1.0 Summary of General Terms and Conditions of Sale
Payment: We accept most major Credit Cards. We do offer net 30 terms for customer providing a minimum of three USA trade references that meet Magnetic Shield Corporation's Credit Terms and Conditions Policy. Refer to 4.0 Price and Payment for details.
Shipping: Orders are shipped F.O.B. Bensenville, IL USA, prepaid and freight & handling charges are added to your invoice. Shipping cost is calculated using the weight and dimensions of the product(s) ordered based on selected shipping method, plus applicable freight charges and handling fees. For collect shipment, please provide your Collect Account #, Freight Company name, and Contact Information of the freight company or forwarder. Refer to 6.0 Delivery and Risk for details.
Returns: Any shipping damage must be filed immediately with the shipper including photos of damage. Any return of Goods requires a Return Authorization number, prior to return. Returned product shall be inspected by Magnetic Shield Corporation Quality Manager to determine if product is usable. If product is usable, a restocking fee of 25% of the sale price shall be deducted from any refund. If the product is not usable, no refund shall be allowed. Refer to 11.0 Warranty for details.
2.0 Definitions
Customer means the organization or person who purchases Goods from Magnetic Shield Corporation, whether directly or indirectly through an agent or third party who is acting for or instructed by or whose actions are ratified by such organization or person.
Conditions means these terms and conditions as amended from time to time.
Contract means the contract between Magnetic Shield Corporation and the Customer for the sale and purchase of the Goods and/or Services (as the case may be) in accordance with these Conditions, an Order Acknowledgement, Quotation and any other documents agreed between the Parties in writing. If there is any inconsistency between the documents comprising the Contract, they shall have precedence in the order listed herein.
Force Majeure Event means an event or circumstance beyond a party’s reasonable control.
Goods means the articles or things, or part of them, including, without limitation, raw materials, processed materials or fabricated products to be purchased by the Customer from Magnetic Shield Corporation as set out in an Order or as otherwise agreed between the Parties in writing.
Intellectual Property Rights means patents, all rights to inventions, prototypes, products, discoveries, techniques or processes, information, copyright and related rights, trademarks and service marks, trade names, domain names, brand names, rights to goodwill, rights in design, and any other intellectual property rights relating to the Goods and/or Services, regardless of confidentiality or not.
Order means the Customer’s order for the Goods and/or Services (as the case may be) submitted to Magnetic Shield Corporation.
Order Acknowledgement or Receipt means Magnetic Shield Corporation’s written acknowledgement confirming receipt and acceptance of an Order.
Party/Parties means the Customer and/or Magnetic Shield Corporation.
Quotation means the verbal or written quotation or proposal detailing the Goods and/or Services to be supplied by Magnetic Shield Corporation to the Customer.
Services means the services to be supplied by Magnetic Shield Corporation to the Customer as set out in the Order or as otherwise agreed between the Parties in writing.
3.0 Orders
3.1. An Order constitutes an offer by the Customer to purchase the Goods and/or the Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any Quotation are complete and accurate.
3.2. A Quotation given by Magnetic Shield Corporation shall not constitute an offer. A Quotation shall only be valid for a period of 30 Business Days from its date of issue.
3.3. An Order shall only be deemed to be accepted when Magnetic Shield Corporation issues a written acceptance of the Order (“Order Acknowledgment” or “Receipt”), at which point the Contract between the Parties shall exist.
4.0 Price and Payment
4.1. All prices are in United States of America dollars unless stated otherwise.
4.2. The price of the Goods and/or Services will be as stated in the Order Acknowledgement. If no price is quoted, the price shall be unless otherwise stated by Magnetic Shield Corporation, the list price of Magnetic Shield Corporation current at the date of the Order Acknowledgement.
4.3. Magnetic Shield Corporation’s prices are subject to adjustment at any time before delivery to take account of:
4.3.1. any variation in Magnetic Shield Corporation’s costs including (without limitation) any factor beyond Magnetic Shield Corporation’s control such as variations in wages, the cost of materials, exchange rate fluctuations,
alterations of duties and other costs since the date of the Quotation or (if no Quotation is issued) the Order Acknowledgement;
4.3.2. any request by the Customer to change the delivery or performance date(s), quantities or types of Goods ordered or their specification or the scope of Services; or
4.3.3. any delay caused by any instructions of the Customer or failure of the Customer to give Magnetic Shield Corporation adequate or accurate information or instructions.
Magnetic Shield Corporation accordingly reserves the right to adjust the invoice price by the amount of any increase or decrease in such costs after the price is quoted or the Order is submitted (as applicable). The invoice so adjusted shall be payable as if the price set out therein were the original Contract price.
4.4. The price is exclusive of transport, packaging, insurance and any other applicable duties or taxes, unless otherwise explicitly agreed.
4.5. All invoices of Magnetic Shield Corporation shall, unless otherwise agreed in writing by Magnetic Shield Corporation, be paid by the Customer within 30 days of the date of Magnetic Shield Corporation’s invoice. Time for payment shall be of the essence.
4.6. Magnetic Shield Corporation shall be entitled to charge interest on overdue invoices from the date when payment becomes due until the date of payment at the rate of 1.5% per month. Such interest shall accrue daily from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
4.7. If the payment of the price or any part thereof is not made by the due date, Magnetic Shield Corporation shall be entitled to:
4.7.1. require payment in advance of delivery in relation to any Goods not previously delivered or performance in relation to any Services not performed;
4.7.2. refuse to make delivery of any undelivered Goods or performance of any unperformed Services whether ordered under a Contract or not and without incurring any liability whatsoever to the Customer for non-delivery or non-performance or any delay in delivery or performance; or
4.7.3. terminate the Contract.
4.8. The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
5.0 Specification of Goods
5.1. Any samples, drawings, descriptive matter or advertising produced by Magnetic Shield Corporation and any descriptions or illustrations contained in Magnetic Shield Corporation's catalogs or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them and shall not form part of the Contract nor have any contractual force. It is therefore agreed by the Customer that Goods supplied may not comply in all respects with the description in Magnetic Shield Corporation’s literature or elsewhere.
5.2. Goods described in Magnetic Shield Corporation’s literature or elsewhere are subject to a continuing process of technical change and development and Magnetic Shield Corporation therefore reserves the right to alter specifications without notice at any time before delivery. Magnetic Shield Corporation also reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
5.3. To the extent that the Goods are to be manufactured in accordance with a specification supplied by the Customer, the Customer shall indemnify Magnetic Shield Corporation against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Magnetic Shield Corporation in connection with any claim made against Magnetic Shield Corporation for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with Magnetic Shield Corporation's use of the specification. This clause 5.3 shall survive termination of the Contract.
6.0 Delivery and Risk
6.1. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence unless expressly agreed in writing by Magnetic Shield Corporation. Magnetic Shield Corporation undertakes to use reasonable endeavors to dispatch the Goods on the agreed date but does not guarantee to do so.
6.2. Where Magnetic Shield Corporation is authorized or required by the Customer to deliver the Goods to the Customer:
6.2.1. the Goods will be deemed to be delivered upon delivery of the Goods to a carrier (whether named by the Customer or not); and
6.2.2. all risk in the Goods shall pass to the Customer on delivery, such that the Customer shall be liable for any subsequent loss or damage to Goods however caused.
6.3. Goods collected by the Customer from Magnetic Shield Corporation’s premises shall be deemed to be delivered and risk shall pass to the Customer upon the Customer arriving at Magnetic Shield Corporation's premises.
6.4. In accordance with industry practice, the delivery quantity tolerances applied by Magnetic Shield Corporation will be plus or minus 10% of the quantity ordered, unless otherwise specified by the Customer in writing at the point of order.
6.5. If Magnetic Shield Corporation fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Magnetic Shield Corporation shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide Magnetic Shield Corporation with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
6.6. If the Customer fails to take or accept delivery of the Goods within 5 Business Days of Magnetic Shield Corporation notifying the Customer that the Goods are ready, risk in the Goods (or any of them not delivered in these circumstances) shall pass to the Customer immediately upon such refusal or request by the Customer and (without prejudice to the generality of the foregoing) then, except where such failure or delay is caused by a Force Majeure Event or Magnetic Shield Corporation's failure to comply with its obligations under the Contract:
6.6.1. delivery of the Goods shall be deemed to have been completed on the fifth business day after the day on which Magnetic Shield Corporation notified the Customer that the Goods were ready; and
6.6.2. Magnetic Shield Corporation shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
6.7. If 30 Business Days after the day on which Magnetic Shield Corporation notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted delivery of them, the Company may resell or otherwise dispose of part or all the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
6.8. Magnetic Shield Corporation may deliver the Goods by installments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an installment shall not entitle the Customer to cancel any other installment.
6.9. Magnetic Shield Corporation shall not be liable for non-delivery, loss of or damage to the Goods occurring prior to delivery, for any claim that the Goods are not in accordance with the Contract.
6.10. In the event of a claim for non-delivery, loss, damage or non-compliance with the Contract in accordance with this clause 6.0 Magnetic Shield Corporation undertakes at its option either to repair or replace the Goods at its expense but shall not be under any further or other liability to any person in connection with such non-delivery loss damage or non-compliance.
7.0 Title and Risk
7.1. Legal title in the Goods shall not pass from Magnetic Shield Corporation until the Customer has paid the price of all the Goods under any Contract and no other sums are due from the Customer to the Company.
7.2. Until the property in the Goods passes to the Customer, the Customer shall hold the Goods and each of them on a fiduciary basis as a custodian for Magnetic Shield Corporation. The Customer shall store the Goods separately from all other Goods in its possession and marked in such a way that they are clearly identified as the property of Magnetic Shield Corporation. The Customer shall not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods. The Customer shall maintain the Goods in satisfactory condition and keep them insured on Magnetic Shield Corporation’s behalf for their full price against all risks to the reasonable satisfaction of Magnetic Shield Corporation. On request the Customer shall produce the policy of insurance to Magnetic Shield Corporation.
7.3. Notwithstanding that the Goods remain the property of Magnetic Shield Corporation the Customer may sell the Goods in the ordinary course of the Customer’s business at full market value for the account of Magnetic Shield Corporation. Until title in the Goods passes from Magnetic Shield Corporation, the entire proceeds of sale or otherwise of the Goods shall be held on trust by the Customer for Magnetic Shield Corporation.
8.0 Services
8.1. Magnetic Shield Corporation shall use all reasonable endeavors to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
8.2. Magnetic Shield Corporation reserves the right to amend any Services specification if necessary, to comply with any applicable law or regulatory requirement, or if the amendments will not materially affect the nature or quality of the Services and Magnetic Shield Corporation shall notify the Customer in any such event.
8.3. Magnetic Shield Corporation shall not in any circumstances be liable to the Customer:
8.3.1. for a failure to provide the Services in accordance with any Services specification caused by any act or omission of the Customer or the Customer’s agents, sub-contractors or employees;
8.3.2. for a failure or delay in providing the Services caused by act or omission of a third party;
8.3.3. if any defect or fault materializes in the Goods or any articles provided by the Customer following performance of the Services resulting directly or indirectly from a defect in the original
article provided by the Customer; or
8.3.4. the defect arises as a result of Magnetic Shield Corporation following any drawing, design or Goods specification supplied by the Customer.
9.0 Customer’s Obligations
9.1. The Customer shall provide Magnetic Shield Corporation with any information reasonably required by Magnetic Shield Corporation as well as obtain all necessary permissions and consents including (without prejudice to the generality of the foregoing) promptly obtaining all necessary import licenses, clearances and other consents necessary for the purchase of the Goods and/or Services.
9.2. Without prejudice to any other rights to which Magnetic Shield Corporation may be entitled, if the Customer unlawfully terminates or cancels any Contract, the Customer shall be required to pay to Magnetic Shield Corporation, the full amount of any third-party costs to which Magnetic Shield Corporation has committed and in respect of cancellations on less than 30 days' written notice the full price of the Goods and/or Services as set out in the Contract, and the Customer agrees this is a genuine pre-estimate of Magnetic Shield Corporation's losses in such a case.
10.0 Modification of the Contract
10.1. The Parties may, at any time, mutually agree upon variations to a Contract, save for an Order Acknowledgement, provision for which is set out below.
10.2. Any alterations in the specification of Goods or scope of Services to be provided under a Contract shall be set out in a revised Order Acknowledgement, which shall reflect the changed Goods and for Services and price and all other terms agreed between the Parties.
10.3. The Customer may at any time within 3 days of the revised Order Acknowledgement request in writing alterations to it. Magnetic Shield Corporation shall advise the Customer by notice in writing whether it is prepared to alter the Order Acknowledgement in accordance with the Customer’s request.
11.0 Warranty
11.1. Magnetic Shield Corporation warrants that it has the right to sell the Goods, but otherwise the Goods are provided on an 'as-is' basis without warranty of any kind, express or implied, oral or written.
11.2. Without limitation, any implied term as to the quality, fitness for purpose or description of the Goods, all of which are specifically and unreservedly excluded to the fullest extent permitted by law. But without limitation, no warranty is given that the Goods are suitable for any specific purpose intended by the Customer.
11.3. Where the Goods have been manufactured by Magnetic Shield Corporation and are found under proper use (fair wear and tear excepted) to be defective, Magnetic Shield Corporation shall repair, or in its sole discretion, replace such defective Goods free of charge within 90 days from the receipt of notification from the Customer, subject to the following conditions:
11.3.1. the Customer notifying Magnetic Shield Corporation in writing immediately upon the defect becoming apparent;
11.3.2. Magnetic Shield Corporation is given a reasonable opportunity of examining such Goods; and
11.3.3. Magnetic Shield Corporation determines that the defect is solely due to faulty design, materials or workmanship which is not directly or indirectly attributable to any specification, instruction or article provided by the Customer.
11.4. Magnetic Shield Corporation shall not be liable for the Goods' failure to comply with its specification in any of the following events:
11.4.1. the Customer makes any further use of such Goods after giving notice;
11.4.2. the defect arises because the Customer failed to follow Magnetic Shield Corporation's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
11.4.3. the defect arises as a result of Magnetic Shield Corporation following any drawing, design or specification supplied by the Customer;
11.4.4. the defect relates directly or indirectly to any defect in the original article supplied by the Customer;
11.4.5. the Customer alters or repairs such Goods without the written consent of Magnetic Shield Corporation;
11.4.6. the defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal storage or working conditions; or
11.4.7. the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
11.5. Except as provided in clause 6 and this clause 11, Magnetic Shield Corporation shall have no liability to the Customer in respect of the Goods' failure to comply with its description.
11.6. Any Goods to be so repaired or replaced shall be returned to Magnetic Shield Corporation at the Customer’s expense.
11.7. Where the Goods have been manufactured and supplied to Magnetic Shield Corporation by a third party, any warranty granted to Magnetic Shield Corporation shall be passed on to the Customer to the extent that Magnetic Shield Corporation is able and subject to the Goods having been accepted and paid for by the Customer.
11.8 Magnetic Shield Corporation shall be entitled in its absolute discretion to refund the price of defective Goods if such price has already been paid.
11.9 These Conditions shall apply to any repaired or replacement Goods supplied by Magnetic Shield Corporation.
12.0 Indemnity
The Customer shall indemnify Magnetic Shield Corporation against all claims (including but not limited to loss of profit), costs and expenses in respect of any dispute, suit, action, arbitration or proceedings that arise out of, or in connection with a Contract (including without limitation legal fees and other professional fees) which Magnetic Shield Corporation may incur, and which arise, directly or indirectly, from the Customer's breach of any of its obligations under a Contract.
13.0 Limitation of Liability
13.1. Magnetic Shield Corporation shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract.
13.2. Magnetic Shield Corporation's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price stated in the Order Acknowledgement.
14.0 Termination
14.1. Without limiting its other rights or remedies, Magnetic Shield Corporation may terminate a Contract with immediate effect by giving written notice to the Customer if:
14.1.1. the Customer commits a breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 days of being notified in writing to do so;
14.1.2. the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
14.1.3. the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
14.1.4. the Customer's financial position deteriorates to such an extent that in Magnetic Shield Corporation's opinion the Customer's capability to adequately fulfill its obligations under the Contract has been placed in jeopardy.
14.2. Without limiting its other rights or remedies, Magnetic Shield Corporation may suspend provision of the Goods and/or Services under the Contract or any other contract between the Customer and the Company if the Customer becomes subject to any of the events listed in clause 14.1.2 to clause 14.1.4, or Magnetic Shield Corporation reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under the Contract on the due date for payment.
14.3. Without limiting its other rights or remedies, Magnetic Shield Corporation may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
14.4. On termination of the Contract for any reason the Customer shall immediately pay to Magnetic Shield Corporation all Magnetic Shield Corporation's outstanding unpaid invoices and interest.
14.5. Termination of the Contract shall not affect any of the Parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
14.6. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
15.0 Intellectual Property Rights
15.1. All Intellectual Property Rights in or arising out of or in connection with the Goods (including any specification and design in except where such specification and design has been provided by the Customer) and the Services (including any deliverables) shall be owned by Magnetic Shield Corporation or Magnetic Shield Corporation’s licensors (as the case may be).
15.2. The Customer shall not:
15.2.1. claim any right of property in any of Magnetic Shield Corporation's Intellectual Property Rights;
15.2.2. register or cause to be registered any Intellectual Property Rights that is similar to or an imitation of any Intellectual Property Rights of Magnetic Shield Corporation;
15.2.3. make any modifications to the Goods or their packaging;
15.2.4. alter, remove or tamper with any marks, numbers or other means of identification used on or in relation to the Goods;
15.2.5. use any of Magnetic Shield Corporation's Intellectual Property Rights in any way that might prejudice their distinctiveness or validity or the goodwill of Magnetic Shield Corporation in them; and
15.2.6. use in relation to the Goods any intellectual property rights other than the Intellectual Property Rights without obtaining the prior written consent of Magnetic Shield Corporation.
15.3. For the avoidance of doubt, nothing in a Contract confers upon the Customer any rights whatsoever in Magnetic Shield Corporation's Intellectual Property Rights or the goodwill associated with them. The Customer acknowledges that, except as expressly provided in this Contract, it will not acquire any rights in respect of Magnetic Shield Corporation's Intellectual Property Rights and goodwill and that they are, and shall remain, vested in Magnetic Shield Corporation.
16.0 Confidentiality
16.1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 16.2. For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
16.2. Each party may disclose the other party's confidential information:
16.2.1. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with a Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 16; and
16.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
16.3. No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
17.0 Entire Agreement
17.1. A Contract between the Parties constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
17.2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
18.0 Force Majeure
Magnetic Shield Corporation shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from a Force Majeure Event. In such circumstances, Magnetic Shield Corporation shall be entitled to delay or cancel delivery or to reduce the amount delivered. If the period of delay or non-performance continues for 8 weeks, either party may terminate a Contract by giving 14 days written notice to the other party.
19.0 Assignment
19.1. The Customer shall not be entitled to assign a Contract or any part of it without the prior written consent of Magnetic Shield Corporation.
19.2. Magnetic Shield Corporation may assign a Contract or any part of it to any person, firm or company.
20.0 Governing Law and Jurisdiction
A Contract between the Parties shall be governed by and in accordance with the laws of the State of Illinois, U.S.A. Magnetic Shield Corporation and the Customer irrevocably agree that the courts of the State of Illinois have exclusive jurisdiction in respect of any dispute, suit, action, arbitration or proceedings which arises out of, or in connection with a Contract.