1 – Payment terms: Payment terms are net thirty (30) days from the date of invoice. In the event an invoice is over 30 (thirty) days past due, Customer will pay a service charge of 1-1/2% per month (18% per annum) calculated from the original invoice due date. If, for any reason, Quadion develops doubt as to Customer’s financial condition, Quadion may require payment in advance or COD. New Customer accounts shall only be opened upon Quadion’s approval of such Customer’s credit.
2 – Quotations: Unless otherwise explicitly stated in the quotation, all quotations from Quadion are firm offers which are valid for and must be accepted within ninety (90) days from the date of the quotation, unless revoked earlier by Quadion. All quotations, orders and contracts are subject to correction for clerical, technical, or administrative errors by Quadion. Prices quoted are based on quantity ordered. Waivers, alterations or modifications from the terms and conditions of Quadion’s quotation, including change in quantity ordered, are valid only when in writing and signed by an officer or authorized representative of Quadion. If Quadion accepts such change and the change causes an increase in the price of the goods quoted, Quadion will adjust the price (in its reasonable discretion) and notify Customer of such adjusted pricing. Quoted prices do not include taxes or shipping charges.
3 – Pricing: Seller may with prior notice choose to pass along a price increase of the subject Goods and/or Services or surcharge imposed on Seller by its supplier(s). Such a surcharge by Seller or by Seller’s supplier(s), as well as any price increase, which is passed along will result, respectively, in an increase in price effective for any Goods and/or Services scheduled for shipment beginning immediately on either the date established by Seller as the effective date of such surcharge/price increase (as noted in the Seller’s communication) or on the date such increase in Seller’s cost of the subject Goods and/or Services or surcharge is imposed on Seller by its supplier(s).
4 – Shipments: All goods furnished by Quadion shall be shipped per INCOTERMS 2010; USA destinations shipping terms are EXW (Exworks) Seller’s facility. Non-USA destinations shipping terms are FCA (Free Carrier) Seller’s facility and risk of loss of such goods shall pass to Customer upon Quadion’s delivery to the carrier. Each Customer order must state explicitly the preferred shipment method. In the absence of shipping instructions, or if the shipping instructions do not conform to Quadion’s shipping procedures, Quadion may ship goods in accordance with its standard procedures. All shipments shall be insured at Customer’s expense. Customer will pay for all shipping costs. Customer agrees to accept overshipments and undershipments on each individual order not exceeding 10% of quantities ordered, unless special terms have been negotiated and agreed to in writing by Quadion. All claims for shipment errors or shortages must be made in writing within ten (10) days after Customer’s receipt of shipment. Quadion’s liability for any shipping errors or shortages shall be limited to the invoiced value of the goods shipped. Claims for loss or damage in transit must be made against the carrier or Customer’s insurer.
5 – Taxes: In addition to the prices stated in Quadion’s quotation, Customer shall pay and reimburse Quadion for all taxes, including without limitation, any excise, sales, use, or other taxes, relating to the goods shipped to Customer for which Quadion may be liable or for which Quadion is compelled to collect.
6 – Warranty Disclaimer: QUADION MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ITS GOODS. QUADION SPECIFICALLY EXCLUDES AND DISCLAIMS ALL WARRANTIES REGARDING ITS GOODS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR WARRANTIES ARISING FROM THE COURSE OF DEALINGS OR USAGE OF TRADE. Customer acknowledges that Standard O rings and Quad® Rings manufactured from rubber compounds other than 366Y using Quadion owned tooling may not conform to SAE AS568 dimensional requirements since each rubber formulation has its own shrinkage characteristics. The SAE AS568 dimensional requirements apply only to 366Y and all other material dimensions are for reference only.
7 – Inspection and Acceptance: Customer shall inspect any goods delivered by Quadion and shall within thirty (30) days after delivery, notify Quadion of any non- conformance or defect in the goods. Unless Customer notifies Quadion of such non-conformance or defect within such thirty (30) day period, the goods shall be deemed to have been accepted by the Customer with full notice of any such defect or non-conformance. Customer’s inspection shall be conducted in accordance with normal industry standards. Customer acknowledges that such standards allow for certain variations and defects.
8 – Remedies; Limitation of Liability: Customer’s exclusive remedy for any non-conformance or defect in the goods shall be limited to return of the non- conforming or defective goods to Quadion and refund of the purchase price for any such goods, provided that the goods are returned to Quadion within thirty (30) days after timely notice of non-conformance or defective goods has been delivered to Quadion in accordance with Section 6 (Inspection and Acceptance), and confirmed by Quadion to be non-conforming or defective. All claims for non-conformance or defect in goods shall be deemed waived unless the goods are returned within such thirty (30) day period. All shipping costs related to the return of such goods shall be paid by Customer, and Customer shall comply with all return procedures established by Quadion. The risk of loss of any products returned to Quadion will be on Customer. IN NO EVENT SHALL QUADION BE LIABLE FOR ANY OTHER DAMAGES, INCLUDING WITHOUT LIMITATION, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES; DAMAGES, COSTS OR EXPENSES FOR RECALL, RETROFIT, OR OTHER POST-SALE ACTION; LOST PROFITS; LOST BUSINESS OPPORTUNITY; ATTORNEYS’ FEES; DAMAGE TO BUSINESS OR BUSINESS RELATIONSHIPS OR LOSS OF GOODWILL, WHETHER FOR BREACH OR REPUDIATION OF ANY CONTRACTUAL TERM OR LEGAL DUTY IN CONTRACT TORT, STATUTE OR OTHERWISE, RELATING TO THE SALE OF GOODS BY QUADION. In any event, Quadion’s liability to Customer, regardless of the form of action, shall not exceed the total amount actually paid by Customer to Quadion during the three (3) month period preceding the event giving rise to the liability. No action, regardless of form, arising out of or alleging a breach of any contractual term or legal duty under these Terms and Conditions may be brought more than one (1) year after the cause of action accrues. No refunds will be issued on any goods which have been altered or defaced in any way, or upon which additional operations have been performed. Quadion shall not be responsible for disassembling costs and shall not issue a refund for any goods in any assembled units.
9 – Ownership of Tooling and Molds: Unless otherwise specified, all equipment, tooling, and molds used by Quadion to manufacture the goods are furnished by Quadion and shall at all times remain the property of Quadion. Notwithstanding the foregoing, if Quadion agrees to manufacture goods for the Customer using equipment, tooling, or molds owned by the Customer (the “Customer Tooling”), Quadion shall take possession of such Customer Tooling and shall hold such Customer Tooling as bailee, provided Quadion shall be entitled to retain possession of the Customer Tooling until Customer has fulfilled all of its obligations hereunder, including all payment obligations.
10 – Repair or Replacement of Tooling: When quantities of goods manufactured on tooling exceed the normal production life of the tool, or if any Customer Tooling is damaged, Quadion shall quote the Customer for the necessary repairs or replacement for such tooling, if repair or replacement is feasible in Quadion’s reasonable discretion. If Customer accepts the quote, Quadion shall undertake the applicable repairs or replacements and Customer shall pay for such repairs or replacements in accordance with the quote. If repair or replacement of the tooling is not feasible (as determined by Quadion) or if Customer rejects the quote, Quadion shall have no obligation to manufacture the applicable goods under any then-outstanding orders for Customer.
11 – Changes to Tools and Molds: Customer will pay for changes in molds and tools arising out of changes in blueprints and specification requirements. Customer hereby acknowledges that the normal production life of molds or tools may be shortened because of changes by Customer that affect the original design of the molds and tools.
12 – Insurance for Customer Tooling: Customer is responsible for carrying fire and extended coverage insurance, and any other insurance desired by Customer, on all Customer Tooling. Quadion has no responsibility to carry any insurance on Customer Tooling.
13 – Storage and Moving Costs: Quadion may, in its sole discretion, deliver to Customer a written notice to remove any inactive Customer Tooling from Quadion’s facilities. All costs of moving Customer Tooling from Quadion’s facility shall be paid by Customer. If Customer fails to remove the inactive Customer Tooling within thirty (30) days of receipt of Quadion’s notice, Quadion may (a) charge Customer reasonable storage fees, and (b) sell, scrap or destroy such Customer Tooling without relieving Customer of its obligations to pay for goods and storage costs. Customer hereby releases Quadion from liability for any damage, destruction or deterioration of the Customer Tooling.
14 – Customer’s Intellectual Property: Customer shall defend, indemnify and hold harmless Quadion and its officers, board of managers, members, and agents from and against any and all liability, costs, expenses (including attorneys’ fees), claims, and relief in connection with any claims or actions arising from or related to any alleged infringements of any patent, design, copyright, trademark, or other intellectual property right of a third party relating to the use, production, or sale of goods manufactured by Quadion hereunder, either as such or as parts or units of complete entities, except for such goods as Quadion manufactures under its own patent rights. All (a) drawings, data, specifications, designs, patterns, molds, tools, samples and other items prepared by Quadion, and (b) inventions conceived or developed by Quadion, including inventions based on information supplied by Customer, arising out of or related to these Terms and Conditions shall be the sole and exclusive property of Quadion.
15 – Delivery and Packaging: Any delivery dates shown on Quadion’s quotations or other documents are estimates only and Quadion shall have no liability for any loss or damage caused by delays in filling or delivering orders to Customer. Any packaging other than bulk packaging must be requested in writing by Customer and additional charges shall be made accordingly. Unless otherwise provided, goods shall be packaged in accordance with Quadion’s standard procedures.
16 – Indemnification. Customer shall indemnify, defend and hold Quadion and its officers, board of managers, members, and agents harmless from and against all liability, cost and expense (including attorneys’ fees) for claims and actions of any kind by any third party for injury, death, or property damage arising out of or in any way connected with the use, possession or transfer of the goods manufactured and delivered hereunder, unless caused by the gross negligence or intentional misconduct of Quadion.
17 – Components: Components supplied by Customer must include 10% additional components over and above the amount required to fill the applicable order for molded parts or assemblies, and shall be delivered F.O.B. Quadion’s plant, all charges prepaid by Customer. If components are shipped without such prepayment, Quadion shall invoice Customer for the shipping charges, plus a 15% handling charge. If Customer does not include at least 10% additional components and some components have to be reclaimed, Customer shall be charged for the cost of reclaiming these components up to 10%. All components are subject to approval of design by Quadion, must be uniform to approved blueprint tolerances, and free from contaminants and defects. Quadion assumes no liability for damages to molds or tools caused by incorrect components, or for molded parts or assemblies in which components were furnished by Customer and found defective after molding or assembly.
18 – Cancellation: Accepted orders may only be cancelled by Customer by providing written notice to Quadion at least thirty (30) days prior to the anticipated ship date of such order. In the event an order is cancelled by Customer, Customer shall pay Quadion for (a) all completed work at the unit price set forth in the quotation; (b) work in process on the basis of the percentage of completion thereof times the order unit price; (c) all raw materials; (d) tooling, engineering and other cancellation charges incurred based on Quadion’s original cost; and (e) handling and overhead charges, all as determined in the reasonable discretion of Quadion.
19 – Modification of Terms: No change, modification or amendment to these Terms and Conditions shall be binding upon the parties unless they are in writing and signed by or on behalf of the parties hereto. Customer agrees that any additional or inconsistent terms included in its prior or future purchase orders, releases, confirming documents or other correspondence shall not become part of, or in any way modify, the Terms and Conditions contained herein and have no force and effect, unless expressly agreed to in writing signed by both parties hereto. Customer’s submission of an order to Quadion (including, without limitation, orders placed via an EDI network), Customer’s acceptance of any goods covered by these Terms and Conditions, Customer’s written expression of acceptance, Customer’s execution of a Parts Submission Warrant, or Customer’s request of Quadion to confirm Customer’s order through the internet, on Customer’s website, or otherwise, shall each constitute acceptance by Customer of all of these Terms and Conditions. The Terms and Conditions herein, together with any Quotation (and attachments thereto) and Parts Submission Warrant executed by Customer, constitute the complete and exclusive statement of the terms and conditions of the parties’ agreement with respect to the subject matter herein.
20 – Technical Advice: Any technical advice furnished by Quadion to Customer before or after delivery of goods in regard to the use of any goods is furnished on the basis that it represents Quadion’s best judgment under the circumstances but that it is used at Customer’s sole risk. Quadion makes no representations or warranties relating to such technical advice.
21 – Force Majeure: Quadion does not assume the risk of and shall not be liable for delay or failure to perform any of its obligations by reason of circumstances beyond the reasonable control of Quadion (hereinafter “Events of Force Majeure”). Events of Force Majeure shall include without limitation, accidents, acts of God, strikes or labor disputes, acts, laws, rules or regulations of any government or government agency, fires, floods, delays or failures in delivery of carriers or suppliers, acts of terrorism, shortages of materials, failure of any equipment or tooling, or any other cause beyond Quadion’s reasonable control.
22 – Governing Law/Venue: The rights and obligations of the parties hereunder shall be governed by the laws of the State of Minnesota, without regard to any conflict of laws provisions. Any dispute, controversy or claim involving Quadion and Customer, or these Terms and Conditions, shall be venued in a state or federal court situated in Hennepin County, Minnesota and the parties each consent to the exclusive jurisdiction of such courts.
23 – Costs and Attorneys’ Fees. In the event any action or suit is brought by either party by reason of any default under or breach of these Terms and Conditions by the other party, the prevailing party shall be entitled to recover from the non-prevailing party all of its costs and expenses, including reasonable attorneys’ fees.
24 – Electronic Transmission. Customer agrees to be bound by any affirmation, assent or agreement it transmits through the Quadion web site. Customer agrees that, when it clicks on an “I agree,” or “I consent” or other similarly worded “button” or entry field with its mouse, keystroke or other computer device, Customer’s agreement or consent shall be legally binding and enforceable and the legal equivalent of Customer’s handwritten signature. Customer further agrees that all agreements, notices, disclosures and other communications that Quadion provides to Customer electronically satisfy any and all legal requirements that such communications be in writing.
25 – Document Retention. Unless otherwise agreed to in writing by Quadion, all records, documents, and other information relating to the goods furnished by Quadion, including the development and procurement of the goods, shall be retained in accordance with Quadion’s policies, as may be amended from time to time. Notwithstanding the foregoing, Quadion shall have no duty to retain any customer records or other information relating to the goods furnished to Customer, and Quadion shall have no liability for failing to retain such documents or records for any period of time.
26 – Severability. The unenforceability or invalidity of one or more of the provisions in these Terms and Conditions will not affect the enforceability or validity of any other provision in these Terms and Conditions