Sales Terms And Conditions

TERMS AND CONDITIONS

The following Terms and Conditions apply to any purchase order submitted by Customer to Kyle Enterprises LLC d/b/a Millennium (“Seller” or Millennium”). These Terms and Conditions constitute the entire contractual agreement between Customer and Millennium with respect to any purchase order issued by Customer and accepted by Millennium.

These Terms and Conditions replace any terms and conditions, set forth in Customer’s purchase order and any terms and conditions supplied by Customer in a purchase order are expressly rejected.  Neither silence nor any other conduct, including acceptance by Millennium of any payment, will modify these Terms and Conditions.

Quotations, Pricing, Payment Terms 

If Customer requests a quotation from Millennium for the purchase of goods or services, Millennium may, in its sole discretion, issue a written quotation to Customer. If the quotation is acceptable to Customer, the offer will be valid for 30 days from the date of the quotation unless earlier cancelled by Millennium at its sole discretion. Customer agrees to pay Millennium any amounts due for the purchase of goods or services within thirty (30) days of the date of invoice. If Customer fails to pay an outstanding invoice within thirty (30) days, Customer agrees to pay Millennium interest of 1.5% per month on any past due balance, starting from the date of the invoice. Customer is responsible to pay any sales or use taxes on the purchase of goods or services, unless a sales tax exemption certificate has been previously provided to Millennium.

Copper, Steel and Plastic Product Price Escalation/De-Escalation

Copper cable, steel products and plastic pipe prices are valid for either 30 days or until the market price of the commodity (copper, resin, etc…) increases or decreases more than 5%. Should the price of the commodity increase or decrease more than 5% Millennium at it’s sole discretion will adjust the pricing accordingly.

Warranties

All products and services are sold to customer “As Is.” Millennium expressly disclaims any express or implied warranties with regard to the products and services, including but not limited to any implied warranties of merchantability, fitness for a particular purpose or non-infringement. No waiver, alteration, addition or modification of the foregoing conditions shall be valid unless made in writing and signed by an officer of Millennium. If a warranty if offered by the manufacturer of a product, the warranty information, if available, will be sent with the product.

Limitation of Liability; Indemnification

In no event will Millennium be liable to customer or any third party for any indirect, incidental, special, lost profits, consequential, exemplary or punitive damages, costs or losses whatsoever in connection with the subject matter of this agreement whether such claims are based in contract, warranty, negligence, intentional tort, strict liability or otherwise. In no event will Millennium’s liability to customer exceed the total purchase price paid by customer for the specific product(s) purchased or for the specific services rendered under the applicable purchase.

Customer agrees to defend, indemnify and hold harmless Millennium, its officers, directors, employees, attorneys, independent contractors or agents (“Millennium Parties”) against any and all losses, damages, judgments, claims, fines, penalties, settlements or expenses (including attorneys’ fees and other costs of defending any action) (“Damages”) arising from the products, services or any other subject matter of this Agreement, including, without limitation, any Damages allegedly caused by the negligent or intentional acts of any of the Millennium Parties.

Severability

If any provision of these Terms and Conditions are held by a court, government agency or other legal authority of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not invalidate, void or render unenforceable any other remaining portions of these Terms and Conditions which shall remain in force and effect.

Seller Remedies

The rights and remedies of Millennium related to the collection of any fees due to it by Customer, and related damages, shall be in addition to and not in lieu of any other right and remedy now and herein provided by or available pursuant to law or in equity. All rights and remedies shall be cumulative and not exclusive of each other. Customer agrees to pay all of Millennium’s costs and expenses associated with enforcing its rights under these Terms and Conditions, including but not limited to payment of attorneys’ fees.

Delay in Performance; Shipping, Handling, and Returns

Millennium will not be liable for failure or delay in fulfilling any of its obligations under a Purchase Order due to any causes beyond its control. In the event of any delay, the date for shipment of product or performance of services shall be extended correspondingly. Millennium reserves the right to make delivery of ordered products in installments. No products may be returned to Millennium without Millennium‘s prior written consent. Products returned without Millennium’s prior written consent will be refused. In the event that Millennium consents to a return, the returned product will be subject to a restocking charge.

Governing Law

These Terms and Conditions shall be governed by the laws of the State of Wisconsin without reference to its conflict of law principles. The parties agree that any dispute arising from the subject matter of this Agreement will be resolved in the applicable federal or state courts with jurisdiction in Walworth County, Wisconsin and Customer expressly consents to such jurisdiction.

Canada Sales Terms And Conditions

  1. Contract Terms. These terms and conditions apply to all goods and services ordered by you from Kyle Enterprises, LLC d/b/a Millennium (“us” “our” or “we”).  By ordering any goods or services from us, you are agreeing to these terms and conditions.  These terms and conditions and any documentation you receive from us relating to your order of the goods or services are the only terms and conditions that apply to your purchase of goods or services from us; they supersede all provisions contained in any document or other communication issued by you, and they also supersede all other prior oral and written agreements between us.  You cannot amend or modify these terms and conditions without our written permission.  Any additional or different terms proposed by you are objected to and they will have no force or effect unless accepted by us in writing.  You agree that you consent to transact business using electronic communications, to receive notices and disclosures electronically, and to use electronic signatures in lieu of using paper documents.  You are not required to receive notices and disclosures or sign documents electronically.  If you prefer not to do so, you may request to receive paper copies and withdraw your consent to transact business electronically at any time. Documents between you and us may be electronically signed, and you agree that the electronic signatures are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.

 

  1. Change Orders. If you give us written notice at least 30 days before a scheduled delivery date, you may: (a) cancel all or part of your order, (b) change the designated carrier, or (c) extend the scheduled delivery date.  However, if we have already incurred costs on your order before the change or cancellation, you will be responsible for promptly reimbursing us for those costs.  We need to agree to any other changes in writing.  We may, from time to time, change the services without your consent provided that such changes do not materially affect the nature or scope of the services, or the fees or any performance dates of the services.

 

  1. Quoted Prices.

(a)    Our quoted prices are based on the price for the ordered good and service on the day we accept your order.  However, we may adjust the prices of certain commodities, including copper, steel, plastic and other resins, if the price of such commodity increases or decreases by 5% or more from the price we initially quote.

(b)  If you request that an order be expedited and we agree to expedite it, you will be responsible for the increased costs incurred by us in expediting the order.

  1. Shipping and Delivery. Unless otherwise agreed upon in writing by us, all goods will be delivered F.O.B. shipping point.  Our delivery of the goods will be complete once they are delivered to the F.O.B. shipping point.

 

  1. Title and Risk of Loss. Title and risk of loss and damage to the goods shall pass to you upon delivery to the F.O.B. shipping point.

 

  1. Terms of Payment. Credit approval is required. We may require cash in advance by means of guaranteed funds, electronic fund transfer or similar dealings.  If we don’t require cash in advance, payment terms are: (a) net 30 days, calculated from the date of invoice; and (b) In the event that an account is not paid within (30) days, interest shall accrue from the date of the account on the unpaid balance at one point five (1.5%) percent per month (and either eighteen (18%) percent per annum, simple interest or nineteen point six (19.6%) percent per annum, if compounded).

 

  1. Taxes. Sales, use, excise, property, duties payable on goods shipped between Millennium and an operation in Canada, or similar taxes arising out of or relating to your order are not included in the price.  You are responsible for paying all taxes arising out of or related to your order.

 

  1. Inspection and Rejection. You have the right to inspect and test all goods before accepting them.  However, as long as the delivered quantity is within 5% of the ordered quantity, you cannot reject the goods on the basis of the 5% fluctuation.  You will be deemed to have accepted the goods unless you provide us with written notice, within 24 hours of receiving the goods, of any defects, damages, failure to meet specifications, or of any shortage (outside the above mentioned 5% fluctuation) in the goods delivered.  The notice shall be deemed a rejection of the goods and such notice must include an explanation for the rejection and any applicable photographs of the damages or defects to the goods.  Failure to give such notice within the prescribed period shall constitute acceptance of the goods.  If you reject the goods within the prescribed period, we will have the option, at our discretion, to replace the goods or have you return the goods to us.  If we replace the goods, we will be responsible only for providing you with the replacement good.  If we have you return the goods to us, we will pay the shipping costs associated with returning the goods and we will include the shipping costs in the damage claim after such damage or defect is validated by us.  All returned goods must be delivered by you to the F.O.B. shipping point to our designated carrier.  All replacement goods will be subject to these terms and conditions.

 

  1. Force Majeure. You and us shall be excused from performance and compliance with these terms and conditions if the performance or compliance is prevented by: acts of God, strikes, labor disputes, war, terrorism, civil disorders, vandalism, failures or delays in transportation, acts, orders or regulations of government, judicial action, shortage of labor, fuel, raw materials, machinery, parts or supplies, or any other cause beyond your or our control. However, you will not be excused from your payment obligations for any of the above reasons.

 

  1. Warranties. ALL GOODS AND SERVICES ARE SOLD TO YOU AS-IS AND NEITHER US NOR ANY PERSON ON OUR BEHALF HAS MADE OR MAKES ANY EXPRESS, IMPLIED, OR STATUTORY REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF (A) MERCHANTABILITY, (B) FITNESS FOR A PARTICULAR PURPOSE, OR (C) NON-INFRINGEMENT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND YOU ACKNOWLEDGE THAT YOU HAVE NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY US OR ANY OTHER PERSON ON OUR BEHALF.  IF A WARRANTY IS OFFERED BY THE MANUFACTURER OF THE GOODS, SUCH WARRANTY INFORMATION, IF AVAILABLE, WILL BE INCLUDED WITH THE SHIPPED GOODS.

 

  1. Exclusion of Certain Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS AND CONDITIONS, WE WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO YOU OR ANY OF YOUR REPRESENTATIVES OR ANYONE CLAIMING THROUGH OR AGAINST YOU OR YOUR REPRESENTATIVES FOR SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS, DATA OR GOODWILL) ARISING IN CONNECTION WITH THE THESE TERMS AND CONDITIONS OR THE GOODS OR SERVICES WE SELL TO YOU, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL THEORY, EVEN IF A PERSON IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

 

  1. Limitation on Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS AND CONDITIONS, OUR AGGREGATE LIABILITY TO YOU, YOUR REPRESENTATIVES, AND ANYONE CLAIMING THROUGH OR AGAINST YOU OR YOUR REPRESENTATIVES FOR LIABILITIES, DAMAGES, LOSSES AND EXPENSES SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SPECIFIC GOOD OR SERVICE THAT GAVE RISE TO THE LIABILITIES, DAMAGES, LOSSES OR EXPENSES.

 

  1. Rights and Reservations. All drawings, designs, schematics, specifications, inventions, concepts, ideas, methods, processes, data, software and all other materials, documentation and information (collectively the “Proprietary Information”) that we supply to you and all proprietary rights embodied in the Proprietary Information are reserved and their use is restricted to work performed by us for you.  Neither you nor your Representatives may disclose any Proprietary Information unless (a) it is necessary to do so to comply with these terms and conditions, or (b) we provide written consent for you to do so.  You must promptly return to us all Proprietary Information upon our demand.

 

  1. Indemnification. You must defend, indemnify and hold us and our Representatives harmless from and against any demand, claim, damage, liability, loss, cost or expense (including interest, penalties, costs of preparation and investigation and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors), whether or not involving a third party claim, directly or indirectly arising out of, resulting from or relating to any of the following: (a) the acts omissions of you or your Representatives with respect to the goods or services you order, and (b) your breach of these terms and conditions.

 

  1. Termination and Remedies. We may terminate your order if any of the following occurs: (a) you breach these terms and conditions, (b) it becomes reasonably apparent that you will not be able to pay for the goods or services or comply with these terms and conditions (c) you cease doing business, (d) you voluntarily or involuntarily make an assignment for the benefit of creditors, become insolvent, fail to pay your bills as they are due, you voluntarily or involuntarily file for bankruptcy or similar state proceedings, or (f) if you breach any other agreement between you and us.  If we terminate your order, we will have no further obligation to you, except to deliver any goods or services that you have already paid for.  If you breach these terms and conditions or any other agreement between you and us, or if we terminate your order for one of the reasons above, we will have all rights and remedies permitted by law or in equity against you.  No matter what, no act or omission by us will constitute a waiver of any of our rights or remedies, our rights and remedies are cumulative, and if we exercise or pursue one right or remedy, that will not be deemed to constitute an election or waiver of the other rights and remedies that we are entitled to.  Just to be clear, these terms and conditions, and your obligations under these terms and conditions, survive the expiration or termination of your order.

 

  1. No Setoff. You may not under any circumstances withhold, offset, recoup or debit any amounts owed (or to become due and owing) to us or any of our Representatives, whether under these terms and conditions or otherwise, against any other amount owed (or to become due and owing) to you by us.

 

  1. Assignment. You cannot assign your order or these terms and conditions without our prior written permission, and you must obtain our prior written permission before transferring, selling or changing (in one or a series of related transactions) more than 50% of the ownership interests in you.  These terms and conditions shall be binding upon your successors and permitted assigns.

 

  1. Severability. If any provisions in these terms and conditions are held to be invalid or unenforceable by any court of competent jurisdiction, the remaining provisions shall remain in full force and effect.

 

  1. Disputes, Choice of Law. Your acceptance of these terms and conditions shall be deemed to have been made in Wisconsin and these terms and conditions, along with your order and any other agreements between us and you will be governed by the laws of the State of Wisconsin, excluding conflict of law principles.  Any dispute arising out of these terms and conditions, your order, or the goods or services we sell to you will be commenced in and will proceed exclusively in the circuit court located in the County of Walworth, Wisconsin or in the district court located in the Eastern District of Wisconsin.

 

  1. Waiver of Jury Trial. Any dispute which may arise under these terms and conditions, your order, or the goods or services is likely to involve complicated and difficult issues and, therefore, each you and us irrevocably and unconditionally waive any right you and us may have to a trial by jury in respect of any legal action arising out of or relating to these terms and conditions, your order, or the goods and services.

 

  1. Notices. Notices can be given on the basis of electronic mail communications, facsimile, registered mail or certified mail for the sake of expediency.  If notices are to be given to us: (a) they will be deemed given when received by us, and (b) if they must be sent to us via certified mail, return receipt requested to:

 

Kyle Enterprises, LLC d/b/a Millennium
120 S. Wright St.
Delavan, WI 53115

 

  1. Definitions. Capitalized terms used in the Agreement have the meanings set forth in this Section. Other defined terms have the meanings given them in the text of the Agreement.

(a)    “Person” means any individual, partnership, joint venture, corporation, limited liability company, bank, business trust, joint stock company, trust, unincorporated organization, governmental authority or other entity of whatever nature.
(b)   “Representatives” means a party’s affiliates, and the officers, directors, shareholders, members, managers, employees, agents, successors and assigns of the party and that party’s affiliates.

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