CYLICRON ENGINEERED CYLINDERS, LLC
TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale apply to all goods (an “Order”) sold by Cylicron Engineered Cylinders, LLC (“we,” “us” or “our”), as seller, under Quote, to customers (“you” or “yours”), as buyer, and manufactured and shipped by us pursuant to Sales Order Acknowledgments issued to you. These terms are exclusive and in lieu of all other Terms and Conditions appearing on your form of purchase order or elsewhere and apply to all quotations made and orders accepted by us unless specifically stated to the contrary on the face of our Quote. We are not responsible for typographical or clerical errors made in any Quote or Sales Order Acknowledgment. All such errors are subject to correction.
ORDERS. All orders are subject to our acceptance and shall not be considered a contract unless and until we furnish you with a Sales Order Acknowledgement.
PRICE. Prices apply only to the specific quantity of goods and delivery schedule quoted in an Order. Any variations in specifications or quantity specified or projected shipping date may necessitate a re-Quote. Prices are subject to change before final acceptance of order. Unless otherwise stated, prices are quoted F.O.B. our factory.
FIXTURES AND FITTINGS. In order for us to complete your Order, is may be necessary for you to furnish us with, or we may fabricate or purchase at your expense, certain special fixtures, fittings, tooling or forms necessary for the processing of your Order (other than standard fixtures and fittings). We will advise you of anticipated costs for such special items. Payment for special items supplied by or purchased by us will be invoiced to you with standard payment terms. Unless otherwise stated, all such special forms and tooling will remain our property.
SHIPMENT. Projected Shipping Dates are approximate and are based upon our being promptly furnished with all information, including shipping instructions, necessary to enable us to proceed with the processing of your Order. We will make reasonable efforts to complete shipment as indicated, but we assume no responsibility or liability or loss or damage by reason of a delay in our ability to ship, nor can your Order be cancelled for failure to ship, at or near any stated time, or for any cause except by mutual consent. In the event there is a delay in production, shipment or delivery for any reason caused by circumstances beyond our control, the date for shipping will be extended for a period equal to the time lost by reason for such delay. If you change shipping instructions, you are responsible for any additional shipping charges incurred. If you are in default of your payment obligations to us under this Order or any other Order, we are entitled to cease all production and shipment under this Order until you comply with your obligations under this or any other Orders.
PACKAGING. We will use all reasonable means to comply with any special packaging, loading, or bracing requirements specified in your Order. We will charge you for the expense of complying with your special requirements in accordance with our pricing for such extras in effect at time of shipment. If you do not specify packaging, loading or bracing requirements in your Order, we will package the goods by those methods we customarily apply to the method of transportation used for such goods. We reserve the right to reject worn or damaged packaging materials that you return to us for re-use, and to replace such materials with new packaging materials at your expense.
PASSING OF TITLE AND RISK OF LOSS. Title to and all risk of loss on all goods pass to you at time of delivery to the carrier, F.O.B. our place of shipment (unless otherwise agreed). The costs of packing your goods for shipment are included in the quoted price. When ordering, method of shipment should be clearly stated, but unless otherwise specified, we will normally use the best available surface transportation. Claims for delay, loss, or damage during shipment shall be made by you against the carrier.
VERIFICATION OF QUANTITY. You agree to inspect, or cause the party receiving to inspect, each shipment of goods from us and to notify us of any claim for shortage on an Order within five (5) days of delivery.
TAXES. Prices quoted do not include sales, use, excise or similar taxes unless specifically stated. It is your responsibility to bear all such taxes. We may add applicable taxes to the invoiced sales price unless you furnish us with a tax exemption certificate in form agreeable to the appropriate taxing authority.
TERMS OF PAYMENT. Unless stated differently in our Quote or your Sales Order Acknowledgment, the terms of payment are Net 30 from date of invoice. In cases where credit has not been established satisfactorily or financial information is not available, then terms are cash with Order at our option. If you become delinquent in payments then we have the right, in addition to any other remedy to which we may be entitled in law or equity, to cancel your Order, refuse to make further deliveries and declare due and payable immediately all unpaid amounts for goods previously delivered to you. You agree that defects in goods which do not hamper your actual operation, and delays or damage to goods caused by the carrier after your Order has left our factory, are not sufficient reason for you to postpone payments due us. You agree to make service charge payments to us on all amounts past due at the rate of 1.5% per month from the date due until paid, or at the maximum rate allowed by law, whichever is less. Finished goods held by us beyond a shipping date at your request will be invoiced and the terms of payment will apply as from the invoice date. Such goods will be subject to warehousing and/or restocking charges and other expenses incident to such delay.
DEDUCTIONS; RETURNS FOR CREDIT. No deductions of any nature will be honored unless credit has been previously authorized in writing by us, and no returns for credit will be accepted unless we agree in writing in each case, in advance.
CANCELLATION. Orders are not subject to cancellation or change without our written consent and then only upon agreement to compensate us for all loss caused by cancellation or changes.
WARRANTY; LIMITATION OF LIABILITY. YOU ACKNOWLEDGE THAT WE ARE SPECIALLY MANUFACTURING THE GOODS QUOTED OR REFERENCED IN OUR SALES ORDER ACKNOWLEDGEMENT ACCORDING TO YOUR SPECIFICATIONS CONTAINED IN THE DRAWING REFERENCED ON YOUR ORDER OR OUR SALES ORDER ACKNOWLEDGMENT. WE HAVE NO OBLIGATION TO ENSURE THE ACCURACY OF THE SPECIFICATIONS IN SUCH DRAWING. WE DISCLAIM ALL WARRANTIES EXPRESSED OR IMPLIED (INCLUDING, BUT NOT BY WAY OF LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE) ON ALL ORDERS, EXCEPT THAT WE WARRANT THAT THE GOODS SET FORTH IN OUR QUOTE AND EXPRESSLY ACCEPTED BY YOU IN OUR SALES ORDER ACKNOWLEDGEMENT WILL CONFORM TO THE STATED DRAWING SPECIFICATIONS AND BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP, SUBJECT TO AND CONDITIONED UPON THE FOLLOWING: (A) WE DO NOT WARRANT SUBSEQUENT WORKMANSHIP OR VARIATIONS IN THE COPPER VENEER OR ‘FINISH OD’ TO THE GOODS; (B) THIS WARRANTY IS VOID IF YOU OR ANY OTHER PARTY IN POSSESSION OF THE GOODS FAIL TO PROPERLY STORE, HANDLE, INSTALL, CALIBRATE, USE OR MAINTAIN THE GOODS OR TO ABIDE BY OUR APPLICABLE RECOMMENDATIONS REGARDING SAME; (C) THIS WARRANTY IS VOID IF THE GOODS ARE DAMAGED DURING SHIPMENT, AND (D) THIS WARRANTY IS VOID IF THE GOODS ARE MODIFIED OR PROCESSED BY YOU OR ANOTHER PARTY IN POSSESSION (E.G., BY RESURFACING, FILING, LATHING, ETC.) IN ANY MANNER THAT RESULTS IN ANY CHANGE IN THEIR ORIGINAL SPECIFICATIONS. OUR LIABILITY TO YOU OR ANY PARTY CLAIMING THROUGH YOU THAT MAY ARISE OUT OF OUR SUPPLYING THE GOODS, OR THEIR USE BY YOU OR OTHER THIRD PARTY, WHETHER ON THIS WARRANTY OR CLAIM OF NEGLIGENCE OR OTHERWISE, SHALL NOT IN ANY CASE EXCEED THE COST OF REPLACING THE GOODS OR CORRECTING DEFECTS IN THE GOODS. THE FOREGOING SHALL CONSTITUTE YOUR SOLE REMEDY OR THAT OF ANY PARTY CLAIMING THROUGH YOU. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY OTHER PARTY FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS) OR PUNITIVE DAMAGES FOR ANY CLAIM, WHETHER IN CONTRACT OR TORT, INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY, PRODUCTS LIABILITY, STRICT LIABILITY, OR OTHER LEGAL THEORY.
WITHOUT LIMITATION OF THE FOREGOING, OUR LIABILITY WITH RESPECT TO ANY GOODS SHALL IN NO EVENT EXCEED THE ORIGINAL PURCHASE PRICE THEREOF.
DISPUTES. Any dispute or controversy regarding your Order, our limited warranty of the goods set forth herein, or otherwise, between you (or others and us shall be settled by mutual agreement between the Seller and the Buyer; however, in the event we fail to resolve the dispute or other claim by mutual agreement, you and we agree that such claims and disputes shall be submitted to binding court-ordered arbitration in accordance with Indiana Code Chapter 34-57-1 et. seq. Any fees or costs associated with the arbitration shall be determined by the arbitrator. This agreement for arbitration shall bind you and us and any party claiming through you or us, respectively, including our respective successors, assigns, bailees, trustees, assignees and other representatives.
PATENTS. You will indemnify and hold us harmless for any expense or loss resulting from any claims of infringement of patents or trademarks arising from our compliance with your Drawing, designs, samples, drawing, and/or specifications now or hereafter forming a part of your Order or this contract.
FAIR LABOR STANDARDS ACT. You warrant to us that you have complied with all provisions of the Fair Labor Standards Act of 1938 (Federal Wage and Hour Law) as amended.
ATTORNEYS’ FEES. If we bring any legal action or other proceeding to collect for monies due from you, we shall be entitled to recover our reasonable attorneys’ fees and costs.
APPLICABLE LAW; VENUE. This contract shall be governed by and construed in accordance with the laws of the State of Indiana without regard to its choice of law rules. You agree that any action with respect to this contract or the goods sold hereunder shall be brought exclusively in the appropriate courts of Clark County, Indiana, USA.
WAIVER. Failure of Seller to insist upon strict performance of any of the terms and conditions of this order shall not constitute a waiver of such terms and conditions. Waiver by Seller of a breach of any of the terms and conditions of this contract shall not constitute a waiver of any other breach of the same or any other term.
SEVERABILITY. If any provision of this Agreement shall be held illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the entire agreement between you and us. No modification, amendment, extension, renewal, rescission, termination or waiver of any of the terms and conditions contained herein shall be binding unless we agree in writing signed by you and us.
HEADINGS. The headings contained in this document are for convenience of reference only and will not affect the meaning or interpretation of this Agreement.