Terms of Sale
DMIC Seller’s Terms Of Sale
- Buyer Accepts Seller’s Terms and Conditions – Seller confirms and accepts Buyer’s order on Seller’s Terms and Conditions Of Sale. Objection is made to all other proposed terms or conditions (whether contained in buyer’s purchase order or elsewhere) different than or additional to Seller’s Terms and Conditions. All negotiations, quotations, purchase orders, proposed contracts or agreements are superseded by Seller’s Terms and Conditions, which constitute the entire understanding between the parties with respect to the sale of the goods. Buyer disclaims reliance on any promises or representations made by the Seller or any third party. These terms and conditions may not be amended, altered, modified or changed except by a written agreement signed by seller’s AUTHORIZED SENIOR MANAGEMENT. No waiver of any term, provision or other condition of this agreement by Seller, whether by conduct or otherwise, in any one or more instances, can be deemed or construed as an additional or continuing waiver of it or any other term or condition.
- Credit Approval – Seller’s obligations are subject to its approval of Buyer’s credit. Seller may decline to make any shipment or delivery or perform any work unless and until it receives payment or security satisfactory to Seller.
- Prices/Taxes – All prices are: in U.S. dollars (unless otherwise indicated); do not include sales, use, excise, tariff, duty or other taxes payable (unless otherwise indicated), all of which are Buyer’s responsibility; and are subject to revision if Buyer requests any design or specification changes. Price increases may be made without prior notice. Seller reserves the right to charge its market price at time of shipment.
- Shipping/Delay/Risk of Loss – Seller has no liability for failure to meet a shipping or delivery date. all delivery and shipping dates are estimates. time is NOT of the essence for shipping or delivery dates. Seller has no liability for any failure to perform due to factors beyond its control, including (without limitation) acts of God, war, riot, terrorism, embargoes, fire, explosion, strike or work slowdowns, shortages, delays in transportation, breakdowns or accidents. Deliveries are F.O.B. Seller’s point of shipment (unless otherwise indicated), and risk of loss shall pass to Buyer upon Seller’s delivery to the carrier. Seller has the right to determine the method of shipment and routing of the goods. If shipment is delayed at Buyer’s request, the goods shall be deemed to be stored at Buyer’s risk and expense and Seller may thereupon bill Buyer for the full price of storage costs; provided no goods shall be stored more than 60 days. Buyer shall pay such bill for storage upon receipt.
- Cancellation/Return of Goods – No cancellation is effective unless and until accepted in writing by Seller. Seller’s cancellation fee is DETERMINED AT TIME OF CANCELLATION, BASED ON MATERIALS CONSUMED AND TIME DEVOTED TO THE ORDER. Goods returned without Seller’s prior written consent will not be accepted, and no credit will be given to Buyer for unauthorized returns.
- Seller’s Unrestricted Exclusive Intellectual Property Rights – Seller has the unrestricted right to sell products identical or similar to the goods to anyone, unless Buyer has provided Seller in advance evidence satisfactory to Seller that Buyer owns exclusive rights in the goods. Seller retains exclusive proprietary rights in all of the designs and specifications for the goods, and of methods of their manufacture, handling, installation, operation, and use. No license in granted to Buyer. Buyer shall not reverse engineer the goods. Buyer shall not copy the goods. Buyer shall not obtain products conforming to or based upon Seller’s designs or specifications from any source other than Seller. All modifications of the goods, of their designs and specifications, and of methods of their manufacture, handling, installation, operation, and use originated or developed by Seller or acquired by Seller from other parties shall be and remain the exclusive property of Seller. Buyer shall not obtain products embodying, incorporating or employing any such modifications from any source other than Seller without the prior written authorization of Seller.
- Warranty –Seller warrants its products (consumable items excepted) to be free from defects in material and workmanship under normal use and service, for a period of six months from date of initial use, or one year from date of shipment from its factory, whichever is first. This limited warranty is effective only if its products are: used as directed; not subjected to misuse, negligence, or accident; and not altered, treated, or repaired by anyone other than seller. Buyer’s exclusive remedy for breach is, at the sole discretion of seller, either repair or replacement of the non-conforming part or material by seller, or reimbursement by seller for the price of said part or non-conforming material. In order to obtain this remedy, buyer shall deliver written notice of the alleged breach and request a return goods authorization (“RGA”) from seller within the warranty period. buyer shall return the non-conforming part or material to seller freight prepaid within thirty (30) days after buyer has been granted the RGA. In response to a warranty claim seller reserves the right to verify and inspect the goods at their site.
- Exclusion of all express and implied warranties – All express and implied warranties of every type and kind in connection with this sale, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose, are hereby excluded in all respects and for all purposes. any oral or written statement, information or advice given or made by seller or any of its employees, agents, representatives or distributors: (a) shall not constitute a seller representation or warranty or in any way increase the scope of any warranty hereunder; and (b) shall not be relied upon by buyer or any other person in connection with the sale of the goods.
- Buyer’s Exclusive Remedy/Seller’s Limit of Liability – Buyer’s sole and exclusive remedy in any action or proceeding relating to or arising out of the sale of the goods, on any theory, is limited, at seller’s sole option, to (i) a credit up to the amount of the purchase price, (ii) repairing nonconforming goods, or (iii) replacing nonconforming goods at the original point of delivery. Seller has no liability for loss of profits, or for any punitive, incidental, consequential or indirect damages.
- Duty to Inspect– Buyer agrees to, within 24 hours of receipt of the goods, to inspect the goods. Any alleged shortage or damaged goods must be reported in writing, directly on the bill of lading and signed by the delivering carrier. This documentation is required before Seller will process any damage claim and must be received by the Seller within 10 days of Buyer’s receipt of the goods. Seller shall be given an opportunity to immediately inspect all goods in order to determine the legitimacy of Buyer’s claim. If a timely written notice is not received by Seller, it will be conclusively presumed that no shortages or damages exist.
- Legal Action – An action or proceeding against Seller arising out of or relating to the sale of the goods must be commenced only in the federal district court or New York State Supreme Court located in Erie County, New York. Buyer irrevocably consents and submits to the personal jurisdiction of said courts. buyer agrees not to challenge the venue or jurisdiction of said courts. New York law governs the rights and obligations of the parties, without regard to conflict of laws principles. Buyer must give written notice, via certified mail, to Seller specifying Buyer’s claim As a condition precedent to any action or proceeding, no later than twenty-one (21) days after Buyer knows or with reasonable diligence should have known of its claim.
- Infringement – Buyer shall indemnify Seller against all loss, cost and expense, including (without limitation) seller’s reasonable attorneys’ fees, arising out of or resulting from any claim of infringement of any copyright, trademark, patent or other intellectual property right in connection with Seller’s use of any designs, specifications or materials provided by Buyer.
- Attorneys Fees – If Seller brings an action or proceeding against Buyer arising out of or relating to the sale of the goods, or if Seller is the prevailing party in an action or proceeding instituted by Buyer, buyer shall pay Seller’s costs and expenses, including (without limitation) seller’s reasonable attorneys’ fees.
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