All sales by Cincinnati Extrusion Inc. are subject to the Terms and Conditions exclusively set forth below.
"Buyer" means the person, corporation or other entity (and heirs, successors or permitted assigns) that buys products from Cincinnati Extrusion Inc. "Cincinnati Extrusion Inc." means Cincinnati Extrusion Inc. and its successors or assigns. "Products" means all goods (equipment) and services provided by Cincinnati Extrusion Inc.
These Terms and Conditions and the other written terms and conditions set out by Cincinnati Extrusion Inc. on the Order Confirmation and/or written, special warranties (if any) offered by Cincinnati Extrusion Inc. (together, the "Agreement") constitutes the complete, exclusive and final agreement of Buyer and Cincinnati Extrusion Inc. with respect to the Products sold to Buyer and supersedes all previous or simultaneous communications either oral or written. This Agreement may not be added to, modified, superseded or altered except only by written agreement signed by an Officer of Cincinnati Extrusion Inc. expressly referencing this Agreement. This Agreement is an offer by Cincinnati Extrusion Inc. which may only be accepted in full. Additional (or different) terms set forth on Buyer's order or other forms are hereby rejected and this writing shall be deemed notification of such rejection. NO PERSON IS AUTHORIZED TO BIND CINCINNATI EXTRUSION INC. EXCEPT ACCORDING TO THESE TERMS AND CONDITIONS.
Any price quoted by Cincinnati Extrusion Inc. shall not be binding upon Cincinnati Extrusion Inc. unless accepted in writing within thirty (30) days of the date herein. If the Buyer does not accept in thirty (30) days, Cincinnati Extrusion Inc. may change the price quoted. As all prices are based upon costs and conditions (including exchange rates) existing at the time of acceptance, prices are subject to increase, at any time, as those conditions change, e.g., increase in price of materials and labor and exchange rate fluctuations. Prices quoted herein, unless otherwise specified in writing, (a) shall be F.O.B. Cincinnati Extrusion Inc. dock, 1455 Jamike Drive, Erlanger, KY 41018 and (b) do not include freight tariffs, taxes, duties, special handling, or other additional costs. Buyer shall pay all such costs and any such costs paid by Cincinnati Extrusion Inc. shall be billed to Buyer. All goods will be installed by and at the expense of Buyer unless otherwise expressly stated herein.
Cincinnati Extrusion Inc.'s Order Confirmation includes these Terms and Conditions and constitutes the sole offer by Cincinnati Extrusion Inc. to sell its Products. Acceptance is limited to these Terms and Conditions and no others, and Buyer waives any and all inconsistent terms or conditions in its purchase order or other documents. This offer shall be deemed accepted by both the Buyer and Cincinnati Extrusion Inc. upon the earlier of Cincinnati Extrusion Inc.'s receipt of Buyer's written acceptance, Buyer's Purchase Order and/or related deposit monies.
THIS LIMITED WARRANTY IS EXTENDED IN LIEU OF ALL OTHER WARRANTIES OR GUARANTEES EXPRESS OR IMPLIED (INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE), WRITTEN OR ORAL, ARISING BY OPERATION OF THE LAW OF ANY COUNTRY OR STATE OR OTHER JURISDICTION, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE.
Cincinnati Extrusion Inc. warrants to Buyer goods built by it to be free from defects in material and workmanship under normal use and service for a period of: (i) twelve (12) months from installation; or (ii) eighteen (18) months from delivery date, whichever period is shorter (the "Warranty Period"). During the Warranty Period, Cincinnati Extrusion Inc. will repair or replace (at its sole discretion), free of charge, any defective goods during the said period. This warranty DOES NOT EXTEND to defects in goods not manufactured by Cincinnati Extrusion Inc.; however, the original manufacturer's warranties will be passed through Cincinnati Extrusion Inc. to the Buyer. Drawings prepared by Cincinnati Extrusion Inc. and approved by Buyer shall be deemed the correct interpretation of the work to be performed even if inconsistent with plans or specification. Certain items manufactured and/or sold by Cincinnati Extrusion Inc. have specific, express warranties that differ from the warranty contained herein. Buyer will be provided with a copy thereof and said specific warranty shall take precedence over the warranty contained herein. In the event the equipment is covered by a specific warranty, it must be installed in accordance with the provisions of that warranty to preserve the specific warranty. Upon resale, Buyer agrees to extend to its purchasers no greater warranties, and limit its liabilities and remedies to the same extend, as those set forth above.
Limitation of Warranty: The warranties and remedies for breach of warranty provided for in this Agreement extend only to the original sale or installation. All Cincinnati Extrusion Inc. warranties shall be voided by any of the following:
(i) Misuse, negligent treatment or improper installation or maintenance;
(ii) Alteration, repair or installation by other than experienced and trained service personnel unless approved in advance by Cincinnati Extrusion Inc.;
(iii) Introduction of foreign matter or non-production materials;
(iv) Operation above rated capacity or at abnormal temperatures;
(v) Buyer uses barrels or screws supplied by Cincinnati Extrusion Inc. in conjunction with a used or partly worn barrel or screw unless Buyer shall have prior written approval from Cincinnati Extrusion Inc.;
(vi) Buyer uses barrel and/or screws supplied by Cincinnati Extrusion Inc. in conjunction with a barrel or screws of different origin (other than Cincinnati Extrusion Inc.) unless Buyer shall have prior written approval;
(vii) Use of contaminated raw materials or regrind;
(viii) Use of compounds containing more that 15 PHR of fillers unless prior written approval is given by Cincinnati Extrusion Inc.;
(ix) Damage caused by an event of Force Majeure (as defined below);
(x) Defects due to natural wear and tear, chemical or electrolytical influences.
Gearboxes: All gearboxes are covered for a period of one (1) year or 8,000 hours from start-up, whichever shall occur first. Exceptions per this agreement are noted as follows:
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All Product literature is for illustrative purposes only and does not contain a warranty of any kind. Cincinnati Extrusion Inc.'s advice relating to the technical usage of the Products or the intellectual property rights of others, whether provided orally or in writing or through the provision of test results, is provided for reference purposes only and given in accordance with Seller's best knowledge at that time, but shall at all times be deemed to be non-binding. Such advice does not relieve Buyer from the obligation, and Buyer accepts full responsibility, to confirm for himself the suitability of the Products for the intended purpose(s).
The parties agree that Buyer's sole and exclusive remedy against Cincinnati Extrusion Inc. shall be at Cincinnati Extrusion Inc.’s sole discretion, either: (i) for the repair or replacement of affected Product to correct defects during the applicable warranty period, all as defined in the Limited Warranty clause above; or (ii) to issue a credit equal to the price of the defective Product during the applicable warranty period; provided that Buyer promptly notifies Cincinnati Extrusion Inc. of such defects and, after receipt of prior written authorization from Cincinnati Extrusion Inc., returns such Product to the place requested by Cincinnati Extrusion Inc., freight prepaid, and thereupon Cincinnati Extrusion Inc. finds such Product to be defective. Buyer must pay all related costs of repair or replacement, including removal, installation and reinstallation costs. Cincinnati Extrusion Inc.'s personnel must be granted access to inspect the Products claimed to be defective at the site of their installation or use. In no event shall Cincinnati Extrusion Inc. be liable on any claim including, but not limited to, any claim of negligence, breach of performance, breach of terms or conditions, defective design, defective manufacture, strict liability arising from the sale, use, delivery, installation, repair or technical direction or advice concerning Cincinnati Extrusion Inc.'s goods except as to the repair or replacement of defective goods as provided herein. Under no circumstances shall Cincinnati Extrusion Inc. be liable for any SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, including without limitation lost profits or revenues, loss of use, production downtime or plant shut downs, loss of raw material, energy, utility, labor, capital losses or damage to property, claims of third parties, including personal injury or death on account of use of the Products or failure of Cincinnati Extrusion Inc. to warn against or instruct on, or adequately warn against or instruct on, the dangers of the Products or the safe and proper use of the Products, whether or not Cincinnati Extrusion Inc. has been advised of the potential for such damages. In the event that Buyer, notwithstanding the mutual agreement of the parties to the limitations and disclaimers of liability set forth above, successfully asserts a claim for monetary damages or payment, then whatever the legal or equitable basis for Buyer's claims, Cincinnati Extrusion Inc.'s total liability hereunder from any cause whatsoever (except liability from personal injury caused by Cincinnati Extrusion Inc.'s negligence), whether arising under contract, warranty, tort (including negligence), strict liability, products liability or any other theory of liability, will be limited to the lesser of Buyer's actual, direct damages or the price actually paid by Buyer to Cincinnati Extrusion Inc. for the Products that are the subject of Buyer's claim. All claims against Cincinnati Extrusion Inc. must be brought within one year after the cause of action arises, and Buyer expressly waives any longer statute of limitations.
If Buyer requires technical service or training, Buyer shall pay Cincinnati Extrusion Inc.'s daily rates in effect the date service or training is rendered. (Please refer to Installation and Service Policy.)
All payment provisions other than cash on delivery are subject to approval of Buyer's credit. All payments are due without deduction or set-off. If there is no specific contrary agreement upon terms of payment stated herein, all payment not prior made shall be due and payable in one installment upon delivery. If payment is not made when due, Cincinnati Extrusion Inc. may suspend all future delivery or other performance with respect to Buyer without liability or penalty. Cincinnati Extrusion Inc. shall be entitled to and Buyer shall pay interest at the rate of 1½ % per month (18% per annum), or the highest rate permitted by law, whichever is lower, on all amounts that are not paid as specified. In addition to all other sums payable hereunder, Buyer shall pay to Cincinnati Extrusion Inc. the reasonable costs and expenses incurred by Cincinnati Extrusion Inc. in connection with all actions taken to enforce collection or to preserve and protect Cincinnati Extrusion Inc.’s rights hereunder, whether by legal proceedings or otherwise, including without limitation reasonable attorneys’ fees, court costs and other expenses.
Buyer may not, after acceptance, cancel the order, modify the order, nor be entitled to delay shipment except on prior written approval of Cincinnati Extrusion Inc. In the event of cancellation of an order of standard machinery or parts, a charge of fifteen percent (15%) shall be immediately due and payable by Buyer. In the case of special order machinery or parts the heretofore described amount plus any special engineering, tooling, parts, components, adapters or other cost incurred by Cincinnati Extrusion Inc. shall become immediately due and payable. Cincinnati Extrusion Inc. may cancel all or part of the contract or order upon the happening of any of the following: insolvency of Purchaser, the appointment of a custodian or trustee, the filing of any proceeding under Title 11 U.S.C., as amended (the "Bankruptcy Code"), or the commencement of a case under any chapter of the Bankruptcy Code for, by or against Purchaser, Purchaser's suspension or termination of business or assignment for the benefit of creditors, any event, whether or not similar to the foregoing, which materially impairs Purchaser's ability to perform here under, events of Force Majeure.
Any stated delivery date is an estimated delivery date only. Time is not of the essence. Under no circumstance shall Cincinnati Extrusion Inc. be liable for any damage or losses experienced by Buyer by reason of delay. Cincinnati Extrusion Inc.'s sole responsibility is to use reasonable commercial efforts to meet specified shipment dates. Cincinnati Extrusion Inc. has completed delivery to Buyer when goods are ready for shipment and Buyer is so notified or when goods are delivered to a carrier.
Cincinnati Extrusion Inc. may select the mode of shipment and the carrier. Risk of loss or damage shall pass to Buyer upon delivery of the goods to the first carrier. Upon receipt of goods, Buyer shall carefully inspect goods and notify carrier and Cincinnati Extrusion Inc. of any loss or damage. Failure to notify Cincinnati Extrusion Inc. within 48 hours after receipt waives Cincinnati Extrusion Inc.'s responsibility of any loss or damage. Buyer shall permit Cincinnati Extrusion Inc. to inspect said loss or damage. In the event of delay caused by any action or inaction of Buyer, Buyer shall be liable for all proximate costs resulting from such delay. All packaging, loading and freight shall be the responsibility of the Buyer. Once used, Products are deemed to be fully conforming to this Agreement.
In the event that the Buyer's account with Cincinnati Extrusion Inc. is delinquent, and all warranty corrections will not be executed until open accounts are brought up to date. In the case of delinquent account balances the warranty period will not be extended beyond the period indicated in paragraph #5.
Cincinnati Extrusion Inc. reserves and Buyer hereby grants to Cincinnati Extrusion Inc. a purchase money security interest (or the equivalent under Buyer's local law) in all Products sold hereunder, including all component parts added by modification or repair and all proceeds from any insurance claim on the loss thereof or the sale thereof (together with the Products, the "Collateral"), to secure Buyer's payment of the purchase price and any other charges owed by Buyer. Buyer agrees that Cincinnati Extrusion Inc. may (but is not obligated to) take such action as Cincinnati Extrusion Inc. deems advisable to evidence and perfect such interest. Buyer further agrees at Cincinnati Extrusion Inc.'s request to execute all documentation necessary to perfect said security interest. Buyer may not sell or otherwise transfer the collateral, place or permit to exist any liens on the Collateral, or move the Collateral to a location other than the site of original installation without the prior written consent of Cincinnati Extrusion Inc.
Buyer shall, until all amounts due herein shall be paid in full, maintain sufficient insurance on the purchased goods to protect Cincinnati Extrusion Inc.'s security position against all risks and all perils, including but not limited to fire, lightning, flood, wind, vandalism, theft, explosion. Cincinnati Extrusion Inc. shall be a named insured in the policies maintained by the Buyer.
If any liability or claim that the Products infringe a third party patent occurs, or in Cincinnati Extrusion Inc.'s opinion is likely to occur, Buyer agrees to permit Cincinnati Extrusion Inc.'s, at Cincinnati Extrusion Inc.'s option and expense but without obligation to do so, either to procure for Buyer the right to continue using the Products at issue or to replace or modify the same so that they become non-infringing and provide similar functionality. If neither of the foregoing alternatives is reasonably available to Cincinnati Extrusion Inc. as determined in its sole discretion, then Cincinnati Extrusion Inc. may terminate this agreement upon thirty (30) days written notice to Buyer, and shall refund the sum actually received by Cincinnati Extrusion Inc. under this Agreement after Products have been sent back by Buyer and received by Cincinnati Extrusion Inc.. This section states the entire obligation of Cincinnati Extrusion Inc. and the sole remedy of Buyer with respect to infringement or claims of infringement of patents.
Waiver of any breach or nonperformance shall not be deemed to waive any other breach or nonperformance.
In the event that any portion of these presents shall be unenforceable, then the said portion shall be severed and the balance shall have full force and effect.
This contract shall be governed by the laws of the Commonwealth of Kentucky excluding (i) its conflicts of law provisions and (ii) the United Nations Convention for the International Sale of Goods. Buyer agrees to be subject to and accept jurisdiction in the federal and state courts of jurisdiction over Boone County, Kentucky to resolve all disputes. Buyer hereby appoints the Secretary of State of Kentucky in Frankfort as its agent for service of process and agrees to appear in action upon written notice thereof.
This Agreement shall inure to the benefit of the parties and their respective successors and assigns.
Buyer expressly absolves Cincinnati Extrusion Inc. from any liability for any loss or damages resulting from damage, delays in delivery or failure to deliver caused by any conditions related to, or caused by, a labor dispute (e.g., strike, slowdown or lockout), fire, flood, governmental act or regulation, riot, inability to obtain supplies equipment, or services through Cincinnati Extrusion Inc.'s usual sources, delay, failure or refusal of any carrier to transport materials, plant breakdown, power failure, delay or interruption of carrier, accidents, acts of God, or other cause beyond Cincinnati Extrusion Inc.'s reasonable control (each an event of "Force Majeure").
