WEB SITE TERMS AND CONDITIONS OF USE
By accessing this web site, you are agreeing to be bound by these web site Terms and Conditions of Use, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws. If you do not agree with any of these terms, you are prohibited from using or accessing this site. The materials contained in this web site are protected by applicable copyright and trademark law.
2. Use License
Permission is granted to temporarily download one copy of the materials (information or software) on Milcut’s web site for personal, non-commercial transitory viewing only. This is the grant of a license, not a transfer of title, and under this license you may not:
Modify or copy the materials;
Use the materials for any commercial purpose, or for any public display (commercial or non-commercial);
Attempt to decompile or reverse engineer any software contained on Milcut’s web site;
Remove any copyright or other proprietary notations from the materials; or
Transfer the materials to another person or “mirror” the materials on any other server.
This license shall automatically terminate if you violate any of these restrictions and may be terminated by Milcut at any time. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.
The materials on Milcut’s web site are provided “as is”. Milcut makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights. Further, Milcut does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its Internet web site or otherwise relating to such materials or on any sites linked to this site.
In no event shall Milcut or its suppliers be liable for any damages (including, without limitation, damages for loss of data or profit, or due to business interruption,) arising out of the use or inability to use the materials on Milcut’s Internet site, even if Milcut or a Milcut authorized representative has been notified orally or in writing of the possibility of such damage. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to you.
5. Revisions and Errata
The materials appearing on Milcut’s web site could include technical, typographical, or photographic errors. Milcut does not warrant that any of the materials on its web site are accurate, complete, or current. Milcut may make changes to the materials contained on its web site at any time without notice. Milcut does not, however, make any commitment to update the materials.
Milcut has not reviewed all of the sites linked to its Internet web site and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by Milcut of the site. Use of any such linked web site is at the user’s own risk.
8. Governing Law
Any claim relating to Milcut’s web site shall be governed by the laws of the State of Wisconsin without regard to its conflict of law provisions.
Any sales made through this web site are governed by Milcut’s Terms and Conditions of Sale, a copy of which follows.
TERMS AND CONDITIONS OF SALE
EXCLUSIVE TERMS. THIS FORM MAY BE CONSTRUED AS AN OFFER OR AN ACCEPTANCE OF AN OFFER BY MILCUT, INC. (“SELLER”). IF THIS FORM IS CONSTRUED AS AN OFFER, IT EXPRESSLY LIMITS ACCEPTANCE BY BUYER TO THE TERMS OF THIS FORM AND CONSTITUTES NOTICE OF OBJECTION TO ANY ADDITIONAL OR DIFFERENT TERMS IN BUYER’S ACCEPTANCE, WHICH TERMS SHALL BE DEEMED TO BE MATERIAL. IF THIS FORM IS CONSTRUED AS AN ACCEPTPANCE, IT IS EXPRESSLY CONDITIONED ON BUYER’S ASSENT TO ANY ADDITIONAL OR DIFFERENT TERMS CONTAINED HEREIN. Neither Seller’s acceptance of Buyer’s purchase order nor commencement of performance by Seller shall be construed as acceptance of any additional or different terms in Buyer’s form. Buyer shall be deemed to have accepted the terms hereof by signing and returning a copy hereof or by other written indication of acceptance, by accepting delivery of any whole or partial shipment of goods from Seller or by making any whole or partial payment to Seller.
PRICES AND QUOTATIONS. All quotations are subject to change without notice. All orders are subject to acceptance by Seller. Unless otherwise stated, all orders accepted will be accepted with the understanding that all prices are subject to change without prior notice and shall be those in effect at the date of shipment. All prices are F.O.B. Seller.
TAXES AND FEES. Unless otherwise stated, the prices do not include any manufacturer’s sales, use, excise or similar taxes, charges or duties, and the amount thereof which Seller is required to pay or collect will be invoiced to Buyer. Buyer shall also pay to Seller any collection fees and reasonable attorneys’ fees incurred by Seller in collecting payment of the purchase price and any other amounts for which Buyer is liable hereunder.
PAYMENT. Unless otherwise specified by Seller in writing, payment terms for all goods purchased by Buyer shall be 30 days from date of invoice. Seller may require full cash payment in advance of shipment regardless of the terms indicated on the front hereof. Seller may set off any amount due from Buyer, whether or not under this agreement, against any amount that may become due to Buyer hereunder. Seller may allocate payments from Buyer among outstanding invoices in Seller’s sole discretion. Payment of the price by Buyer shall be made without any discount, deduction or set off for any reason whatsoever, except as otherwise specified by Seller in writing.
DELIVERY; RISK OF LOSS; TITLE. Delivery of goods shall be F.O.B. Seller’s dock. The delivery quoted by Seller is its best estimate of lead time as of the date any quotation was prepared. Such lead time is subject to change at any time without further notice. Risk of loss and title shall pass to Buyer upon tender of goods by Seller to the carrier. Seller will not be responsible for any freight, transportation, insurance, shipping, storage, handling, demurrage or similar charges. All goods will be packed by Seller in accordance with its standard practices. Any claims for loss or damage after risk of loss has passed as herein provided shall be filed with the carrier. Goods ready for shipment will not be held by Seller for more than ten (10) working days; thereafter Seller shall have the right to invoice Buyer for payment of the goods and ship the goods to Buyer upon receipt of such payment. Buyer hereby grants to Seller a security interest in the goods to ensure prompt payment and performance hereunder, and Buyer consents to Seller filing, amending and renewing any financing statements required by the Uniform Commercial Code to perfect said security interest without further notice or consent of Buyer. Any claim by Buyer for shortages in any delivery must be in writing and delivered to Seller with satisfactory supporting evidence within ten (10) days of Buyer’s receipt of the delivery.
TOOLING. Except where otherwise specifically provided for, the charge quoted for tooling made by Seller does not cover the entire cost of such tooling, and payment therefor does not convey title to the tools to Buyer or the right to remove them from Seller’s possession. Seller shall remain the exclusive owner of all tooling made by Seller. Possession of such tools shall be retained by Seller for a period of four (4) years from the date of Buyer’s last order using such tools. Thereafter, such tools shall be destroyed. Frequency of use and the nature of material will cause tooling to wear out. In such cases, Buyer will be responsible for the cost of tool replacement or repair. Seller shall not be liable for the care or protection of Buyer’s equipment, material or other property being held at Seller’s facility unless otherwise specified and Seller shall not maintain insurance coverage for such purpose.
WARRANTY AND DISCLAIMER. EXCEPT FOR SELLER’S OBLIGATION TO REPLACE NON-CONFORMING GOODS AS DESCRIBED IN THE SECTION ENTITLED, “EXCLUSIVE REMEDY; LIMITATION OF DAMAGES”, ANY AND ALL WARRANTIES, GUARANTEES OR REPRESENTATIONS WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR INFRINGEMENT, ARE HEREBY EXPRESSLY EXCLUDED. While Seller may from time to time offer recommendations and advice with respect to its products, it is understood that Buyer, in acting on any such recommendation or advice, does so entirely at its own risk.
INSPECTION. Buyer shall inspect the goods immediately upon delivery. All claims that goods do not conform to Seller’s standard quality must be made to Seller in writing within 90 days after shipment or Buyer will be deemed to have accepted the goods and will be obligated to pay for the goods in accordance with the terms of this agreement.
EXCLUSIVE REMEDY; LIMITATION OF DAMAGES. Seller’s total liability and Buyer’s exclusive remedy under this contract is limited to replacement of any goods which do not materially conform to Seller’s standard quality, and such replacement shall be Buyer’s exclusive remedy. No claims for replacement will be considered unless Seller is notified thereof in writing with satisfactory supporting evidence within 90 days after shipment of the goods to Buyer. Failure of Buyer to give such notice within such period shall constitute an unqualified acceptance of goods pursuant hereto. Seller shall, in its sole discretion, determine whether the goods are materially non-conforming and need to be replaced. Buyer shall remain liable for the price of all goods that Seller determines do not warrant replacement. Seller’s obligation to replace goods under this provision shall only apply to non-conforming goods that (a) have only been used for the purpose for which the goods were designed, (b) have not been damaged, altered, improperly stored or maintained after delivery and (c) have been fully paid for. Any action by Buyer for breach of contract hereunder must be commenced within 1 year after such cause of action has accrued. Even if the replacement remedy shall be deemed to have failed of its essential purpose under Section 402.719 of the Uniform Commercial Code-Sales, Seller shall have no liability to Buyer for consequential damages, such as lost profits, lost revenue, damage to other equipment or liability or injury to a third party and in no event shall Seller’s total liability for any damages, whether direct or indirect, arising from its performance of this agreement exceed 100% of the price paid by Buyer for the specific goods giving rise to the claim for damages.
FLAMMABLE SUBSTANCES. ALL ORGANIC MATERIALS SUCH AS FLEXIBLE FOAM, FELT, RUBBER, COTTON AND WOOD ARE FLAMMABLE. THESE MATERIALS SHOULD NOT BE EXPOSED TO SOURCES OF IGNITION DURING INSTALLATION OR USE. WE RECOMMEND THAT YOU SO INFORM YOUR EMPLOYEES AND CUSTOMERS.
FORCE MAJEURE. Seller is not liable for delays in performance or delivery due to causes beyond its reasonable control, including without limitation, any delay, interruption in or failure of sources to supply materials or equipment; labor disputes; transportation problems; or any government order, contract, priority, or request, whether or not voluntarily assumed. If such a delay occurs, Seller can, at its option, extend the performance or delivery date for a period of time equal to the delay and allocate production to outstanding orders in its sole discretion or terminate this agreement.
CANCELLATION; CHANGES; SUSPENSION. Cancellations, changes, suspensions or delays in shipment of Buyer’s order must be confirmed in writing by Buyer and accepted in writing by Seller and are subject to the following: (a) No cancellation, change or suspension shall be accepted by Seller on terms that will not fully reimburse Seller against loss, including recovery of all direct costs incurred, including normal indirect and overhead charges and a normal profit; (b) Buyer will accept delivery of, and pay the agreed upon price within the payment terms for all products which are completely manufactured and allocable to Buyer’s order at the time such notice of cancellation, change or suspension is received by Seller; (c) Buyer will promptly pay all costs, whether direct or indirect, which are incurred by Seller with regard to products which have not been completely manufactured at the time such notice is received by Seller; and (d) if a change by Buyer causes an increase or decrease in the cost of performance by Seller, an equitable adjustment shall be negotiated promptly and the original price quotation shall be modified accordingly.
INTELLECTUAL PROPERTY. All Intellectual Property owned, licensed or conceived by Seller (whether solely or jointly with others, including Buyer) and used by Seller in connection with the fulfillment of this agreement shall be and remain the exclusive property of Seller and/or its licensors. Nothing herein will be deemed to grant Buyer any license or other rights in such Intellectual Property. “Intellectual Property” means any inventions, ideas, discoveries, improvements, patents, copyright and related rights, designs, trademarks, drawings, methods, formulae, processes, confidential information, including without limitation, technology, know-how, research, technical data, trade secrets and any other intellectual property, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights of protection in any part of the world.
CONFIDENTIALITY. Buyer agrees not to directly or indirectly use, disclose, copy, reverse engineer or decompile any non-public confidential information of Seller provided to it in connection with Seller’s performance of this agreement, including without limitation, any drawings, specifications, raw materials, components, data, business or financial information, customer information, pricing or other Intellectual Property (collectively, “Confidential Information”). At the completion of this agreement or the request of Seller, Buyer shall promptly return all Confidential Information and copies thereof and shall destroy and delete all Confidential Information saved to any digital storage device or computer system. Any existing non-disclosure agreement between Seller and Buyer shall remain in effect and apply to any Confidential Information disclosed hereunder and shall take precedence in the event it conflicts with these terms and conditions. Seller shall be entitled to seek specific performance and any other appropriate injunctive relief as a result of Buyer’s breach or threatened breach of the confidentiality obligations described herein without having to prove the inadequacy of money damages or post a bond or other security.
CANCELLATION BY SELLER IN THE EVENT OF DEFAULT OR INSOLVENCY. Seller shall be entitled, without prejudice, to any other rights it may have, to cancel this agreement as follows: (a) if Buyer is in default of any of its obligations, other than its payment obligation, under this agreement or any other agreement with Seller, and Buyer fails, within 30 days of Seller’s written notice of such default, to remedy such default or to undertake and pursue diligently the remedy to the extent the default cannot be rectified within such 30 day period or (b) immediately without further notice to Buyer upon the occurrence of an Insolvency Event. “Insolvency Event” in relation to Buyer means any of following: (i) inability to pay its debts as they become due, (ii) filing (whether voluntarily or involuntarily) of a petition for relief or reorganization under federal bankruptcy laws, (iii) appointment of a receiver or trustee, (iv) execution of an assignment for the benefit of its creditors or (v) any other event that raises reasonable doubts as to Buyer’s creditworthiness. Seller shall be entitled to recover from Buyer or its representative all expenses and damages incurred by Seller as a result of such cancellation, including a reasonable allowance for direct and indirect overhead and profit, including without limitation the loss of prospective profits and overheads. In addition, Buyer shall pay Seller’s reasonable, actual attorneys’ fees and other costs to enforce its rights under this agreement.
FAILURE TO PAY. If Buyer fails to pay any amount when due, Seller shall have the right, without further notice or lapse of time for Buyer to cure its payment default: (a) to immediately suspend performance and cancel the unfinished portion of any outstanding orders, (b) to withhold further deliveries and (c) to declare all unpaid amounts immediately due and payable and treat the nonpayment as an Insolvency Event hereunder.
MISCELLANEOUS. The validity, construction and enforcement of this agreement shall be governed by the laws of the State of Wisconsin without regard to its conflict of laws principles. The United Nations Convention on the International Sale of Goods (CISG) does not apply to this agreement. All disputes arising out of this agreement shall be subject to the exclusive jurisdiction of the federal and state courts having jurisdiction over the location of Seller’s corporate headquarters. This constitutes the final, complete and exclusive agreement between Seller and Buyer on this subject and supersedes any prior or contemporaneous agreements, whether oral or written thereon, except for any existing non-disclosure agreement as described herein. No waiver, alteration or modification of any of the provisions hereof shall be binding on Seller unless in writing and signed by duly authorized representatives of Seller and Buyer. Buyer may not assign its rights or duties under this agreement without the prior written consent of Seller. Buyer may not engage in any transaction with respect to the goods, by way of use, resale, lease, export or otherwise, which violates any applicable statute or regulation of the United States regarding the export of goods. All rights granted to Seller and all limitations in favor of Seller in this agreement and by law are cumulative. Any provision found to be unenforceable under applicable law will be considered deleted and shall not affect the remaining terms and conditions, which shall remain in full force and effect and shall be interpreted to accomplish the reasonable commercial expectations of Seller and Buyer. Seller and Buyer are independent parties and nothing in this agreement shall be deemed to make the parties agents, partners, joint venturers or legal representatives of one another. All notices permitted or required hereunder shall be in writing and considered given when delivered to the party to whom the notice is addressed with satisfactory evidence of receipt. The parties agree that electronic signatures shall be considered legal and binding. These terms and conditions shall be binding upon and inure to the benefit of Seller and Buyer and their respective successors and permitted assigns.