Terms & Conditions of Sale
TERMS AND CONDITIONS OF SALE
Reference is made to the purchase order referenced on the front of this document (the “Order”) relating to the products described on such Order (the “Products”). This instrument sets forth the terms and conditions (“Terms and Conditions”) of sale of the Products pursuant to such Order. The purchaser under such Order is referred to herein as the “Buyer” and DEMA Engineering Co. is referred to herein as the “Seller.” Any terms set forth on the face of such Order, or on the reverse side thereof, or attached to or accompanying such Order, other than the specifications of the Products, the quantity, price and desired delivery date, are hereby rejected. The following terms shall be in the nature of a counter-offer to the Buyer, and upon fulfillment of the Order, these shall be the exclusive terms governing the Order.
1. TERMS OF PAYMENT:
Terms are net thirty (30) days from the date of Seller’s invoice in U.S. currency. Seller shall have the right, among other remedies, either to terminate this agreement or to suspend further performance under this and/or other agreements with Buyer in the event Buyer fails to make any payment when due. Buyer shall be liable for all expenses, including attorneys’ fees, relating to the collection of past due amounts. If any payment owed to Seller is not paid when due, Seller reserves the right to charge a late payment penalty in the form of interest at a rate to be determined by Seller, which shall not exceed the maximum rate permitted by law, from the date on which it is due until it is paid. Should Buyer’s financial responsibility become unsatisfactory to Seller, cash payments or security satisfactory to Seller may be required by Seller for future deliveries and for the Products theretofore delivered.
Any tax or governmental charge (or increase in same) affecting Seller’s costs of production, sale, or delivery shall be for Buyer’s account and shall be added to the price. Prices do not include any duties, customs costs, or other charges which may be applicable to foreign shipments. It shall be Buyer’s responsibility to pay or reimburse Seller for same.
3. SHIPMENT AND DELIVERY:
Deliveries are made F.O.B. Seller’s shipping point. Risk of loss or damage and responsibility shall pass from Seller to Buyer upon delivery to and receipt by a common carrier. Any claims for shortages or damages suffered in transit shall be submitted by Buyer directly to the carrier. While Seller will use commercially reasonable efforts to maintain the delivery date(s) acknowledged or quoted by Seller, all shipping dates are approximate and not guaranteed. Delayed delivery beyond the proposed delivery date shall not entitle Buyer to any damages whatsoever. Seller reserves the right to make partial shipments. Seller, at its option, shall not be bound to tender delivery of any Products for which Buyer has not provided shipping instructions. If the shipment of the Products is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage costs and other additional expenses resulting therefrom.
Seller’s responsibility to Buyer ceases upon receipt from carrier of a bill of lading or other receipt for goods. All goods are shipped at Buyer’s expense and risk; all claims for damage or shortage in transit must be filed by Buyer against carrier and prosecution of such claims shall be Buyer’s sole responsibility. Buyer agrees to examine and inspect each shipment of goods for any damage, defect, or shortage promptly upon receipt of such shipment; all claims for damage, defect, or shortage prior to shipment must be made in writing, and must be received by Seller at its principal business location in St. Louis, Missouri, within 15 days after receipt of goods by Buyer, specifically describing Buyer’s claim and making reference to Seller’s bill of lading and order number. Failure of Seller to receive such written notice of any claims within such time shall be deemed an unconditional acceptance of the goods by Buyer and waiver by Buyer of all such claims.
5. PRODUCT RETURNS:
New and unused product(s) returned for credit will not be accepted unless written permission has been given by Seller. Product(s) must be securely packed to reach Seller without damage. A restocking charge not to exceed 25% will be made on all product(s) accepted for credit.
6. LIMITED WARRANTY; LIMITATION OF REMEDY AND LIABILITY:
Subject to the limitations on remedies and liabilities set forth below, Seller warrants that the Products manufactured by Seller will conform to the specifications provided by Seller and will be free from defects in material or workmanship under normal use and regular service and maintenance for twelve (12) months from the date of sale by Seller to Buyer. Determination of the suitability of the Products for the use contemplated by Buyer is the sole responsibility of Buyer, and Seller shall have no responsibility in connection with such suitability. The warranty set forth in this paragraph is Seller’s sole warranty with respect to the Products.
SELLER MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AGAINST INFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS; AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY SELLER AND EXCLUDED FROM THIS AGREEMENT.
Buyer agrees to examine and inspect the Products at once upon arrival at their destination, and if the Products fail to comply with the warranty provided hereunder, Buyer shall promptly give detailed written notice of such failure to Seller. Any claim under this warranty shall conclusively be deemed waived by Buyer unless written notice thereof is given to Seller promptly after discovery, but in no event later than twelve months from the date of sale. Seller’s responsibility and Buyer’s exclusive remedy under this warranty is limited to the repair or replacement of the Products or the refund of the amount of the purchase price paid by Buyer, at Seller’s option, upon the return of any nonconforming Products to Seller at Buyer’s expense.
This warranty does not extend to any losses or damages due to misuse, accident, abuse, neglect, normal wear and tear, Buyer’s negligence or intentional conduct, unauthorized modification or alteration, use beyond rated capacity, or improper installation, maintenance or application. To the extent that Seller has relied upon any specifications, information, representations of operating conditions or other data supplied by Buyer or its agents to Seller in the design or manufacture of the Products, and/or in the event that actual operating conditions or other conditions differ from those represented by Buyer and relied upon by Seller, any warranties or other provisions contained herein which are affected by such conditions shall be null and void.
It is understood and agreed that Seller’s liability hereunder or in connection with the MANUFACTURE OR sale of THE PRODUCTS described herein, whether in contract, in tort, FOR INFRINGEMENT, under any warranty, in negligence or otherwise shall not exceed the return of the amount of the purchase price paid by BUYER. Under no circumstances shall Seller be liable for special, incidental, indirect or consequential damages (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF ANTICIPATED PROFITS INCURRED BY BUYER). The price stated for the PRODUCTS is a consideration in limiting Seller’s liability.
It is agreed and understood that Buyer shall not make warranties or representations concerning the Products that have not been made or approved by Seller and shall not alter or modify any warranty supplied by Seller. Buyer shall so instruct all employees, subdistributors and agents with respect to representations and warranties concerning the Products and hereby agrees to indemnify and hold harmless Seller for all loss, cost and expense incurred by Seller directly or indirectly resulting from the extension by Buyer, its officers, employees, agents, subdistributors or representatives of representations or warranties not authorized by Seller or the alteration or modification (or attempted alteration or modification) of any warranty extended by Seller. The provisions of this paragraph shall survive termination, for whatever reason, of the Order.
7. EXCUSE OF PERFORMANCE (FORCE MAJEURE):
Seller shall not be liable for delays in performance or for non-performance due to acts of God; acts of Buyer; war; fire; terrorism or other criminal conduct; flood; weather; sabotage; strikes, or labor or civil disturbances; governmental requests, restrictions, laws, regulations, orders or actions; unavailability of or delays in utilities or transportation; default of suppliers; or unforeseen circumstances or any other events or causes beyond Seller’s reasonable control. Deliveries or other performance may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer in the event of any of the foregoing, but the remainder of the agreement shall otherwise remain unaffected as a result of the foregoing.
If Seller determines that its ability to supply the total demand for the Products, or to obtain material used directly or indirectly in the manufacture of the Products, is hindered, limited or made impracticable, Seller may allocate its available supply of the Products or such material (without obligation to acquire other supplies of any such Products or material) among its purchasers on such basis as Seller determines to be equitable without liability for any failure of performance which may result therefrom.
Buyer may cancel orders only upon reasonable advance written notice and upon payment to Seller of its cancellation charges which include, among other things, all costs and expenses incurred to cover commitments made by Seller, and a reasonable profit thereon. Seller’s determination of such termination charges shall be conclusive.
Buyer may request changes or additions to the Products consistent with Seller’s specifications and criteria. In the event such changes or additions are accepted by Seller, Seller may revise the price(s) and date(s) of delivery. Seller reserves the right to change designs and specifications for the Products without prior notice to Buyer, except with respect to Products being made-to-order for Buyer.
Each party shall maintain, at its sole expense, the following types and amounts of insurance coverage and agrees to furnish upon request certificates of insurance showing that such party has insurance coverage in the following amounts: (i) General/Products Liability insurance on an claims made basis in an amount of at least One Million Dollars ($1,000,000.00) and Two Million Dollars ($2,000,000) aggregate, (ii) Workers’ Compensation Insurance as required by applicable state laws, and (iii) Automobile Public Liability Insurance with limits at least of One Million Dollars ($1,000,000) per any one (1) accident. Said certificates of insurance shall set forth the amount of coverage, the number of the policy and the date of expiration. Upon a party’s request, the other party shall name the party as an additional insured on its policies. If a party is a self-insurer for workers compensation purposes, upon request such party shall provide the other party with a copy of the self-insured certificate issued by the state(s) where work will be performed. If the Order concerns goods manufactured in whole or in part to Seller’s designs or specifications, Seller agrees to provide Buyer, upon request, with a current certificate of product liability insurance and an endorsement naming Buyer as an additional insured on Seller’s policy.
11. INDEMNITY; LIMITED LIABILITY.
(a) Indemnity by Buyer. Buyer hereby indemnifies and agrees to defend and hold harmless Seller, its shareholders, directors, officers, agents, employees, representatives, successors and assigns, from and against any and all losses, claims, damages, expenses or liabilities of whatever form or nature (including reasonable attorneys’ fees and other costs and expenses incurred in connection therewith) which they or any of them may sustain or incur in any action, claim, suit or proceeding by any person, organization or governmental entity or agency or otherwise as a direct or indirect result, in whole or in part, of (i) any breach or nonperformance by Buyer, its officers, agents, employees, successors and assigns, of any of Buyer’s obligations under this Order, (ii) any claim by any customers of Buyer or other person or entity for any warranty or other remedy or recovery in excess of the limited written warranty provided by Seller herein, or (iii) any negligent or willful act or omission of Buyer or any of its subcontractors or any of their directors, officers, agents, employees or representatives.
(b) Indemnity by Seller. Seller hereby indemnifies and agrees to defend and hold harmless Buyer, its shareholders, directors, officers, agents, employees, representatives, successors and assigns, from and against any and all losses, claims, damages, expenses or liabilities of whatever form or nature (including reasonable attorneys’ fees and other costs and expenses incurred in connection therewith) which they or any of them may sustain or incur in any action, claim, suit or proceeding by any person, organization or governmental entity or agency or otherwise as a direct or indirect result, in whole or in part, of (i) any breach or nonperformance by Seller, its officers, agents, employees, successors and assigns, of any of Seller’s obligations under this Order or (ii) any negligent or willful act or omission of Seller or any of its subcontractors or any of their directors, officers, agents, employees or representatives.
(c) Limited Liability. Buyer agrees that in no event shall Seller be liable for any special, indirect, incidental or consequential damages arising from the sale of products, any breach of these Terms and Conditions, any sales order or agreement for the sale of products, or any breach of any direct, indirect, express, or implied warranty or representation by Seller. Seller’s liability to Buyer for any other reason shall be limited to the price of the Product paid by Buyer.
Buyer shall not assign its rights or delegate its duties hereunder or any interest therein or any rights hereunder without the prior written consent of Seller, and any such assignment, without such consent, shall be void.
Buyer shall be responsible for receiving, inspecting, testing, storing, installing, starting up and maintaining all Products.
14. INTELLECTUAL PROPERTY:
All drawings and other materials that Seller provides to Buyer in connection with this purchase order (“Seller’s Drawings”) are Seller’s property and Seller will continue to indicate its proprietary rights on all of Seller’s Drawings. Buyer will take all necessary steps reasonably necessary to protect the confidential nature of Seller’s Drawings. Buyer will not disclose Seller’s Drawings or the information contained therein to any actual or potential competitor of Seller. Buyer will limit access to Seller’s Drawings within Buyer to those employees who require such access to perform their jobs and will advise such employees of the confidential nature of Seller’s Drawings. In the event Buyer shows Seller’s Drawings to actual or potential customers of Buyer, Buyer will require such actual or potential customers to agree not to disclose Seller’s Drawings or the information contained therein to any third parties and require that any copies of Seller’s Drawings provided to such actual or potential customer be returned to Buyer after Seller’s Drawings have been evaluated by such actual or potential customer. The parties agree that as between Buyer and Seller, Seller owns the right, title and interest to all inventions, developments and copyrightable material created in the performance of this Order. Seller retains all rights to any invention, discovery, improvement, or patent relating to the goods delivered pursuant hereto.
CONFIDENTIAL INFORMATION. In the event Buyer receives any proprietary or confidential information of Seller, Buyer shall retain same as confidential and it shall not be disclosed to any third party without the prior written consent of Seller.
GENERAL PROVISIONS: These Terms and Conditions supersede all other communications, negotiations and prior oral or written statements regarding the subject matter of these Terms and Conditions. No change, modification, rescission, discharge, abandonment, or waiver of these Terms and Conditions shall be binding upon Seller unless made in writing and signed on its behalf by a duly authorized representative of Seller. No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, reject, or supplement these terms and conditions shall be binding unless hereafter made in writing and signed by the party to be bound, and no modification shall be affected by Seller’s receipt, acknowledgment, or acceptance of purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to those set forth herein. No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound. All typographical or clerical errors made by Seller in any quotation, acknowledgment or publication are subject to correction. The remedies provided in this Agreement for either party are cumulative and in addition to any other remedies that may be available at law or equity.
The validity, performance, and all other matters relating to the interpretation and effect of this agreement shall be governed by the laws of the state of Missouri, without giving effect to its conflict of laws rules. The application of the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods to this Agreement are expressly excluded. Buyer and Seller agree that the proper venue for all actions arising in connection herewith shall be only in the state where the Products involved in such actions were manufactured and the parties agree to submit to such jurisdiction.