Dexter Magnetic Technologies - Terms & Conditions of Sale
These Terms and Conditions of Sale (the “Terms of Sale”) apply to the sale of the products (the “Products”) identified in the accompanying Seller invoice or quote (together with these Terms of Sale, the “Agreement”) by Dexter Magnetic Technologies, Inc. (“Seller”) to the purchaser of the Products (“Buyer”).
Buyer consents to receiving electronic records, which may be provided by Seller’s website, e-mail or e-mail attachments. Buyer may issue a purchase order for administrative purposes only. Buyer accepts these Terms of Sale by making a purchase from or placing an order with Seller or shopping on Seller’s website. Seller objects to and expressly rejects any additional or different terms set forth in any Buyer purchase order, acknowledgement, or other document. Such additional or different terms shall not operate as a rejection of this offer, unless such variances are in the terms of the description, quantity or price of the goods or services, and shall be deemed to materially alter these Terms of Sale. These Terms of Sale shall be deemed accepted by Buyer without such additional or different terms. If these Terms of Sale are provided in response to Buyer's purchase order, such purchase order is deemed a request for quotation only, and the invoice or quote accompanying these Terms of Sale is an offer to sell the Products ordered.
This Agreement contains the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any between the parties with respect to he subject matter hereof. This Agreement may be amended, modified or superseded only by means of a written agreement executed by an authorized representative of each party.
All prices are quoted and all orders are accepted exclusive of federal, state, or local excise, sales, use, value-added tax or similar taxes, or any export or import fees, customs duties and similar charges applicable to the sale or to the products sold, except taxes based upon Seller's net income (“Taxes”).
For non-Internet based sales: Prices for the Products shall be Seller's then-current list prices (in U.S. Dollars). Buyer agrees to pay any and all Taxes and other charges incidental to the purchase or sale of the Products, which shall be separately stated on Seller’s invoice, unless Buyer indicates that any ordered Products are tax-exempt in its order and provides Sellers with a properly executed tax exemption certificate prior to shipment.
For Internet sales: Unless otherwise agreed in writing by Seller, prices for the Products shall be Seller's then-current list prices (in U.S. Dollars for sales shipped to locations within the U.S. and British Pounds Sterling for sales shipped to locations within the European Union). Buyer agrees to pay any and all Taxes and other charges incidental to the purchase or sale of the Products, which shall be separately stated on Seller’s website at the time of Order, unless Buyer indicates that any ordered Products are tax-exempt in its order and provides Sellers with a properly executed tax exemption certificate prior to shipment.
PRICES FOR PRODUCTS ORDERED THROUGH SELLER’S WEBSITE ARE VALID ONLY FOR ORDERS FOR PRODUCTS TO BE SHIPPED WITHIN THE UNITED STATES OF AMERICA OR THE EUROPEAN UNION. FOR ORDERS OUTSIDE THE UNITED STATES OF AMERICA OR THE EUROPEAN UNION, PLEASE e-mail us at email@example.com -or- call us at: 800-317-2537 (In North America) or +44 (0) 1189 602430 (In Europe).
For non-Internet based sales and Internet sales based on Seller’s credit: Payment will be made in United States dollars in accordance with Seller's instructions (including wire transfer instructions) and is due and payable thirty (30) days from the date of invoice. Each shipment (including partial shipments) will be separately invoiced and paid for when due without regard to other shipments. Without limiting other remedies, Seller reserves the right to charge a late fee on all past due payments equivalent to the lesser of one and a half percent (1.5%) per month on the unpaid balance or the highest rate allowed by law. Buyer will pay for all collection costs, attorneys fees, and court costs incurred in the collection of past due amounts. Seller reserves the right (in its sole discretion): to demand payment in advance of shipment (including partial advance payment for large orders); to request bank guarantees; or to terminate or modify the terms of credit payments. Shipments to non-US destinations may require an irrevocable letter of credit established at the expense of the Buyer. Buyer hereby grants to Seller a first priority, purchase money security interest in the Products and all proceeds or receivables arising from the sale, lease, or other disposition of such Products. At Seller's request, Buyer will promptly execute and deliver any documents that Seller deems advisable to perfect the security interest hereunder and maintain the first priority thereof. Buyer hereby authorizes Seller to sign and file any such document.
For pre-paid Internet sales: Payment will be made in the currency quoted on Seller’s website. Buyer agrees to pay the total purchase price for the Products, including shipping charges and Taxes, to the extent not paid at the time of order pursuant to Seller’s website.
3. Delivery and Acceptance.
Seller will use its discretion to set the delivery date, fill orders, and determine the order in which orders are filled. Seller will use commercially reasonable efforts to meet the delivery date set forth on Seller's order acknowledgment on the condition that Buyer provides all necessary order and shipping information sufficiently in advance of such delivery date. Delivery dates are approximate. Delivery of each order is subject to availability of the Products. Seller may deliver partial shipments. Delay in delivery of any installment will not relieve Buyer of its obligation to accept the remaining shipments. All Products delivered to Buyer shall be deemed to be irrevocably accepted upon receipt. Because of uncertainties regarding manufacturing processes and raw materials, with some orders, actual number of units delivered under the Seller Invoice may vary (+ / -) by a percentage stated in the Seller Invoice. Delivery by Seller of any number of units within such variance will be deemed fulfillment of the Seller Invoice and Buyer will pay for the actual number of units delivered.
4. Title and Risk of Loss.
For non-Internet based sales: Unless otherwise agreed in writing by the Seller, all Products will be delivered Ex-Works (EXW - as defined by International Chamber of Commerce Terms, 2000) Seller's or its manufacturer's facilities. Title to and risk of loss of the Products shall pass to Buyer upon delivery to the carrier. Buyer will reimburse Seller for all freight and insurance charges paid by Seller.
For Internet sales: All Products will be delivered F.O.B (as defined by International Chamber of Commerce Terms, 2000), first point of shipment, freight prepaid and added. Title to and risk of loss of the Products shall pass to Buyer upon delivery to the carrier. To the extent not prepaid, Buyer will reimburse Seller for all freight and insurance charges and all Taxes paid by Seller within thirty (30) days of delivery.
5. Cancellations and Rescheduling.
For non-Internet based sales: Buyer will have the right to reschedule any Product shipment, as specified in a purchase order accepted by Seller, for up to sixty (60) days from the originally scheduled delivery date as specified in such accepted purchase order, provided that written notice of such request to reschedule (which notice includes the revised shipment date) is received by Seller at least thirty (30) days prior to the originally scheduled shipment date and Buyer agrees to pay for any costs incurred by Seller for storage of such Products. No order accepted by Seller may be cancelled by Buyer without Seller's consent. Seller reserves the right to impose a reasonable cancellation charge on any order cancelled by Buyer.
For Internet sales: No order may be cancelled or returned by Buyer without Seller's consent. Permission for cancellation or return of products must first be secured from the Company (Dexter) in writing. Products returned without a Return Material Authorization Form will not be accepted. All Return Material Authorizations are conditional and are not final until the product is received and inspected by the Company (Dexter). Credit will be issued at the original price charged less handling and transportation charges, where applicable. Returns may be subject to a minimum 15% restocking charge. All claims for shortages must be made within 72 hours of receipt of product.
6. Intellectual Property.
6.1 Ownership; Licenses. Buyer and Seller agree that no intellectual property rights are transferred under this Agreement, and Seller and its licensors retain all right, title, and interest in all intellectual property rights subsisting in or related to the Products. Certain Products provided by Seller to Buyer may contain or require software (the “Software”) and (b) technical documentation used to describe, maintain and use the Products (the “Documentation”). The Software and Documentation are licensed, not sold. To the extent any Products contain or include Software not governed by a separate license agreement, subject to the terms and conditions of this Agreement, Seller hereby grants to Buyer a nonexclusive, nontransferable, limited right and license to (a) use and perform the Software solely in executable code form and solely as necessary to operate the Products, and (b) reproduce the Documentation for internal use in conjunction with the Products.
6.2 Restrictions. Buyer will not (a) reproduce the Software; (b) modify, incorporate into or with other software, or create a derivative work of any part of the Software or Documentation; (c) reverse-engineer the Products or recompile, disassemble, or otherwise attempt to derive the source code of the Software; (d) distribute, sublicense, lease, rent, loan or otherwise transfer the Software, or the Documentation to any third party; or (e) remove from the Software or alter any of the trademarks, trade names, logos, patent, or copyright notices or markings on the Product or the Documentation.
7.1 Limited Warranty. Seller passes on and assigns to Buyer the warranties made to Seller by its suppliers. Seller warrants to Buyer (and no one else) that all Products to be delivered hereunder will substantially conform to Seller's applicable published specifications for a period of thirty (30) days from the date of shipment (the “Warranty Period”). To the extent available at no additional cost in the ordinary course from Seller’s suppliers, Seller shall deliver a certificate of conformance with its Products. Seller undertakes no obligation to test its Products or provide its own certificate of conformance. If you require Product testing, a certificate of conformance not otherwise available from Seller’s suppliers, or services not specifically listed in this quote, please contact Seller’s sales representative.
7.2 Remedies for Breach of Warranty. Seller's sole and exclusive obligation, and Buyer's sole and exclusive remedy, for breach of the above warranty will be, at Seller's option, to (a) use commercially reasonable efforts to repair the nonconforming Product; (b) replace any such Product at no additional charge; or (c) accept the return of any such Product and issue a refund equal to the purchase price of such defective product. Buyer must notify Seller of any Products that do not conform to the foregoing warranty during the Warranty Period. Buyer must return non-conforming Products to Seller in accordance with Seller's RMA then-current procedures. Replacement Products may be refurbished. Buyer will pay for all transportation charges on any Products returned from Buyer to Seller. The warranties provided under this Section 7 will be void if (a) the Products fail or malfunction as a result of improper handling, installation, maintenance, removal, modification, or repair; or (b) the Products or Software are damaged after shipment, or subjected to abuse, abnormal physical or electrical stress, or improper use.
7.3 Disclaimer of Warranties. THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SYSTEM INTEGRATION, QUIET ENJOYMENT AND ACCURACY AND ANY WARRANTIES ARISING FROM THE COURSE OF CONDUCT OR USAGE OF TRADE. SELLER DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED, OR ERROR-FREE. BUYER ACKNOWLEDGES THAT REAL WORLD PERFORMANCE OF THE PRODUCTS MAY VARY DEPENDING ON BUYER'S DEPLOYMENT, PARTICULARLY IN ANY EXTREME CONDITIONS.
7.4 No Support. Seller is not obligated to provide any support or maintenance for the Product unless otherwise mutually agreed by the parties hereto in writing.
8. Limitation of Liability.
IN NO EVENT SHALL SELLER OR ITS SUPPLIERS BE LIABLE TO BUYER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING ANY LOSS OF REVENUE, LOSS OF CUSTOMERS OR CLIENTS, LOSS OF GOODWILL, OR LOSS OF PROFITS, ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, WHETHER ARISING UNDER CONTRACT, TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY. IN NO EVENT SHALL SELLER'S TOTAL, CUMULATIVE LIABILITY HEREUNDER EXCEED THE PURCHASE PRICE FOR THE PRODUCTS GIVING RISE TO THE CLAIM. MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. THIS LIMITATION OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY HEREIN.
9. Force Majeure.
Each party will be excused from performance of its obligations hereunder (other than payment obligations) if such party is unable to perform such obligations due to any cause beyond its reasonable control, such as acts of God, acts of civil or military authority, terrorism, changes in government regulations, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, floods, power outages, unusually severe weather conditions, and supply or transportation failures, delays, or interruptions.
10. Governing Law; Jurisdiction and Venue.
This Agreement and any issues arising from or relating to the transactions governed hereby shall be governed by the law of Illinois without regard to principles of law that would require the application of the laws of a different jurisdiction. The parties agree to the exclusive jurisdiction of the courts located in Cook County in the State of Illinois for any action or proceeding arising from or relating to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement and is hereby disclaimed.
11. Export Controls and Related Regulations.
Buyer represents and warrants that it is not designated on, or associated with, any party designated on any of the U.S. government restricted parties lists, including without limitation, the U.S. Commerce Department Bureau of Industry and Security (“BIS”) Denied Persons List; Entity List or Unverified List; the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”) Specially Designated Nationals and Blocked Persons List; or the U.S. State Department Directorate of Defense Trade Controls (“DDTC”) Debarred Parties List. Customer shall comply with all applicable U.S. economic sanctions and export control laws and regulations, including without limitation, the regulations administered by OFAC, the Export Administration Regulations administered by BIS, and the International Traffic in Arms Regulations administered by DDTC.
If any provision hereof is held invalid, unenforceable or void in any respect, such provision shall be construed so as to render it enforceable and effective to the maximum extent possible, and the validity and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby. Buyer agrees to adhere to all legal requirements applicable to the Products, including U.S. export laws. The parties are independent contractors and nothing herein shall be construed to imply a partnership, joint venture, principal-agent, or employer-employee relationship between the parties. Neither party shall have the right, power, or authority to create any obligation, expressed or implied, on behalf of the other party. Buyer may not assign, by operation of law or otherwise, any of its rights, or delegate any of its duties, under this Agreement to any third party without Seller's prior written consent. Any assignment, delegation or transfer in violation of the foregoing will be null and void. This Agreement constitutes the entire agreement between the parties as to the subject matter hereof and supersedes and merges all prior or contemporaneous oral or written agreements, representations, statements, negotiations, understandings, proposals, and undertakings with respect to the subject matter of this Agreement.