Terms and Conditions of
Sale – Rapid Die Cut, (RDC)
Seller.
As used herein, “Seller” means Rapid Die Cut, a Delaware
corporation.
Rapid Die Cut. (RDC)
provides a Quote for the Buyer’s part(s) based on a
drawing, CAD or overall size of part submitted by Buyer to Seller. Any change to the
drawing, CAD or over all dimensions requires an updated Quote. Quotes are valid for
30 days, after which pricing may change without notice. Seller reserves the right to
correct clerical and other typographical errors in any quotation.
Offer and Contract Acceptance.
These Terms and Conditions of Sale, together with a valid
Quote, form a legally binding agreement (the “Agreement”) and contains the entire
understanding between Buyer and Seller for the goods and services provided by Seller
and supersede any and all other agreements, representations and understandings of
the parties, if any, whether oral or in writing. Buyer is deemed to have
accepted this Agreement when it accepts a Quote or issues a purchase order or other
writing expressing the Buyer’s intent to proceed with the Agreement. This Agreement
will govern any orders Seller accepts from Buyer and/or Buyer’s authorized
purchasers based on the Quote provided to Buyer. The terms and conditions contained
herein shall be the only terms that shall govern the purchase and sale of the goods
and services between Buyer and Seller, and no other terms and conditions shall apply
and are hereby expressly excluded, including, without limitation, any terms
contained in a request for quotation, purchase order, website, or elsewhere. The
only additional terms in a request for quotation, purchase order, website or other
writing that shall apply, if accepted by Seller, shall be terms regarding the
description, price, quantity, and shipping destination for goods produced, and any
and all other terms and conditions shall be excluded and deemed inapplicable. After
Seller accepts an order, Buyer is responsible for any delivery delays or charges, in
addition to the original price due to a Buyer requested change that is agreed to in
writing by Seller.
Termination for Convenience.
Buyer may terminate an order in whole or in part at any
time by written notice to Rapid Die Cut effective upon receipt and
confirmed by Seller. In the event of termination, Seller reserves the right to
invoice Buyer for all goods produced or services performed prior to receipt of
notice of termination as well as for any material purchased to make Buyer’s parts
which Seller is unable to return. This section shall not limit or affect the Buyer’s
right to cancel this order for breach by Seller.
Delivery; Quantity; Title.
Any stated delivery time represents Seller’s intended or
typical delivery time, but actual delivery times may vary. Seller reserves the right
to limit quantities at any time. Partial shipments may be delivered to Buyer.
All parts are shipped FCA (Incoterms 2010) at Seller’s facilities. Title
passes to the Buyer at the time and place of delivery to the carrier.
Price and Terms of Payment.
All prices are quoted and payments shall be made in U.S.
Dollars and are exclusive of freight, shipping, special packaging or handling,
duties, and unless specifically stated, sales, excise, use or other taxes arising in
connection with this transaction (other than taxes based solely on Seller’s taxable
income). No discounts or refunds are authorized. Payment may be made by
Visa, MasterCard, Discover, American Express, or a form of prepayment acceptable to
Seller. Upon credit approval, goods or services may be invoiced and all sums are due
and payable according to the terms of the invoice. To the extent Buyer desires
Seller to present invoices or other information electronically via Buyer’s or a
third party’s electronic payment website, any costs associated with such access will
be borne by Buyer.
Nonconforming Goods.
Buyer shall inspect all goods upon delivery by Seller,
and should any of the goods be nonconforming goods, Buyer must notify Seller, in
writing, within ninety (30) days of delivery of the goods describing the nature of
any nonconformity. Seller shall have the right and option to repair or replace any
goods agreed between the parties to be nonconforming. Seller shall not have any
obligation to repair, replace or otherwise compensate Buyer for nonconforming goods
if Buyer fails to notify Seller in writing that goods are nonconforming within
ninety (90) days of Seller’s delivery of the goods.
Warranties.
Seller assumes no responsibility for the design of the
goods that are the subject of this transaction. To the extent Seller’s personnel
recommend design modifications or provide design analysis, simulation or advice,
they do so only to help meet the requirements of Seller’s own manufacturing process.
The Buyer retains sole legal responsibility for the design specifications and
performance of the goods that are the subject of this transaction. Buyer is solely
responsible for ensuring the goods and services purchased from Seller meet
applicable regulatory requirements. The Buyer represents and warrants to Seller that
no information furnished or to be furnished by the Buyer to Seller constitutes
information classified by the U.S. federal government as confidential, secret or top
secret or similar designation by any international government.
SELLER MAKES NO REPRESENTATION OR WARRANTY, WHETHER
EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER WITH RESPECT TO ANY GOODS OR SERVICES,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NON-INFRINGEMENT.
Without limiting the generality of the foregoing, Seller
assumes no responsibility or liability for the selection of any materials for the
goods that are the subject of this transaction. The Buyer is solely responsible for
ensuring that materials selected for goods to be manufactured by Seller meet any
applicable regulatory requirements or specifications including but not limited to
Directive -2011/65/EU on the restriction of the use of certain hazardous substances
in electrical and electronic equipment (RoHS Directive) together with any national
legislation implementing such Directive, ISO, FDA, UL, CSA, CE, TUV, FCC, NSF, and
USP. Any statements made by Seller personnel or specifications provided by Seller
regarding materials should be verified by the Buyer with the manufacturer of that
material.
Indemnification.
Buyer agrees to defend, indemnify and hold harmless
Seller (and its employees, representatives and agents) from and against all claims,
liabilities, losses, damages, penalties, fines and sanctions of any kind (including,
without limitation, interest, attorneys’ fees and expenses, customs duties, fines,
taxes, penalties or any other governmental sanctions of any kind) resulting from or
arising out of Buyer’s use of Seller’s goods or services, a breach of any provision
of this Agreement or any third party claim for infringement of patent rights,
trademark, copyrights or misuse of trade secret information.
Force Majeure.
Seller shall not be liable for any failure to perform
under this Agreement if such failure or delay is caused by acts of God, fire, storm,
strikes, blackouts, labor difficulties, riots, inability to obtain materials,
equipment, labor or transportation, governmental restrictions, or any other event
beyond Seller’s reasonable control. In the event of any shortage of raw materials or
other supplies, Seller may allocate materials and supplies among its buyers in such
manner as Seller may determine in its sole discretion, and shall have no liability
to the Buyer on account of any delay or cancellation on account thereof.
Service Levels.
Each Quote indicates a Service Level that applies to that
Quote. If the Quote indicates a “Prototyping” Service Level, all Custom Tooling and
Proprietary Components shall be and remain the property of the Seller. However,
Seller shall not use Custom Tooling in the production of goods for any other buyer
of Seller without the Buyer’s express permission. As long as Seller is making parts
for Buyer in Seller’s facility. Seller’s Prototyping Tooling storage policy is such
that after a six (6) month period of inactivity on the Prototyping Tooling, Seller
may destroy the Prototyping Tooling, in its discretion.
If the Quote indicates an “On-Demand Manufacturing”
Production Service Level, all Custom Tooling shall be the property of the Buyer,
however reusable Proprietary Components will remain the property of the Seller and
all Custom Tooling will remain at Seller’s production facility. As long as Seller is
making parts for Buyer in Seller’s facility, Seller will guarantee Buyer’s On-Demand
Manufacturing Tooling for the life of the project with no limitation on the number
of parts produced. Subject to the On-Demand Manufacturing Tooling storage policy
below, Seller will, in its discretion, repair or replace worn or damaged Tooling at
Seller’s expense with no limitation on the number of parts produced. Seller’s
On-Demand Manufacturing Tooling storage policy is such that after a two-year period
of inactivity on the On-Demand Manufacturing Tooling, Seller may destroy the
On-Demand Manufacturing Tooling, in its discretion. The On-Demand Manufacturing
Tooling guarantee does not apply to projects accepted on a “best effort” basis as
agreed between the parties.
As used in this Agreement, “Custom Tooling” means tooling
and dies developed specifically for the Buyer, Proprietary Components” means all
proprietary or reusable components developed by Seller including fixturing, inserts
crews and springs or other reusable parts needed to make the Tooling ready for
production. Due to the proprietary nature of Seller’s process, Tooling is generally
not compatible with or transferable to other equipment.
On-Time Expedited Delivery Guarantee.
If Buyer selects an expedited quick-turn option, Seller
guarantees the on-time delivery for the date selected. If Seller is unable to meet
the selected date, Seller will refund a prorated portion of the expedite fee to
reflect the delivery date actually achieved. For instance, if Buyer selects a
quick-turn expedite of five business days, but the order actually ships in seven
business days, Seller will refund the difference between the 5-day expedite fee and
the achieved 7-day expedite fee. The On-Time Expedited Delivery Guarantee does not
apply to standard lead times, projects accepted on a “best effort” basis, or limited
availability services.
Buyer Intellectual Property.
Buyer shall retain sole ownership of the copyright in
files, all text, illustrations, software files and other materials provided by Buyer
to Seller as well as of any deliverables, designs, including modifications or
derivative works thereof, that may be produced for Buyer during the course of
Seller’s performance of services.
Seller Intellectual Property.
Seller retains sole ownership in all proprietary
software, processes, and procedures developed by Seller for the quoting, analysis,
design, automation, and manufacturing of Tooling Dies, Fixtures, or any other custom
tooling generated to support the manufacturing of the production parts. Seller
retains ownership of the copyright in all text, illustrations or other materials
provided by Seller to Buyer in a Quote. Buyer will not, without prior written
approval of Seller (which may be withheld for any reason), remove any of Seller’s
markings or change Seller’s Intellectual Property in any way.
Federal Government Contracts.
Seller is large business, registered in the System for
Award Management (SAM). If this transaction is a subcontract under a federal
government contract or subcontract, the Buyer and Seller agree that the goods and
services provided by Seller to the Buyer under this agreement constitute
“commercial items” as defined in FAR 2.101 (48 CFR § 2.101). In this regard Seller
warrants that the goods and services provided under this agreement are priced at the
same rate and in the same manner as Seller’s comparable commercial agreements for
similar goods and services and that such goods and services are sold in the
commercial marketplace, subject to modifications of a type customarily available in
the commercial marketplace.
Country of Origin.
Seller makes no country of origin certification under
this Agreement unless specifically agreed to in writing. Seller specifically
disclaims any “passive” certifications included in any of Buyer’s documents or
communications related to this Agreement.
Confidentiality.
“Confidential Information” means any information that
Buyer discloses to the Seller that is proprietary to the Buyer and not generally
known to the public. The Seller will not use any Confidential Information for any
purpose except for the purposes of carrying out its obligations pursuant to this
Agreement. The Seller will use the same degree of care (but no less than a
reasonable degree of care) to protect the secrecy of and avoid disclosure and
unauthorized use of the Confidential Information as the Seller employs with respect
to its own confidential and proprietary information. Upon Buyer’s written request,
the Seller will destroy all documents containing or representing Confidential
Information and all copies thereof, and erase any such Confidential Information from
the Seller’s computer systems except electronic copies that are electronically
archived and not readily accessible. If requested by Buyer, Seller will provide
written confirmation of such return or destruction and erasure to Buyer.
Export Compliance.
Buyer and Seller will comply with all applicable export,
restrictions and regulations of any U.S. agency or authority including but not
limited to the Export Administration Regulations (“EAR”) administered by the U.S.
Department of Commerce, International Traffic in Arms Regulations (“ITAR”) under the
U.S. Department of State, and embargo controls administered by the U.S. Department
of the Treasury’s Office of Foreign Asset Controls (“OFAC”) with respect to the
goods or services that are subject to this Agreement. In order for Seller to conduct
appropriate export control checks, the Buyer agrees to identify any export
controlled (e.g., ITAR) goods in writing to Seller by the time Buyer accepts a
quotation and to provide all pertinent information pertaining to the particular end
Buyer, destination and intended use of goods. Seller reserves the right to stop
shipping or providing goods if Seller has reason to believe that any shipment or
sale of goods may violate any export control law.
Prohibited Purposes.
Buyer warrants that the goods that are the subject of
this transaction will not be implanted in a human body and are not subject to FAA
inspection. Buyer certifies that its designs (e.g., drawings or CAD models)
submitted to Seller and the manufacture and delivery of goods according to the
Buyer’s design will not yield goods that are in violation of any federal firearms
laws.
LIMITATION OF DAMAGES.
IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL,
INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, WHETHER FOR BREACH OF ANY
WARRANTY, FOR BREACH OF ANY OTHER TERM OR CONDITION, FOR NEGLIGENCE, ON THE BASIS OF
STRICT LIABILITY, OR OTHERWISE. BUYER ACKNOWLEDGES THAT THE ESTIMATED AND ACTUAL
FEES AND CHARGES PAID FOR THE SERVICES REFLECT THIS LIMITATION OF LIABILITY AND
ALLOCATION OF RISK. THE TOTAL LIABILITY OF SELLER OR ITS SUPPLIERS TO BUYER UNDER
THIS AGREEMENT SHALL IN NO EVENT EXCEED THE TOTAL SUMS PAID BY BUYER TO SELLER FOR
THE ORDER GIVING RISE THE LIABILITY.
Miscellaneous.
The Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan without regard to principles of
conflict of law. Any suit, action or other legal proceeding arising out of or
relating to this transaction shall be brought in a court of record in Macomb County,
Michigan. Seller and the Buyer each consent to this jurisdiction of such court in
any suit, action or proceeding, and waive any objection which it may have.
Last updated: March 1, 2023
Last updated: March 1, 2023