CYCLYX STANDARD TERMS & CONDITIONS OF SALE
This quotation or proposal (“Quote”) constitutes an offer by Cyclyx International, LLC (“Seller” or “we” or “us”) to sell to whom this Quote or is issued (“Purchaser”) the goods or services covered by the Quote (the “Goods or Services” or “you” or “your”) exclusively upon the terms and conditions of purchase set forth below (or incorporated herein by reference) and shall become a binding contract including such terms and conditions upon either issuance of a Purchase Order or acknowledgement by Purchaser (the “Agreement”). No contrary or additional terms or conditions of sale proposed by Purchaser will be accepted by Seller and any such proposed contrary or additional terms are to be construed as proposals for addition to this Agreement which are hereby rejected unless otherwise indicated in a written instrument executed by an authorized officer of Seller making specific reference to this Quote and the specific contrary or additional term proposed by Purchaser. Seller and Purchaser referred to individually as “Party” or collectively as “Parties”.
1. Acceptance. Seller’s agreement to sell Goods or Services to Purchaser is expressly made conditional on the acceptance of these Terms and Conditions. If Purchaser uses its own form, the terms in such form shall be of no force between the parties. An order shall only be considered as accepted when confirmed by us in writing. The Agreement and these Terms and Conditions shall become automatically binding on both Parties upon your written acceptance of the Quote or issuance of a Purchase Order in response to Seller’s Quote. You must advise us immediately if anything herein is unacceptable. No change, modification or extension of the Agreement shall be effective against Seller unless it is made in writing making specific reference to the Agreement and is signed by an authorized representative of Seller.
2. Prices. Prices set forth in the Quote are good for no more than 30 days, provided, however, Seller reserves the right to cancel or amend the Quote at any time upon prior written notice to Purchaser. Unless agreed to in writing by Seller, prices are exclusive of taxes, levies, duties, governmental charges and expenses (with the exception of any Seller’s income taxes). It is Purchaser’s responsibility to determine any applicable taxes, duties, governmental charges and expenses required to be paid as a result of this transaction and pay those taxes, duties, governmental charges and expenses to the applicable governmental authority.
3. Schedule for Delivery. The proposed delivery date/performance schedule is our best estimate and is not binding on us. We shall have no liability to Purchaser or any third party for any loss, damage, or expense from any failure to meet the schedule. If delivery is delayed, Purchaser’s sole remedy shall be to cancel the order in which event Purchaser shall be entitled to a refund of all amounts paid to Seller pursuant to these Terms and Conditions, less any costs and expenses incurred by Seller prior to the date hereof, provided such funds are available.
4. Conditions of Payment. The standard terms of payment are net 30 upon receipt from date of invoice. All late payments shall be charged interest computed daily from due date until paid in full. A late charge of 1% per month, or the maximum rate permitted by law, will be imposed on all past due accounts.
5. Confidential Information. The Parties acknowledge that pursuant to the performance of this Agreement, Seller may disclose to Purchaser confidential and/or sensitive information (“Confidential Information”). “Confidential Information” shall mean all information disclosed by Seller to Purchaser which is non-public and either proprietary or confidential in nature and related to Seller’s business or activities, including, but not limited to financial, legal, technical, marketing, sales and business information, which is (a) marked as confidential at the time of disclosure; or (b) is unmarked (e.g., disclosed orally or visually) but is identified as confidential at the time of disclosure; or (c) due to the nature of the information or the circumstances of disclosure, would be understood by a reasonable person to be confidential. Purchaser shall maintain the Confidential Information in strict confidence and limit disclosure to only its employees, subcontractors, consultants and representatives who have a need to know such information to perform its obligations under this Agreement. Purchaser shall protect the Confidential Information by using the same degree of care it uses to protect its own information of a like nature, but no less than a reasonable degree of care. All Confidential Information shall remain the property of Seller.
6. Non-Circumvention. Purchaser agrees not to, directly or indirectly, interact with or contact any material source or business partner the identity of which is learned through the transaction with Seller (“Sources”), without Seller’s prior written consent. Under no circumstances will Purchaser or any of its affiliates attempt to (a) circumvent Seller with respect to communications with Sources, (ii) buy or attempt to buy any substantially similar product from the Sources, or (iii) take any action that results in a decrease of the volume of material Sources supplies to Seller.
7. Warranty for Services. Seller does not warrant in any form the results of the Services provided or the resulting work product and deliverables. Seller warrants that the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with the generally accepted industry standards and practices. THE FOREGOING WARRANTIES ARE THE SOLE WARRANTIES, EXPRESS OR IMPLIED, GIVEN BY SELLER IN CONNECTION WITH THE SERVICES, AND SELLER DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS. PURCHASER’S EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY IS REPERFORMANCE OF THE SERVICES, OR IF REPERFORMANCE IS NOT POSSIBLE OR CONFORMING, REFUND OF AMOUNTS PAID UNDER THIS AGREEMENT FOR SUCH NON-CONFORMING SERVICES.
8. Warranty for Goods. SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS. PRODUCTS SOLD HEREUNDER ARE SOLD ONLY TO THE SPECIFICATIONS SPECIFICALLY SET FORTH BY THE SELLER IN WRITING. SELLER'S SOLE OBLIGATION FOR A REMEDY TO PURCHASER SHALL BE REPAIR OR REPLACEMENT OF NON-CONFORMING PRODUCTS. BUYER ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF PRODUCTS PURCHASED, WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS OR SUBSTANCES.
9. Limitation of Liability. No claim by Purchaser of any kind including, but not limited to, claims for indemnification, whether as to quality or amount of product delivered or non-delivery, shall be greater in amount then the purchase price for the Goods or Services in respect of which damages are claimed. IN NO EVENT SHALL SELLER HAVE ANY LIABILITY WHATSOEVER FOR PAYMENT OF ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA, ARISING OUT OF, OR AS A RESULT OF, THE SALE, DELIVERY, SERVICING, USE OR LOSS OF THE GOODS OR SERVICES SOLD HEREUNDER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.
10. Inspection. Purchaser shall inspect the Goods or deliverables of Services promptly upon receipt for non-conformity (including but not limited to non-conformity for quantity, quality, and/or defects). Failure by Purchaser to provide Seller with written notice of a claim within 30 days from the date of delivery or, in the case of non-delivery, from the date fixed for delivery, shall constitute a waiver by Purchaser of all claims with respect to such products.
11. Seller's Rights. If Purchaser should fail in any manner to fulfill the terms and conditions hereof, Seller may defer further shipments until such default is cured. Remedies provided herein shall be in addition to, and not in lieu of, other remedies that may be available to Seller. If for any reason, the quantities of the products covered hereby or of any materials used in the production of the products reasonably available to Seller shall be less than Seller total needs for its own use and for sale, Seller may allocate its available supply of products among its existing or prospective purchasers and/or its own departments, divisions and affiliates in such manner Seller deems proper in Seller's sole discretion, without thereby incurring liability on account of the method of allocation determined or its implementation or for failure to perform this Agreement.
12. Force Majeure. Seller shall be liable due to causes beyond that Seller’s reasonable control, including, but not limited to, acts of God, war or terrorism, strike, delay by carrier, acts of other parties, changes in law, or inability to maintain labor and materials. Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of such condition, without any liability or penalty; provided, however, that in no event shall a force majeure event excuse Purchaser’s prompt payment of any amounts due hereunder. Seller must promptly notify Purchaser of the reasons for the failure in delivery and shall exert its best efforts to avoid further delay.
13. Release. Purchaser shall indemnify, defend, and hold Seller and its subsidiaries, shareholders, managers, officers, directors, agents, and employees harmless against any and all losses, damages, causes of action, claims, liabilities, costs, expenses, reasonable attorneys’ fees, and expert fees, resulting from any breach by Purchaser of these Terms and Conditions or the Agreement resulting from any alleged act or omission of Purchaser or any of its shareholders, managers, officers, directors, agents or employees.
14. Independent Contractor. Nothing in the Agreement or these Terms and Conditions is intended to, or does, create any employee, joint venture, partnership, agency or similar relationship between the Parties, other than a purchaser and seller relationship. Purchaser shall not be, and it is not authorized to represent itself as, an agent or representative of Seller for any purposes.
15. Governing Law; Dispute Resolution. The Agreement shall be governed exclusively by the laws of the State of Delaware without regard to its conflicts of laws principles that would have a contrary result. All disputes, controversies or differences between the parties that are not settled by negotiation shall be decided in accordance with the Commercial Rules of the American Arbitration Association and judgment will be entered on the award. The site of arbitration will be a mutually agreeable location in Delaware and the arbitrator(s) will be bound by the applicable laws of the State of Delaware. If any action or proceeding shall be commenced to enforce or interpret the Agreement, these Terms and Conditions or any right arising in connection with these Terms and Conditions and the Agreement, the prevailing party in such action or proceeding shall be entitled to recover from the other party all reasonable attorneys’ fees,costs and expenses incurred by such prevailing party in connection with such action or proceeding if provided by law. No remedy herein provided for shall be applicable where not permitted by law.
16. No Assignment. Neither the Agreement, nor any right or obligation of Purchaser hereunder may be assigned or delegated by Purchaser, by contract, merger, operation of law, or otherwise, to any other party without the prior consent of Seller which may be granted at Seller’s sole discretion.
17. Compliance with Laws; Export Laws. Purchaser and Seller shall comply with all applicable international, national, state, regional and local laws and regulations with respect to their performance of this Agreement. Purchaser agrees to adhere to all applicable US Export laws and regulations with respect to the products.
18. Entire Agreement. The Agreement and these Terms and Conditions constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements between the parties, whether written or oral, relating to the same subject matter. No modification, amendments or supplements to these Terms and Conditions or the Agreement shall be effective for any purpose unless in writing, signed by each party.
19. Severability. If any provision of these Terms and Conditions shall be deemed invalid or unenforceable, these Terms and Conditions shall be construed as though such provision does not appear herein and shall be otherwise fully enforceable.
20. Notices. All notices, consents, demands and other communications with respect hereto shall be in writing and sent by email to notices@cyclyx.com.
Last Updated: 9/17/2024