Sales Terms & Conditions Revision 2.0 | 2016-11-17
DSTI agrees to provide products ordered by Customer (the “Products”) in accordance with these Terms and Conditions, which shall be deemed a part of any Purchase Order and shall be incorporated therein by this reference. If Customer has not otherwise agreed to these Terms and Conditions, Customer’s accepting delivery, making payment, or making use of the Products will constitute Customer’s acknowledgment of its agreement to these Terms and Conditions. To the extent of any conflict or inconsistency between these Terms and Conditions and the terms and conditions set forth in any Customer purchase order, order confirmation or other document, these Terms and Conditions shall take precedence. If Customer deems any of these Terms and Conditions not to be acceptable, Customer’s recourse shall be to cancel Customer’s order by written notice to DSTI within five (5) days of receipt of these Terms and Conditions. Any Purchase Order, these Terms and Conditions, and any attachments hereto shall be collectively referred to herein as the “Agreement.”
2. PAYMENT TERMS
In consideration of the delivery of the Products, Customer agrees to pay DSTI the purchase price as set forth in the Purchase Order or otherwise specified by DSTI. If a credit terms account has been established, and unless otherwise agreed to in writing by DSTI, payment of such purchase price shall be due within thirty (30) days of the date of DSTI’s invoice for the Product. The purchase price shall be payable in U.S. Currency. If Customer believes that any invoice is incorrect, Customer must notify DSTI in writing within twenty (20) days after receipt of the applicable invoice. If Customer does not so notify DSTI, Customer shall be deemed to have waived the right to further dispute the accuracy of the invoice. If at any time DSTI determines that Customer’s financial condition or credit rating does not justify a sale on credit, DSTI reserves the right to require advance payment, a personal guarantee and/or may ship C.O.D.
3. LATE PAYMENT
All payments not made as and when required hereunder shall bear interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate allowed by law, whichever is less, commencing on the date that the purchase price payment was due pursuant to Section 2 above. Delinquent account balances are subject to placement for collection, and Customer will pay any reasonable fees and expenses incurred by DSTI for such collection activities including attorneys’ fees. DSTI reserves the right to cancel or suspend any outstanding orders upon written notice to Customer in the event of Customer’s failure to make timely payment hereunder.
DSTI’s prices do not include any personal property, value-added, sales, excise, use or other taxes. Customer shall be liable for all such taxes whether or not invoiced by DSTI. Any sales tax to be collected by DSTI shall be reflected on the Purchase Order and/or invoice.
Unless otherwise agreed in writing, (i) delivery will be FCA Free Carrier (Incoterms 2010) and delivery will be Exworks (Incoterms 2010) for international shipments; (ii) DSTI shall have the right to determine the method of shipment and routing of the Products, and (iii) Customer shall pay all Product shipping and delivery charges, which will be included on Customer’s invoice. DSTI shall not be liable for damages caused by delays in shipping or delivery for any reason whatsoever. Delay in the delivery of any Products hereunder shall not relieve Customer from the obligation to accept and pay for such Products.
Unless otherwise agreed in writing by the parties, DSTI shall have no obligation for installation of the Products or the performance of any work at Customer’s facility or other services in connection with Products.
7. EXPRESS WARRANTY
DSTI warrants all Products to be free of defects in workmanship or materials for a term of two (2) years from the date of delivery of the Products. The Customer shall promptly notify DSTI if it deems any of the Products to be noncompliant with this express warranty and return the affected to DSTI, at Customer’s expense. If DSTI determines, after testing, that the Product has failed during the warranty period because of a defect in workmanship and material, DSTI’s sole responsibility under this express warranty shall be either to repair or replace, at DSTI’s option, any such Product. Return shipping of repaired or replacement Products within the continental United States shall be at DSTI’s expense.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE EXPRESS WARRANTY SET FORTH IN SECTION 7 ABOVE IS THE SOLE WARRANTY WITH REGARD TO THE PRODUCTS. DSTI EXPRESSLY DISCLAIMS ANY OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR CUSTOMER. CUSTOMER MODIFICATION OR DISASSEMBLY OF THE PRODUCTS WILL VOID THE WARRANTY.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL DSTI BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THE PRODUCTS, THE AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, IRRESPECTIVE OF WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT, OR OTHERWISE OR WHETHER DSTI HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. DSTI’S LIABILITY TO CUSTOMER UNDER ANY LEGAL THEORY SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE APPLICABLE PRODUCTS SOLD TO CUSTOMER.
10. FORCE MAJEURE
DSTI shall not be liable for any delays in delivery, or for non-delivery or nonperformance in whole or in part, caused by the occurrence of any contingency beyond the reasonable control of either DSTI or its suppliers including but not limited to one or more of the following causes: non-availability or shortage of materials, fire, destruction of plant, strike, labor disputes, epidemic, flood, delay in transportation, war, insurrection, embargo, acts, or demands or requirements of any governmental body. The existence of any such cause or causes of delay shall extend the time of performance to the extent of the resulting delay.
11. CANCELLATION, COUNTERMAND AND RETURN OF GOODS
Orders accepted by DSTI cannot be cancelled or countermanded, or shipments deferred or product returned, except with the prior written consent of DSTI and upon such terms that may be reasonably established by DSTI, including but not limited to Customer’s payment to DSTI for all costs incurred for work in progress with respect to the Purchase Order.
Customer shall not disclose any technical or other proprietary information furnished by DSTI or obtained by virtue of Customer’s dealings with DSTI and shall make all efforts to ensure that such technical or other proprietary information is kept confidential. Title to such technical or other proprietary information disclosed or supplied by DSTI to Customer shall at all times remain the absolute property of DSTI.
Customer will defend, indemnify and hold DSTI harmless from and against all damages, losses, claims and expenses, including reasonable attorneys’ fees incurred by DSTI, as a result of any breach by Customer of the Agreement, or any violation by Customer of applicable law.
The Agreement may not be assigned or delegated by any party without the prior written consent of the other party. The Agreement may only be amended or modified by a writing duly executed by the parties hereto.
15. SEVERABILITY, WAIVER, AND SURVIVAL
In case any provision in or obligation under the Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions or obligations shall not in any way be affected or impaired thereby. The waiver of any provision or condition or the breach of any term will not be a waiver of any subsequent breach of the same or any other term or condition. The Agreement constitutes the complete and final integrated agreement between the parties in regards to the specific terms contained herein. All prior negotiations, discussions and representations are merged into the Agreement. The Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, personal representatives, successors, and assigns. The acknowledgements, covenants and obligations of the parties set forth in the Agreement shall survive the expiration or termination of the Agreement, unless inapplicable by their terms.
DSTI agrees to maintain insurance that is customary in the industry in connection with the performance of its obligations under the Agreement. DSTI shall not be obligated to name Customer as an additional insured on any such insurance policy unless DSTI has employees working at Customer’s facility.
17. EXPORT CONTROL
In consideration of the delivery of the products, (a) Customer agrees to comply with all applicable U.S. export control laws and regulations, specifically including, but not limited to, the requirements of the Arms Export Control Act, 22 U.S.C.2751-2794, including the International Traffic in Arms Regulation (ITAR), 22 C.F.R. 120 et seq.; and the Export Administration Act, 50 U.S.C. app. 2401-2420, including the Export Administration Regulations, 15 C.F.R. 730-774; including the requirement for obtaining any export license or agreement, if applicable. Without limiting the foregoing, Customer agrees that it will not transfer any export controlled technical data, article or services, to include transfer to foreign persons employed by or associated with, or under contract to Customer or Customer’s lower-tier suppliers, without the authority of an export license, agreement, or applicable exemption or exception. (b) Customer agrees to notify DSTI if any deliverable under the Agreement is restricted by export control laws or regulations. (c) Customer shall immediately notify DSTI if Customer is, or becomes, listed in any Denied Parties List or if Customer’s export privileges are otherwise denied, suspended or revoked in whole or in part by any U.S. Government entity or agency. (d) If Customer is engaged in the business of either exporting or manufacturing (whether exporting or not) defense articles or furnishing defense services, Customer represents that it is registered with the Office of Defense Trade Controls, as required by the ITAR, and it maintains an effective export/import compliance program in accordance with the ITAR. (e) Where Customer is a signatory under a DSTI export license or export agreement (e.g., TAA, MLA), Customer shall provide prompt notification to DSTI in the event of changed circumstances including, but not limited to, ineligibility, a violation or potential violation of the ITAR, and the initiation or existence of a U.S. Government investigation, that could affect the Customer’s performance under the Agreement. (f) Customer shall be responsible for all losses, costs, claims, causes of action, damages, liabilities and expense, including attorneys’ fees, all expense of litigation and/or settlement, and court costs, arising from any act or omission of Customer, its officers, employees, agents, suppliers, or subcontractors at any tier, in the performance of any of its obligations under this Section 17.
18. APPLICABLE LAW
The Agreement shall be interpreted in accordance with the substantive laws of the State of Minnesota, without giving effect to conflict of laws principles. The parties agree that the exclusive venue for any claims or actions arising under or in relation to the Agreement shall be in Anoka County, Minnesota, or in United States District Court for the District of Minnesota. The parties hereto consent to the personal jurisdiction of such courts and waive any argument that such a forum is not convenient.