Aculon Terms and Conditions of Sale:
Aculon, Inc and its subsidiaries (“Seller” or “Aculon”) is engaged in the business of manufacturing chemical coatings, and lab services to its customers. These terms and conditions are incorporated into any quote, sales order, order confirmation and/or its equivalent, executed by Aculon and the Buyer (refer to as “Customer” or “Buyer”).
Acceptance: These Terms shall be deemed accepted by Customer upon acceptance of sales order, order confirmation, commencement of performance of services, issuance of purchase order, shipment of product, issuance of payment, and/or any indication of agreement by Customer, whichever occurs first. Customer therefore agrees to be bound by these terms and conditions. Any provisions or alternative Terms and Conditions issued by Customer are explicitly rejected, unless agreed upon to in writing by Aculon.
If the terms and conditions of this acknowledgement differ in any way from the terms and conditions of Customer’s order, this acknowledgement will be construed as a “COUNTEROFFER” and will not be effective as an acceptance of customer’s Terms and Conditions which conflict herewith. The Terms and Conditions contained herein will be the complete and exclusive statement of terms of the agreement between the Customer and Aculon. No addition to or modification of any of these Terms and Conditions will be effective unless made in writing by Aculon. Aculon’s failure to object to Customer’s terms contained in any subsequent communication will not constitute an acceptance, waiver or modification of the terms set forth herein.
Quoted pricing valid for 60 days.
Customer Qualifications: All new accounts must have appropriate customer information forms completed and must have a federal tax id number on file. All fields must be filled out in order for the form to be accepted.
Cancellations/Return of Product: Chemistry is made and / or packed to order and is not returnable. No cancellations will be accepted on an order once order is acknowledged. No exceptions.
Order Changes: Changes in specifications must be made in writing and will be accepted by Aculon upon Customer’s acceptance of additional costs for time and material involved, if any. Changes in shipments as scheduled will require written approval by Aculon and customer’s assumption of additional costs resulting there from, if any. Modification will indicate the anticipated suspension period provided, however, that failure to so indicate shall result in suspension for a reasonable period of time.
Errors: Aculon reserves the right to correct clerical errors and omissions.
Delivery: Aculon shall not be liable for any delay in delivery, or failure to deliver , due to any cause beyond their control, including but not limited to fires, floods, strikes, or other labor disputes, accidents to machinery, acts of sabotage, riots, precedence or priorities granted at the request or for the benefit, directly, or indirectly, of the federal of any state government or any subdivision or agency thereof, delay in transportation or lack of transportation facilities, restrictions imposed by federal, state or other governmental legislation or rules or regulation thereof. All shipments will not be insured, unless notified otherwise by Customer, and any risk of loss shall be borne by Customer. In which case, the Customer shall bear all responsibility for any and all damages caused as a result. A request for insurance shall be made in writing to Aculon.
Damaged Shipments: Aculon is further not responsible for damage caused during shipment. Please inspect your order upon receipt. If any external damage or shortage is noticed, please note the damage and shortage with the driver and/or shipping carrier immediately upon receipt. Keep all containers and packaging materials for inspection, take pictures and submit to Aculon Support at email@example.com. Aculon reserves the right to inspect, repair, and/or replace the damaged product. Credit and/or Replace product shall be issued on a case-by-case basis and subject to Aculon’s discretion.
Selling Price: Aculon reserves the right to make temporary or permanent adjustments to the selling price for increases in costs including but not limited to such items as raw materials, transportation and energy. The customer shall be given reasonable notice of the timing for these adjustments.
Warranty and Liability: Aculon makes no warranty or representation, expressed or implied, by operation of law or otherwise, as to the merchantability or fitness for a particular purpose of the goods sold hereunder. Aculon shall not be liable for any defect
in the goods sold hereunder and customer releases Aculon from any and all liability for negligence. Aculon will not be liable for consequential, incidental or any damages other than repair or replacement of defective good or refund of the purchase price paid
for such defective goods.
Quantities Shipped: Weights and quantities shown hereon are estimated. It is understood and agreed that an “over or under allowance” for quantities shipped are made to within ten percent (10%).
Patents/Intellectual Property: Except for rights expressly granted by Aculon in writing to Customer, nothing in this Agreement confers any license, assignment, sale, disposition, or rights to Aculon’s Intellectual Property irrespective of any discoveries, changes, improvements, modifications or the like of Aculon’s current products for Customer’s benefit. Nothing in this Agreement will function to transfer any of either party’s Intellectual Property rights to the other party. Each party shall retain exclusive interest in and ownership of its Intellectual Property developed before this Agreement, and developed outside the scope of this agreement. Aculon will retain all interest in the development of intellectual property provided by Aculon during the course of this agreement, including all documentation, modifications, improvements, and/or all other Intellectual Property rights.
Irrespective of whether the treatment supplied hereunder are being made to customer’s specifications, Aculon shall be under no liability whatsoever for patent infringement relating to the design of the product. The customer agrees to indemnify and hold harmless Aculon from and against any claim, or action upon claim, that the manufacture, use or sale of any good manufactured or supplied hereunder infringes any design related patent and to pay any and all losses, damages and expenses of Aculon in connection with any claim of action. Any information, suggestions or ideas transmitted by customer to seller in connection with performance hereunder are not to be regarded as secret or submitted in confidence except as maybe otherwise provided in writing signed by a duly authorized representative of Aculon.
Confidentiality: Customer agrees to abide by Aculon’s terms of confidentiality and non-disclosure. Customer agrees not to disclose any pricing, IP and/or technical information provided to Customer by Aculon, use of such information shall be used solely for internal purposes and in connection with the Products supplied.
Non-Analysis: Aculon does not allow analysis on samples.
Samples: On initial orders, unless otherwise requested by customer, samples will be submitted for approval before proceeding with production. Parts made according to approved samples will be deemed made in compliance with the contract.
Freight Terms: All items are Exworks, Aculon, San Diego, unless otherwise noted. In certain situations, if agreed upon by Aculon, Freight will be prepaid and the cost of the freight will be added to the invoice for the sale of goods. UPS, FedEx or DHL, at Aculon’s choice, will be used for shipping unless the customer requests differently and provides Aculon with their account number. Notwithstanding, Aculon is not responsible for shipments after they have left the dock.
Backorders: Backorders will be processed as quickly as possible, on a first come first serve basis. The customer will be notified when a back ordered item has been made available by phone and/or email.
Past Due Accounts: All accounts 30 days past due or more will be automatically charged 2% on the past due balance each month. Accounts 60 days past due will be automatically put on COD.
Returned Checks: A $40 fee will be applied to all returned checks and the account will be changed to COD/Cash only status.
Shortages: Claims for shortages must be reported to Aculon within 10 days of receipt of merchandise.
Returns: Aculon will not accept returns unless the product is found to be defective. If a product is deemed to be defective by Aculon, the product shall be replaced. The obligation to replace a product shall be the sole remedy of Customer in the event of a defective product. Returns will not be accepted after 30 days from date of invoice without prior approval. Please inspect product upon receipt. Aculon must be contacted to authorize all returns.
Jurisdiction: By placing an order with Aculon, Customer hereby enters into an agreement with Aculon for the purchase of goods and services and hereby accepts the term and conditions as set forth herein, Customer hereby consents that this transaction is
governed by the laws of the State of California, and that any action arising out of this must be filed in a state court or federal court located in San Diego, California. Customer hereby further agrees that by entering into this agreement the terms and conditions contained and incorporated herein shall take precedence over any other terms and conditions, including any terms and conditions set forth by Customer. Customer further agrees to subject themselves to service of process, as well as, subject matter and territorial jurisdiction of the State of California. In the event account becomes delinquent and is placed with a collection agency or lawyer, customer is liable to pay 1-1/2% per past due month and to pay for the collection and/or attorney's fees if it becomes necessary to file suit to enforce collection.
Limitation of Liability: Notwithstanding anything to the contrary contained herein, the liability of Aculon under these terms and conditions (whether by reason of breach of contract, tort, indemnification, or otherwise, but excluding liability of Seller for breach of warranty (the sole remedy for which shall be as provided under Returns above)) shall not exceed an amount equal to the lesser of (a) the total purchase price theretofore paid by Customer to Aculon with respect to the Product(s) giving rise to such. Notwithstanding anything to the contrary contained herein, in no event shall Aculon be liable for any indirect, special, consequential or incidental damages (including without limitation damages for loss of use of facilities or equipment, loss of revenue, loss of data, loss of profits or loss of goodwill), regardless of whether Aculon (a) has been informed of the possibility of such damages or (b) is negligent.
Indemnification: Customer agrees to defend, indemnify, and hold Aculon, it officers, directors, employees and agents harmless from and against any and all claims, actions, lawsuits, including Aculon’s attorneys’ fees, expenses, and costs of litigation, arising from Customer’s purchase or subsequent sale or transfer of a Product or to any breach Customer’s obligations under this Agreement. Customer agrees that its duty to defend, indemnify and hold Aculon harmless arises at the first notice of a claim, action, or lawsuit. Customer agrees that its duty to defend, indemnify and to hold Aculon harmless applies to any attorneys’ fees, expenses, and costs of litigation incurred or paid by Aculon to enforce this Indemnification Section. This Indemnification shall survive termination and cancellation of this Agreement.
Severability: If any term or provision of this Agreement or any application thereof shall be held invalid or unenforceable, the remainder of this Agreement and any application of the terms and provisions shall not be affected thereby but shall remain valid and enforceable.
Assignment: This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns and designees; provided, however, neither party shall have the right to transfer, assign or delegate its rights or obligations under this Agreement or any portion thereof without the prior written consent of the other party (except that either party may assign this Agreement to a parent, subsidiary or successor corporation without such consent).
Time Limitations: Regardless of any contrary statute or law, any suit seeking to enforce any provision of, or based on any right arising out of, this Agreement must be filed within one (1) year from the date that the cause of action arose.
Enforceability: Seller’s failure to enforce, or Seller’s waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision.