Terms & Conditions of Sale - North America
1. PARTIES
1.1. “Company” means de Jong DUKE LLC, a Michigan limited liability company.
1.2. “Client” means the organization or person who purchases Equipment (defined below) and services from the Company.
2. GENERAL
2.1. These Standard Terms and Conditions of Sale define the relationship of Client and Company and apply to all sales of equipment, parts, supplies, materials or other personal property (individually and collectively, “Equipment”) by Company to Client. Client acknowledges and agrees that these Standard Terms and Conditions of Sale are incorporated in, and are a part of, each Sales Order Confirmation (as defined below), quotation, purchase order, invoice, release, requisition, work order, shipping instruction, specification and any other document, whether expressed verbally, in written form or electronic commerce, relating to the sale of Equipment by Company to Client (such documents are collectively referred to herein as the “Agreement”). These Standard Terms and Conditions of Sale supersede all conflicting or additional terms pre-printed on any purchase order or otherwise set forth on any release, acknowledgement, confirmation, requisition, work order, shipping instruction, specification and similar document or communication. Any execution by Company of any other document submitted by Client in connection with the purchase of Equipment does not constitute acceptance of or agreement to any terms and conditions in addition to or different from those contained in the Agreement, but will constitute only acknowledgment of receipt of such document. In addition, notwithstanding any terms contained in any documents submitted by Client in connection with the purchase of Equipment described under the Agreement, the acceptance of delivery by Client of the Equipment described in the Agreement will constitute a course of conduct constituting Client’s agreement to the terms and conditions of the Agreement, to the exclusion of any additional or different terms and conditions.
2.2. A “Sales Order Confirmation” means a statement of work, quotation or other similar document describing the Equipment and services to be provided by Company to Client. Before the commencement of the services or the supply of Equipment, the Company shall submit to Client a Sales Order Confirmation which shall specify the Equipment and services to be supplied to Client and the price payable. Client shall notify Company immediately if Client does not agree with the contents of the Sales Order Confirmation.
2.3. A “Credit Card Authorization Form” means a document generated by Company used to request credit card information for payment from Client. This form is sent electronically and must be completed for every transaction unless the Client explicitly directs Company in writing to retain the information for future use.
3. PRICE AND PAYMENT
3.1. The price for the Equipment and services shall be set forth in the Sales Order Confirmation. Unless stated in writing by Company, Company’s prices exclude charges for freight, unloading, storage, insurance, taxes, excises, fees, duties or other government charges related to the Equipment. Client will pay these amounts or reimburse Company. If Client claims a tax or other exemption or direct payment permit, Client will provide a valid exemption certificate or permit and indemnify, defend and hold Company harmless from any taxes, costs and penalties arising from same. Company’s prices include the costs of its standard domestic packaging only. Increases, changes (including in application), adjustments or surcharges which may be incurred are for Client’s account.
3.2. Invoiced amounts shall be due and payable to Company pursuant to the terms identified on the Client invoice, provided that, if such terms are not so identified on the invoice, payment shall be due from Client within thirty (30) days of the date of such invoice. Company procedure requires that Client provide a purchase order number at the time of order placement.
3.3. Any invoiced amounts which are not paid to Company when due shall bear interest from the date payment was due until the date payment is received by Company at a rate of interest equal to the lower of (i) 1.5% per month, or (ii) the highest rate of interest permitted under applicable law. The accrual of payment of any interest as provided above will not constitute a waiver by Company of any rights or remedies in connection with a default by Client. Client agrees to reimburse Company for any and all court costs, attorneys’ fees and other costs incurred by Company in connection with any legal proceedings taken by Company against Client to recover sums owed under the Agreement.
3.4. All invoices submitted by Company shall be deemed to be accepted without dispute by Client unless Client notifies Company of any discrepancies within four (4) business days of the date of the invoice.
3.5. Company may, in its sole discretion, assign Client a credit limit. In the event the aggregate value outstanding from Client exceeds this limit, Company reserves the right to request immediate payment on Client’s account to bring the value outstanding under the assigned credit limit or choose to refuse future orders until such account is current.
3.6. If payment is overdue under any Agreement between Company and Client, Company may, in its sole discretion: (i) suspend or cancel delivery of the Equipment or performance of the services in respect of any Agreement between the parties, (ii) re-allocate Equipment ordered under the Agreement to fill other open Company orders, and/or (iii) refuse to accept any subsequent order from, or enter into any new Agreement with, Client.
3.7. Company is able to work directly with third-party financing or leasing companies in order to facilitate Client’s order. Any such Equipment to be purchased using third-party financing or otherwise through a leasing company must be: (i) disclosed at the time the order is placed, and (ii) purchased with prepaid terms. Equipment orders already invoiced will be considered ineligible by Company for third-party financing and must be paid by Client within the specified credit terms. No holds, delays, or alterations of invoices shall occur post-shipment of the Equipment. Failure to disclose third-party financing that leads to the delinquency of an account may result in credit or Equipment holds and/or the changing of account credit terms.
3.8. Payment must be received prior to shipment of Equipment or spare parts for Clients with prepaid terms. Payments shall be made in USD and may be submitted via: (i) check, (ii) credit card, or (iii) wire transfer. Credit card transaction fees do apply and are outlined on the Credit Card Authorization Form provided to Client. Bank account information for Company is available upon request for wire transfer payments. Company is not responsible for any fees incurred by Client in association with submission of payment. Payment should be submitted based on the order total displayed on the Sales Order Confirmation sent to Client. Prepaid Equipment orders must be paid within (10) business days of Client’s receipt of the Sales Order Confirmation. Prepaid spare parts orders must be paid within (2) business days of Client’s receipt of the Sales Order Confirmation. Any unpaid order that exceeds this time period will be considered abandoned and will be cancelled.
3.9. Payment from Canadian Clients shall be made in USD via wire transfer from a financial institution based in the United States. Company does not accept checks in any denomination other than USD nor from any financial institution located outside of the United States.
3.10. As security for payment of all amounts due to Company, Client grants to Company a security interest in all Equipment sold by Company to Client, and Company will have all rights of a secured party under the Uniform Commercial Code with respect to such Equipment. Client appoints Company as its attorney-in-fact with authority, at Company’s option, to take such actions as Company deems reasonable in the circumstance to perfect the above security interest in any one or more jurisdictions, and Client shall pay all applicable filing fees.
4. EQUIPMENT AND SERVICE SPECIFICATIONS; LIMITED WARRANTY.
4.1. All Equipment and services shall be required only to conform to the specifications set forth in the Sales Order Confirmation. For the avoidance of doubt, no description, specification or illustration contained in any product pamphlet or other sales or marketing literature of Company and no written or oral representation, correspondence or statement regarding the same shall form a part of the Agreement.
4.2. Company warrants that the Equipment will meet the specifications set forth in the Sales Order Confirmation.
4.3. As a condition to Company’s warranty obligations, Client must: (i) contact Company and request authorization to return any Equipment claimed to be non-conforming promptly upon Client’s discovery of the alleged defect, (ii) upon receipt of an approved return merchandise authorization (“RMA”) from Company, return any Equipment claimed to be non-conforming under the foregoing warranty, at Company’s expense, via freight coordinated by Company. Company will promptly replace, at Company’s expense, Equipment that is confirmed to be non-conforming as a result of Company’s examination and according to Company’s warranty as set forth herein. If, upon receipt of claimed non-confirming Equipment, Company determines that Client misrepresented, misdiagnosed, incorrectly repaired or otherwise was negligent in communicating with Company as to the state of the Equipment, Company will repair and invoice Client for all labor, parts and freight costs. Company also reserves right to refuse to take any Equipment or parts back from Client for any reason.
4.4. Warranty parts are to be shipped from Company’s facility with a return label included with the packing list. Warranty parts that are shipped with “Net 30 Warranty” terms will have (30) days to be received back to Company’s facility in order to have the corresponding invoice credited. Incomplete returns will only receive credit for the items received back at Company’s facility. If the non-working parts are not received within (30) days, the parts may be accepted but a credit will not be issued. Client will be responsible for payment of any new parts invoiced.
4.5. New Equipment purchased shall be covered under a one (1) year limited warranty. Refurbished Equipment shall be covered under a thirty (30) day limited warranty. Equipment warranty begins on the date of shipment.
4.6. The above warranties do not extend to any loss or damage due to misuse, accident, abuse, neglect, normal wear and tear, negligence (other than Company’s), unauthorized modification or alteration, use beyond rated capacity, unsuitable power sources or environmental conditions, improper installation, repair, handling, maintenance or application or any other cause not the fault of Company.
4.6. EXCEPT AS EXPRESSLY SET FORTH ABOVE, COMPANY MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE EQUIPMENT PURCHASED OR SERVICES PERFORMED, AND COMPANY EXPRESSLY DISCLAIMS ANY WARRANTIES IMPLIED BY LAW, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND INFRINGEMENT.
5. PERFORMANCE AND DELIVERY; TITLE
5.1. Any delivery dates or other schedule of performance by Company are approximations, and the sole obligation of Company with respect to the schedule of delivery or performance will be to use commercially reasonable efforts to deliver the Equipment, or otherwise to perform, consistent with the reasonable demands of its business. In no event shall Client be entitled to liquidated damages as a remedy for any delay in delivery by Company nor shall Company be liable for any loss, damage or delay incurred by the Client or its customers arising from alleged late or non-delivery of Equipment. Company reserves the right to supply an order for Equipment in any number of installments.
5.2. Shipment of Equipment will be made FOB Company’s facility. Risk of loss shall transfer to Client upon shipment of the Equipment. Client shall pay all insurance costs associated with delivery, and Client shall be responsible for filing and pursuing claims with carriers for loss or damage in transit.
5.3 In the event that a Client requests expedited shipping of an order, Company will utilize commercially reasonable efforts to prioritize the prompt delivery of the Equipment to Client. In such case, Client shall pay to Company a non-refundable expedite fee of $100 in addition to the total cost (including shipping) of the Equipment ordered. Notwithstanding the foregoing, Company cannot guarantee against delays or damages caused by circumstances beyond its control and shall not be held liable for such occurrences.
6. RETURNS
6.1. Company shall not accept returns for any Equipment or parts without an RMA.
6.2. Approved Equipment returns will incur a 15% re-stocking fee with a minimum fee of $500. Freight costs and condition of the Equipment is the sole responsibility of Client. Equipment returned which is damaged will be invoiced for parts and labor required for repair. Client will be required to pay any such invoiced amounts pursuant to Company’s standard payment conditions.
6.3. Approved parts returns will incur a 15% re-stocking fee with a minimum fee of $25 and a maximum fee of $500. Freight costs and condition of the parts is sole responsibility of Client. Parts returned which are damaged will not be credited to Client’s account.
6.4. All returns require an RMA from Company along with a Bill Of Lading for scheduled pick up. No RMA will be provided without approved packaging requirements.
6.5. Any machines or parts that are returned and need to be tested and/or have any damages and/or missing parts or components shall incur a standard labor charge of $150/hour in addition to the cost of replacement parts and re-stocking fee (when applicable).
7. CLIENT’S OBLIGATIONS
7.1. To enable Company to perform its obligations under the Agreement, the Client shall promptly provide Company with all information and cooperation Company reasonably requires.
7.2. Client shall compensate Company for any expenses incurred by Company as a result of Client’s failure to comply with Clause 7.1.
7.3. Without prejudice to any other rights to which Company may be entitled, in the event that Client unlawfully terminates or cancels the Equipment or services agreed to in the Sales Order Confirmation, Client shall pay to Company as liquidated damages and not as a penalty, the full amount of any third party costs to which Company has committed and, in respect of cancellations on less than five working days’ written notice, the full amount payable for the Equipment and services contracted for as set out in the Sales Order Confirmation. Client agrees this is a good faith estimate of Company’s losses in such a case. For the avoidance of doubt, Client’s failure to comply with any obligations under Clause 7.1 shall be deemed to be a cancellation of the Equipment and services and subject to the payment of the damages set out in this Clause.
7.4. In the event that Client or any third party (such third party not being a sub-contractor of Company), shall omit or commit anything which prevents or delays Company from undertaking or complying with any of its obligations under this Agreement, then Company shall notify Client as soon as possible and:
7.4.1. the Company shall have no liability in respect of any delay to the completion of any project;
7.4.2. if applicable, the timetable for the project will be modified accordingly; and
7.4.3. Company shall notify Client at the same time if it intends to make any claim for additional costs.
8. CHANGES
8.1. The parties may at any time mutually agree upon and execute an amended Sales Order Confirmation (an “Amended Sales Order Confirmation”). Any changes in the scope of Equipment and/or services to be provided under the Agreement shall be set out in the Amended Sales Order Confirmation, which shall reflect the changed Equipment and/or services and price and any other terms agreed between the parties.
8.2. Where Company gives written notice to Client agreeing to supply Equipment or perform services on terms different to those already agreed between the parties (a “Change”), Client shall, within 24 hours of receipt of such notice or such other period as may be agreed between the parties, advise Company by notice in writing whether or not it wishes to proceed with the Change.
8.3. Where Company gives written notice to Client agreeing to perform a Change, and Client confirms in writing that it wishes the Change to proceed on those terms, the Sales Order Confirmation shall be amended to reflect such Changes and thereafter Company shall perform the Agreement upon the basis of such amended terms as set forth in the Amended Sales Order Confirmation.
9. LIMITATION OF LIABILITY
THE REMEDIES OF CLIENT SET FORTH IN THE AGREEMENT ARE EXCLUSIVE. IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL COMPANY’S LIABILITY TO CLIENT EXCEED THE PURCHASE PRICE PAID BY CLIENT FOR THE EQUIPMENT, PARTS AND/OR SERVICES PROVIDED BY COMPANY GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. IN NO EVENT SHALL COMPANY BE RESPONSIBLE OR LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE LOSSES OR DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF CONTRACTS, LOSS OF PROFITS, OR LOSS OF PRODUCTION, WHETHER SUCH LIABILITY IS BASED OR CLAIMED TO BE BASED UPON ANY NEGLIGENCE OR ANY OTHER ACT OR OMISSION ON THE PART OF COMPANY IN CONNECTION WITH THE PERFORMANCE OF THE AGREEMENT.
10. FORCE MAJEURE
Company shall not be liable for any delay or failure to perform any of its obligations under the Agreement if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to, acts of God, labor unrest, strikes, lock outs, labor shortages, accidents, war, civil disturbance, fire, pandemics or epidemics, actions of government authorities, telecommunication delays, power outages, lack of warehouse or storage space, or the delay or failure in manufacture, production, or supply by third parties of equipment or services. Upon the occurrence of any such event, Company shall be entitled to a reasonable extension of its obligations after notifying Client of the nature and extent of such event(s).
11. INDEPENDENT CONTRACTORS
The parties to the Agreement are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by the Agreement. Neither party shall have the power to obligate or bind the other party. Company may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to Client provided that such engagement shall not relieve Company of its obligations under the Agreement.
12. ASSIGNMENT
Client shall not be entitled to assign its rights or obligations or delegate its duties under the Agreement without the prior written consent of Company.
13. SEVERABILITY
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
14. WAIVER
The failure by either party to enforce at any time or for any period any one or more of the terms and conditions set forth in the Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all of the terms and conditions of the Agreement.
15. NON-DISPARAGEMENT
Client shall not, directly or indirectly, make or authorize the making of any statement that disparages or creates any material negative inference with respect to the Company, the Company’s officers, managers, directors, employees, shareholders, members, affiliates, or related companies, or the Equipment, by words, actions or other communications (electronic or otherwise).
16. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, the Agreement may be amended or modified only by a document signed by both parties.
17. NO THIRD PARTIES
Nothing in the Agreement is intended to, nor shall it, confer any rights on a third party.
18. GOVERNING LAW AND VENUE
These terms and conditions shall be governed by and construed in all respects in accordance with the laws of the State of Michigan, without regard to its choice of law provisions. The parties hereby agree that any legal or equitable action or proceeding with respect to the Agreement shall be brought only in the state or federal courts of the State of Michigan, and each party hereby submits to and accepts generally and unconditionally the jurisdiction of those courts with respect to such party and such party’s property and irrevocably consents to the service of process in connection with any such action or proceeding by personal delivery or by the mailing thereof by registered or certified mail, postage prepaid, to the party’s last known address. No action, regardless of form, arising out of the transactions relating to the Agreement, may be brought by Client more than one (1) year after the cause of action has accrued. The U.N. Convention on Contracts for the International Sale of Goods