TERMS & CONDITIONS
These Terms and Conditions shall apply in the absence of an executed agreement between Croix Gear (CG) and the purchaser, or where an executed agreement between the parties remains silent.
PURCHASE ORDERS. Purchase Orders shall set forth the quantity, price, delivery and shipping instructions, and the requested (but adjustable by CG ) delivery schedule. All Purchase Orders shall be governed by these Terms and Conditions, which shall not be changed or supplemented without written acceptance by CG. Pre-printed terms and conditions on Purchaser’s Purchase Order form, if any, shall not apply to the Purchase Order.
CG's ACKNOWLEDGEMENT AND ACCEPTANCE. No Purchase Order is accepted unless CG issues an Acknowledgement. CG's Acknowledgement is subject to credit investigation and approval. Acceptance by CG is expressly limited to the terms and conditions contained herein and any terms proposed by the Purchaser are hereby rejected unless otherwise agreed in writing.
DEFICIENT PURCHASER FURNISHED PARTS AND/OR MATERIALS. CG will notify Purchaser following discovery that any parts and/or materials furnished by Purchaser are defective or have been damaged or are for any other reason unsuitable for further processing by CG. Any CG responsibility for further loss, damage, destruction or deterioration of such parts and/or materials shall thereupon cease, and all risk of further loss, damage or destruction or deterioration shall pass to Purchaser. CG shall be entitled to charge Purchaser for storage of such parts and/or materials if they have not been removed from CG premises within ten (10) days after CG gives the aforesaid notice.
PRICING, PAYMENT AND SHIPMENT. All prices are as set forth in the Purchase Order, Acceptance, or in any invoice pertaining to modification or cancellation, with payment net 30 days. Payment shall be made in U.S. dollars. Payment not received when due shall bear interest at the monthly rate of 11⁄2%. No cash discounts, set offs or counterclaims are allowed unless approved in writing by CG. CG reserves the right to establish open account terms and limits as well as cash before shipment or C.O.D. terms. Purchaser agrees to pay any surcharges and taxes assessed against CG or Purchaser by reason of this transaction. All shipments are made FOB CG’s plant unless otherwise specified. Purchaser agrees to assume freight charges and risks of transportation, including delay, damage, and loss, unless otherwise specified by CG. CG will use the same packaging as provided by Purchaser unless otherwise specified by CG. The purchase price is exclusive of packaging, shipping, and insurance costs. In the absence of specific instructions, CG reserves the right to select a carrier and to specify the routing of all shipments. If shipment is delayed by Purchaser, date of readiness for shipment shall be deemed date of delivery for invoice payment purposes. CG will ship Products in accordance with each accepted Purchase Order, subject to these Standard Terms and Conditions. The price to be paid for deliveries scheduled over an extended period shall be that in effect at the time of the shipment.
DELIVERY SCHEDULES. Delivery schedules are projected from the date hereof, or from the date CG receives the processing information. CG shall not be liable for delivery delays or failure to deliver as the result of fire, explosion, breakdown of machinery or equipment, riots, strikes, labor disputes, governmental acts and regulations, inability to obtain material, services or shipping space, or any other cause beyond its reasonable control.
VARIATIONS IN QUANTITIES. CG’s shipments of deliveries may vary from the Purchaser’s order in quantities not to exceed 10% plus or minus, of each type of article involved and the billing shall be adjusted accordingly.
SHORTAGES. CG shall be responsible for shortages only if a claim is made in writing within ten (10) days of receipt of shipment.
CHANGES. Changes in the work to be performed or any other terms of this Purchase Order may be made only upon the Purchaser’s written change order and the agreement of CG. If such changes cause an increase or decrease in the amount due under the Purchase Order, or the time required for its performance, an equitable adjustment shall be made and the Purchase Order modified accordingly. Any changes in drawings, materials or design of the parts, units, tools or fixtures which affect costs will be subject to an equitable adjustment. An order to stop certain work, indefinitely or for a stated period of time, shall be deemed a change under this paragraph.
DEFAULT; CANCELATION. Purchase Orders cannot be partially/wholly terminated, canceled, or modified after material has been ordered or parts are in process or finished. In the event of cancellation (i) Purchaser will accept shipment of all products completed prior to cancellation and (ii) no warranties will apply. Tooling and Fixtures required to manufacture the products, will be a one-time charge based on a quote for each design. Purchaser will retain ownership of the Tooling and Fixtures upon paid invoice. Purchaser may request tooling and fixtures be returned for up to one year from last shipment of the associated product. Purchase Orders may be terminated for default only upon written notice specifying a default that is not excusable under Paragraph 16, and if CG does not cure the default within thirty (30) days of notice (the Termination Date). Delivery of defective work by CG shall give Purchaser the rights set forth in Paragraph 11 hereof but shall not be deemed a default for purposes of termination. Purchaser need not pay for work performed after to the Termination Date. Default shall not subject CG to liability for any damages whatsoever.
PURCHASER'S ACCEPTANCE. Purchaser shall be deemed to have accepted the Product if Purchaser has not, within thirty (30) days post-delivery, delivered to CG written notice of revocation of acceptance based on non-conformance to specifications or to the workmanship standard.
WARRANTY. Purchaser's exclusive remedy for work it finds defective or that fails to conform may, at CG's option, either be corrected or remedied according to the Paragraph 13 liability limit. Claims must be presented within a reasonable time after delivery of the item(s) and in any event within thirty (30) days thereof. CG&M must be given a reasonable opportunity to inspect, and the item(s) may not be returned absent CG's consent. This warranty is void and CG will have no liability hereunder as to any item Purchaser has reworked or as to any allegedly defective item that Purchaser has incorporated into a larger assembly.
DISCLAIMER. THE PRODUCT WARRANTY STATED ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES AS TO QUALITY, FITNESS FOR PARTICULAR PURPOSE, MERCHANTABILITY OR OTHERWISE, WHETHER IMPLIED BY CUSTOM OR LAW.
LIMITATION OF LIABILITY. Except as otherwise specifically set forth in this Purchase Order, CG’s liability for any deficiency of any nature whatsoever in its performance under this Purchase Order or the result of such performance shall not exceed One Hundred Dollars ($100.00) or two (2) times the price paid by the Purchaser, whichever is greater. IN NO EVENT SHALL CG BE LIABLE TO PURCHASER FOR ANY INDIRECT, INCIDENTIAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, INCLUDING LOSS OF PROFITS, DAMAGES ARISING OUT OF THE MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR, REPLACEMENT, OR USE OF ANY PRODUCTS, THE FURNISHING OF ANY SERVICE, INCLUDING ATTORNEY'S FEES.
CG RESTRICTION AS TO USE. Purchaser acknowledges and agrees that the Products are not designed for and are not to be used in IPC Class 3 products.
INDEMNIFICATION. Purchaser shall defend, indemnify and hold CG and its subsidiaries, officers, directors, employees, agents and representatives harmless from any and all claims and/or costs (including attorneys’ fees) relating to: CG’s use of Purchaser’s proprietary information and designs; Purchaser’s negligence, use, ownership, maintenance, transfer, transportation or disposal of the products; Purchaser’s violation or alleged violation of any laws or regulations, or a breach by Purchaser of any of these terms and conditions. The obligation to indemnify under this shall survive the termination or expiration of the accepted Purchase Order.
FORCE MAJEURE. Neither party shall be liable for its failure to perform due to any occurrence beyond its reasonable control, including acts of God, fire, floods, war, terror, sabotage, accidents, labor disputes or shortages, governmental laws, ordinances and regulations, allocations and price restrictions, inability to obtain material, equipment or transportation, or any other similar occurrence; provided, however, Purchaser’s payment for Products produced and shipped shall not be suspended by any such event.
SCRAP ALLOWANCE. Unless otherwise specified in its quotation, CG will require a one percent (1%) scrap allowance.
HAZARDOUS MATERIAL NOTIFICATION. Purchaser agrees to notify CG, if their part contains or will release hazardous material as a result of processing.
INTELLECTUAL PROPERTY. Title to and ownership of CG’s patents, inventions, technical data, and other proprietary information remains the property of CG. and shall not be reproduced. Title to and ownership of Purchaer's patents, inventions, technical data, and other proprietary information regarding the products it supplies to CG remains the property of Purchaser. Purchaser hereby grants CG a limited, non-transferable, non-exclusive revocable license to use Purchaser’s proprietary information, free of any claim or allegation of misappropriation or infringement; provided, however, that CG’s license to use Purchaser’s proprietary information shall endure only for the term of the accepted Purchase Order. Each party agrees that it will maintain and protect the confidentiality of the other party’s proprietary information.
GOVERNING LAW; MERGER. These Terms and Conditions constitute the entire agreement of the parties. The validity, interpretation and performance of these Terms and Conditions shall be governed by the laws of the State of Wisconsin, and venued in the State of Wisconsin, and CG shall be entitled to recover all of its costs and expenses therein, including expert fees, deposition costs and attorney's fees as fixed by the arbitrator, trial court and appellate court.