General Terms and Conditions
Terms & Conditions
(Download a PDF version of these Terms: DE-STA-CO Terms & Conditions)
1. ACCEPTANCE: Any order based on a quotation by Seller for the purchase of goods from the Seller shall be subject only to the terms and conditions set forth herein and is subject approval and acceptance by Seller at its home office. There are no understandings or agreements other than as set forth herein. No additions, deletions or modifications of these terms or any other matter specified in this quote proposed by Buyer in any printed forms or otherwise shall bind Seller unless accepted by Seller in writing, regardless of whether such terms would materially alter these terms. Acceptance of these term as and conditions shall occur when Buyer (i) in writing or otherwise orders any goods or authorizes Seller to perform any of the work incorporated into a purchase order, or (ii) receives any goods from Seller, whichever occurs first. Any quotation made by Seller shall expire automatically sixty (60) days after its date, and may be reinstated only by written confirmation of Seller. Stenographic and clerical errors are subject to correction.
2. PRICES: Prices are F.O.B, Seller's plant, stated and payable in United States funds, at Buyer's cost, and Buyer shall bear all risk of loss and damage in transit. Seller shall not be liable for any damage resulting from, without limitations, an act of God, act of Buyer, embargo or other government act, regulation or request, fire, accident, labor strike, slowdown, war, riot, delay in transportation, or an inability to obtain necessary labor, materials or manufacturing facilities. The Terms and Conditions are subject to change by Seller, without prior notice thereof, at any time prior to Seller's acceptance of Buyer's order. Unless specifically mentioned, prices quoted do not include the amounts of any applicable sales, use, transfer, or excise taxes, tariffs, or custom duties, and Buyer will be charged for any such taxes, tariffs, or custom duties levied upon the sale, transfer, import or use of the goods sold hereunder. Only the specific goods in the quote is included in the price. Any additional goods, accessories or features ordered or required by Buyer shall be added cost.
3. TERMS: Shipment, according to terms, is contingent upon Buyer's maintenance of a satisfactory financial condition. In addition to any statutory lien rights, such as a special tool lien, if applicable, Buyer hereby grants to Seller a security interest in and to the goods sold hereunder and agrees to sign prior to shipment, if requested, all documents necessary under the Uniform Commercial Code to perfect a valid security interest in favor of the Seller in the subject matter of this quote or any subsequent contract between the parties. If shipments are delayed by the Buyer, payment shall become due from the date when the Seller is prepared to make shipment. Seller's obligation of delivery is extended by a period of default in payment of the installment schedule provided. Default in payment authorizes Seller to suspend work on the subject machine for the period of default and Buyer shall be responsible for any cost related to such suspension including increases in the material or labor costs. Any installment due Seller shall commence accruing interest at 1.5 percent per month or the highest legal rate fifteen (15) days after the due date of such payment.
4. DELIVERY: The delivery time quoted is an estimate only. It is based on design time, construction time, and work scheduling anticipated. Seller shall bear no liability for changes in delivery dates.
5. INSTALLATION: Unless otherwise specifically agreed on the face hereof all costs of installation of the goods at Buyer's plant shall be borne by Buyer.
6. CANCELLATION: Orders placed for goods covered by Seller's quotation are not subject to cancellation, If canceled by Buyer, Buyer shall pay to Seller a percentage of the contract price, as determined by Seller, that fairly represents the percentage of the contract completed at the time of cancellation including components and material purchased but not integrated into the machine.
7. DRAWINGS, PRINTS, AND SPECIFICATIONS: Seller shall be responsible to meet specifications and/or tolerances for machinery and/or tooling and/or end product provided by the Buyer, if made a part of this proposal. In the event Seller reasonably meets these specifications and/or tolerances, it shall have responsibility for the quality of his workmanship and materials only. Seller shall not be responsible for specifications and/or tolerances supplied by Buyer. In the absence of specifications and/or tolerances furnished by Buyer, Seller, in its discretion, shall determine acceptability of machinery, tooling and end product. Specifications as proposed by Seller for custom machinery and/or tooling are based upon engineering conceptions and may require alteration during design and construction, at the discretion of Seller. The final plans and specifications developed for such items shall supersede all other specifications or design requested by Buyer, Buyer shall be responsible for additional charges for such changes as determined by Seller. Design concepts, detailed drawings and related patent rights remain the property of Seller.
8. SELLER'S LIMITED WARRANTY AND INDEMNITY:Seller warrants the goods covered by this quotation and sold to Buyer (excluding components purchased by Seller from others) to be free from defects in materials and workmanship for a period of six (6) months following shipment from Seller’s plant. The foregoing warranty will become void and Seller will have no obligation with respect to any goods that are not used or maintained in a normal and proper manner or under recommended conditions, or that are modified, altered, or repaired by persons other than Seller, Seller shall have no liability hereunder for claims made under this Warranty which are not in writing and which have not been delivered to Seller within thirty (30) days after termination of the Warranty period. The Warranty extends only to the original purchaser and Seller's obligations under this Warranty is limited to the furnishing of or repairing of at Seller's option, a part or parts determined by Seller to be defective. Dismantling and assembly at Buyer's plant, packaging and shipping costs, if required, are to be paid by the Buyer. Components purchased by Seller from others for inclusion on goods sold by Seller are guaranteed and warranted by Seller only to the extent of the guarantee or warranty, if any, made to Seller in connection therewith. Buyer must give Seller written notice for any alleged defect within thirty (30) days of its discovery and give Seller a reasonable opportunity to make corrections. EXCEPT FOR THE SELLER'SINDEMNITY OBLIGATIONS CONTAINED HEREIN, THERE ARE NO WARRANTIES, EXPRESSED OR IMPLIED, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF, SELLER MAKES NO WARRANTY OF MERCHANTABILITY NOR FITNESS FOR PARTICULAR USE WITH THE RESPECT TO THE GOODS SOLD UNDER THIS CONTRACT. SELLER SHALL NOT BE LIABLE TO BUYER OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES, WHETHER, SPECIAL, INCIDENTAL, CONSEQUENTIAL, LABOR EXPENSES OR OTHERWISE CAUSED BY/OR ARISING OUT OF THE FAILURE OF THE GOODS, HEREUNDER TO CONFORM TO THE FOREGOING WARRANTY. Seller represents and warrants that (i) the goods are manufactured in compliance with all applicable laws, rules and regulations including but not limited to OSHA), (ii) there are no suits or proceedings, pending or threatened, alleging any infringement by the goods and (iii) that the goods are free and clear of all liens and encumbrances.
9. GOVERNING LAW; LIMITATIONS OF ACTIONS; LEGAL REMEDIES: Any legal action resulting from this contract must be commenced within one (1) year after the cause of action has accrued. The rights and obligations of the parties hereto shall be governed by the laws of the State of Michigan and any action brought hereunder to interpret or enforce the terms and conditions of the agreement between Seller and Buyer must be commenced in the State of Michigan, either in the state court of original jurisdiction for Seller’s home office or the United States District Court for the federal district of Seller’s home office. In the event of legal dispute between the parties requiring legal proceedings for resolution of the same, in addition to any damages awarded, the party prevailing shall be awarded its incurred costs and attorneys fees resulting from the legal proceedings.
10. PATENT INFRINGEMENT: Seller shall have no liability or responsibility with respect to any material or part thereof supplied by or manufactured to the design of Buyer infringing any United States or foreign patent or copyright. Upon request by Seller, Buyer shall review and approve all plans, drawings, specifications, sketches, renderings, diagrams, models, and prototypes prepared by Seller for Buyer or furnished by Buyer to Seller (“design work”). Such approval will constitute Buyer’s warranty and representation to Seller that no design work or goods produced by Seller for Buyer infringes upon any patent, copyright or trade secret of any third party and Buyer hereby agrees to indemnify and save Seller harmless for liability and costs, including attorneys fees relative to a defense thereto, resulting from any such claim for infringement.
11. BUYER’S LIMITED INDEMNITY: Buyer, at no expense to Seller, shall defend, indemnify, and otherwise hold Seller harmless against any and all losses, damages and expenses (including punitive damages, multiple damages, costs and attorneys fees for defense in any action) that Seller may incur as a result of any claim against Seller by any person, including, without limitation, Buyer, its successors, assigns and customers, actually or allegedly arising in any way out of use of any of the goods or services furnished hereunder by Seller or such goods or services incorporated into any goods manufactured or sold by Buyer, including without limitation any claim which in whole or in part actually or allegedly arises as a result of (i) Seller’s negligence or otherwise wrongful act or omission, or (ii) danger or defect in any goods or series sold by Seller to Buyer. Buyer’s obligations hereunder shall survive termination or expiration of these Terms and Conditions.
12. TECHNICAL INFORMATION: Any sketches, models or samples by Seller shall remain the confidential property of the “part design originator” to the extent of any original designs or changes in design or process made by Seller. Such changes shall remain the confidential property of Seller if Seller was the “part design originator”. Buyer shall not use or disclose or permit any other person or entity to use or disclose any such sketches, models or samples of any design or production techniques revealed thereby or inferable therefrom for which Buyer was not the originator.
13. NO WAIVER OR AMENDMENT: No provision hereof and no breach of any provision hereof shall be deemed waived as a result of any previous waiver of such provision or of any breach thereof, by any previous custom, practice or course of dealing or by Seller’s failure to enforce or object to provisions contained in any communication or order from Buyer. Neither the subject purchase order nor any of these Terms and Conditions between the parties shall be deemed altered or amended unless provisions to be amended are explicitly addressed in a written document signed by authorized personnel of both Seller and Buyer.
14. LABOR WARRANTY: Seller, by acceptance of orders hereunder certifies that Seller complies with the Fair Labor Standards Act, as amended, and all regulations and orders issued pursuant thereto.
15. INDEMNIFICATION AND SAFE OPERATION: Buyer shall comply with all directions contained in any materials supplied by Seller and will require its employees to comply with all applicable federal, state, local or industry safety standards, to observe all warnings and to provide its employees with appropriate safety goods. Buyer shall not allow the removal of any safety devices or warnings from the goods. Buyer shall indemnify Seller in the event of any claim, loss or expense for injury to any person arising out of the operation for the machine except the warranty liabilities to the original Buyer.
16. MATERIALS FOR TRYOUT: Buyer shall provide materials for tryout of a quality and quantity as determined by Seller to adequately test the goods. If Seller furnishes tryout material as a result of Buyer's failure to provide, the cost of such material shall be added to the purchase price.
DESTACO SELLER TERMS AND CONDITIONS.08242012
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