TERMS AND CONDITIONS OF SALE
EFFECTIVE MAY 31, 2019
UNLESS OTHERWISE AGREED IN WRITING BY POLYGON COMPANY (“POLYGON”), ALL ORDERS ARE ACCEPTED SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS OF SALE (“TERMS AND CONDITIONS”):
1. All products and services furnished by Polygon (“Goods”) are governed by these Terms and Conditions. These Terms and Conditions apply in lieu of any course of dealing between the parties or usage of trade in the industry. Acceptance by Polygon of Customer’s order is expressly conditioned upon these Terms and Conditions and any other terms included in the quotation provided with these Terms and Conditions (“Quotation”) or, if applicable, Polygon’s order acknowledgment (“Order Acknowledgement”). Any provisions of Customer’s order or other communication in conflict with these Terms and Conditions are expressly rejected. Customer’s acceptance of these Terms and Conditions shall be conclusively presumed from Customer’s issuance of a purchase order for the Goods described in the Quotation or from acceptance by Customer of all or any part of the Goods ordered. This Quotation is offered for acceptance and shall remain valid for 90 days from date of the Quotation and is subject to change without notice.
2. Unless otherwise agreed in writing by Polygon, Customer’s orders are not subject to suspension, reduction, modification or cancellation.
3. Prices for the Goods are those indicated on the Quotation and are only good for the quantities indicated, unless otherwise agreed in writing by Polygon. The price for the Goods may be increased as a result of any increase in the costs of materials or otherwise caused by (i) taxes or other charges imposed by any governmental authority upon production, sale or transportation of the Goods, or (ii) compliance with any applicable laws, regulations, rules or ordinances. Prices quoted are exclusive of packaging/shipping and taxes, including, without limitation, sales, excise, use and property taxes. Customer agrees to pay all applicable taxes and charges.
4. Unless otherwise provided by in this Quotation or agreed by Polygon in writing, price and delivery terms shall be F.O.B. shipping point. Delivery of 5% more or less than the quantities specified shall constitute fulfillment of the order, and any excess, not exceeding 5%, shall be taken and paid for by the Customer. Polygon reserves the right to provide the Goods in installments when necessary, to invoice each installment separately and to expect payment for each installment within Polygon’s selling terms. Customer will notify of its requested delivery date or dates at the time of the order. However, any shipment or delivery date stated by Polygon is an estimated date, which is contingent upon receipt of necessary documentation from Customer and is subject to reasonable production scheduling changes made after the date of the Quotation as determined by Polygon in its sole discretion. All risks of loss or damage shall pass to Customer at the place and time such Goods are placed into the possession of the carrier or shipper, in accordance with the previously referenced F.O.B. shipping point term. Unless otherwise agreed in writing by Polygon, Customer shall be responsible for obtaining and paying for insurance to cover any loss to Customer and shall reimburse the Polygon for the price of the Goods in the event of loss of the Goods. If Customer fails to accept delivery, according to the agreed upon delivery schedule, Polygon may cancel the then remaining balance of the order. Such cancellation, if elected by Polygon, shall be in addition to, and not in lieu of, any other rights or remedies that Polygon may have at law or equity. If shipment or any other act or condition affecting payment for the Goods or any part of them shall be delayed on account of Customer, payment shall be due as if shipment had been made. A reasonable storage charge may be made and such storage shall be at the sole risk of Customer. Polygon shall not be liable for any direct, indirect, consequential, special, or incidental losses or damages to Customer or to any third parties resulting from a delay in pick-up or shipment.
5. All orders received are subject to credit approval. Customer agrees to submit from time to time to Polygon those items reasonably requested in order to establish or update Customer’s credit. Payment for any Goods ordered by Customer is due in accordance with the terms stated in the invoice issued by Polygon to Customer. All payments will be made in U.S. Dollars. Polygon shall be entitled to charge interest for payments not made in accordance with the stated or agreed upon terms of payment at the lesser of 18% per year or the highest rate permitted by law on the date(s) such payment(s) were due. If Polygon in good faith deems itself insecure, it may, without prejudice or waiving any other rights or remedies it may have at law or equity, cancel any outstanding orders with Customer and/or hold production/shipment of any unfilled orders; modify or revoke its extension of credit to Customer; and take any other steps permitted by law and necessary or desirable to secure Polygon with respect to Customer’s payment for Goods furnished or to be furnished, including, but not limited to, using Goods sold to Customer but not yet delivered as collateral for payment. Customer will pay Polygon’s actual costs of collection, including, but not limited to, court costs, additional litigation expenses, and reasonable attorneys’ fees, incurred for collection of any delinquency. Customer shall have no right of offset against amounts owed to Polygon.
6. Where necessary, as determined by Polygon in its sole discretion, samples of the Goods will be submitted for Customer’s approval before proceeding with production. Goods manufactured in accordance with approved samples will be considered as complying with specifications. Specifications set forth in the Quotation are current as of the date of the Quotation. Polygon reserves the right to change specifications of the Goods, designs and standard equipment without notice and without incurring any obligation or liability to Customer.
7. All claims for shortage or defective Goods must be made within thirty (30) days from date of invoice. Defective Goods will be replaced or credited, but no claims for labor or damage will be allowed. Defective Goods shall be held for Polygon’s inspection or disposition.
8. Polygon accepts no responsibility in case of loss or damage of tools owned by Customer while such tools are in Polygon’s possession. Any insurance coverage for such tools must be arranged and paid for by the Customer.
9. If Polygon supplies Goods to Customer’s specifications and/or manufactured or fabricated from Customer’s blueprints, sketches or specifications, Customer, at its own expense, shall defend any suit or proceeding of any kind whatsoever brought against Polygon in any capacity if such suit or proceeding involves a claim that any such Goods or any part thereof constitutes an infringement of any patent, copyright or trademark or other intellectual property right of another party, and Customer shall pay or indemnify Polygon from and against any and all judgments, expenses and costs, including, without limitation, reasonable attorneys’ fees, which may be awarded against or incurred by Polygon related to such legal action or claim.
10. Customer agrees to indemnify and hold Polygon harmless from and against any and all claims, liabilities, loss, costs, damages or expenses (including, without limitation, reasonable attorneys’ fees and costs) of any kind or nature whatsoever relating to the Goods provided by Polygon, including, without limitation, any such claims arising from Customer’s dismantling of safety devices, if any, attached to the Goods, failure to follow instruction manuals and product warnings, as well as other improper use of the Goods. This indemnity provision shall not apply where such damage or injury is attributable solely to the gross negligence of Polygon, its employees or agents. At Polygon’s request, and subject to Polygon’s sole discretion to choose its own counsel, Customer will also defend Polygon from any such claims, causes of action, or proceedings.
11. Polygon will not be liable for any delay in the performance of its obligations or for any damages suffered by the Customer by reason of such delay, when such delay is directly or indirectly caused by or in any manner arises from: fires; floods; accidents; riots; acts of God; governmental interference; embargoes; strikes; labor difficulties; shortages of labor, fuel, power, materials or supplies; transportation delays; any existing or future laws or acts of the Federal or any State government (including specifically, but not exclusively, any orders, rules or regulations issued by any official or agency of any such government) affecting the conduct of Polygon’s business; or any other cause or causes (whether or not similar in nature to any of those specified above) beyond Polygon’s reasonable control. Polygon shall not be liable for any damages or expenses which may accrue for failure to make delivery during such period.
12. Polygon warrants that the Goods will be free from defects in materials and workmanship for a period of twelve (12) months from date of shipment by Polygon. This warranty does not include the normal replacement of wear items such as seals, bearing components or similar items and shall not apply to any Goods which, at the sole determination of Polygon, have been subject to misuse, misapplication, negligence, accident, modification or tampering or have been installed or operated improperly. This warranty also shall not apply to any defects relating to or resulting from materials or designs supplied by Customer. NO OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY, SHALL APPLY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, APPLICATION OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTY OBLIGATION ON THE PART OF POLYGON, AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED, notwithstanding any knowledge of Polygon regarding the use or uses intended to be made of the Goods, proposed changes or additions to the Goods, or any assistance, suggestions, technical advice or service that may have been made or provided by Polygon’s personnel. In the event that applicable law prevents the disclaimer of any implied warranties, then such implied warranty shall be limited to the fullest extent permitted by law. To claim a breach of this warranty, Customer must notify Polygon promptly within the warranty period (and in no event later than thirty (30) days after discovery of the defect). Polygon reserves the right to examine the defective Goods at Customer’s site, or issue shipping instructions for return to Polygon (transportation charges prepaid by Customer). Goods for which a breach of the warranty is claimed shall not be returned, repaired or discarded without Polygon’s written consent. CUSTOMER’S EXCLUSIVE REMEDY AGAINST POLYGON, AND POLYGON’S SOLE OBLIGATION, FOR ANY AND ALL CLAIMS, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO THE REPAIR OR REPLACEMENT OF THE GOODS OR, AT POLYGON’S OPTION, REFUNDING THE PURCHASE PRICE FOR THE DEFECTIVE PRODUCT.
IN NO EVENT SHALL POLYGON HAVE ANY LIABILITY FOR CLAIMS, DAMAGES, LOSSES OR LIABILITIES RELATED TO THE GOODS IN AN AMOUNT EXCEEDING THE PURCHASE PRICE OF THE GOODS, NOR SHALL POLYGON HAVE ANY RESPONSIBILITY OR LIABILITY FOR SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, however arising, including, but not limited to, those for use of any Goods, loss of time, inconvenience, lost profits or economic loss, even if Polygon knew about the possibility of such damages. THE PROVISIONS HEREOF LIMITING REMEDIES TO REFUND, REPAIR OR REPLACEMENT, LIMITING LIABILITY AND EXCLUDING SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL AND CONSEQUENTIAL DAMAGES ARE INDEPENDENT PROVISIONS AND ANY DETERMINATION THAT ANY SUCH LIMITATION OF REMEDIES FAILS OF ITS ESSENTIAL PURPOSE OR ANY OTHER DETERMINATION THAT ANY OF THE AFOREMENTIONED PROVISIONS IS UNENFORCEABLE, SHALL NOT BE CONSTRUED TO MAKE ANY OTHER SUCH PROVISION UNENFORCEABLE.
13. No claim, suit, or other proceeding arising out of or related to the Goods or the Quotation may be brought by Customer after one (1) year from the date it accrues. No discovery, estoppel, or other rule will apply to extend this limitations period.
14. Customer acknowledges Polygon’s ownership of all trademarks, service marks, copyrights, imprints, rights of publicity, patents, design patents, registered designs, industrial designs, product design, trade secrets and other intangible rights relating to the Goods (“Polygon Intellectual Property”) and agrees that Customer will have no right, title or interest whatsoever in any Polygon Intellectual Property. Customer will keep confidential all formulas, designs, processes, drawings, and other technical or proprietary information disclosed by Polygon to Customer. Customer will not decompile, reverse engineer or disassemble any portion of any Polygon Intellectual Property.
15. Any questions, disputes, controversies, or litigation arising either directly or indirectly from the Quotation or any order of Goods by Customer shall be governed by the laws of the State of Indiana, without regard to conflicts of law principles. Customer consents to the exclusive personal jurisdiction of the federal courts located in the Northern District of Indiana or the state courts located in St. Joseph County, Indiana over any action arising out of or relating to the Quotation or the Goods and waives any objection it may now or hereafter have to venue or to convenience of forum.
16. CUSTOMER hereby waives any and all rights it may have to a jury trial in connection with any questions, disputes, controversies, or litigation arising out of the rights under these terms and conditions, the Quotation, or any order of goods.
17. Except as otherwise agreed in writing or as modified in the Order Acknowledgment, the Quotation, including these Terms and Conditions, constitutes the entire agreement between Polygon and Customer, superseding all prior quotations and understandings, oral or written. No local, general, or trade custom will alter or vary the terms hereof. If any provision or individual term herein is invalid or unenforceable under any applicable law, the provision or term will be ineffective to that extent and for the duration of the illegality, but the remaining provisions and terms will be unaffected. Customer will not assign any of its rights nor delegate any of its obligations under this Agreement without the prior written consent of Polygon. This Agreement will be binding upon and enforceable by and against Customer and Polygon, and their respective legal representatives, successors, and assigns.
18. Polygon has all rights and remedies given to sellers by applicable law, and Polygon’s rights and remedies are cumulative and may be exercised from time to time by Polygon. No waiver by Polygon of any breach by Customer will be effective unless in writing nor operate as a novation or waiver of any other breach. Polygon will not lose any right because it has not exercised that right in the past.