Terms & Conditions
POLYCONN DIVN. Space Kitty
TERMS AND CONDITIONS
This On-Line Store is an offer of sale by Polyconn Divn of Wm P. Nugent Co. Inc, (“Polyconn”) of its products. Acceptance of this offer by ordering is subject to the terms and conditions of this offer. Any additional terms and conditions contained in any written or verbal purchase order are objected to and shall not be binding on Polyconn unless agreed to in writing. The terms herein shall govern and any conflicting, varying or supplemental provisions shall be null and void.
- Contract. Acceptance of Polyconn’s offer occurs and a contract exists upon the submission of a written or verbal purchase order subject to the terms and conditions set forth herein. Such terms and conditions constitute the entire agreement between the parties. No change in such terms and conditions shall be valid unless agreed to in writing by an authorized officer of Polyconn.
- Price. Shall be the price in effect on the date of delivery. Polyconn may sell to its other customers at prices that are equal to, greater than, or less than the prices listed in the catalog.
- Payment. Payment net thirty (30) days, for open account customers in good standing, after the rendering of Polyconn’s invoice. All amounts past due are subject to a late charge of the lesser of one and one-half percent (1 1/2%) per month (being eighteen percent (18%) per annum) or the highest lawful rate. Until payment in full under this agreement, Polyconn retains and buyer hereby grants a purchase money security interest pursuant to Minnesota Statute 336.9-201, or the applicable state U.C.C. enactment in the items purchased hereunder. The security interest will cover all accessions and proceeds of the property. Title in the products shall not pass until full payment has been received by Polyconn.
- Tax. Any tax imposed by federal, state or other governmental authority on the sale of product under this agreement shall be paid by the buyer in addition to the quoted purchase price.
- Delivery. Delivery term is FOB, Polyconn’s facility Plymouth, MN. Dates of delivery are estimates of approximate dates of delivery, not a guaranty of a particular day of delivery. Polyconn shall not be liable for failure or delay in shipping for any cause of any kind whatsoever beyond the control of Polyconn. Polyconn may ship +/-5% from accepted quantity due to the yield from the production process. Exceptions must be negotiated to assess the effect on pricing.
- Inspection. Buyer shall inspect the products at delivery and shall notify Polyconn of any defects or discrepancies within three (3) days of receipt of the products. Failure to provide any such notice within such time shall be deemed an acceptance in full of any such delivery. Please verify all information, tolerances, dimensions, compounds and materials. Except in the particulars specified by Buyer and expressly agreed to in writing by Polyconn, all material shall be produced in accordance with Polyconn's standard practices. All material, including that produced to meet an exact specification, shall be subject to tolerances and variations consistent with usages of the trade and regular mill practices concerning: dimension, weight, straightness, section, composition and mechanical properties; normal variations in surface, internal conditions and quality; and deviations from tolerances and variations consistent with practical testing and inspection methods.
- Limited Warranty. Polyconn warrants that the products will be free from defects in materials and workmanship for ninety (90) days from the date of shipment. During the warranty period, Polyconn will, at its option: (1) provide replacement parts necessary to repair the products, (2) replace the products with a comparable product, or (3) refund the amount paid by Buyer for the products upon return. Custom orders CANNOT be returned for credit. The warranties provided for herein shall be governed by Polyconn's warranty policies in effect on the date of shipment. Polyconn shall have no obligation to Buyer with respect to providing any warranty on any products for which Polyconn has not received full payment from Buyer and Polyconn's warranties do not extend beyond the original Buyer and may not be assigned or passed through by Buyer. This warranty is void if product has been disassembled or if the configuration has been altered in any way.
POLYCONN NOR ITS PARENT COMPANY OR OTHER AFFILIATES NEITHER ASSUMES, NOR AUTHORIZES, ANY OTHER PERSON PURPORTING TO ACT ON ITS BEHALF TO MODIFY OR CHANGE THIS WARRANTY, NOR TO ASSUME FOR IT ANY OTHER WARRANTY OR LIABILITY CONCERNING THE PRODUCTS.
- Disclaimer of Warranty/Limitation of Liability. Polyconn undertakes no responsibility for the quality of the products or that the products will be fit for any particular purpose for which Buyer may be buying the products, except as otherwise provided in this Agreement, and Polyconn disclaims all other warranties and conditions, express or implied. The right to return defective products, as described in Section 7 above, shall constitute Polyconn's sole liability and Buyer's exclusive remedy in connection with any claim of any kind relating to the quality, condition or performance of any Products, whether such claim is based upon principles of contract, warranty, negligence or other tort, breach of any statutory duty, principles of indemnity or contribution, or otherwise.
POLYCONN (INCLUDING ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SUBCONTRACTORS, ALL OF WHICH ARE REFERRED TO HEREIN COLLECTIVELY AS THE “POLYCONN AFFILIATES“) SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCE TO BUYER OR ANY OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PRODUCTS OR OTHERWISE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF THE PRODUCTS OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE OR REPLACEMENT EQUIPMENT, FACILITIES OR SERVICES, DOWN TIME, BUYER'S TIME, LOST DATA, INJURY TO PROPERTY OR ANY DAMAGES OR SUMS PAID BY BUYER TO THIRD PARTIES, EVEN IF POLYCONN OR ANY OF THE POLYCONN AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE.
IN NO EVENT SHALL POLYCONN OR ANY POLYCONN AFFILIATE BE LIABLE TO BUYER OR ANY OTHER PARTY FOR LOSS, DAMAGE, OR INJURY OF ANY KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS IN EXCESS OF THE NET PURCHASE PRICE OF THE PRODUCTS ACTUALLY DELIVERED TO AND PAID FOR BY BUYER HEREUNDER.
POLYCONN DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT WITH RESPECT TO THE PRODUCTS AND NONE OF POLYCONN OR ANY POLYCONN AFFILIATE SHALL HAVE ANY DUTY TO DEFEND, INDEMNIFY, OR HOLD HARMLESS BUYER FROM AND AGAINST ANY OR ALL DAMAGES OR COSTS INCURRED BY BUYER ARISING FROM THE INFRINGEMENT OF PATENTS OR TRADEMARKS OR VIOLATION OF COPYRIGHTS BY ANY OF THE PRODUCTS.
- Patent and Copyright. Buyer shall with respect to product manufactured or sold by Polyconn in accordance with designs, processes or formulas supplied, determined or requested by buyer, defend Polyconn at buyer’s expense and pay all costs and damages awarded in any suit brought against Polyconn for infringement of any patent by reason of the use of such designs, processes or formulas, provided Polyconn notifies buyer in writing of any claim or suit for infringement and tenders defense to Buyer.
- Force Majeure. Polyconn shall not be held responsible for any failure of performance to make timely delivery of all or any part of the products in the event such failure was due, in whole or in part, to federal or municipal action, statute, ordinance or regulation, strike or other labor trouble, fire or other damage to or destruction of, in whole or in part, the products or the manufacturing facility for the products, the lack of or inability to obtain raw materials, labor, fuel, electrical power, water or supplies, or any other cause, act of God, contingency or circumstances not subject to the reasonable control of Polyconn, which causes delays or hinders the manufacture or delivery of products. Polyconn shall determine in good faith the extent to which it can reasonably control a cause, contingency, or circumstance that affects the performance of its obligations.
- Remedies. The remedies provided to Polyconn shall be cumulative and in addition to any other remedies provided in law or equity. If Polyconn retains an attorney to collect any amount due under this contract Buyer shall pay Polyconn its costs and expenses including but not limited to attorney fees. A waiver of a breach of any provision hereunder shall not constitute a waiver of any other breach. The invalidity in the whole or in part of any provision hereof shall not affect the validity of any other provision.
- Applicable Law. The contract resulting from the acceptance of Polyconn’s offer shall be governed by and construed according to the laws of the state of Minnesota. Buyer consents to the personal jurisdiction of the state and federal courts located in the State of Minnesota in connection with any controversy related in any way to this contract or any transaction or matter relating to this contract, waives any argument that venue in such forums is not convenient, and agrees that any litigation initiated by the buyer against Polyconn relating in any way to this transaction shall be venued in either the District Court of Hennepin County, Minnesota, or the United States District Court, District of Minnesota, Fourth Division.