e-CYCLE TERMS AND CONDITIONS OF DOMESTIC SALE
1. Acceptance of Contract: These Terms and Conditions of Domestic Sale (this “Agreement”) establish the rights, obligations and remedies of e-Cycle, LLC (“Seller”) and Client which apply to any order issued by Client for the purchase of Seller’s products or equipment (“Goods”). No additional or different terms or conditions, whether contained in Client’s purchase order form, Seller’s Replacement Stock Order Form or any other document or communications pertaining to Client’s order of Goods, will be binding upon Seller unless accepted in writing and Seller hereby expressly objects to any such terms and conditions, which shall be deemed ineffective and are rejected. It is expressly understood herein that this Agreement shall prevail over Client’s terms and conditions of purchase. In the event of any inconsistency between this Agreement and any other agreement between the parties, the terms and conditions of this Agreement shall prevail.
The Client agrees and acknowledges that any order accepted by Seller is accepted subject to this Agreement and subject to approval by Seller of Client’s credit at the time of delivery. The specifications applicable to Goods sold by Seller shall be Seller’s specification, unless Client furnished different specifications and Seller agreed in writing to such specifications.
2. Complete Agreement: This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement between Seller and Client with respect to the subject matter hereof, superseding completely any oral or written communications, unless the terms thereof are expressly incorporated herein. No course of performance, course of dealing, or usage of trade shall be applicable unless expressly incorporated in this Agreement. The terms and conditions contained in this Agreement may not be added to, modified, superseded, or otherwise altered except by a written instrument signed by an authorized representative of Seller and delivered to Client. Where Seller’s quotation, order acknowledgment, or other correspondence contains terms or conditions contrary to or in addition to these terms and conditions, such contrary or additional terms are hereby incorporated and accepted by Client (without any requirement of further notice of such acceptance).
3. Use of Electronic Transmissions. Client and Seller agree that the use of electronic transmission, including, but not limited to, e-mail or other transmissions via the Internet or World Wide Web, in entering into and in exercising their rights and performing their obligations under this Agreement is in the best interests of all of the parties and shall be permissible, notwithstanding any requirement of the Uniform Commercial Code or any other applicable law that might otherwise be considered unsatisfied as a result of the utilization of such media. Client and Seller therefore agree that the Uniform Electronic Transactions Act, as promulgated by the National Conference of Commissions on Uniform State Laws, shall be applicable to the construction of these Rules and any Transactions hereunder, whether or not such Act shall have been adopted in any jurisdiction. By way of illustration and not of limitation, Client and each Seller agree to the following: (a) any document (including this Agreement) transmitted by electronic transmission shall be treated in all respects as an original signed document; (b) the signature (including electronic signatures) of any party shall be considered for these purposes as an original signature; (c) any such electronic transmission shall be considered to have the same binding legal effect as an original document; and (d) neither Client nor Seller shall raise the use of electronic transmission as a defense to this Agreement or in matters relating to any transaction pursuant to this Agreement, and Client and Seller each waive such defense. Client and Seller further agree that facsimile signatures by the parties shall be binding to the same extent as original signatures.
4. Title and Risk of Loss: Unless otherwise expressly agreed in a writing signed by Seller, Client shall bear the risk of loss and damage to all Goods to be supplied hereunder upon identification of the Goods to this Agreement. Identification of the Goods to the Agreement shall occur as each shipment of Goods is placed in the hands of the carrier or when the Seller places the Goods at the disposal of Client for delivery at Seller’s factory or such other named place of delivery as Seller may later designate pursuant to Section 5 below. Title to Goods sold hereunder shall pass to Client only upon payment in full to Seller.
5. Shipment/Delivery: All prices are F.O.B. Seller’s factory, Hilliard Ohio. The method and route of shipment are at Client’s discretion. All shipments are insured at Buyer’s expense and made at Client’s risk.
Delivery and Shipping dates and schedules are subject to availability of adequate labor and equipment and to other contingencies as set forth in Section 10 herein. Seller does not warrant or, in any way, guarantee such Delivery and Shipping dates. Delivery and Shipping dates mentioned in any of Seller’s document are estimates only and not of any contractual effect.
6. Inspection; Acceptance and Rejection: Client may inspect the Goods, or provide for inspection, at Seller’s factory in Hilliard, Ohio, United States of America or such other named place of delivery as Seller may later designate. Such inspection shall be so conducted as not to interfere unreasonably with Seller’s operations; and consequent approval or rejection shall be made before delivery or shipment of the Goods. The foregoing notwithstanding, if, upon Client’s receipt of the Goods, the same shall appear not to conform to the requirements of this Agreement, Client shall immediately within ten (10) business days of receipt of the Goods notify Seller and afford Seller a reasonable opportunity to inspect the Goods. In no case are Goods to be returned without first obtaining Seller’s permission. All returned shipments authorized by Seller shall be prepaid by Client. Seller shall, at its option and in its sole discretion, upon return of such non-conforming Goods: (i) provide Client with Credit for the purchase price amount paid by Client; (ii) refund the purchase price amount paid by Client; (iii) replace the non-conforming Goods; or (iv) repair the non-conforming and return them to Client. Goods are deemed to be proper, conforming and accepted unless Seller receives written notice of rejection explaining the basis for rejection within the timeframe established herein.
Seller shall incur no liability for damages, shortages, or any other cause alleged to have occurred or existed at or prior to delivery to the carrier unless full details are entered on Client’s receipt to the carrier. For avoidance of doubt, it is clarified herein that Seller shall not be responsible for any claim or damage caused to Goods in transit.
Seller will package the Goods according to Seller’s customary and normal means of packaging. Client shall pay the cost of any special packaging requested by Client.
If the Client refuses or fails to take delivery of Goods tendered in accordance with this Agreement or fails to take any action necessary on its part for delivery and/or shipment of the Goods, Seller shall be entitled to terminate the Agreement with immediate effect, to dispose of the Goods as Seller may determine, and to recover from Client any loss and additional costs incurred as a result of such refusal or failure.
7. Limited Warranty:
(a) Items Covered by this Warranty. Seller warrants, to the original Client only, that the Goods that are the subject of this Agreement (1) conform to Seller’s published specifications and (2) are free from defects in material or workmanship. The duration of this warranty is one (1) calendar month from the date of delivery (the “warranty period”). If, during the warranty period, Client discovers a failure of the Goods to conform to specifications or a defect in material or workmanship, it must promptly notify Seller in writing, setting forth in detail the nature of the nonconformity or defect (“Client’s Notice”). Seller shall in no event have any liability under or with respect to this warranty unless Client’s Notice is received by Seller within the warranty period. Within a commercially reasonable time after its receipt of Client’s Notice of an undisputed nonconformity or defect in the Goods, Seller shall at its option (i) provide Client with Credit for the purchase price amount paid by Client; (ii) refund the purchase price amount paid by Client; (iii) replace the non-conforming Goods; or (iv) repair the non-conforming and return them to Client. Any warranty service will be performed at Seller’s factory in Hilliard, Ohio United States of America or such other facility as Seller may later designate. All costs and expenses relative to the dismantling of the Goods, the shipment of any nonconforming or defective parts to Seller, and the installation of replacement parts will be at Client’s expense. The remedies contained in this Section 7 are Client’s exclusive remedies for breach of warranty.
(b) Items Not Covered by this Warranty. Without limitation, Seller does not warrant (1) any product, components, or parts not manufactured by Seller (but, to the extent that Seller may lawfully do so, Seller hereby transfers and assigns to Client any warranty given to Seller by the original manufacturer of such parts), (2) defects caused by failure to provide a suitable installation environment for the Goods, (3) damages caused by use of the Goods for purposes other than those for which they were designed, (4) damage caused by disasters, such as fire, flood, wind, and lightning, (5) damages caused by unauthorized attachments or modifications, (6) damage during shipment, or (7) any other abuse or misuse by Client. Seller assumes no liability for results of use of Goods purchased from Seller, including without limitation, their use in combination with other components, assemblies or products, or their suitability or unsuitability for a particular use or environment. Nothing in this paragraph 7(b) shall be deemed in any way to modify or to broaden the limited warranty set forth in paragraph 7(a).
(c) Limitation of Remedies. The remedies described above are Client’s sole and exclusive remedies. In the event that Seller shall be found liable to Client for breach of this limited warranty, CLIENT EXPRESSLY AGREES THAT IT’S DAMAGES (IN THE AGGREGATE) SHALL BE STRICTLY LIMITED TO THE PURCHASE PRICE OF THE GOODS PAID BY CLIENT TO SELLER. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY COST, LOSS, EXPENSE, DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING, DIRECTLY OR INDIRECTLY, FROM CLIENT’S PURCHASE, OWNERSHIP, OR USE OF THE GOODS, WHETHER BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT LIABILITY, OR ANY OTHER LEGAL THEORY. SUCH DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF PROFITS, LOSS OF SAVINGS OR REVENUE, LOSS OF USE OF THE GOODS OR ANY ASSOCIATED PROPERTY, COSTS OF CAPITAL, COSTS OF ANY SUBSTITUTE EQUIPMENT, FACILITIES, OR SERVICES, DOWNTIME, THE CLAIMS OF THIRD PERSONS (INCLUDING LESSEES, CUSTOMERS, AND INVITEES), AND INJURY TO PROPERTY.
(d) Disclaimer of Warranty. THE WARRANTIES AND LIMITS OF LIABILITY DESCRIBED ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES AND LIABILITIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT, OR COMPLIANCE WITH ANY APPLICABLE GOVERNMENTAL REGULATION, INCLUDING WITHOUT LIMITATION ANY REGULATION OR POLICY SET FORTH BY THE FCC, FTC OR OTHER AGENCY OF THE UNITED STATES OR ANY OTHER COUNTRY, INCLUDING WITHOUT LIMITATION REGULATIONS RELATED TO MOBILE DEVICES, WHETHER OR NOT SUCH LAWS, REGULATIONS AND OR POLICIES ARE KNOWN BY SELLER.
(e) Indemnification. Seller shall not be responsible for any losses or damages sustained by the Client or any other person as a result of the use, misuse, or application of the Goods. Client shall defend, indemnify and hold harmless Seller and its agents, and employees against any loss, damage, claim, suit, liability, judgment or expense (including without limitation, attorney’s fees) arising out of or in connection with any injury, disease or death of persons (including, without limitation, Client’s employees and agents) or damage to or loss of any property or the environment, or violation of any applicable laws or regulations resulting from or in connection with the sale, transportation, installation, use, or repair of Goods by Client or the information supplied to Client. The obligations, indemnities and covenants contained in this clause shall survive the consummation or termination of this Agreement.
8. Price; Taxes; Terms of Payment:
(a) All prices for the Goods are quoted in United States Dollars and are subjected to change without notice. Prices do not include any charges for services including but not limited to special packaging, insurance, freight, brokerage fees, loading, marking, dock and harbour fees or storing. Unless otherwise noted, seller’s price excludes all taxes (including but not limited to, sales, use, excise, value-added, and other similar taxes), and other charges. Client is responsible for all such taxes, and other charges resulting from this Agreement or as a result of Seller’s performance hereunder, whether now or hereafter imposed, levied, collected, withheld or assessed by the government of United States of America, or any other state or local government or municipality or any other governmental or quasi-governmental entity or organization. If Seller is required to impose, levy, collect, withhold or assess any taxes, or other charges on any transaction under this Agreement, then in addition to the purchase price, Seller will invoice the Client for such taxes, and other charges unless the Client furnishes Seller with an exemption certificate or other documentation sufficient to verify exemption from such taxes, or other charges.
(b) All payments must be made in United States Dollars. Unless otherwise agreed in a writing signed by Seller, all Goods are sold on the condition that Client (i) make full payment of the purchase price in advance at the time of order with the balance of the purchase price plus any other charges as noted in the invoice to be paid immediately by Client on delivery of Goods by Seller; and/or (ii) open an irrevocable letter of credit from a reputable bank in United States of America in favor of Seller prior to shipment/delivery in the amount of the total invoice price of the Goods, which letter of credit shall specially instruct bank to make payment to Seller in accordance with terms thereof and which payments shall be made upon demand, without delay and without the necessity of any judicial or administrative action; and/ or (iii) establish satisfactory credit with Seller prior to shipment and delivery for an open account. If on open account, Client fails to make full and timely payment, Seller may defer shipment of other orders, or may cancel all or any part of any unshipped order until full payment is made. Any extension of credit allowed to Client may be changed or withdrawn at any time.
(c) Seller shall issue a separate invoice for each shipment. Except as otherwise expressly agreed, all sums payable by Client under this Agreement shall be paid without notice, demand, counterclaim, set-off, deduction, or defense and without abatement, suspension, deferment, diminution, or reduction.
(d) Payment shall be made by wire transfer to an account designated by Seller or in such other manner, as Seller shall have notified Client. Should Client fail to pay the full amount due to Seller when the same is due, as herein provided, interest shall accrue thereon from the date of such payment until the same is paid at a rate of eighteen percent (18%) per annum or the maximum allowed by law, whichever is higher. Client shall pay all removable costs, including attorney’s fees and expenses, and all commercially reasonable charges and expenses incurred by Seller for collection of past due amounts.
(e) In the event Client fails to pay for the Goods as agreed to herein or to comply with any of the terms and conditions, Seller shall have right to retain any and all purchase price paid in advance or other forms of security tendered by Client.
9. Security Interest. To secure the balance of the purchase price remaining unpaid after the delivery to Client of the Goods that are the subject of this Agreement, Client hereby grants to Seller a purchase money security interest in such Goods. This Agreement is intended by Client and Seller to constitute a security agreement with respect to such Goods for purposes of the Uniform Commercial Code or any other applicable law. Client further authorizes Seller to file one or more financing statements describing such collateral and agrees, if requested by Supplier, to pay the cost of filing such financing statements in all public offices wherever filing is deemed necessary by Seller.
10. (Excusable Delay) Force Majeure: Except for payment obligations, neither party shall be liable to the other party for any failure to meet its obligations due to any cause beyond the non-performing party’s reasonable control. If the inability to perform continues for longer than ninety (90) days, either party may terminate this Agreement providing written notice to the other party and Client will pay Seller for Goods delivered prior to termination, and a pro-rata portion of the applicable purchase price for any work in progress. Force Majeure events may include but are not limited to: (a) delays or refusals to grant an export or import license or the suspension or revocation thereof; (ii) any other acts of any government that would limit the ability for performance consistent with the Agreement; (iii) fires, earthquakes, floods, severe weather conditions or any other acts of God; (iv) quarantines or regional medical crisis; (v) labor strikes or lockouts; (vi) riots, strife, insurrection, civil disobedience, armed conflict, terrorism, or war, declared or not (or impending threat of any of the foregoing, if such threat might reasonably be expected to cause injury to people or property); (vii) shortages or inability to obtain materials or components; and (viii) inability to obtain information necessary to manufacture Goods to be provided by Seller under this Agreement. If a Force Majeure event causes delay, then the date of performance will be extended by the period of time that the non-performing party is actually delayed or for any other period as the parties may agree in writing.
11. Default: The following occurrences shall constitute “Events of Default” under this Agreement:
(a) Client shall fail to make any payments or portion thereof to Seller when due under this Agreement; or
(b) Any representation of warranty of Client contained herein or in any document furnished to Seller in connection herewith shall be incorrect or misleading in any material respect when made; or
(c) Client shall fail to observe or to perform any other covenant, agreement, or warranty made by Client hereunder and such failure shall continue for ten (10) days after notice thereof to Client;
(d) Client default under any other agreement between Seller and Client; or
(e) Client shall make an assignment for the benefit of creditors or shall file any petition or action under any bankruptcy, reorganization, or insolvency law, or any other law or laws for the relief of, or relating to, debtors; or
(f) Any involuntary petition shall be filed under any bankruptcy statute against Client or any receiver, trustee, custodian, or similar official shall be appointed to take possession of the properties of Client; or
(g) Client’s financial condition shall become such as to endanger completion of performance, and such condition shall continue for ten (10) days after written notice thereof to Client.
If any Event of Default shall occur, Seller, at its option, may terminate this Agreement by written notice to Client. In such event Seller shall, nevertheless, have the right to recover from Client any and all amounts that, under the terms of this Agreement, may be then due or that may have accrued to the date of such termination, plus interest on that amount, as a late charge, at the rate of eighteen percent (18%) per annum or the maximum allowed by law, whichever is higher.
12. Termination for Convenience: Even though an Event of Default shall not have occurred, Seller may terminate this Agreement, in whole or in part, and at any time or for any reason, at Seller’s convenience, upon written notice to Client. Upon giving such notice of termination, Seller shall immediately discontinue performance and shall comply with Client’s instructions concerning disposition of completed and partially completed Goods, work in progress, and materials acquired pursuant to this Agreement. In event of such termination, Seller shall be paid an amount, that shall cover Seller’s reasonable costs of performance incurred prior to termination in connection with the Goods for which this Agreement is terminated plus a reasonable profit based upon such costs. In no event shall the said payment exceed the price specified herein for such Goods. Seller shall advise Client in writing, within thirty (30) days after Seller’s receipt of the notice of termination, of Seller’s claim, if any, for termination costs. No such termination shall relieve Client of any of its obligations for any Goods accepted prior to such termination.
This Agreement cannot be cancelled by Client except on terms that will compensate Seller for any actual or anticipated expenses and loss of profits. Because Seller’s damages related to termination by Client are difficult to estimate at the time of this agreement, in a reasonable endeavor by the parties to fix a fair compensation that bears a reasonable relation to the probable damages reasonably anticipated, not as a penalty, the parties agree that a minimum cancellation charge of fifteen percent (15%) of the purchase price amount will be applied to any cancellation.
13. Assignment: Client may not assign this Agreement or any interest herein or any right to performance due or to become due hereunder, whether by assignment, subcontract, merger, reorganization, operation of law, or otherwise (all of which shall be deemed to be an “assignment”), without the prior written consent of Seller. Any such actual or attempted assignment without Seller’s written consent shall constitute a breach by Client and shall entitle Seller to terminate this Agreement without further liability hereunder. Seller may assert any counterclaims or set-off that Seller may have against Client against any assignee, whether or not such counterclaim or set-off arose under or with respect to this Agreement.
14. Compliance with Law: Client acknowledges that it is neither an agent nor a representative of Seller. Client represents and warrants that it is in compliance with all applicable US federal, state, and city laws, as it apply to this Agreement.
15. Patent; Copyright; Trademark Rights: Client acknowledges that it has no rights, title or interest in the patents, trademarks, copyrights or other intellectual property rights of Seller as regards the Goods, and Client covenants that it will take no action to register or to otherwise interfere with any such rights in United States of America or in any other country. Seller shall exclusively own all rights, title and interest (including, without limitation, all intellectual property rights on a worldwide basis) in and to the Goods and any and all inventions, works of authorship, know-how, ideas or information discovered, developed, made, conceived or reduce to practice, by Seller, in the course of performance of this Agreement.
Client agrees not to remove or alter any indicia of manufacturing origin or patent numbers contained on or within the Goods, including without limitation the serial numbers or trademarks on nameplates or on casting mould or machine components.
16. Confidential Information: Client acknowledges and agrees that without prior written consent of Seller, Client shall neither disclose to any person outside its employment, nor use for purpose other than those contemplated by this Agreement, any information pertaining to the existence or terms of this Agreement, including but not limited to, the marketing and manufacturing information, identity, price, or volume of the Goods purchased hereunder, and the technical information, data descriptions, specifications, know-how as they relates to the Goods that are part of this Agreement (the “Proprietary information”). Client shall take all reasonable steps necessary to prevent the disclosure of any Proprietary Information by any of its employees, agents or subcontractors. No right or license is granted hereby to Client with respect to the Proprietary Information. Client will not use Seller’s Proprietary Information for the manufacture or procurement of parts or Goods that are subject of this Agreement or any similar parts or goods to be manufactured or procured from any other source. Client agrees that Seller shall be entitled to enforce this section against Client by means of injunctive relief and that irreparable harm shall be deemed to exist from any such alleged use.
17. Governing Law; Forum: The parties agree that this Agreement shall be construed and enforced according to and governed by the laws of the State of Ohio, without regard to conflicts-of-laws principles and specifically excluding the provisions of the United Nations Convention on the International Sale of Goods. Any action or proceeding to enforce any provision of, or based on any right arising out of, this Agreement may be brought against either party only in the Court of Common Pleas of Franklin County, Ohio, or in the United States District Court for the Southern District of Ohio, sitting in Columbus, Ohio; and each party consents to the jurisdiction of such courts (and of the appropriate appellate courts), waives any objection to venue laid therein, and agrees that process may be served on it anywhere in the world. Client agrees that, if it is held to be in violation, breach, or nonperformance of any of the terms of this Agreement, it will pay all costs of such action or suit, including reasonable attorneys’ fees actually incurred by Seller.
18. Time Limit for Bringing Suit: Any action for breach of contract or breach of warranty must be commenced by Client within the warranty period.
19. Remedies: No right or remedy herein conferred upon or reserved to Seller is exclusive of any other right or remedy herein or by law or in equity provided or permitted; but each shall be cumulative of every other right or remedy given hereunder or now or hereafter existing at law or in equity and may be enforced concurrently therewith from time to time. No waiver of a breach of any provision of this Agreement shall constitute a waiver of any other breach, or of such provision.
20. Severability: The terms and conditions of this Agreement are severable. If any clause herein shall be held unenforceable by any laws or court of competent jurisdiction, such clause shall be deemed reduced in scope to the maximum extent enforceable, and all other clauses herein shall remain binding on the parties.