CRYSTAL FINISHING SYSTEMS INC – STANDARD TERMS AND CONDITIONS
*Subject to change without notice*
ACCEPTANCE OF YOUR ORDER IS EXPRESSLY CONDITIONED ON THE GENERAL TERMS AND CONDITIONS SET FORTH BELOW AND ON THE FACE OF THE ACKNOWLEDGMENT ISSUED BY CRYSTAL FINISHING SYSTEMS, INC. (“CRYSTAL”). THE ACCOMPANYING ORDER ACKNOWLEDGMENT AND THESE TERMS AND CONDITIONS ARE COLLECTIVELY REFERRED TO AS THE “CONTRACT.” THE CONTRACT SHALL NOT INCLUDE ANY DEVIATING OR ADDITIONAL TERMS UNLESS EXPRESSLY AGREED TO IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF CRYSTAL.
Prices.
The price(s) shown on the acknowledgment reflect current pricing. Prices do not include any federal, state or local property, license, privilege, sales, use, excise, gross receipts or other like taxes which may now or hereafter be applicable to, measured by or imposed upon, or with respect to the transaction, sale, value or use of the goods or services furnished hereunder. The counter-party to Crystal under the terms of the Contract (“Customer”) shall be responsible for all such charges, costs, and taxes; provided, however, that Customer shall not be responsible for any taxes imposed on, or with respect to, Crystal’s income, revenues, gross receipts, personal or real property, or other assets.
Payment.
All invoices shall be paid within thirty (30) days from the date of invoice. Crystal reserves the right to change such payment terms at any time in the event that Crystal has reasonable grounds for insecurity as to payment. Crystal shall have the right at any time to demand cash payment on or before delivery in any instance in which Crystal determines that Customer’s credit is less than satisfactory, or for other good cause. Customer shall pay interest on all late payments at the lesser of (a) the rate of 1.5% per month, or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Crystal for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these terms and conditions or at law (which Crystal does not waive by the exercise of any rights hereunder), Crystal shall be entitled to suspend the delivery of any goods or performance of any services (and stop goods in transit) if Customer fails to pay any amounts when due hereunder. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Crystal, whether relating to Crystal’s breach, bankruptcy, or otherwise. Customer hereby grants to Crystal a lien on an security interest in and to all of the right, title, and interest of Customer in, to, and under the goods to be delivered hereunder, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Wisconsin Uniform Commercial Code (Chapter 409 of the Wisconsin Statutes, or any successor thereto).
Delivery Terms
Delivery is F.O.B. shipping point, unless Crystal decides, in its sole discretion, to provide for shipment and such decision is acknowledged in writing by an authorized representative of Crystal.
Risk of Loss.
The risk of loss of the goods shall pass to Customer upon delivery to the carrier at the shipping point. Crystal will not be liable for any delays, loss, or damage in transit.
Shipment Dates.
Crystal shall make reasonable efforts to meet any delivery date(s) requested by Customer, but Crystal will not be liable for its failure to meet such date(s).
Cancellation.
Orders may not be cancelled or changed without the written consent of an authorized Crystal representative, which consent may be conditioned on payment of cancellation charges.
Limited Warranty.
Crystal warrants, for the period of time referenced in the “Time Limitations” paragraph below, only that (a) the goods delivered hereunder will conform to specifications and will be free from material defects in material or workmanship, and (b) that any services performed by Crystal will be performed in a professional and workmanlike manner in accordance with generally recognized standards for similar services. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS PARAGRAPH ABOVE, CRYSTAL MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES TO BE PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
Acceptance, Rejection and Revocation.
Goods shall be deemed to have been accepted and Customer’s right to reject nonconforming goods shall expire five (5) business days after receipt of the goods. Customer’s right to revoke acceptance of nonconforming goods shall expire ninety (90) days after delivery of the goods. If Customer rejects or revokes acceptance of any goods tendered under this order, or attempts to do so, Customer must notify Crystal in writing, fully specifying all claimed nonconformities. The failure to specify any nonconformity shall constitute a waiver of that nonconformity. No returns may be made and no credits will be granted without Crystal’s prior written approval.
Notice of Breach of Warranty.
If Customer discovers that any goods or services delivered hereunder breach any warranty expressly made by Crystal in the “Limited Warranty” paragraph above, Customer must notify Crystal in writing of the breach of warranty within seven (7) days after discovery of the breach, but not later than ninety (90) days after delivery of the goods or performance of the services. The notice must specify the facts constituting the alleged breach and must be sent by to Crystal’s address on the front of the order acknowledgment. Crystal shall have a reasonable opportunity to investigate any alleged breach of warranty before Crystal has any obligation to take any remedial action.
Remedies of Customer.
Customer’s sole and exclusive remedy for delivery of nonconforming goods, defective services, or any other breach of warranty are expressly limited, at Crystal’s option, to either (a) replacement of the nonconforming or defective goods at the place of delivery, (b) re-performance of any defective services, or (c) refund of the purchase price with respect to such nonconforming goods or defective services. Further, if practical as determined by Crystal in its sole discretion, all defective or nonconforming goods must be returned to Crystal, charges prepaid, and with complete information as to service and maintenance. Crystal shall have no responsibility for goods that have been improperly installed, maintained or subjected to abuse in operation or assembly. IN NO EVENT SHALL CRYSTAL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT CRYSTAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. ADDITIONALLY, IN NO EVENT SHALL CRYSTAL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO CRYSTAL FOR THE GOODS AND SERVICES SOLD HEREUNDER.
Force Majeure and Allocation.
Neither Customer nor Crystal will be responsible for any delay or failure of performance under this order (other than to make payments due hereunder) if such delay or nonperformance is caused by acts of God; floods; fires; explosions; storms; transportation difficulties; strikes; lockouts; or other labor or industrial disturbances; any law, rule, order or action of reduction, unavailability, or delay in delivery of any product or material necessary in the manufacture of the goods to be sold hereunder (regardless of whether or not such exhaustion, reduction, unavailability, or delay is beyond such party’s control, provided only that the same is not willfully done or brought about for the purpose of excusing failure or inability to perform); epidemic; pandemic; or any other cause beyond a party’s control whether or not similar in class or kind to those mentioned. If any of the events or contingencies referred to in this provision occurs, Crystal shall have the right to curtail deliveries or allocate its supply of goods for sale among all of its customers in any manner which in Crystal’s sole discretion is fair and reasonable under the circumstances. Customer shall not hold Crystal responsible in any manner for losses or damages which Customer may incur as a result of such failure, curtailment or allocation by Crystal.
Compliance with Applicable Laws.
Customer shall inform Crystal of any specific federal, state and local laws or regulations which must be complied with in the manufacture, sale or use of the goods and services to be delivered hereunder, and Customer shall comply with all applicable laws, regulations and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under the Contract.
Time Limitations.
Any action against Crystal for breach of these terms and conditions (including any breach of warranty) must be commenced within thirteen (13) months following delivery of the goods.
Indemnity.
Customer shall indemnify and hold Crystal harmless from any loss, damage, or expense, including attorneys’ fees, with respect to any claim of a third party based on personal injury, wrongful death or property damage alleged to be suffered as a result of the design, manufacture, material defect, use or application of the goods sold hereunder. Customer shall provide to Crystal proof of insurance coverage in an amount deemed acceptable by Crystal with respect to the goods manufactured by Crystal for this order, and Crystal shall be named as an additional insured on any such policies. Said coverage shall provide that it shall not be terminated without reasonable prior notice to Crystal.
Governing Law, Jurisdiction and Venue.
State and Federal Courts in the State of Wisconsin shall have exclusive jurisdiction over any disputes or claims arising out of this agreement, the interpretation of which shall be governed by the substantive laws of the State of Wisconsin. Customer consents to the jurisdiction of such courts.
Relationship of the Parties.
The relationship of between the parties is that of independent contractors. Nothing contained in these terms and conditions or otherwise shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Assignment.
Customer shall not assign any of its rights or delegate any of its obligations under the Contract without the prior written consent of Crystal. Any purported assignment or delegation in violation of this paragraph is null and void. No assignment or delegation relieves Customer of any of its obligations under the Contract.
Entire Agreement.
These terms and conditions contain the entire agreement between the parties with respect to the goods and services to be delivered by Crystal hereunder. These terms and conditions may only be amended or modified in a writing signed by any authorized representative of each party.