Terms and Conditions

Terms and Conditions

ANY OFFER BY POLYCASE EXPRESSLY LIMITS ACCEPTANCE BY BUYER TO THESE TERMS AND CONDITIONS. ANY ORDER IS EXPRESSLY LIMITED TO THESE TERMS AND CONDITIONS, AND BUYER AGREES TO BE BOUND THEREBY. THE TERMS AND CONDITIONS SET FORTH BELOW CONSTITUTE A COMPLETE, ENTIRE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN BUYER AND POLYCASE AND SUPERSEDES PRIOR UNDERSTANDINGS WHETHER WRITTEN OR ORAL. ALL REPRESENTATIONS, PROMISES, WARRANTIES OR STATEMENTS BY ANY AGENT OR EMPLOYEE OF POLYCASE THAT DIFFER IN ANY WAY FROM THESE TERMS AND CONDITIONS SHALL BE GIVEN NO EFFECT OR FORCE. ANY ATTEMPTED MODIFICATION OF THESE TERMS AND CONDITIONS PROPOSED BY BUYER IN A PURCHASE ORDER OR OTHER BUYER’S DOCUMENT CONTAINING TERMS AND CONDITIONS INCONSISTENT WITH OR IN ADDITION TO THESE TERMS AND CONDITIONS SHALL NOT BE BINDING UPON POLYCASE. NOTIFICATION OF OBJECTION TO ANY DIFFERENT OR ADDITIONAL TERMS FROM THE BUYER IS HEREBY GIVEN.
 
All orders are subject to the approval by Polycase, which may be withheld in its sole and absolute discretion. An order placed by Buyer with Polycase shall be deemed accepted only upon Polycase’s written acknowledgement of the order or shipment of any goods, equipment, parts, products, accessories and materials or performance of services described on the order (herein sometimes referred to collectively as “Products”) called for by Buyer’s order. Polycase accepts orders or supplies Products to Buyer only under the condition that Buyer agrees to be bound by and comply with these Terms and Conditions together with those documents or parts of documents which specify the Products and which have been signed or accepted by Polycase in writing (hereinafter collectively the “Sales Agreement”). Polycase’s receipt of a purchase order or any other Buyer’s document or its shipment of Products to Buyer does not constitute an acceptance by Polycase of the terms and conditions of Buyer’s purchase order or any proposal or other Buyer’s document. Polycase is a registered trade name of ECP Corporation.
 

PRICES AND DELIVERY

Unless otherwise agreed in writing, prices for Products shall be Polycase’s list prices current at the time of shipment in U.S. dollars, F.O.B. point of shipment (freight and insurance prepaid). Prices stated are subject to change without notice. Payment terms shall be net thirty (30) days from the date of invoice for those Buyers with approved credit. Payments for Net 30 invoices must be made by check, ACH, or wire transfer. Credit card payments will not be accepted for Net 30 invoices. Other terms include credit card payment or prepayment via ACH or Wire Transfer (fees may apply for Wire Transfer payments). Shipping costs to locations outside the United States or by means other than those selected by Polycase shall be borne by the buyer. Unless otherwise specifically provided on the face hereof, the price for the Products purchased is net and does not include sales, use, excise or similar taxes, whether federal, state or local. Polycase shall separately indicate on its invoice any tax that is required to be imposed. All risk of loss or damage to Products purchased hereunder shall pass to the Buyer at the time Product is transferred by Polycase to a commercial transportation carrier for shipment to Buyer, and any claims for losses or damage shall be made by Buyer directly to the commercial transportation carrier. Prices stated are based on Polycase’s standard packaging. Polycase reserves the right of packaging the Products in pallets, bulk or individual cartons. Packaging will be standard commercial packaging and acceptable to commercial transportation carrier. Special customer packaging will be furnished only when specified and so stated herein, and the costs thereof shall be borne by Buyer. Polycase shall not be responsible for insuring shipments unless specifically requested by Buyer and any insurance so requested shall be at Buyer’s expenses and valuation. All delivery dates are approximate. In no event shall Polycase be liable for indirect, punitive, consequential, special, incidental, or exemplary damages based on any delay in delivery or failure to deliver Product under the Sales Agreement. Polycase will not be liable for any damage, loss, fault, or expenses arising out of delay in delivery or other nonperformance of the Sales Agreement caused by or imposed by: (a) strikes, fires, disasters, riots, acts of God, pandemics, (b) acts of Buyer, (c) shortages of labor, fuel, power, materials, supplies, transportation, or manufacturing facilities, (d) governmental action, (e) subcontractor delay, or (f) any other cause or condition beyond Polycase’s reasonable control. In the event of any such delay or nonperformance, Polycase may, at its option, and without liability, cancel all or any portion of the Sales Agreement and/or extend any date upon which any performance hereunder is due.
 

CANCELLATIONS

In the event that Buyer cancels an order for Product not customarily carried in stock by Polycase, Polycase shall have the right to reject such cancellation, or to accept such cancellation in which event Polycase may charge Buyer as liquidated damages the then current list price for completed Product or an equitable price as determined by Polycase based upon the degree of completion for Product in process at the time of cancellation, transportation and warehousing charges. Polycase may terminate or cancel any order, for any reason or for no reason, without liability.
 

PAYMENTS

In the event Buyer fails to fulfill previous terms of payment, is in default in the performance of any other order or contract with Polycase or in case Polycase shall have any doubt at any time as to Buyer’s financial responsibility, Polycase may decline to make further deliveries except upon receipt of cash or other special arrangements, and Polycase shall not in such event be liable for breach or nonperformance of contract in whole or in part. It is hereby understood and agreed that in the event of nonpayment of the account, Polycase may refer the matter of the collection of said account to any person or collection agency, or to the collection department of Polycase for collection, and if the account be so referred, Buyer shall pay to Polycase any and all attorney’s fees and /or reasonable collection and service charges. Past due accounts are subject to a finance charge of not less than eighteen (18) percent annually, or if such rate shall exceed the maximum rate allowed by applicable law, then a finance charge calculated at such maximum rate, on the outstanding balances not paid when due, from the date such balances were due until payment with respect thereof is made in full.
 

RETURNS

Returns for stock parts must be approved by Polycase and a Return Authorization Number issued and included with the returned Product. All parts must be returned within 30 days. Polycase will offer credit for parts passing inspection only. No credit can be given for freight. A restocking fee of 20% will be charged. The restocking fee may be waived if placing a new order of equal or greater value. Credit granted for approved returns will be applied to the customer's account and may be used to offset future invoices. Modified products are not eligible for return. Any customized product is non-refundable, and non-cancellable. 
 

WARRANTY

Polycase warrants that the Products solely at the time of delivery will conform to the specifications therefore in effect at the time of delivery of the Products or such other specifications as may be mutually agreed upon in writing. Buyer shall inspect all Product delivered hereunder for damage, defect, or shortage immediately upon receipt by Buyer, and shall immediately provide Polycase with notice of any such damage, defect, or shortage. Unless Buyer provides Polycase with written notice of any claim for shortages of or defects in the Products within forty-eight (48) hours after receipt of shipment, such Products shall be deemed finally inspected, checked and accepted by Buyer. If any Product is determined not to conform to specification or such other specifications as may be mutually agreed upon within thirty (30) days of shipment, such Product will be replaced by Polycase without additional cost to Buyer, or, at Polycase’s option in its sole discretion, Polycase shall refund the purchase price therefore. This remedy is Buyer’s sole and exclusive remedy for breach of warranty. Defective Product shall not be returned by Buyer until authorized in advance by Polycase. Returned Products to the extent possible, should be returned intact in form as shipped. THIS WARRANTY DOES NOT APPLY TO ANY PRODUCTS WHICH HAVE BEEN SUBJECTED TO MISUSE, MISHANDLING, MISAPPLICATION, NEGLECT (INCLUDING BUT NOT LIMITED TO IMPROPER MAINTENANCE), ACCIDENT, IMPROPER INSTALLATION, MODIFICATION (INCLUDING BUT NOT LIMITED TO USE OF UNAUTHORIZED PARTS OR ATTACHMENT(S)), OR ADJUSTMENT OR REPAIR PERFORMED BY ANYONE OTHER THAN POLYCASE OR ONE OF POLYCASE’S AUTHORIZED AGENTS. ANY CLAIM BY BUYER WITH REFERENCE TO THE PRODUCTS SOLD HEREUNDER SHALL BE DEEMED WAIVED BY THE BUYER UNLESS SUBMITTED IN WRITING TO POLYCASE WITHIN TEN (10) DAYS FOLLOWING BUYER’S RECEIPT OF SHIPMENT. THE WARRANTY STATED HEREIN IS IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Products not manufactured by Polycase are not warranted by Polycase and are sold only with the warranties, if any, of the manufacturer thereof.
 
Buyer acknowledges that its failure to pay any sum due to Polycase pursuant hereto strictly in accordance with the terms hereof shall be considered a material breach of the terms hereof. UNLESS POLYCASE EXPRESSLY AGREES OTHERWISE IN WRITING, ALL WARRANTIES HEREUNDER SHALL BE NULL AND VOID AND OF NO FORCE OR EFFECT IN THE EVENT THAT BUYER FAILS TO MAKE ANY PAYMENT DUE TO POLYCASE STRICTLY IN ACCORDANCE WITH THE TERMS HEREOF; AND IN NO EVENT SHALL POLYCASE BE LIABLE WITH RESPECT TO ANY CLAIM OR CAUSE OF ACTION BROUGHT UNDER ANY OF THE FOREGOING WARRANTIES FROM AND AFTER THE DATE OF SUCH A MATERIAL BREACH.
 

LIMITATION OF LIABILITY, REMEDY AND DAMAGES

THE LIABILITY OF POLYCASE ARISING OUT OF POSSESSION OR USE OF THE PRODUCT OR ANY TECHNICAL ADVICE RELATING THERETO IS LIMITED TO THE WARRANTY OBLIGATIONS SET FORTH ABOVE IN THE WARRANTY ARTICLE AND IN NO EVENT SHALL POLYCASE’S LIABILITY, WHETHER BASED IN CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, STRICT LIABILITY, OR OTHERWISE EXCEED THE PURCHASE PRICE OF THE PRODUCT IN QUESTION. UPON THE EXPIRATION OF THE APPLICABLE WARRANTY PERIOD STATED HEREIN, ALL SUCH LIABILITY WHETHER BASED IN CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, STRICT LIABILITY, OR OTHERWISE SHALL BE DEEMED WAIVED UNCONDITIONALLY AND ABSOLUTELY. THE FOREGOING SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY OF THE BUYER, AND THE SOLE AND EXCLUSIVE LIABILITY OF POLYCASE. IN NO EVENT SHALL POLYCASE BE LIABLE FOR INDIRECT, PUNITIVE, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF SAVINGS OR REVENUE, LOSS OF USE OF THE PRODUCT OR ANY ASSOCIATED EQUIPMENT, COST OF ANY SUBSTITUTE FOR THE PRODUCT, DOWNTIME, CLAIMS OF THEIR PARTIES, AND INJURY TO PERSONS (INCLUDING DEATH) OR PROPERTY (INCLUDING WITHOUT LIMITATION, PROPERTY HANDLED OR PROCESSED BY THE USE OF THE PRODUCTS). THIS LIMITATION SHALL APPLY NOTWITHSTANDING A FINDING THAT ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. BUYER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS POLYCASE AGAINST ALL LIABILITY, COST OR EXPENSE WHICH MAY BE SUSTAINED BY POLYCASE ON ACCOUNT OF ANY SUCH LOSS, DAMAGE OR INJURY.
 

INSURANCE

During the term of the Sales Agreement and for a period of one (1) year thereafter, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability insurance with limits not less than $2 million for each occurrence and $2 million in the aggregate and a per-occurrence and aggregate deductible of not more than $25,000, including, subject to the full per-occurrence and aggregate limits and deductible specified in this provision, coverage for products and completed operations liability, contractual liability, and product recall coverage. Such insurance policies shall be purchased from insurers with an A.M. Best Financial Strength Rating of A-, A, A+, or A++. Buyer shall ensure that the insurance policies specified in this provision shall (i) name as additional insureds Polycase and its parent companies, successors, permitted assigns, subsidiaries, officers, directors, managers, affiliates, agents, and employees (collectively, the “Buyer Parties”) for any losses arising from, resulting from or relating to Buyer’s sole or concurrent negligence, up to the full amount of each policy’s per-occurrence, per-claim, and aggregate limits; (ii) waive any right of subrogation or any other recovery of any kind against the Buyer Parties and their insurers; and (iii) provide that such insurance is primary, and any similar insurance in the name of or for the benefit of any of the Buyer Parties shall be excess and non-contributory. Buyer shall provide Polycase with ten (10) days’ advance written notice in the event of a cancellation or material change in Buyer’s insurance policy. Upon Polycase’s request, Buyer shall provide Polycase with a certificate of insurance and/or copies of the insurance policies from Buyer’s insurer evidencing the insurance coverage specified in this provision. Buyer’s obligations to defend, indemnify and hold harmless Polycase as set forth herein shall not in any manner be limited, altered or modified by these insurance requirements.
 

TECHNICAL ADVICE

Buyer agrees that it is not relying upon any representation, statement, or other assertion made by Polycase with respect to the Products and their suitability and that Buyer has made its own inquiry, testing, and investigation into and based thereon has formed an independent judgment concerning the Products and the suitability of the Products for the use, conversion, or processing intended by Buyer and will not assert any claim against Polycase or hold Polycase liable in any manner with respect to any information, testing, designs furnished (or failed to be furnished) by Polycase including without limitation, technical advice or recommendations. Statements made by Polycase concerning possible or suggested uses of materials or designs described herein are not to be construed as constituting a license under any patent covering such use nor as recommendations for use of such materials or designs in the infringement of any patent.
 

VARIATIONS

Unless otherwise agreed in writing, any variation over or under in quantities shipped not exceeding five (5) percent of the quantities ordered shall constitute compliance with the order and the unit price will apply to the quantity actually delivered.
 

TITLE

Title and right of possession of the Products shall remain with Polycase and the Products shall remain the personal property of Polycase until all payments hereunder shall have been received in full. Polycase and the Buyer agree to do all acts necessary to perfect and maintain such right and title in Polycase. To secure the payment of the purchase price of the Products sold hereunder, Buyer grants Polycase a purchase money security interest in all Products sold hereunder whether constituting equipment, inventory, fixtures and/or general intangibles, including all accessions to and replacements thereto, and all proceeds thereof and Buyer authorizes Polycase to file one or more financing statements. Polycase shall have all of the rights and remedies of a secured party under the Uniform Commercial Code, which remedies shall be cumulative and not exclusive.
 

PATENTED PROCESS; INTELLECTUAL PROPERTY

The purchase of the Products does not entitle Buyer to employ the same with any patented process owned by Polycase or others.
 
Buyer agrees to defend, indemnify and hold harmless Polycase against any claims or liabilities for, or by reason of, the infringement of any United States Letters Patent arising from the manufacture of any of the Products in accordance with specifications furnished by Buyer or from the sale thereof.

Buyer acknowledges and agrees that, as between Buyer and Polycase, Polycase is and will remain the sole and exclusive owner of all right, title and interest in and to all intellectual property rights used to create, embodied in, used in and otherwise related to Products, its component parts and all related instructions, manuals, designs, reports, plans, drawings, standards, specifications or other information submitted to Buyer by Polycase (“Polycase Documents”), including, but not limited to, all related copyrights, patents, trademarks, trade names, trade secrets, and any associated goodwill (the “Intellectual Property Rights”). All right, title and interest in any inventions, developments, improvements or modifications of Products made by Buyer or Polycase shall exclusively remain with Polycase. If Buyer acquires any Intellectual Property Rights in or relating to any Products purchased under the Sales Agreement (including any rights in any trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Polycase without further action by Buyer or Polycase. Without the express prior written consent of Polycase, Buyer shall not copy or disclose Polycase Documents to any third party, and shall not use them for any purpose other than to install, own, operate, and maintain Products.
 
 

COMPLIANCE WITH LAWS

Buyer shall comply with all applicable laws, regulations, and other legal requirements regarding the export, import, sale, resale, distribution, marketing, use and service of the Products. Buyer shall defend, indemnify and hold harmless Polycase from any harm or damages or liability caused to it (including but not limited to reasonable attorney fees, court costs, and costs of investigation and defense) by any of the foregoing uses or for the failure to comply with any laws, regulations or other legal requirements.
 
 

GENERAL

If any provision, or any part thereof, of the Sales Agreement is found by any court or governmental agency of competent jurisdiction to be invalid or unenforceable for any reason whatsoever, then such provision shall be deemed revised and applied to the maximum extent allowed by applicable law, and such invalidity or unenforceability shall not affect the remainder of such provision or any other provision here which shall remain in full force and effect. The relationship between Buyer and Polycase is that of independent contractors. Nothing contained in the Sales Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between Buyer and Polycase, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No term or condition is intended for the benefit of any third party, and Polycase and Buyer do not intend any term or condition to be enforceable by any third party, including any end user of the Products, if different from Buyer. The Sales Agreement shall be binding upon and shall inure to the benefit of the successors, and assigns of Buyer and Polycase, provided however, that Buyer may not assign or transfer the Sales Agreement, in whole or in part, except upon the prior written consent of Polycase. Unless Polycase has provided written consent, a partial or complete assignment of right(s) or delegation of obligation(s) by Buyer shall be void. The Sale Agreement may not be changed, renewed, extended, or modified in any manner except by written agreement of both Polycase and Buyer. Neither course of performance, nor course of dealing, nor usage of trade shall be used to qualify, explain or supplement any of the terms of the Sales Agreement. Any failure or delay of Polycase anytime, or from time to time, to require the performance of the Buyer of any other items and conditions of the contract shall not constitute a waiver by Polycase of these Terms and Conditions and shall not affect or impair the Sales Agreement in any way. The Sales Agreement shall be interpreted and governed by the laws of the State of Ohio, excluding the State of Ohio’s choice of law principles. The United Nations Convention for the International Sale of Goods shall not apply. ANY DISPUTE ARISING HEREUNDER SHALL BE RESOLVED IN THE UNITED STATES FEDERAL COURTS OR IN THE COURTS OF THE STATE OF OHIO IN LORAIN COUNTY, OHIO, AND ANY APPELLATE COURT FROM ANY THEREOF. SUCH COURTS SHALL HAVE EXCLUSIVE JURISDICTION AND VENUE FOR RESOLUTION OF ALL SUCH DISPUTES AND THE PARTIES HERETO DO HEREBY IRREVOCABLY SUBMIT TO SUCH JURISDICTION AND VENUE, AND WAIVE ANY OBJECTION TO THE CONTRARY HEREAFTER. NO ACTION, REGARDLESS OF FORM ARISING OUT OF, RELATED TO OR IN ANY WAY CONNECTED WITH PRODUCTS MAY BE BROUGHT BY BUYER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF THE ACTION HAS ACCRUED.

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