damage, or
punitive or exemplary damages, howsoever caused; (7) any loss arising as a result of any third
party bringing a claim of any nature whatsoever. We shall not be liable for any such loss whether
or not any such loss or damage was foreseen, direct, foreseeable, known or otherwise.
Our total aggregate liability arising out of or in connection with the performance or contemplated
performance of the contract whether for negligence or breach of contract or for any cause
whatsoever shall in no event exceed the price paid by you for the Merchandise or services giving
rise to your claim. Notwithstanding any other terms and conditions of the contract, we shall have
no liability for the use by you of component parts including software in the Merchandise which
are not manufactured by or authorized by us.
To the extent permitted by law, the period in which any claim arising out of or related to the
contract must be brought is limited to three (3) years from the date that such claim or cause of
action is discovered or should have been discovered with the exercise of due diligence, and no
claim may be brought after the expiry of this agreed limitation period.
You agree to indemnify and hold us harmless from and against any and all claims, actions,
judgments, orders, awards, costs and/or expenses, on account of bodily injury including death
and/or property damage sustained by you, your employees and/or third parties which arise out
of or in connection with the Services.
We shall not be in breach of the Contract or otherwise liable to you for any delay or failure in
shipment or delivery of the Merchandise or any other delay or failure to perform our obligations
under the Contract due to the CoVID-19 pandemic.
Subcontracting, Assignment And Third Party Rights
You shall not be entitled to assign, charge, subcontract or transfer the Contract or any part of it
without our prior written consent.
We may assign, charge, subcontract or transfer the Contract or any part of it to any person,
including our affiliates, without your consent.
Other than our affiliates, a person who is not a party to the Contract (including without limitation
any employee, officer, agent, representative or sub-contractor of either party) shall not have any
right to enforce any term of the Contract which expressly or by implication confers a benefit on
that person without the express prior agreement in writing of us and you.
Without prejudice to the intention of the parties to give no rights to third parties under the
Contract, any term of the Contract can be varied and the Contract can be cancelled or terminated
without the consent of any third party who might benefit from its terms or have enforceable
rights under the Contract.
Contract Cancellation, Breach Of Contract And Insolvency
If a dispute arises out of or relates to this contract, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration, litigation, or some other dispute resolution procedure.
You may only cancel the Contract (or any part of the Contract) in accordance with the terms described in the Service Level Agreement (SLA). Cancellation charges may apply to such cancellation including but not limited to: (i) all amounts due under the Contract in respect of work performed and/or Merchandise delivered up to the date of cancellation; (ii) any sums which have been paid by us or become payable as a result of the cancellation to our subcontractors and supply chain to procure all or any part of the Services; (iii) the cost of any work, materials and tooling incurred by us, including initial costs and preparatory expenses allocable thereto, used exclusively by us to supply the Services; (iv) any nonrecurring engineering and project investment costs not paid by you or recovered by us under the Contract; (v) the costs of settling and paying any losses, damages or claims arising out of the termination of work; and (vi) reimbursing any other reasonable and proper sums suffered or incurred by us solely in connection with or resulting from the cancellation of the Contract including without limitation overheads and profit we would have earned under the Contract.
You shall pay all cancellation charges within thirty (30) days of the date of demand.
In the event (i) you commit a breach of any of your obligations under the Contract and fail to
remedy such breach within a period of fourteen (14) days; or (ii) you fail to make payment under
the Contract when due, or suspend payments or are unable to pay your debts as they fall due; or
(iii) of the institution of any proceedings by or against you, voluntary or involuntary, in
bankruptcy or insolvency or for the appointment of an administrator, administrative receiver,
receiver or trustee or an assignee for the benefit of the creditors of your business or property; or
(iv) you suffer or undergo an analogous event and in the country in which you are established; or
(v) you cease, or threaten to cease, to carry on business; or (vi) we reasonably believe that any of
the above events are about to occur in relation to you, then we shall be entitled to cancel the
Contract forthwith by written notice without prejudice to any rights arising prior to said
cancellation. You shall pay cancellation charges as set out.
Export And Governmental Compliance
You and we agree to comply with all applicable governmental regulations as they relate to the
import, export and re-export of information and/or the Merchandise and/or your Property
and/or our property.
We shall not be liable for delays or refusals by governmental authorities or other authorities to
grant licenses or approvals, nor for suspension or revocation thereof, nor for changes in export
classification. You must deliver requested information, including requested end-user information,
necessary for export licenses to be granted and or necessary for us to determine if a license or
other type of authorization is required.
In relation to both domestic and international transactions, you must provide us with export
classification information for all of your Property and information delivered to us in relation to
the Contract.
CONFIDENTIALITY AND DATA PROTECTION
You and we shall each keep confidential and shall not, without the prior written consent of the
other, disclose to any third party or otherwise make public the terms or existence of the Contract
(including any pricing provisions), any quotation provided or any other confidential or sensitive
information of the other.
You agree that you will not exhibit the Merchandise or any advertisements or price lists relating
to any of our products or services without our prior written consent.
In relation to any personal data/personal information (as defined by applicable legislation)
provided or made available to you by us (“Data”), you must (i) process the Data only in
accordance with our lawful instructions; (ii) take appropriate technical and organisational
measures against unauthorized or unlawful processing and against accidental loss of the Data;
(iii) not disclose such Data to any party who carries on business outside the European Economic
Area (EEA) if it originated in the EEA; (iv) cooperate fully with us to enable us to adequately
discharge our responsibility as a data controller including assisting with data subject access
requests, security, breach notifications, impact assessments and consultations with supervisory
authorities and regulators; (v) not sell the Data; (vi) not retain, use or disclose the Data outside
the business relationship between you and us or for any other purpose than for performing the
Contract; (vii) notify us without undue delay on becoming aware of any data breach; and (viii) on
our request, allow us to audit the your compliance with this Section. By proceeding with this
Contract, you certify that you will comply with these obligations.
General
Nothing in the Contract shall create, or be deemed to create a partnership or joint venture or
relationship of employer and employee or principal and agent between the parties.
Our rights and remedies in respect of the Contract shall not be diminished, waived or
extinguished by the granting of any indulgence, forbearance or extension of time granted by us
nor by any failure of or delay by us in ascertaining or exercising any such rights or remedies. The
waiver by us of any breach of the Contract shall not prevent the subsequent enforcement of the
Contract and shall not be deemed to be a waiver of any subsequent breach of that or any other
terms and conditions.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it
shall be deemed modified to the minimum extent necessary to make it valid, legal and
enforceable. If such modification is not possible, the relevant provision or part-provision shall be
deemed deleted. Any modification to or deletion of a provision or part-provision under such
condition shall not affect the validity and enforceability of the rest of the Contract.
The Contract sets out the entire agreement and understanding between you and us in connection
with the Services and shall supersede and replace all documentation previously issued by us or
you. In case of conflict, agreed terms appearing on the face of the Contract shall take precedence
over these terms and conditions, and these terms and conditions take precedence over any other
documents referred to in the Contract.
Headings are for reference only and shall not affect the interpretation of these terms and
conditions.
Law And Jurisdiction
The Contract and the relationship between you and MetsCube shall be governed by and
construed in accordance with the Law of the Commonwealth of Virginia and MetsCube and you
agree to submit to the exclusive jurisdiction of the Courts of Alexandria.