Terms and Conditions
These Terms and Conditions (these “Terms”), together with any written supply agreement between XCELDYNE and Customer (as defined below) (collectively, the “Agreement”) apply to all sales of goods and services by XCELDYNE LLC (“XCELDYNE”) to the buyer who issues an Order for such goods and services (“Customer”). Unless Customer accepts these Terms in a signed supply agreement with XCELDYNE, Customer hereby accepts and agrees to be bound by these Terms by submitting purchase orders or other purchase documents (each an “Order” and collectively, the “Orders”) for any goods and related services sold by XCELDYNE. Any additional or different terms and conditions stated in any document provided by Customer to XCELDYNE (including, without limitation, in any Order previously or in the future issued by Customer ) are expressly rejected by XCELDYNE and will not be part of the agreement between the parties unless accepted in a separate signed writing by XCELDYNE’s authorized representative. The Agreement (including these Terms) may not be modified orally by any representative of XCELDYNE and any modifications to the Agreement must be made in a writing signed by Customer and XCELDYNE. Any agreed upon change may be subject to an equitable adjustment in the purchase price and/or time for performance.
QUOTATION & PRICING TERMS:
Quotations are based on the information, written and/or verbal, provided by Customer to XCELDYNE and XCELDYNE’S interpretation of Customer’s requirements at time quote is created. XCELDYNE reserves the right to refuse to honor the quotation if Customer’s information or XCELDYNE’s understanding of Customer’s requirements change after receipt of an Order from Customer.
XCELDYNE quotations are open for acceptance thirty (30) days from the date of issuance. After thirty (30) days, prices, lead times, terms and conditions are subject to change without notice. All quotations must be in writing. Verbal quotes are not acceptable and will not be honored. Stated lead times are estimates based on manufacturing load at time of quotation and are subject to change.
Shortly before or after delivery of the goods, an invoice will be mailed to Customer and the invoice will forth the price of the goods as agreed upon between Customer and XCELDYNE. If there is any discrepancy between the prices agreed upon between Customer and XCELDYNE and the prices indicated on the invoice, Customer must, within ten (10) days of receipt of the invoice by Customer, notify XCELDYNE by certified mail (return receipt requested) of the alleged discrepancy. Failure by Customer to notify XCELDYNE within the applicable period will be deemed a waiver by Customer of any discrepancy and Customer will pay the price set forth on the invoice. Unless otherwise agreed by XCELDYNE in a signed writing, XCELDYNE’s prices do not include transportation, freight, handling, special handling, delivery and insurance costs or any all federal, state, provincial and local taxes (including sales, use, value-added and excise taxes), assessments, tariffs, duties, and any similar fiscal contribution related to the sale, use, shipment, transportation, or delivery of the goods, all of which shall be the sole responsibility of Customer and payable by Customer (whether directly or by reimbursement to XCELDYNE) in addition to XCELDYNE’s price. If Customer is exempt from any tax but fails to timely provide XCELDYNE with written notice containing all necessary exemption information and XCELDYNE pays or collects such tax, Customer remains obligated to pay such tax as a separate line on XCELDYNE’S invoice.
Customer may from time to time order goods by placing Orders with XCELDYNE. All Orders are subject to acceptance by XCELDYNE and may be rejected by XCELDYNE. If XCELDYNE accepts a purchase order, XCELDYNE’s acceptance will be limited to these Terms and the Agreement. Unless otherwise agreed in writing by XCELDYNE, no Order will be deemed a requirements contract and XCELDYNE’s only obligation is to sell the quantity of goods expressly set forth in the Order or, if no quantity is set forth in the Order, a quantity no less than one (1) good. All Orders must comply with XCELDYNE’s written quotations.
XCELDYNE will deliver goods FCA XCELDYNE’s facility (Incoterms 2020) and title and risk of loss will pass to Customer when the goods are placed in the possession of the carrier. Customer shall pay all shipping costs directly or as a separate line on XCELDYNE’S invoice. XCELDYNE will select the carrier unless Customer designates an acceptable specific carrier on its Order. If Customer designates a specific carrier on its Order, but XCELDYNE’S standard packaging will not meet the requirements of such carrier, XCELDYNE shall have the authority to select a qualified alternate carrier without obtaining Customer’s prior approval. Shipping carriers that do not require Customer receipt signature of the products delivered is the responsibility and liability of the Customer. Any variation in quantities shipped over or under the quantities ordered (not to exceed 10%) will constitute compliance with an Order.
XCELDYNE reserves the right to arrange shipment in lots. Upon shipment of each lot, XCELDYNE shall have the right to immediately invoice Customer for the goods shipped and other costs of the Order. Stated shipment dates are estimates only and based on, among other things, manufacturing load at time of XCELDYNE’s quotation and are subject to change when an Order is accepted by XCELDYNE, and again when XCELDYNE receives all information necessary to permit XCELDYNE to proceed with work immediately and without interruption. Customer is cautioned to make allowances for delays and is warned that XCELDYNE shall not be liable to Customer for delays in delivery. XCELDYNE will use reasonable commercial efforts to accommodate Customer’s requested shipment dates. XCELDYNE may arrange shipment of the goods in advance of Customer’s requested shipment date, unless a “not before” date is expressly stipulated by Customer and acknowledged by XCELDYNE if the goods are held by XCELDYNE beyond Customer’s scheduled shipment date for the convenience of Customer; provided, however, XCELDYNE reserves the right to immediately invoice Customer for the goods, place the goods in storage on Customer’s behalf and at its expense (at which time XCELDYNE’S delivery obligations will be deemed fulfilled and all risk of loss or damage will pass to Customer), and invoice Customer for all additional expenses incurred by XCELDYNE as a result thereof.
XCELDYNE assumes no liability for any loss or damage to goods while in transit to or from XCELDYNE’s facility, whether in vehicles owned by the Customer, XCELDYNE or any third party acting on XCELDYNE’s or the Customer’s behalf. Customer has the responsibility to inspect shipments before or during unloading to identify any such loss or damage and place appropriate notation on the report furnished by the local agent of the carrier in order to support a claim. Any discrepancies in XCELDYNE’S order processing or shipment, such as quantity of parts invoiced versus actual parts delivered, must be reported within 10 days of receipt by Customer in order to make a legitimate claim of error. Any claims for damage by third-party carriers will need to be made by the Customer directly with freight forwarder.
XCELDYNE will not be held liable, or deemed in default, for any failure or delay in fulfilling or performing any of its obligations under this Agreement if such failure or delay is caused by, or results from, acts beyond XCEDLYNE’s reasonable control, whether or not foreseeable, including, without limitation, fire, flood, drought, acts of nature, war, hostilities, terrorist threats or acts, riot or other civil unrest, strikes, lockouts, slowdowns or other labor unrest, delays in transportation, shortage of power, unavailability of raw materials, increased costs in raw materials or related components (including any increase in costs by governmental action that were not in place at the commencement of this Agreement), embargo, government action (including any law, rule, order or action of any court or instrumentality of the federal or of any state government or XCELDYNE’s good faith compliance with any governmental directive concerning the health and safety of XCELDYNE’s personnel)), earthquake, explosion, emergency (whether national, regional, state, or local), pandemic, epidemic, plague, disease, virus, other outbreak, quarantine or travel restrictions (collectively, the “Force Majeure”). During the period of Force Majeure, at XCELDYNE’s option, either (i) the date of delivery shall be extended for a period equal to the time lost due to any Force Majeure, or (ii) any quantity of goods affected by a Force Majeure shall be deducted from the total quantity required to be sold to Customer. XCELDYNE, during any period of shortage due to a Force Majeure, may allocate its available supply of goods among itself and its customers on whatever basis it deems desirable and Customer agrees that XCELDYNE is not required to mitigate any impact of the Force Majeure.
Customer must pay for the goods, in immediately available U.S. dollars, without setoff or deduction of any kind. All goods must be prepaid or subject to cash on delivery unless otherwise agreed in writing by XCELDYNE. An open account, regardless of payment terms, must be established with XCELDYNE and requires all proper application forms, credit references, and final approval by XCELDYNE to be fully processed.
XCELDYNE LLC reserves the right to make all final decisions regarding Customer account status. Contact your sales representative for more information on how to establish such an account. Payment terms are NET 30 (calendar) days from date of invoice unless otherwise stated. Invoices unpaid on due date shall be considered delinquent and thereafter subject to a finance charge computed by a single monthly rate of two percent (2%) computed on the delinquent balance until the account is paid in full.
Failure to make payment in full when due shall be a material breach permitting XCELDYNE to pursue its rights and remedies at law or in equity, including, but not limited to, suspension of production, shipment and/or delivery under this or any other contract between Customer and XCELDYNE. Customer shall pay all attorneys’ fees and court costs incurred by XCELDYNE relating to or arising out of any default under the Agreement, including, but not limited to, expenses associated with any suspension.
All custom Orders require a 50% deposit before service is performed, unless prior account terms have been established or proper agreements have been made, in each case, in writing.
RIGHT TO MAKE CHANGES:
XCELDYNE reserves the right to make changes to processes, design, material, specifications and any other changes to the goods or service without incurring liability or obligation to notify Customer.
XCELDYNE shall not, under any circumstances, be considered as an insurer of Customer’s material or merchandise and shall not be liable, regardless of cause, for loss by fire, explosion, theft, pilferage, vandalism, casualty, or acts of God while such material or merchandise is in XCELDYNE’S possession.
Excluding any written warranty provided by a third party manufacturer of material in the Goods, which are the sole and exclusive responsibility of such manufacturer and not the responsibility of XCELDYNE, THE GOODS ARE SOLD “AS-IS WHERE IS” WITH ALL FAULTS AND XCELDYNE MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, FOR THE GOODS, ALL OF WHICH ARE DISCLAIMED AND EXCLUDED BY XCELDYNE INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR USE. No third party, including any employee or agent of XCELDYNE, is authorized to make any representation, promise, or warranty concerning the goods and any statements made by those parties are not binding on XCELDYNE unless in writing signed by an authorized representative of XCELDYNE. Any technical advice furnished by XCELDYNE or its employees or agents is for Customer’s convenience only and XCELDYNE assumes no obligation or liability for the advice given or the results obtained from that advice.
LIMITATION OF LIABILITY:
NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, (I) IN NO EVENT WILL XCELDYNE BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROPERTY OR EQUIPMENT, LOSS OF PROFITS OR REVENUE, LOSS OF CAPITAL, LOSS OF PURCHASED OR REPLACED GOODS, OR CLAIMS OF CUSTOMERS WHICH, IN EACH CASE, CUSTOMER ACKNOWLEDGES CONSTITUTE CONSEQUENTIAL DAMAGES) ARISING OUT OF, OR IN CONNECTION WITH, ANY GOODS OR SERVICES SOLD BY XCELDYNE OR THE AGREEMENT REGARDLESS OF WHETHER THOSE DAMAGES WERE FORESEEABLE OR XCELDYNE WAS ADVISED OF THE POSSIBILITY OF THOSE DAMAGES AND (II) XCELDYNE’S TOTAL AGGREGATE LIABILITY UNDER THE AGREEMENT, WHETHER ARISING FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, INSTALLATION, OR USE OF ANY GOODS OR SERVICES SOLD BY XCELDYNE OR OTHERWISE RELATED TO CLAIMS ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL NOT EXCEED THE PRICE OF THE GOODS UPON WHICH THE LIABILITY IS BASED. CUSTOMER’S EXCLUSIVE REMEDY AGAINST XCELDYNE, AND XCELDYNE’S SOLE OBLIGATION FOR ANY AND ALL CLAIMS, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO, AT XCELDYNE’S OPTION, XCELDYNE REPLACING THE NON-CONFORMING GOODS WITH CONFORMING GOODS, REPARING THE APPLICABLE GOODS, OR REFUNDING THE PURCHASE PRICE PAID BY CUSTOMER TO XCELDYNE FOR THE APPLICABLE GOODS.
In order to assert a claim for any product or service found to be supplied for non-conformity by XCELDYNE, the Customer must provide XCELDYNE written notice of defect, with a detailed explanation of any alleged deficiencies, within ten (10) days from the date of delivery. Unless Customer provides XCELDYNE with written notice stating with specificity any defects, nonconformities, or shortage relating to the goods within ten (10) days after receipt, such goods will be deemed fully and finally inspected, checked and accepted by Customer, and any such claims for defects, nonconformities, or shortages will be waived by Customer. Upon acceptance of goods, Customer waives any right to revoke such acceptance for any reason, whether known or unknown to Customer at the time of acceptance. NO RETURNS WILL BE ACCEPTED FOR CUSTOM PARTS, SPECIAL ORDERS, CLOSE OUTS AND NON-STOCK ITEMS. No goods may be returned unless XCELDYNE is given the opportunity to inspect samples for non-conformity. If the goods are approved from return, XCELDYNE will provide a return material authorization (“RMA”) and Customer must following the RMA process described below.
RETURN MATERIAL AUTHORIZATION PROCESS:
- Contact your representative to determine if you are eligible for a return and obtain an RMA number.
- Provide your representative details of the return, reasons, and invoice number
- All merchandise must be properly repackaged in order to insure safe shipment and delivery of merchandise. The materials must be returned in the same condition when it was originally delivered.
- RMA number must be visibly present on the outside of the package.
- XCELDYNE reserves the right not to accept a return without an approved RMA. Returns will be based upon XCELDYNE product count upon receipt at XCELDYNE.
- XCELDYNE will be given 10-days to analyze and determine feasibility of the claim, investigate cause of non-conformity and determine if alleged deficiencies exist and were not caused by accident, misuse, neglect, alteration, improper installation or unauthorized repair.
- Returns are limited to 30 Days from date of purchase. Discontinued Inventory is not eligible for returns.
- Restocking Fee’s will be accessed (typically 25%) based on product and Customer type.
To the maximum extent allowed by law, Customer will defend, indemnify, hold harmless, and reimburse XCELDYNE and its present and future directors, officers, shareholders, members, employees, attorneys, agents, representatives, parents, affiliates, and subsidiaries (the “Indemnified Parties”) from and against any and all claims, costs, demands, losses, indirect and direct damages (including lost profits, incidental, consequential, and punitive damages), liabilities, causes of action, judgments, settlements, awards, fines, penalties, assessments, and expenses (including costs of defense, mediation, settlement and reasonable attorneys’ and other professionals’ fees), however described or denominated, incurred by the Indemnified Parties or asserted against the Indemnified Parties by any third party (including, Customer’s employees, subcontractors, laborers, agents, and assigns) directly or indirectly arising out of, incidental to, in connection with, or resulting from (i) Customer’s negligence, use, ownership, maintenance, transfer, transportation or disposal of goods and services; (ii) any infringement or alleged infringement of the industrial and intellectual property rights of others arising from the goods or services, Customer’s plans or specifications (including Customer’s trademarks and brand names), or production of goods ordered by Customer; (iii) Customer’s violation or alleged violation of any federal, state, county or local laws or regulations; (iv) any negligent or willful act or omission of Customer or its respective subcontractors, agents, employees or other representatives; (v) Customer’s breach of the Agreement; (vi) any damage, personal injury, bodily injury, death, loss or destruction of any kind relating to or arising out of the use of the goods or services; and (vii) Customer’s resale, repair, replacement, or misuse of the goods and services. XCELDYNE, in its sole discretion, may be represented by and actively participate through its own counsel in any such suit or proceeding. Customer shall pay any judgment finally awarded in any such claim, charge, suit or proceeding, regardless of whether XCELDYNE or Customer directs the defense thereof, and Customer shall pay any amounts payable in settlement or compromise of any such claim, suit or action. This provision shall survive expiration or termination of the agreement.
Once accepted by XCELDYNE, Customer may not cancel Orders, change the timing of scheduled shipments, or direct temporary suspension of scheduled shipments without XCELDYNE’s prior written consent. Cancellations of Orders or rescheduling of shipments shall be subject to cancellation charges which will include (i) payment of any finished goods, work-in-progress, and all other materials made, purchased by XCELDYNE, or otherwise committed for the Order; (ii) the price or cancellation charge assessed by XCELDYNE’S vendors of any materials, parts, or services required to fill the Order; and (iii) a reasonable allowance for overhead and profit. All changes to Orders must be submitted by Customer to XCELDYNE in writing and will not be effective unless and until XCELDYNE consents in writing to the change(s). XCELDYNE will advise Customer in writing of the price and/or delivery schedule impact, if any, of the change request. XCELDYNE will not be required to accept any changes without Customer’s written acknowledgement of any price and/or delivery schedule adjustments, if any.
Unless otherwise agreed by XCELDYNE in writing, the term of this Agreement shall take effect immediately and will expire twelve (12) months thereafter (the “Term”). Notwithstanding the expiration or termination of the Agreement, Customer will be responsible for the payment of any finished goods, work-in-progress, and all costs incurred or other materials made or committed for this Agreement as a result of an Order issued by Customer to XCELDYNE.
XCELDYNE may terminate the Agreement or any Order for cause by providing written notice to Customer specifying the applicable date of termination, upon the occurrence of any one or more of the following events: (a) excluding payment obligations, Customer materially breaches this Agreement and does not cure such breach within ten (10) days after receipt of written notice of such breach; (b) Customer fails to make any payment due under the Agreement or any Order on or before the due date; or (c) Customer (i) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (ii) is dissolved or liquidated or takes any corporate action for such purpose; (iii) makes a general assignment for the benefit of creditors; or (iv) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Any termination by XCELDYNE will not constitute a waiver of any of any rights or remedies under the Agreement or otherwise provided by law.
Except to the extent provided in a separate written agreement between Customer and XCELDYNE, the Agreement will not be deemed to transfer, assign, or license any right, title, or interest in and to, any idea, invention, concept, discovery, work of authorship, patent, copyright, trademark, trade secret, know-how, formula, design, engineering drawing, device, compilations of information, manufacturing methods or processes, tooling or other intellectual property owned by a party or its third party licensors (collectively “Intellectual Property”). Notwithstanding the foregoing, each party hereby provides the other party with a limited, revocable, and royalty free license to such party’s Intellectual Property solely to extent required for a party to perform its obligations under this Agreement. Customer will not use XCELDYNE’s Intellectual Property, in whole or in part, to copy, redesign, reverse engineer, replicate or manufacture (or enable manufacture by itself or any third party) all or any portion of the goods, products similar to the goods, or products derived from the goods.
The Agreement, and all related documents (including any Order) and matters arising out of or relating to the Agreement, are governed by, and will be construed in accordance with, the laws of the State of North Carolina, without regard to any conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. Customer and XCELDYNE each irrevocably and unconditionally agree that the sole and exclusive forum, venue, and jurisdiction for any legal or equitable action or proceeding arising out of or in connection with this Agreement will lie in the state and federal courts of the State of North Carolina sitting in, or having jurisdiction over, Davidson County, and any appellate court with jurisdiction over such courts.
MODIFICATION AND WAIVER:
No provision of the Agreement (including these Terms) may be waived, modified, or rescinded except in writing and signed by an authorized manager of XCELDYNE. The failure by XCELDYNE to enforce at any time the provisions of these Terms, or to exercise any rights provided herein, will not be construed as a waiver of such provisions, nor in any way be construed to affect the validity of this Agreement, or the right of XCELDYNE thereafter to enforce each and every such provision. In the event any provision hereof shall be deemed invalid or unenforceable by a court of competent jurisdiction, the remainder of the provisions shall continue in full force and effect.
If XCELDYNE is required to institute any legal actions to enforce the Agreement, XCELDYNE shall be entitled to recover its expenses of litigation, including reasonable attorneys’ fees, expert witness fees, and court costs, in addition to any other relief to which may be granted.
This Agreement contains the entire agreement and understanding between the parties as to the subject matter hereof, and merges and supersedes all prior agreements, commitments, representations, writings and discussions between them, and may be modified only in writing signed by both the parties. This Agreement shall be binding upon Customer and XCELDYNE and their respective successors and assigns. However, this Agreement is not assignable by Customer without the prior written consent of XCELDYNE and any purported assignment without such consent will be null and void.