DP PURCHASE AGREEMENT TERMS & CONDITIONS OF SALE
Except where associated with an identified custom Purchase Agreement Terms & Conditions of Sale, the following agreement shall be applicable to any and all sales, purchase orders, Invoice and other transactions for sale of goods or services made by Demand Products, Inc., and any of its subsidiaries and divisions (hereinafter and collectively referred to as “Seller”).
1. Buyer’s Representations - Buyer shall be defined as any individual or corporation, partnership or Limited Liability Company (or the foreign equivalent to United States corporate entities listed above) that purchases any good or services from Seller.
a. Buyer certifies its agreement with this DP PURCHASE AGREEMENT TERMS & CONDITIONS OF SALE through its process of requesting a quote request, paying an invoice, filing a credit application or accepting delivery of any good shipped to or on behalf of BUYER.
b. Seller’s acknowledgement and acceptance of Buyer’s order is expressly conditioned upon Buyer’s acceptance of these terms and conditions.
c. All discussions, proposals, sales presentations, negotiations and representations are merged herein, and this writing constitutes the complete and exclusive statement of the terms and conditions of the Purchase Agreement between Buyer and Seller.
d. BUYER ACKNOWLEDGES THAT BUYER IS NOT RELYING ON ANY REPRESENTATION OR PROMISE OF SELLER THAT IS NOT EXPRESSLY SET FORTH IN THIS PURCHASE AGREEMENT. BUYER ACKNOWLEDGES THAT BUYER’S PURCHASE DECISION IS BASED SOLELY UPON BUYER’S DUE DILIGENCE OF THE GOODS REQUIRED BY BUYER AND NOT BY REASON OF OR RELIANCE ON ANY STATEMENT MADE BY OR ON BEHALF OF SELLER AS TO THE MERCHANTABILITY, SPECIFIC ATTRIBUTES OR OTHER INFORMATION REGARDING THE GOODS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SELLER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE IS NO WARRANTY THAT EXTENDS BEYOND THOSE GIVEN IN THIS PURCHASE AGREEMENT.
e. By purchasing from Seller, Buyer represents and warrants that Buyer is not a “consumer” as that term is defined in any applicable state and federal consumer protection laws and Buyer agrees to indemnify and hold harmless Seller against any legal matter based on a claim or finding that Buyer is a “consumer.”
f. In the event Buyer fails to accept these terms and conditions in writing, Buyer’s consent to the terms and conditions herein is conclusively presumed, either from Buyer’s failure to object within seven calendar days in writing or from Buyer’s acceptance or use of the material delivered hereunder. Unless Buyer notifies Seller in writing to the contrary prior to making a purchase, Buyer represents and warrants that any employee or agent action on Buyer’s behalf is authorized by Buyer to do so and Seller may rely upon such representation.
2. Obligations and General Terms–
a. Delivery - In any case in which Seller makes delivery, Buyer will pay Seller’s customary shipping charges as provided on any invoice, quote or confirmation email. Delivery will be made as instructed by the Buyer. Title and risk of loss passes to Buyer upon delivery of the goods. Should Buyer not be present to accept delivery, Buyer authorizes Seller, or Seller’s common carrier agent to unload the goods and leave them at the delivery destination. Buyer releases Seller and will indemnify and hold harmless Seller from and against any and all claims demands, actions, causes of action, cost, expenses, and attorneys’ fees arising out of or in connection with any and all injury including death, to any person or persons (whether third parties or agents, servants, or employees of Buyer), any and all damages to or loss of any property (whether belonging to Buyer or a third party), and any and all other damages recognized at law or in equity caused in whole or in part by or in any way related to the delivery of goods onto (or adjacent to) Buyer’s property or instructed destination by Seller, whenever such delivery is made in accordance with or pursuant to Buyer’s instruction or authorization.
b. Buyer Right of Inspection - Buyer has the right to inspect any goods purchased from seller upon arrival. Buyer’s inspection rights expire five (5) days after the arrival of the goods at the delivery destination. A failure to make inspection within that time waives notice of any defect that a reasonable inspection would have revealed. A rejection of the goods by Buyer is not effective unless written notice of rejection and sufficient explanation as to the rejection is given to Seller within five (5) days of delivery.
c. Payment Default - Seller may suspend partial or complete deliveries of any goods purchased if Buyer defaults in payment of any amounts due, or whenever Seller may deem itself insecure as to Buyer’s performance, until Buyer remedies such default or provides assurance that satisfies Seller in its sole discretion, of Buyer’s ability to perform. Seller may cancel any order at any time prior to payment by Buyer.
d. Return Policy - Seller will accept the return of merchandise for exchange or credit only with advance written authorization. Returned materials will be credited at the actual cost paid as determined by the proof of purchase, LESS ALL FREIGHT COSTS paid by Seller. Seller will not accept returns on chemicals or coatings and some electronics. Returns must be made within fifteen (15) days of invoice and must be in new, re-stockable condition upon receipt. Materials returned must be shipped prepaid. Discontinued items and custom orders cannot be returned. Returns subject to minimum 15% restocking fee.
e. Freight Policy - In case any SHORTAGE OR DAMAGE, incurred during transportation, is detected, notify the delivering transportation agent and Seller, immediately. If Buyer has paid the freight bills, Buyer must file a claim immediately, within five (5) calendar days from receipt of goods, or risk losing any recovery. Seller’s responsibility for delivery of goods ends when Seller has a signed Bill of Lading by the transportation agent. Upon Buyer’s request, replacement shipment will be made subject to general terms and conditions as a new order.
f. Warranty – Seller’s products carry an unconditional six (6) month guarantee. Seller must be notified within 48 hours of receipt of defective or damaged merchandise or shortages. Any equipment or tools that are disassembled without prior written consent from Seller will have the warranty voided. Defective products will either be replaced or repaired at no charge. Abused tools will be repaired and returned only if the customer consents to charges. The maximum amount of Liability Seller shall have is the actual purchase price of products and/or services obtained. To claim under a warranty, proper operation and maintenance must occur. Buyer must properly operate and maintain the product, including parts and accessories, in compliance with all operation and maintenance instructions, in normal use, and in good condition and repair.
g. Authorization for modification - Buyer must obtain written authorization from Seller before making any modification of any product, part or accessory in order to NOT void the applicable warranty. Failure to do so, in advance, will result in the warranty becoming Null and Void at the time of modification.
h. Damages - Seller will not be liable for any damages attributable to product abuse, misuse, neglect or any other cause, which is not the fault of Seller. Seller has no liability to any person other than Buyer by virtue of the sale of the goods or services, or any other matters contemplated by this Agreement. There are no third-party beneficiaries to this Agreement. If Buyer is purchasing goods for re-sale, Buyer will add Seller as a party protected by Buyer’s warranty and limit of liability provisions in Buyer’s terms of sale. SELLER IS NOT LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMGES, LOSS OF ANTICIPATED PROFIT, UNABSORBED OVERHEAD, INTEREST ON CLAIMS, PRODUCT DEVELOPMENT AND ENGINEERING COSTS, FACILITIES AND EQUIPMENT REARRANGEMENT COSTS OR RENTAL, UNAMORTIZED DEPRECIATION COSTS, AND GENERAL AND ADMINISTRATIVE BURDEN CHARGES TO ANY PERSON, WHETHER BASED UPON BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, TORT, BREACH OF CONTRACT OR ANY OTHER THEORY, REGARDLESS OF WHETHER THE REPLACEMENT OR REFUND REMEDY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE OR FOR ANY OTHER REASON WHATSOEVER.
i. Buyer’s Remedies/Seller’s Limitation of Liability - Buyer’s sole and exclusive remedy and the limit of Seller’s liability for goods or services proven to be other than warranted, whether based upon breach of warranty, negligence, strict liability, tort, breach of contract or any other legal theory, will be, at Seller’s option, (i) replacement of the goods or services, without charge, freight paid to Buyer’s facility; or (ii) refund of the purchase price paid in respect of such goods or services, plus commercially reasonable charges in connection with the return or disposition of goods (if applicable). Seller’s liability will not exceed the aggregate purchase price of the particular goods and services with respect to which losses, damages, expenses or costs are claimed.
j. Trademark - The purchase of goods or services will not entitle Buyer to use, or otherwise identify Buyer or its business with the name, trademark or other identity of Seller. Any such requests must be made in writing and approved in writing by the Seller. Should Buyer violate this provision, Seller reserves all remedies provided for by law or in equity, including, without limitation, injunctive relief.
k. Dispute Resolution - Any controversy or claim arising out of or relating to this agreement, or the breach thereof, shall first be settled through good faith negotiation within 90 days of written notice by one party to the other by the executives of the Buyer and Seller. Should good faith negotiations fail to bring a negotiated outcome acceptable to both parties than either party may and shall move to have the dispute settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The number of arbitrators shall be one. The place of arbitration shall exclusively be in Forsyth County in the State of Georgia. Georgia law shall apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
l. Force Majeure - Seller is not responsible for and will not liable for any damages (of any nature whatsoever) for any delay caused in whole or in part by circumstances beyond Seller’s reasonable control, including but not limited to, force majeure, fires or accidents; strikes or other differences with workers; war (whether declared or undeclared), riots or embargoes; delays by carriers; delays in shipment or receipt of materials from suppliers; or any legislative, administrative or executive law, order or requisition of the federal or any state or local government or any subdivision, department, agency, officer or official thereof.
m. Effective Date – The effective date of this agreement shall coincide with the sale, quote, order, shipment, notification or other instrument of transaction between the Buyer and Seller based on the first to occur in time.