Upon acceptance in writing by Cristaux Inc. (“Cristaux”), these terms and conditions shall constitute the SOLE CONTRACT of the parties with respect to the sale of the goods per the specifications on the order (“Goods”) and this contract may not be amended or modified unless specifically agreed to in writing by Cristaux. Failure of Cristaux to object to provisions contained in any order or other communication from the Buyer shall neither be construed as a waiver of these terms nor an acceptance of any such provisions. Cristaux reserves the right to correct clerical, arithmetical, or stenographic errors or omissions in quotations, orders, acknowledgements, invoices or other documents.
All quotations are valid for thirty (30) days from the date stated on the quotation unless otherwise agreed to in writing. Pricing does not include shipping charges.
Cristaux reserves the right to assess credit and payment history. Cristaux will establish payment terms on the price quotation. Payment shall be due within fifteen (15) days following Buyer’s receipt of notice that Cristaux has accepted the Buyer’s order. All overdue accounts will be assessed a charge equal to an interest rate of 2% per month at the time payment became due and owing until payment has been received in full. In the event of bankruptcy, or insolvency of the Buyer or in the event any proceeding is brought against the Buyer, voluntary or involuntary, under the bankruptcy or any insolvency laws, Cristaux shall be entitled to cancel any order then outstanding at any time during the period allowed for filing claims against the estate and shall receive reimbursement for it reasonable cancellation charges including all actual expenditures, commitments, liabilities, and costs made or incurred in respect to such incomplete items, plus a reasonable profit on such costs. If the Buyer defaults in any payment when due or refuses to accept delivery, Cristaux, at its option, and without prejudice to other lawful remedies, may defer further deliveries or cancel the remainder of the order. Buyer agrees that Cristaux shall be entitled to collect all costs, including, but not limited to attorneys’ fees associated with the enforcement of the terms and conditions in this Agreement.
Delivery, Title, and Risk of Loss
Cristaux shall tender the Goods to Buyer at Cristaux’s place of business (the “Shipping Point“) using Cristaux’s standard methods for packaging. Cristaux shall provide notice to Buyer when possession of Goods is tendered at the Shipping Point. Upon tender of Goods at the Shipping Point: (a) title and risk of loss to the Goods shall pass to Buyer; (b) the Goods shall be deemed to have been delivered; and (c) Cristaux, at its option, may store the Goods until Buyer makes arrangement for shipping, whereupon Buyer shall be liable for all related costs and expenses. Buyer shall have the right to acquire insurance for any Goods stored by Cristaux after title and risk of loss have passed to Buyer.
THE LIMITED WARRANTY CONTAINED HEREIN SHALL BE IN LIEU OF ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, INTENDED USE, OR MERCHANTABILITY, SAID WARRANTIES, AND ALL OTHER WARRANTIES EXCEPT THE EXPRESS LIMITED WARRANTY CONTAINED HEREIN, BEING EXPRESSLY DISCLAIMED.
WHERE APPLICABLE LAW PROHIBITS THE DISCLAIMER OF AN IMPLIED WARRANTY PRIOR TO THE EXPIRATION OF AN EXPRESS WARRANTY, THEN, AND ONLY IN THAT CASE, CRISTAUX’S DISCLAIMER OF SUCH IMPLIED WARRANTY SHALL TAKE EFFECT IMMEDIATELY UPON THE EXPIRATION OF THE EXPRESS LIMITEED WARRANTY SET FORTH HEREIN. PURCHASER ACKNOWLEDGES THAT ITS ACCEPTANCE OF CRISTAUX’S DISCLAIMER OF WARRANTIES IS A MATERIAL TERM AND CONDITION OF THE CONTRACT.
For one year after tender to Shipping Point, Cristaux warrants that Goods shall be substantially free from defects in material and workmanship and that the Goods materially conform to agreed upon specifications. This warranty shall not apply with respect to defects caused by: (i) normal wear and tear; (ii) accident, disaster, or event of force majeure; (iii) negligence or willful misconduct by a party other than Cristaux; (iv) misuse, abuse, alteration, modification, or negligent or improper use or storage of the Goods by a party other than Cristaux; or (v) breach of the Contract by any party other than Cristaux. Furthermore, this warranty shall terminate immediately upon any sale, assignment or other transfer of the Goods by the Buyer. This warranty is not transferable.
Delivery of Goods shall be made FOB Shipping Point. Buyer shall make arrangements for shipping of the Goods at its expense through the use of a carrier acceptable to the parties and shall notify Seller of its preferred terms. Failure to document a product shortage or damage within the Inspection Period together with delivery carrier acknowledgement constitutes satisfactory acceptance of the product delivered. Cristaux shall use reasonable efforts to conform to the mutually agreed delivery date(s). The mutually agreed delivery date for orders placed pursuant to the contract shall be a date that allows, at the minimum, the lead time, expressed in weeks after receipt of Buyer’s order. In the event of failure of delivery on such delivery date, Buyer will give Cristaux written notice of delinquency allowing Cristaux a reasonable time to cure. In no event shall Cristaux be considered in default of its obligation under the contract to deliver until expiration of thirty (30) days after such notice. Buyer shall be responsible for all transportation charges for all Goods shipped to Buyer’s selected destination or destinations.
Right to Inspect
Buyer shall have seven (7) days to inspect Goods from the time Buyer receives notice that such Goods have been delivered to the Buyer’s place of business by the carrier (the “Inspection Period”). Alternatively, if the buyer fails to arrange for the shipment of Goods, the Inspection Period shall be seven (7) days from the day Buyer receives notice that Goods have been tendered at the Shipping Point. Buyer must give notice to Cristaux of any defects prior to the end of the Inspection period. The failure of Buyer to send notice of non-conformity within the Inspection Period shall constitute irrevocable acceptance of the Goods by Buyer.
In the event that Buyer provides timely notice to Cristaux of defective Goods in accordance with the provisions of these Terms and Conditions, Cristaux reserves the right to repair and/or replace the Goods if necessary or issue an appropriate credit and shall be entitled to reasonable production time to do so without being in breach of its obligations hereunder. If Cristaux elects to replace any defective Goods, Buyer shall, at Buyer’s expense, ship such defective Goods to a destination as determined by Cristaux. Buyer acknowledges and agrees that orders which require delivery on an expedited basis are by their nature more susceptible to non-conformity, variance and damage. Buyer acknowledges and agrees that Cristaux shall be deemed to have met its obligations to Buyer for Goods delivered on an expedited basis if said Goods are substantially in conformance with Buyer’s stated design parameters and/or delivered substantially within the time frame estimated by Cristaux.
Any imposed duty, federal, city, or state tax, if and when assessed is to be paid by the Buyer.
In no event shall the contract be subject to cancellation by the Buyer, except as agreed to in writing by Cristaux, at Cristaux’s sole discretion.
This contract is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever.
Interpretation of Contracts and Jurisdiction
The Buyer agrees that the adjudication of all controversies which may arise concerning the interpretation or the enforcement of the contract shall be determined exclusively by a state court sitting in the County of Cook, in the State of Illinois, and Buyer hereby submits to the exclusive jurisdiction and venue of such courts, and expressly waives the right to adjudication of such controversies by any court or tribunal sitting in any other jurisdiction.
Buyer agrees to indemnify and hold Cristaux harmless against any expense or loss, including attorney’s fees, resulting from any claim of unfair competition or infringement of patents, trademarks or copyrights, arising from compliance with Buyer’s design or specifications or instructions. Buyer shall be exclusively responsible for and shall at his expense indemnify and defend Cristaux against all liability for any and all claims founded upon the legal effect and use of any designs, devices or words, including any wording required by Federal, State or Local laws or ordinances, which the Buyer, may order incorporated in or placed on the Goods, notwithstanding that Cristaux may have been consulted thereon, or performed artwork or other special services in connection therewith.
If the performance of Cristaux’s obligations under this agreement is delayed or becomes impossible or impractical by reason of any act of God, fire, earthquake, strike, labor disturbance, civil commotion, acts of government, its agencies or officers or delays in the delivery of materials and supplies, Cristaux may suspend the obligations under this agreement for the duration of such delay, impossibility or impracticability, as the case may be and Cristaux shall not be liable to Buyer for any damages arising out of such delay.
Each of the provisions contained in this contract is distinct and severable and the declaration of invalidity or unenforceability of any such provision or part thereof by a court of competent jurisdiction shall not affect the validity or enforceability of any other provisions or parts of provisions hereof.
All notices shall be in writing and shall be served by one party to the other. Notice shall be given in the following manner (a) by personal delivery; or (b) by mailing to Cristaux’s or Buyer’s principal place of business by certified mail, return receipt requested. Except as otherwise provided herein, notice served by certified mail shall be effective on the date of mailing; or (c) by facsimile transmission. Notice shall be effective as of date and time of the transmission, provided that the notice transmitted shall be sent on business days during Business Hours (9:00 am to 5:00 pm CST). In the event notice is transmitted during non-business hours, the effective date and time of notice is the first hour of the next business day after transmission; or (d) by e-mail transmission if an e-mail address has been furnished by the recipient party to the sending party. Notice shall be effective as of date and time of e-mail transmission, provided that, in the event e-mail notice is transmitted during non-business hours, the effective date and time of Notice is the first hour of the next business day after transmission.