Terms and Conditions
Prices: Quotations expire 90 days from the date expressed hereon. Terms and conditions contained herein are subject to change during this period upon notice from R. Cushman & Associates, Inc. (The Company) Prices are based on quantities specified. Any variation on Buyer’s confirming order may be subject to a change in price. Prices include standard domestic shipment packaging. Special crating will require additional charges. Additional charges will be made for export packaging.
Terms: Unless otherwise specified are Net 30 days payable in U.S. funds, and products sold FOB from point of manufacture. Title and risk of loss pass to Buyer upon delivery to the carrier for shipment. Invoices not paid in accordance with terms are subject to interest charges at the rate of 1 ½% per month unless prohibited by law, in which event invoices will be subject to interest charges at the maximum legal rates.
Drawing and Specifications: All orders will be manufactured to R. Cushman & Associates, Inc. part numbers. Any mention of Buyer’s part number is for reference only and the applicable R. Cushman & Associates, Inc. drawings and specifications (whether specifically referred to or not) shall govern.
Tooling: Tooling required for the manufacture of custom designs may be quoted separately as a one-time charge to Buyer. Charges will be invoiced upon completion of manufacture of the tooling. The tooling is to remain the property of R. Cushman & Associates, Inc. The Company will maintain the tooling at no expense to Buyer except for changes in product design and/or dimensions and reserve the right to dispose of any tooling inactive for two years without further notice.
Returned Material: A Buyer desiring to return material must obtain the concurrence of The Company before doing so. Transportation costs are to be prepaid to and from R. Cushman & Associates, Inc. If the material is being returned for repair or rebuilding, it must be accompanied by a purchase order outlining what is to be accomplished. If it is necessary to return any parts, the Buyer agrees not to make any deduction on account thereof from remittances or current accounts while claims are in process of disposition. If returned material is accepted by The Company, it will be subject to a 20% restocking fee.
Delays: R. Cushman & Associates, Inc. will not be liable for any defaults, damages, or delays in fulfilling this order caused by conditions beyond our control; including, but not limited to acts of God, strike, riot, fire, flood, Government control or regulations, embargoes, wrecks, or delays in transportation, or delays of our subcontractors or suppliers in furnishing materials or supplies due to one or more of the foregoing causes.
Warranty: R. Cushman & Associates, Inc. (The Company) warrants its power transmission products to be free from defects in material and workmanship under normal use and service for a period of twelve (12) months from the date of manufacture or one thousand five hundred (1,500) hours from the time the product is placed into service, whichever occurs first. A shelf life allowance is made of a maximum of six (6) months with approved storage, so the period of warranty will not exceed eighteen (18) months. Oil seals, rubber products, and damages due to loss of oil are not covered by warranty.
Warranty is not provided unless an application data sheet has been submitted and approved. Changes in application or duty cycle may void warranty.
The Buyer shall be solely responsible for determining the adequacy of the product for any and all uses to which the Buyer shall apply the product. The application of the product by the Buyer shall not be subject to any implied warranty of fitness for that purpose.
Such product is expressly not warranted against failure or unsatisfactory operation resulting from engine brakes or other dynamic vibrations imposed upon it by the drive system in which it is installed unless the nature of such vibration has been fully defined and expressly accepted in writing by R. Cushman & Associates, Inc. as a condition of operation.
The Company will, at its option, repair or replace parts, free of charge if found upon examination by The Company to be defective. All materials returned prepaid.
The above warranty and the above obligation to repair or replace are complete and exclusive: The Company. disclaims liability for special or consequential damages of any nature. This Warranty shall not apply to any product which has been repaired or altered in any way by anyone not in our employ nor to any product which has been subject to misuse, negligence, improper storage, or accident. Normal maintenance and seal replacement is acceptable.
If it is necessary to return any parts under this warranty, the Buyer agrees not to make any deductions on account thereof from remittances or current accounts while claims are in process of disposition.
Any expense incurred without The Company’s written consent for repairs or replacement will not be allowed.
THIS WARRANTY IS MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE, AND THERE ARE NO OTHER WARRANTIES THAT EXTEND BEYOND THIS EXPRESSED WARRANTY, UNLESS THE SAME IS SPECIFICALLY SET FORTH IN THE CONTRACT OR ACKNOWLEDGMENT OF THE ORDER, BUT IN SUCH CASE WARRANTY IS LIMITED AS ABOVE PROVIDED
Performance Assurance: Rated torque and speeds are provided by R. Cushman & Associates, Inc. to assist the buyer in selecting the proper product. In addition, engineering assistance is offered by The Company for design and application of custom designed products. Since the actual performance characteristics of the Buyer’s equipment cannot be completely analyzed nor duplicated in laboratory tests, performance assurance of all The Company’s products in the Buyer’s application is the responsibility of the Buyer. Performance assurance is usually accomplished through manufacture of a prototype by R. Cushman & Associates, Inc. and a test or qualification program on the part of the Buyer.
Cancellation: If order is canceled, Buyer will be invoiced immediately for cancellation charges covering all costs, damages, commitments, and profit. A stop-work order extending more than 60 days may be considered a cancellation by The Company. In the event of legal action, the Buyer will be responsible for any and all legal fees and/or collection fees resulting from said cancellation. All monies owed will accrue interest at the rate of 1.5% compounded on a monthly basis.
Purchase Orders: The buyer agrees that the terms and conditions set forth herein shall be applicable to all quotations and purchase orders covering the sale of R. Cushman & Associates, Inc. products and services and shall supersede all printed terms and conditions set forth in purchase orders used by the Buyer or any oral agreements between the parties. R. Cushman & Associates, Inc. hereby objects to any terms and conditions appearing in Buyer’s purchase order which (materially or otherwise) modify, contradict, vary, alter, or are in addition to the terms contained herein. Buyer agrees by its acceptance of the goods and services confirmed herein (and, if applicable, shipped herewith), that The Company may delete from Buyer’s forms any terms which modify, contradict, vary, alter or add to the terms in this order acknowledgment, including any statement that purports to reject additional or varying terms of this order acknowledgment, or which limit acceptance to the terms contained in Buyer’s purchase order (thereby eliminating any of Buyer’s terms as to which the writings of the parties disagree), the Buyer’s acceptance of products or services called for in said orders shall constitute the Buyer’s acceptance of these terms and conditions of sale. Orders given to or accepted by salesmen or agents are subject to approval and acceptance by the head of The Company’s Sales Department.
Delivery and Risk of Loss: All products shall be shipped FOB The Company’s loading dock. The risk of loss or damage to all products sold hereunder shall remain with The Company until, and shall pass to the Buyer upon, delivery of the goods to the carrier at The Company’s loading dock. The Company reserves the right to hold or stop any shipment of the goods in transit if the purchase price has not been timely paid. The Company reserves the right to determine the routing and method of shipment. Buyer agrees to pay all freight, insurance, packing and other transportation charges related to said delivery. The Company shall have the right, but shall not be obligated, to prepay such charges, in which event Buyer shall promptly reimburse The Company in the amount thereof upon presentation by The Company of evidence of payment. Buyer shall have the responsibility to obtain and pay for insurance in an amount not less than the replacement value of the goods. If the purchase price for the goods sold hereunder shall be unpaid, The Company shall have the right to negotiate and adjust claims with the carrier and/or insurer in the event of misdelivery, loss or damage, regardless of the fact that insurance may have been secured by Buyer.
Payment; Purchase Money Security Interest: Unless otherwise provided on the face hereof, payment for goods purchased and delivered under this contract shall be made in U.S. dollars at the prices stipulated on or before delivery of the goods to Buyer. Buyer shall not delay payment for goods pending inspection. Prices quoted and confirmed do not include federal, state, local or other taxes; such taxes, if applicable, will be added to the sale price when The Company is legally obligated to collect them unless Buyer provides The Company with the proper exemption certificate. All prices and other terms quoted and confirmed are subject to correction for stenographic and clerical errors. Late payments shall bear interest at the lesser of one and one-half (1 1/2%) percent per month or at the highest rate allowed by law on any unpaid balance. The Company reserves all rights if Buyer pays by check and Buyer’s check is not honored. Buyer hereby grants The Company a purchase money security interest in the goods delivered to it hereunder and all proceeds and products there from to secure Buyer’s performance under this Agreement and any other agreement (now existing or arising in the future) between Buyer and The Company. Buyer’s purchase order or other writing in connection with this order shall constitute Buyer’s signature hereunder with respect to the grant of such security interest. Buyer agrees to execute and deliver all further documents reasonably requested by The Company to protect and perfect RCA’s security interest in the products, including, but not limited to, a UCC-1 financing statement.
Buyer’s Financial Status: Buyer represents to The Company that it is solvent and is paying all of its liabilities as they come due. Shipments, deliveries and performance of work shall at all times be subject to approval of The Company’s credit department and The Company may at any time decline to make any shipments or deliveries or perform any work except upon receipt of payment or upon terms and conditions or security satisfactory to such department. If before completion of performance of this contract by The Company, the Buyer becomes bankrupt, insolvent, or makes an assignment for the benefit of creditors, or if The Company otherwise reasonably deems itself insecure, The Company may at its option terminate this contract by giving to Buyer a notice of termination and The Company shall thereupon be relieved of any further obligations to Buyer. In addition to payment for goods delivered, Buyer shall reimburse The Company for its termination costs and a reasonable allowance for profit for the work terminated.
Indemnity: Buyer shall indemnify, defend and hold harmless R. Cushman & Associates, Inc. and its officers, directors, employees, subcontractors and agents, and their respective successors and assigns, from any loss, costs, damages, expenses, lawsuits, claims or liability (including attorneys fees), by reason of monetary losses, property damage or personal injury (including death), or otherwise, including, without limitation, incidental and consequential damages and loss profits, arising out of, in connection with or as a result of Buyer’s performance or non-performance of this order, and/or the breach by Buyer of any representation, warranty, obligation or other liability, whether arising out of the actions or inactions of Buyer or of its employees, agents or subcontractors. The Buyer shall maintain commercial general liability insurance with limits of not less than One Million ($1,000,000.00) Dollars bodily injury and property damage or such other limits as may be reasonably requested by Buyer, shall maintain required workers compensation insurance in amounts required by law, and shall provide written evidence of such insurance to The Company upon request and such certificates shall contain a clause that The Company will be notified thirty (30) days in advance by registered mail of any change, modification, cancellation or non-renewal of coverage. All insurance required hereunder shall be within an insurance company rated A+11 or better by Best’s.
Use: Compliance With Laws: Buyer agrees that the goods shall be used only in strict accordance with the manufacture’s and/or The Company’s manuals, instructions, capabilities and other guidelines, and in compliance with all laws, orders, rules, regulations and requirements of public authorities.
Technical Data: Any technical information or data, including, without limitation, any patent or other intellectual property rights, which The Company may disclose to the Buyer with respect to the design, use or manufacture of the items covered by this contract, shall remain The Company’s property and shall not be reproduced or disclosed to others by the Buyer. Nothing contained in this Agreement shall preclude The Company from using such technical information and data or from disclosing it to other parties.
Assignment: This contract shall not be assigned in whole or in part by Buyer without prior written consent of The Company. Buyer acknowledges and agrees that The Company may subcontract with third parties for the performance of some of all of The Company’s obligations hereunder.
Applicable Laws: This contract shall be interpreted in accordance with and governed by the laws of the State of Michigan. Buyer consents to personal jurisdiction and venue in state or federal court in Wayne or Oakland County, Michigan (at The Company’s option) for purposes of resolving any disputes hereunder.
Entire Contract: The contract to which these terms and conditions are attached constitute the entire agreement between the parties and no modification of this contract shall be binding unless in writing signed by both parties hereto.
Claims Period: No action, regardless of form, arising out of this contract shall be brought by Buyer more than one (1) year after such cause of action has occurred.