- APPLICABILITY. Buyer’s offer to purchase products pursuant to a purchase order (“Products”) is subject to these terms and conditions, and together with the acceptance of the purchase order, constitutes the contract between Buyer and Diversified Plastics, Inc. (“Seller”) for the Products. If the Products include additive manufacturing (“Additive Manufacturing”), the terms and conditions set forth in Schedule A shall apply in addition to these Terms and Conditions and if, any such terms conflict with the terms set forth in these Terms and Conditions, the terms and conditions set forth in Schedule A shall govern. Seller expressly objects to any different or additional terms proposed by Buyer, including those in any purchase order. In the event of a conflict between the terms of this contract and the terms of any other document, the terms of this contract shall control. No amendment of these Terms and Conditions shall be effective unless made in a writing signed by an officer of each of Seller and Buyer.
- PRICE. Prices shall be firm for 30 days. Seller reserves the right to increase prices at any time prior to acceptance or release of an order. Where orders are placed for quantities other than those specified in the quotation, the unit price for the next smallest quantity quoted applies.
Prices quoted do not reflect any federal or state taxes or tariffs. Buyer shall defend, indemnify and hold Seller harmless from and against the imposition and payment of all such taxes, whether or not they are stated in the invoice. Seller, at its option, may at any time, separately bill Buyer for any taxes not included in any sales contract between Seller and Buyer and/or any invoice issued to Buyer by Seller, and Buyer shall pay said taxes, or in lieu thereof, shall provide Seller with a tax exemption certificate acceptable to the relevant taxing authorities. If any such certificate furnished to Seller is held invalid or if the sale is otherwise found to be taxable, Buyer agrees to pay promptly all taxes (plus interest and penalties) found due.
- NON-RECURRING ENGINEERING CHARGES. Pricing shall include non-recurring engineering charges which shall include digital set up, part support and up to two test prints for optimal part quality, provided that Seller shall have the right to charge additional non-recurring engineering charges if Buyer requires part revisions or material changes to parts.
- OVER/UNDER RUNS. Buyer must accept shipments whose quantity exceeds or falls short of the ordered quantity by five percent (5%) or less on orders of 500 or more Products and fifteen percent (15%) or less on orders of less than 500 Products. For under runs, orders will be considered complete for quantities shipped. Prices will be as quoted in the proposal.
- PAYMENT. Payment is net thirty (30) days from the earlier of the date of delivery or the date of an invoice. For domestic tooling orders, Buyer shall pay 33% upon placing the order, 33% upon Seller’s submission of tool samples to Buyer, and the balance upon Buyer’s acceptance of such samples. For international tooling orders, Buyer shall pay 50% upon placing the order and the balance of 50% will be paid before commencing shipment to U.S.
Interest will be charged on all unpaid amounts due over 30 days from the date of the particular invoice for such unpaid amounts at the rate of 1.5% per month (18% per year), or the maximum percentage permitted by law, if less. Upon demand from Seller, Buyer shall immediately reimburse Seller for all reasonable costs of collection (including without limitation, reasonable attorneys’ fees and costs), whether incurred before or after litigation, relating to any late payment owed by Buyer to Seller. If Buyer fails to fulfill the payment terms or if Seller shall have any doubt or concern at any time as to Buyer’s financial responsibility or ability to make payment, then Seller, in its sole discretion, may decline to make further deliveries of Products to Buyer except upon receipt of cash or satisfactory security for payment. Payment by credit card will be subject to a five percent (5%) surcharge. Only Visa and Mastercard are accepted.
- SHIPMENT; Risk of Loss; Delivery; Title. All shipments are F.O.B. Seller’s facility. Seller shall ship as determined in its sole and absolute discretion. Risk of damage to or loss of the Products shall pass to Buyer upon delivery to the carrier, and in the event of loss or damage in transit, Buyer shall file its own claim with the carrier Unless otherwise agreed to by the parties in writing, Seller shall package Products in bulk using Seller’s standard containers. Shipping and delivery dates are estimates only and cannot be guaranteed.
a. Limited Warranty; Exclusion of Third-Party Materials. Seller warrants that the Products will be produced in accordance with Buyer’s specifications. This warranty ends thirty (30) days from the date of delivery, normal wear and tear excluded (the “Limited Warranty”), provided that such warranty shall not apply to any design defects provided by Buyer in custom Products. The Limited Warranty does not apply to any plastic, resin, materials or components manufactured or supplied by a third-party for use in the manufacturing or assembly of any Product (“Third-Party Material”).
b. DISCLAIMER OF ALL OTHER WARRANTIES. EXCEPT AS SET FORTH IN PARAGRAPH 7a, SELLER MAKES NO OTHER WARRANTY OF ANY KIND OR NATURE AS TO THE PRODUCTS OR THEIR PERFORMANCE AND SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF RELATED TO (1) THE SELECTION OF THE PRODUCTS ORDERED, THE MATERIALS USED, OR THE DESIGN OF ANY CUSTOM PRODUCT, (2) ANY ADVICE FURNISHED, OR RECOMMENDATIONS MADE BY SELLER, CONCERNING ANY USE OR APPLICATION OF ANY MATERIALS, PRODUCTS OR PARTS FURNISHED HEREUNDER, (3) ANY OTHER SERVICES PROVIDED BY SELLER, OR (IV) ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR COMPLIANCE WITH ANY FEDERAL, STATE OR LOCAL LAW, RULE OR REGULATION, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. SELLER MAKES NO WARRANTIES WITH RESPECT TO ANY THIRD-PARTY MATERIAL AND SELLER SPECIFICALLY SELLS SUCH THIRD-PARTY MATERIAL “AS IS” WITHOUT ANY WARRANTY.
c. Voiding of Warranty. The Limited Warranty shall be null and void if (i) any alterations or modifications are made to a Product, (ii) a Product is not maintained in strict compliance with industry standards, (iii) any repairs are made to a Product not authorized by Seller in writing, (iv) a Product is operated after the failure of the Limited Warranty first occurs, (v) a Product is used for any purpose other than for the purpose for which it was manufactured, or (vi) such failure of the Limited Warranty results from a failure of any Third-Party Material.
d. Exclusive Remedies for Breach of Warranty. The sole and exclusive remedy for any failure of any Product to comply with the Limited Warranty or any other warranty imposed upon Seller by law, if any, shall, at the election of Seller, be either (a) the repair or replacement of the applicable, or (b) the refund of the purchase price of the Product. Seller may require Buyer to return any Product or part thereof for inspection as a condition to any claim under the Limited Warranty. No Product or part may be returned to Seller without Seller’s prior written authorization and all returns must be delivered to Seller packaged in the same manner as delivered to Buyer or the Limited Warranty shall be void. If Seller determines that a Product is not in compliance with the Limited Warranty, Seller shall reimburse Buyer for the reasonable costs of shipping the defective Product or part to Seller; if the Product complies with the Limited Warranty, Buyer shall pay costs of removal, repair or replacement for such Product.
e. Limitation on Liability. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR (I) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, (II) ANY AND ALL DAMAGES FOR LOSS OF PROFITS, (III) LOSS OF GOODWILL OR (IV) LOSS OF USE OF THE PRODUCT OR ANY OTHER EQUIPMENT OR OTHER INTANGIBLE LOSSES WHICH MAY BE INCURRED IN CONNECTION WITH THE PRODUCT, IN EACH CASE REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE), EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS
SELLER’S MAXIMUM LIABILITY, FOR ANY REASON AND UNDER ANY THEORY OF LIABILITY, INCLUDING THE MANUFACTURE, SALE, DISTRIBUTION, RESALE, REPLACEMENT OR USE OF ANY PRODUCTS, AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OR CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID FOR THE PRODUCTS ORDERED OR PORTION OF SUCH AMOUNT GIVING RISE TO THE CLAIM.
- ACCEPTANCE. Buyer shall inform Seller of any non-conforming Products within 30 days of delivery or Buyer shall be deemed to accept such Products. In the event of variance between blueprints and accepted samples, sample parts will be the standard to determine compliant Products.
- TOOL STORAGE AND MAINTENANCE. Seller shall perform preventative maintenance and store all of Buyer’s tools at its climate-controlled facilities without charge, provided that if the tools are not used within twelve (12) months of receipt or become inactive for a twelve (12) month period, Buyer will be invoiced for an annual storage fee of $1200, which amount may be increased at Seller’s discretion. Seller shall not be liable for loss of or damage to tools due to a force majeure event (as described in Section 14), theft or vandalism. Buyer represents and warrants that the tools it supplies to Seller are in good working condition and able to produce parts to Buyer’s specifications. Before removing any tool from Seller’s premises, Buyer shall pay Seller the pro-rata portion of the annual storage fee and related charges for the tools. Before removing any mold from Seller’s premises, Buyer shall pay Seller for all related finished goods, work in progress and raw material inventory. Buyer hereby grants to Seller a lien against such tools or mold until all such payments are paid.
- MATERIALS. Seller shall manufacture Products using materials specified by Buyer in the Proposal. Unless 100% virgin is specified on the blueprint, reground material may be added to virgin material to manufacture Products subject to guidelines set by the material manufacturer regarding degradation.
- PROP 65. The Products are not intended to be distributed, whether as a finished good or component included in, a consumer product that is subject to California Proposition 65 (“Prop 65”) and Seller makes no warranty that the Product complies with the requirements of Prop 65.
- INDEMNIFICATION. Buyer shall indemnify and hold harmless Seller, its affiliates and their respective officers, directors, employees, agents and other representatives and will, at Seller’s option, defend any action brought against the same with respect to any claims, judgments, actions, suits, demands, damages, liabilities, costs or expenses (including, but not limited to, attorneys’ fees and legal expenses), whether as a direct claim by Seller or as a result of any third party claim, associated with or arising from (i) the ownership, use or operation of the Products by Buyer or any third party, or (ii) any actual or alleged claims that the Buyer violated Prop 65 with respect to the Products.
- GOVERNING LAW. This contract shall be construed, interpreted, and governed by the laws of Minnesota (without regard to its conflict of laws principles) the state in which this contract is deemed to have been executed and delivered. Buyer acknowledges that the agreement between it and Seller was accepted in Minnesota and that Seller will be performing a substantial part of the agreement in Minnesota. Therefore, Buyer agrees that any disputes arising out of this contract and/or any dealings between the parties shall be litigated, if at all, in the federal or state courts sitting in Minneapolis, Minnesota. Buyer hereby waives any objection to the personal jurisdiction of any such court, and any objection to the laying of venue of any such action in any such court. If Seller must resort to legal action or remedies, Buyer shall reimburse Seller for all of Seller’s legal fees and expenses, whether or not suit is filed by Seller.
- FORCE MAJEURE. Seller shall not be in breach of this contract for failure to perform any obligation caused by civil insurrection, war, riot, quarantine, terrorism, fire, strike, labor stoppages or other labor disturbances, acts of God, tornadoes, acts or omissions of Buyer, acts or omissions of any government body or entity, floods, epidemics, health emergencies, freight embargoes, shortages of labor, fuel, energy or materials, failure of suppliers or subcontractors to satisfactorily meet scheduled deliveries, accidents to machinery, delays in transportation or any other cause beyond the reasonable control of Seller. Upon the occurrence of any such event, Seller shall notify Buyer of such event and may either delay its performance under this contract or terminate this contract without liability.
- NOTICES. Any notices, consents or other communications required or permitted under this contract must be in writing and delivered personally, overnight air courier, registered or certified mail or electronically. Unless otherwise stated in this contract, notices, consents or other communication will be deemed received (a) on the date delivered, if delivered personally or by electronic transmission; (b) on the next business day if sent via overnight air courier; or (c) three (3) business days after being sent, if sent by registered or certified mail.
- TERMINATION.In the event of Buyer’s breach, bankruptcy or insolvency, Seller shall be entitled to cancel any or all quotations or orders then outstanding and shall receive reimbursement for its cancellation charges, which include but are not limited to all costs, direct and indirect, for labor, materials and overhead.
- INTELLECTUAL PROPERTY
a. Seller shall retain ownership of all licenses, trade secrets, copyrights, patents, service marks, trade names, trademarks, franchises, permits, proprietary information, and other ownership rights (“Intellectual Property Rights”) related to the Products or services provided by Seller to Buyer that it developed or acquired separately from its performance under this contract (“Seller Intellectual Property”). Seller hereby grants to Buyer an irrevocable, assignable, nonexclusive, perpetual, worldwide, royalty-free, unrestricted license to use the Seller Intellectual Property for the sole purpose of using the Products.
b. Buyer will retain ownership of any and all specifications, documentations, and other material provided by Buyer to Seller in connection with the manufacture of the Products or the services provided by Seller, as well as any and all Intellectual Property Rights therein or thereto (“Buyer Intellectual Property”); provided that Buyer Intellectual Property does not include any Seller Intellectual Property.
- MISCELLANEOUS. The invalidity or unenforceability of any provision of this contract shall not affect the validity or enforceability of any other provision of this contract. No waiver of any of the provisions of this contract shall be deemed or shall constitute a waiver of any other provision. There shall be no third-party beneficiaries to this contract. Seller shall have the right to deduct from any sums it owes Buyer, any sums owed by Buyer to Seller. Buyer shall not assign its rights or obligations under this contract without the prior written consent of Seller. This contract will be binding upon the parties hereto and their successors and permitted assigns. The provisions of Sections 2 through 7, 10 through 15 and Section 18 shall survive the termination and performance of this Contract.