SALES TERMS AND CONDITIONS
SALES TERMS AND CONDITIONS
- Contract Terms. These terms and conditions apply to all goods and services ordered by you (“Customer”) from Kyle Enterprises, LLC d/b/a Millennium (“Company”). By ordering any goods or services from Company, Customer agrees to these terms and conditions. These terms and conditions and any documentation Customer receives from Company relating to Customer’s order of goods or services are the only terms and conditions that apply to Customer’s purchase of goods or services from Company; they supersede all provisions contained in any document or other communication issued by Customer, and they also supersede all other prior oral and written agreements between Company and Customer. Customer may not amend or modify these terms and conditions without our written permission. Any additional or different terms proposed by Customer are objected to and they will have no force or effect unless accepted by Company in writing. Customer consents to transact business using electronic communications, to receive notices and disclosures electronically, and to use electronic signatures in lieu of using paper documents. Customer is not required to receive notices and disclosures or sign documents electronically. If Customer prefers not to do so, Customer may request to receive paper copies and withdraw its consent to transact business electronically at any time. Documents between Customer and Company may be electronically signed, and Customer agrees that the electronic signatures are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.
- Cancellation of or Change to Orders. Orders may not be cancelled or changed unless Company provides prior written consent, which may be withheld in its sole discretion. In the event Company consents to a requested cancellation or change of any one or more of Customer’s orders to Company, Customer shall reimburse and indemnify Company for and from all liabilities, claims, damages, debts, fees, costs, penalties and expenses (collectively, the “Cancellation/Change Damages”) Company incurs due to or arising from such cancellation or change, including, without limitation: (a) Cancellation/Change Damages Company incurs due to the cancellation of any change to Company’s own purchase order(s) to the manufacturer of the goods that are the subject of or affected by Customer’s cancellation or change, (b) Cancellation/Change Damages Company incurs due to the cancellation of or change to contracted for shipping services, (c) Cancellation/Change Damages Company incurs to store or warehouse goods that are the subject of or affected by Customer’s cancellation or change. Company’s consent to any requested cancellation or change of any one or more of Customer’s orders is conditional upon Customer’s delivery of timely payment to Company for all Cancellation/Change Damages within 5 days of Company’s written demand to Customer. Thus, notwithstanding any prior agreement on Company’s part to consent to a cancellation of or change to any one or more of Customer’s orders, if Customer fails to deliver to Company payment for identified Cancellation/Change Damages within 5 days of Company’s written demand to Customer, any prior consent or agreement to consent to Customer’s requested cancellation or change shall be void and of no effect, and in such event any cancellation of or change to the order (whether in whole or in part) shall be deemed a breach for which Company shall retain and reserve all of its rights to damages and losses arising therefrom, including (without limitation) our lost profit and other consequential damages. Company may, from time to time, change the services without Customer’s 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. Notwithstanding any term or condition to the contrary herein, Customer may not, under any event or circumstance, cancel or change any purchase order placed with Company for goods that are custom in nature.
- Quoted Prices.
(a) Company’s quoted prices are based on the price for the ordered good and service on the day it accepts Customer’s order. However, Company 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 initially quoted.
(b) If Customer requests that an order be expedited and Company agrees to expedite it, Customer will be responsible for the increased costs incurred by Company in expediting the order.
- Shipping and Delivery. Unless otherwise agreed to in writing by Company, all goods will be delivered F.O.B. shipping point. Company’s delivery of the goods will be complete once they are delivered to the F.O.B. shipping point.
- Title and Risk of Loss. Title and risk of loss and damage to the goods shall pass to Customer upon delivery to the F.O.B. shipping point.
- Terms of Payment. Credit approval may be required. Company may require cash in advance. If Company does not require cash in advance, payment terms are net 30 days, calculated from the date of invoice. Interest will accrue upon invoiced amounts that are not timely paid at a rate of 1.5% per month until paid.
- Taxes. Sales, use, excise, property or similar taxes arising out of or relating to Customer’s order are not included in the price. Customer is responsible for paying all taxes arising out of or related to its order.
- Inspection and Rejection. Customer has 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, Customer may not reject the goods on the basis of such 5% fluctuation. Customer will be deemed to have accepted the goods unless it provides Company 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. Such 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 Customer rejects the goods within the prescribed period, Company will have the option, at its discretion, to replace the goods or have Customer return the goods to Company. If Company replaces the goods, Company will be responsible only for providing Customer with the replacement goods. If Company has Customer return the goods to Company, Company will pay the shipping costs associated with returning the goods and Company will include the shipping costs in the damage claim after such damage or defect is validated by Company. All returned goods must be delivered by Customer to the F.O.B. shipping point to Company’s designated carrier. All replacement goods will be subject to these terms and conditions.
- Force Majeure. Company and Customer shall be excused from performance and compliance with these terms and conditions if their 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 their control. However, Customer will not be excused from its payment obligations for any of the above reasons.
- Storage of Goods. Company shall not be liable for any loss or damage to the goods tendered, stored, or handled, however caused, unless such loss or damage resulted from a failure by Company to exercise the level of care with regard to the goods that a reasonably careful person would have exercised under the circumstances. Company will not liable for damages which could not have been avoided by the exercise of such care. Customer shall, at its own expense, maintain and carry insurance in full force and effect on the goods against fire or other casualty.
Due to supply chain pressures, Company will allow Customer no more than 90 days of storage of goods. In the event goods purchased from Company are not retrieved within 90 days of said goods being made available to Customer, Company shall be entitled to, and Customer shall be obligated to pay to Company, a monthly storage charge equal to 1% of the invoiced amount of said goods. This storage charge shall continue each month, and shall be prorated for any partial month, until the goods are retrieved from Company. Any such storage charges shall be paid to Company promptly upon invoicing.
- Warranties. ALL GOODS AND SERVICES ARE BEING SOLD TO CUSTOMER AS-IS AND NEITHER COMPANY NOR ANY PERSON ON COMPANY’S 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 CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY COMPANY OR ANY OTHER PERSON ON COMPANY’S BEHALF. IF A WARRANTY IS OFFERED BY THE MANUFACTURER OF THE GOODS, SUCH WARRANTY INFORMATION, IF AVAILABLE, WILL BE INCLUDED WITH THE SHIPPED GOODS OR PROVIDED TO CUSTOMER UPON REQUEST.
- Exclusion of Certain Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS AND CONDITIONS, COMPANY WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO CUSTOMER OR ANY OF CUSTOMER’S REPRESENTATIVES OR ANYONE CLAIMING THROUGH OR AGAINST CUSTOMER OR CUSTOMER’S 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 COMPANY SELLS TO CUSTOMER, 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.
- Limitation on Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS AND CONDITIONS, COMPANY’S AGGREGATE LIABILITY TO CUSTOMER, CUSTOMER’S REPRESENTATIVES, AND ANYONE CLAIMING THROUGH OR AGAINST CUSTOMER OR REPRESENTATIVES FOR LIABILITIES, DAMAGES, LOSSES AND EXPENSES SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE SPECIFIC GOOD OR SERVICE THAT GAVE RISE TO THE LIABILITIES, DAMAGES, LOSSES OR EXPENSES.
- 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 Company supplies to Customer and all intellectual and proprietary rights embodied in the Proprietary Information are reserved and shall remain the property of Company, and their use is restricted to work performed by Company for Customer. Neither Customer nor its Representatives may disclose any Proprietary Information unless (a) it is necessary to do so to comply with these terms and conditions, or (b) Company provides prior written consent for Customer to do so. Customer must promptly return to Company all Proprietary Information upon Company’s demand.
- Indemnification. Customer shall defend, indemnify and hold Company and its Representatives harmless from and against any demand, claim, damage, liability, loss, cost or expense (including interest, penalties, costs of preparation and investigation and the actual and 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 and omissions of Customer or Customer’s Representatives with respect to the goods or services Customer orders, and (b) Customer’s breach of these terms and conditions.
- Termination and Remedies. Company may terminate Customer’s order if any of the following occurs: (a) Customer breaches these terms and conditions, (b) it becomes reasonably apparent that Customer will not be able to pay for the goods or services or comply with these terms and conditions (c) Customer ceases doing business, (d) Customer voluntarily or involuntarily make an assignment for the benefit of creditors, becomes insolvent, fails to pay its bills as they are due, or voluntarily or involuntarily files for or becomes the subject of bankruptcy or similar state proceedings, or (e) Customer breaches any other agreement or contract with Company. If Company terminates Customer’s order, Company shall have no further obligation to Customer, except to deliver any goods or services that Customer has already paid for. If Customer breaches these terms and conditions or breaches any other agreement or contract with Company, or if Company terminates Customer’s order for one of the reasons above, Company shall have all rights and remedies permitted by law or in equity against Customer. No matter what, no act or omission by Company will constitute a waiver of any of its rights or remedies, and Company’s rights and remedies, whether hereunder or under applicable law, are cumulative, such that if Company exercises or pursues one right or remedy, such pursuit will not be deemed to constitute an election or waiver of the other rights and remedies that Company is entitled to. For the sake of clarity, these terms and conditions, and Customer’s obligations hereunder, survive the expiration or termination of Customer’s order.
- No Setoff. Customer may not under any circumstances withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Company or any of Company’s Representatives, whether under these terms and conditions or otherwise, against any other amount owed (or to become due and owing) to Customer by Company.
- Assignment. Customer may not assign its order or these terms and conditions without Company’s prior written consent, and Customer must obtain Company’s prior written consent before transferring, selling or changing (in one or a series of related transactions) more than 50% of the ownership interests in Customer. These terms and conditions shall be binding upon Customer’s successors and permitted assigns.
- Severability. If any provision in these terms and conditions is held to be invalid or unenforceable by any court of competent jurisdiction, the remaining provisions shall remain in full force and effect.
- Disputes, Choice of Law. Customer’s acceptance of these terms and conditions shall be deemed to have been made in Wisconsin and these terms and conditions, along with Customer’s order and any other agreements between Company and Customer 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, Customer’s order, or the goods or services Company sells to Customer will be commenced in and will proceed exclusively in the circuit court located in the County of Walworth, Wisconsin or, at the sole election of Company, in the United States District Court located in the Eastern District of Wisconsin.
- Waiver of Jury Trial. Any dispute which may arise under these terms and conditions, CUSTOMER’S order, or the goods or services is likely to involve complicated and difficult issues and, therefore, CUSTOMER AND COMPANY each irrevocably and unconditionally waive any right to a trial by jury RELATING TO any legal action arising out of or relating to these terms and conditions, CUSTOMER’S order, or the goods and services.
- Notices. All notices given in accordance with these terms and conditions must be in writing. If notices are to be given to Company: (a) they will be deemed given when received by Company, and (b) they must be sent to Company via certified mail, return receipt requested to:
Kyle Enterprises, LLC d/b/a Millennium
2121 Hobbs Drive
Delavan, WI 53115
- Definitions. Capitalized terms used herein shall have the meanings set forth in this Section. Other defined terms shall have the meanings given them in the text of these terms and conditions.
(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.