(a)These terms and conditions (“Terms”) are the only terms that shall govern the sale of “Product” by DURA-CAST PRODUCTS, INC. (“Seller”) to the “Buyer” (collectively, the “Parties”) (b)Purchase Orders issued to Seller by Buyer are not binding upon (or accepted by) Seller unless and until Seller communicates its acceptance of that Purchase Order in writing to the Buyer via the Seller’s “Sales Order” confirmation. (c)The Seller’s “Sales Order” confirmation and these Terms (collectively, this “Agreement”) comprise the final, complete, and exclusive expression of the terms of the Agreement between the Parties, and supersede all prior or contemporaneous communications and/or understandings between the Parties. (d) This writing constitutes the entire agreement between the parties relating to sales of the specified materials mentioned in this agreement during the specified period of this agreement and this writing prevails over any and all terms contained in buyer’s purchase orders or seller’s acknowledgment. By placing a Purchase Order with Seller (and independently by accepting Product from Seller), Buyer agrees that the Parties shall submit to and be governed by the Agreement. No waiver, discharge, or modification of this Agreement shall bind the Parties unless in writing and signed by the authorized representatives of Buyer and Seller.
The following Terms apply unless otherwise modified in writing and signed by the authorized representatives of Buyer and Seller: (a)Prices provided by Seller (including prices provided in the Sales Order confirmation) shall only remain in effect for the period stated therein or, if no period is stated, then for thirty (30) days after the date of the Sales Order confirmation. If Seller does not receive, within such time, an unconditional authorization from Buyer to ship Product, then Seller shall have the right to adjust the price for such Product to the current price at the time of shipment. (b)Prices provided by Seller do not include taxes and duties imposed on the manufacture, sale, delivery, or use of the Product. Buyer shall be responsible to pay those taxes and duties imposed. (c)Additional increases to price shall only apply as described below.
- PAYMENT TERMS
(a)Credit Terms for Qualified Buyers. The Seller’s Credit Department, at its sole discretion, shall evaluate the credit-worthiness of a Buyer based on various financial, legal, and payment history information supplied to the Seller by the Buyer and other sources. A “Qualified Buyer” is defined as a Buyer who the Seller deems credit-worthy to receive NET 30-day payment terms on Purchase Orders that do not exceed the Buyer’s credit limit. The Seller’s credit terms for the Buyer’s Purchase Order shall be stated on the Seller’s Sales Order. (b)Sales where Credit terms have not been approved. For “Repeat” Buyers, if credit is not approved, Buyer’s Purchases Orders shall be processed with Cash-On-Delivery terms. For “First-Time” Buyers, the Purchase Order must be paid for in full prior to Seller releasing the order for production of the Product. Check, Visa, or MasterCard transactions for all First-Time Buyer accounts must be processed and clear the Seller’s bank prior to production. (c)Purchase designated for Buyer Pickup. Purchases designated for Buyer pickup shall be invoiced on the scheduled pickup date. Buyer acknowledges that if the Product is not picked up on the scheduled date, then the Seller shall have the right to impose additional administrative and warehousing costs to retain that Product at the Seller’s facility, unrelated to interest or finance charges. Accordingly, the Parties agree that if Product is not picked up within thirty (30) days from the scheduled pickup date, the Buyer thereafter shall be responsible for paying a monthly administrative fee that is the greater of: (i)1.5% per month of the invoice price of the Product that was not picked up, or (ii)$50/month. Administrative fee amounts shall be pro-rated for portions of months (beyond the 30th day) when the Product is not picked up. Buyer acknowledges and agrees that those amounts represent a reasonable approximation of the Seller’s expenses, inconvenience, and loss of space when a Buyer fails to pick up Product on the scheduled day. (d)All tools, dies, molds, fixtures or other production equipment owned by Buyer shall be held as collateral by Seller, until the invoice for Seller’s Product and equipment has been paid in full per the terms in the Seller’s Sales Order. In the event of Buyer’s default, Seller shall have the right to retain such tools, dies, molds, fixtures or other production equipment originally owned by Buyer and given to Seller for Seller’s use in performing the sale of Product under these Terms and Conditions. (e)Late payments – a finance charge of interest at the annual rate of 18% per year shall be charged on past due invoices. (f)For litigation initiated to collect past due amounts, the prevailing party (for past due invoices or payments) shall also be entitled to recover its reasonable attorneys’ fees and costs. This shall not apply to warranty claims or to other disputes/claims arising under this Agreement. Any requests submitted by the Buyer for the approval of any credits or modification of any invoice, shall be at the sole discretion of Seller and subsequent notification as to the Seller’s decision shall only be valid when provided to the Buyer in writing by Seller.
- ORDERS THAT INVOLVE CUSTOM TOOLING/MOLDS
If credit has not been approved for the Buyer, full payment for custom tooling/mold charges must be received before tooling work begins. If Buyer has been approved for credit, a mandatory 50% prepayment of the total estimated tooling charges is due from Buyer before tooling work begins; the balance of the tooling charge is due from the Buyer upon successful production of a 1st Article. As to both Credit and Cash customers, Florida Sales Tax is due on all tooling/molds to be delivered within Florida, and total payment in full for the mold must occur prior to production of the Product.
- BUYER’S RIGHT TO CANCELLATION
Cancellation of Sales Orders shall only be effective upon the written approval of the Seller. Orders under manufacture or in shipment may not be cancelled. (a)Custom Orders are not subject to cancellation. (b)Buyers may cancel orders of “stock” product as defined by Seller’s standard running line Product that is currently in Seller’s inventory, if the Product has not been sent out for shipment.
- SELLER’S RIGHT TO TERMINATION
In addition to any remedies that may be provided under this Agreement, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a)fails to pay any amount when due under this Agreement and such failure continues for sixty (60) days after Buyer’s receipt of written notice of nonpayment; (b)has not otherwise performed or complied with the terms of this Agreement, in whole or in part, and after being provided a Notice of Default, the Buyer failed to cure that default within twenty (20) days; (c)becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. All monies paid to the Seller prior to Termination of the Agreement where deemed earned upon payment by Buyer to Seller and shall not be refunded. As to orders of “stock” Product, the Buyer’s payments, if any, made up to the time of the Termination shall first be applied as though there had been a “Cancellation”. If the order involved tooling charges, then the Buyer’s payments, if any, shall first be applied to tooling charges under Section 4. Any Termination under these circumstances shall cause any tools, dies, molds, fixtures or other production equipment owned or custom-made for Buyer to be considered obsolete and may be destroyed. Regardless of the Seller’s election to terminate under this provision, Seller continues to retain any-and-all other rights under the these Terms.
Terms are Free-On-Board Seller, Lake Wales, FL. A Packaging & Handling Fee is applied to each shipment as follows: (a)UPS & FedEx Shipments via UPS & Fed Ex shall be prepaid by Seller and itemized on the invoice. A Packaging and Handling fee of $18.00 shall be applied to each shipment. (b)Common Carrier Buyer should specify its preferred “common carrier” at time of order entry. If no carrier is specified, Seller shall ship COLLECT, and payment is required by the carrier at delivery time. An uplift service charge shall be applied to all Prepay and Add shipments sent directly to Buyer’s customer and shall be charged directly to Buyer’s account via the carrier’s 3rd Party Billing or sent COLLECT. (c)Partial Shipments. Buyer requests to initiate shipment of any partial portion of a confirmed Sales Order shall be subject to a Packaging and Handling fee of $50.00, which shall be applied to each shipment preceding the final shipment of product in the confirmed Sales Order. Absent manifest error, Seller’s shipping weights shall govern for each shipment or partial shipment under the face of The Bill of Lading. Should Buyer dispute the shipping weight of any shipment or partial shipment under the face of The Bill of lading, Buyer shall promptly notify Seller in writing of the reasons for such dispute and provide to Seller all necessary documents to substantiate the difference.
All claims for shipment shortages by the Buyer to the Seller must be made within five (5) business days of original shipment.
- PRODUCT RETURNS
Products that are special orders or tanks with fittings installed or Product “seconds” as defined by non-first quality items sold at a discounted price, are not returnable or refundable. Product returns shall only be accepted by Seller if the return shipment: (a)displays an approved Return Goods Authorization (RGA) number; (b)contains a copy of the original invoice or packing slip; (c)has been returned via prepaid freight, or; (d)is returned within 30 days of original shipment. A 25% restocking charge shall be assessed to all Product that is authorized by Seller to be returned because of customer choice (that amount also shall be applied to orders of “stock” Product that Buyer wants to “cancel” after that “stock” Product has been given to the common carrier for shipment). The Parties agree this is a fair and reasonable approximation of the time, administrative and other expenses, and lost profits associated with the Product being returned, and does not constitute a penalty. Product returns may only be made as to undamaged Product in its original packaging and/or as to Product that is otherwise received by Seller in “as new” condition.
- LOST OR DAMAGED GOODS
All items leave Seller’s warehouse either packaged or shrink-wrapped and in good condition. When damaged goods are received, Buyer has the option to file loss or damage claims directly with the shipping carrier at the time of delivery. The Parties agree that there is no recourse against Seller for lost or damaged goods during the shipping process.
- TOOL MAINTENANCE, STORAGE, AND DISPOSAL
After performance has been completed by the Parties, all tools, dies, molds, fixtures or other production equipment owned by Buyer as well as all custom-made tools, dies, molds, fixtures or other production equipment made in connection with this Agreement shall be stored by Seller at Buyer’s risk against loss by fire, theft, or otherwise. (a)Unless otherwise agreed upon in writing, any tools, dies, molds, fixtures or other production equipment owned or custom-made for Buyer shall be considered obsolete and may be destroyed if no new Purchase Orders have been received for production after the expiration of one (1) year from the date of the Buyer’s last Purchase Order. Buyer acknowledges that Seller accepts no responsibility for the continued existence of any obsolete tools, dies, molds, fixtures or other production equipment. This clause shall not be invalidated by lack of notification of expiration date. (b)If agreed upon in writing, Seller may charge Buyer a reasonable fee for continued storage and/or maintenance of any obsolete tools, dies, molds, fixtures or other production equipment owned by or custom-made for Buyer. If such agreement is otherwise terminated or cancelled, any obsolete tools, dies, molds, fixtures or other production equipment may be destroyed. (c)All tools, dies, molds, fixtures or other production equipment owned by Buyer shall be held as collateral by Seller, until the price for said goods and equipment has been fully paid as agreed upon. In the event of Buyer’s default, Seller shall have the right to retain such tools, dies, molds, fixtures or other production equipment originally owned by Buyer and given to Seller for its use in performing the sale within this these Terms.
- GOVERNING LAW, JURISDICTION, and FORUM
Buyer and Seller acknowledge that this Agreement bears a reasonable relation to the State of Florida, and agree that in the event of any dispute or disagreement between them relating to this Agreement, the law of the State of Florida shall govern their rights and duties under this agreement. Buyer and Seller agree that any litigation concerning this Agreement shall be governed by the law of the State of Florida. Buyer and Seller agree that the exclusive venue for any action brought by Buyer or Seller to enforce or interpret this Agreement shall be in Polk County, Florida, only. If any provision of this Agreement is held to be unenforceable, it shall not affect the validity or enforceability of the remaining provisions and shall be replaced by an enforceable provision that is the closest to the intention underlying the unenforceable provision.
- BUSINESS INTERRUPTION AND DELAYS
Seller shall not be liable or responsible for cost, expense or damages for non-performance and/or any delay in performance caused, in whole or in part, by causes beyond Seller’s reasonable control. This applies to delays caused by events such as, but not limited to, natural disasters, acts of government, power failure, fire, flood, acts of God, labor disputes, riots, acts of war, epidemics, or material and transportation shortages. In those situations, shipping of Product may be suspended for an appropriate period or canceled by Seller upon notice to Buyer of the foregoing, but other Seller and Buyer performance hereunder shall otherwise remain unaffected.
- BUYER’S ACTS OR OMISSIONS
The Seller shall not be responsible or liable, or found to be in breach, if Seller’s performance of its obligations is directly or indirectly prevented or delayed by any act or omission of Buyer (or by the Buyer’s agents, subcontractors, consultants or employees).
- EXCLUSIVE AND LIMITED WARRANTY/DISCLAIMER OF WARRANTIES
SELLER’S LIMITED WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS LIMITATION/EXCLUSION SHALL APPLY WHETHER OR NOT THE PURPOSE OR USE OF THE PRODUCT HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS, DRAWINGS, OR OTHERWISE, AND ALSO WHETHER OR NOT THE PRODUCT IS SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER’S USE OR PURPOSE.
- LIMITATION OF LIABILITY, AND OF CONSEQUENTIAL AND OTHER DAMAGES
IN NO EVENT SHALL SELLER ASSUME ANY LIABILITY TO BUYER OR TO ANY THIRD PARTY FOR (A) DAMAGES IN EXCESS OF THE PURCHASE PRICE PAID FOR THE PRODUCT(S) AND/OR (B) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, AND/OR CONSEQUENTIAL DAMAGES, OF ANY KIND WHATSOEVER INCLUDING, WITHOUT LIMITATION, ANY DAMAGES AND/OR CLAIMS RELATED IN ANY WAY TO LOSS OF USE, LOST PROFIT AND/OR REVENUE, OR LOSS OR DAMAGE TO OTHER PROPERTY OR EQUIPMENT, OR ANY NON-ECONOMIC LOSS INCURRED BY BUYER OR BY ANY THIRD PARTY AS A RESULT OF SELLER’S PRODUCT(S), AND/OR SELLER’S PERFORMANCE OR TERMINATION OF THIS AGREEMENT, WHETHER ANY CLAIM IS BASED UPON THEORIES OF INFRINGEMENT, WARRANTY, CONTRACT, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHERWISE, EVEN IF SELLER HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES.
No waiver by Seller of any of the provisions of this Agreement may exist unless that waiver is explicitly set forth in a writing signed by Seller. Seller’s omission, failure to exercise, or its delay in exercising, any right, remedy, power or privilege arising from this Agreement shall not create a waiver and/or act as an estoppel.
Buyer may not assign any of its rights or delegate any of its obligations under this Agreement without the Seller’s prior written consent.
- RELATIONSHIP OF THE PARTIES
The relationship between the Parties is (and shall remain) that of independent contractors. Neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- NO THIRD-PARTY BENEFICIARIES
This Agreement is for the sole benefit of the Parties hereto; there are no third-party beneficiaries.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth in the Sales Order Confirmation, or to such other address that may be designated by the receiving party in writing. (a)Notices to Seller. Any notice to Seller shall be effective only if it is sent via United States Postal Service, certified or registered mail, mail receipt service requested to:
To: President, Dura-Cast Products, Inc., 16160 Hwy 27, Lake Wales, FL 33859 (b)Notices to Buyer. Notices to the Buyer may be made at the address set forth in the Sales Order Confirmation unless the buyer provides other information below:
City, State, Zip: _____________________________
All Notices to Buyer may be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), and/or by certified or registered mail (the “confirmation,” signed “receipt,” and/or the delivery record from the courier or agent for personal delivery shall crate a rebuttable presumption of “delivery”). Except as otherwise provided in this Agreement, a Notice is effective only (i)upon delivery of the Notice to the receiving party, and (ii)if the party giving the Notice has complied with the requirements of this Section.