DANUSER MACHINE COMPANY
Terms and Conditions of Sale
ACCEPTANCE AND GOVERNING PROVISIONS
This document is an offer or counter-offer by Danuser Machine Company (“Company”) to sell the products and/or services (collectively the “Products”) described in the accompanying quotation, proposal, order acknowledgment, invoice, or other document provided by Company to purchaser herewith (the “Company Document”) in accordance with these terms and conditions (these “Terms”), is not an acceptance of any offer made by purchaser (“Purchaser”), and is expressly conditioned upon Purchaser’s assent to these Terms. The Company objects to any additional or different terms contained in any request for proposal, purchase order, acknowledgement, or other communication previously or hereafter provided by Purchaser to the Company. No such additional or different terms or conditions will be of any force or effect. These Terms, together with the consistent terms provided by the Company in the Company Document, shall be referred to herein as the “Agreement” and will be the entire agreement between the Company and the Purchaser on the subject of the transaction described herein and therein; there are no conditions to the Agreement that are not so contained or incorporated. THE AGREEMENT AND ANY DISPUTE ARISING HEREFROM WILL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE SUBSTANTIVE AND PROCEDURAL LAWS OF THE STATE OF MISSOURI AND THE U.S. (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS). THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER WILL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. Purchaser and the Company each irrevocably and unconditionally agree that the sole and exclusive forum and venue for any legal or equitable action or proceeding arising out of or in connection with this Agreement will lie in the United States District Court for the Western District of Missouri or the courts in the State of Missouri sitting in Callaway County and each party hereby irrevocably and unconditionally submits to the sole and exclusive personal jurisdiction of such courts. This offer may be revoked by the Company at any time before it is accepted by Purchaser. Neither Purchaser’s acceptance of this offer nor any conduct by the Company (including but not limited to shipment of Products) will oblige the Company to sell to Purchaser any quantity of Products in excess of the quantity that Buyer has committed to purchase from the Company at the time of such acceptance or conduct.
Any quotation in a Company Document is based upon producing and shipping at one time in the quantity lots quoted unless otherwise noted and subject to customary deviances in production. Should the Purchaser’s shipping schedule preclude doing this, the Company reserves the right to adjust its prices to the extent necessary to reflect the additional cost of manufacturing, warehousing, and shipping.
CANCELLATION OR ALTERATIONS
Orders for standard stock items may be cancelled or altered without charge provided written cancellation is received ten (10) working days prior to date of shipment. A reasonable charge will be made for dismantling special packaging or export boxing when specified in the order. Orders for special items may be cancelled or altered only with the express understanding that the Company will be fully reimbursed for all expenses incurred.
All prices, whether shown in its price sheet, named in the quotation, previously quoted, or proposed in any documentation provided by the Company, shall be adjusted to the Company’s prices in effect at the time of shipment. All prices, and amounts payable, under the Agreement are in U.S. Dollars.
The applicable Products shall be considered finally inspected and accepted by the purchaser within ten (10) days of the delivery thereof, unless written notice of rejection is given within the said period. Acceptance by the Purchaser, as mentioned above, shall be considered full performance of the Company’s obligation hereunder. Claims for loss of or damage to Products in transit must be made to the carrier, and not to Company.
Unless otherwise provided in the Company Document, Products shall be delivered to Purchaser F.O.B. the Company’s loading dock (as defined in the Missouri Uniform Commercial Code) or, for ultimate destinations outside of the U.S., EXW Company’s loading dock (as the latter shipping term is defined in Incoterms 2020). Delivery of Products to the carrier will constitute delivery to Purchaser, and regardless of shipping terms or freight payment, Purchaser will bear all risk of loss or damage in transit. The Company reserves the right to ship products in installments, unless otherwise expressly stipulated herein; all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in shipment of any installment will not relieve Purchaser of its obligations to accept remaining deliveries.
FORCE MAJEURE; ALLOCATION OF LIMITED SUPPLY
All ship dates are approximate. The Company will not be liable for any losses or damages as a result of any delay or failure to ship or perform due to any cause beyond Company’s reasonable control in the reasonable conduct of its business, including but not limited to any act of God, act of Purchaser, epidemic, quarantine, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, act of terrorism, riot, delay in transportation, or inability to obtain necessary labor, materials or manufacturing facilities. In the event of any such delay, the date of shipment will be extended for a period equal to the time lost because of the delay.
If the occurrence of a contingency the non-occurrence of which was a basic assumption on which Company’s agreement to sell hereunder was predicated affects only a part of Company’s capacity to perform Company’s contracts with Purchaser and others, and to provide for Company’s internal use, for similar products or services, Company will allocate its available capacity first to the satisfaction of its internal needs and then in any manner that Company determines, in good faith.
The Company reserves the right to add to the sale price of its Products an amount equivalent to any sales, use, or excise taxes levied on or applicable to its Products by Federal, State, or local governments. In the event Company is required to pay any such taxes or other charges, Purchaser will reimburse Company therefor on demand.
The Company will not accept any goods for return without express written approval by the Company. Purchaser shall pay all delivery and freight charges, and all taxes and duties (if any), with respect to the return delivery of the Products. Any potential reimbursement to the Purchaser will be based upon the net invoice price less a reasonable re-stocking charge and will be extended only on standard or stock items listed in the Company’s price sheet, or other Company documentation, and provided the Products arrive at the Company’s docks prepaid and in new and unused condition.
The Company will not assume, allow, or pay any cartage charges at the destination point.
All payments, shipments, deliveries, and performance of work shall at all times be subject to the approval of the Company’s credit department. The Company may, at any time, decline to make any shipments or delivery, or perform any work, except upon receipt of payment or security or upon terms and conditions satisfactory to its credit department. Except as otherwise provided in the Company Document or in the preceding sentence, payment is due upon Purchaser’s receipt of Company’s invoice following shipment. Interest will be charged at the lesser of (i) 18% per year, or (ii) the highest rate permitted by applicable law, on accounts more than thirty (30) calendar days past due.
The purchaser shall hold the Company harmless against any expense or loss resulting from infringements of patents or trademarks arising from compliance with the Purchaser’s designs, specifications, or instructions.
The Company will supply packaging designed to its specifications on all standard or stock items for domestic shipment without charge. Where special or export packaging is required by the Purchaser’s specifications or carrier’s regulations, a reasonable charge for such special packaging will be made.
The Company warrants that all Products manufactured by it will conform to the Company’s specifications. The Products are subject to warranty by the Company per Company’s applicable warranty policies as in effect from time to time and communicated to Purchaser. Without written agreement to the contrary, this warranty shall not apply to any products the Company furnishes to Purchaser manufactured in accordance with drawings, designs, or specifications proposed or furnished by Purchaser. The Company warrants that all Products manufactured by it and supplied hereunder shall be free from defects in materials and workmanship for a period of thirty (30) days from the date of shipment. If, within such period, any Product which shall be proven to the Company’s satisfaction to be defective, the Company shall: (a) repair or replace the affected part free of charge, at Company’s expense and risk of loss, and send such repaired or replaced part of the Product to Purchaser; or (b) refund to Purchaser the price paid by Purchaser for such defective Products. Such repair, replacement, or refund (whichever Company determines, in its discretion, to provide) shall be Company’s sole obligation and Purchaser’s exclusive remedy for any deficiency in Products furnished hereunder, and shall be conditioned upon: (i) Purchaser’s return of such Products to Company or, in Company’s sole discretion, inspected in the field by a Company-authorized representative, in either case at Purchaser’s expense and risk of loss and (ii) the Company’s receiving written notice of any alleged defect within ten (10) days after its discovery. Any parts of Products repaired or replaced under this warranty are warranted only for the balance of the Warranty Period on the original part that was repaired or replaced.
EXCLUSION OF WARRANTIES
THE WARRANTIES SET FORTH IN THIS DOCUMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESSED OR IMPLIED. COMPANY EXPRESSLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
EXCLUSION OF CONSEQUENTIAL DAMAGES AND DISCLAIMER OF LIABILITY
Except as otherwise agreed in writing, the Company’s liability with respect to the Products sold hereunder shall be limited to the warranty provided hereof, and, with respect to other performances of this contract, shall be limited to that part of the contract price allocable to the Product, or part thereof, that gives rise to the claim. The Company shall not be subject to and disclaims: (1) any other obligations or liabilities arising out of breach of contract, (2) any obligations whatsoever arising from tort claims (including negligence and strict liability) or arising under other theories of law with respect to product sold or services rendered by the Company, or any undertakings, acts, or omissions relating thereto, and (3) all consequential, incidental, and contingent damages whatsoever.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY SPECIFICALLY DISCLAIMS ANY LIABILITY FOR PENALTIES (INCLUDING ADMINISTRATIVE PENALTIES), SPECIAL OR PUNITIVE DAMAGES, DAMAGES FOR LOST PROFITS OR REVENUES, COST OF ANY PRODUCT RECALL, LOSS OF USE OF PRODUCTS OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, FACILITIES OR SERVICES, DOWNTIME, SHUTDOWN OR SLOWDOWN COSTS, OR FOR ANY OTHER TYPES OF ECONOMIC LOSS.
Purchaser shall indemnify, defend and hold harmless Company and its officers, agents, and employees from and against any and all losses, damages (including damages arising from personal injury or death), liabilities, costs and expenses (including attorneys’ fees) that may arise out of Purchaser’s acts or omissions, including, but not limited to: (a) any breach by Purchaser of the Agreement; (b) any violation by Purchaser of any law, rule or regulation; (c) any improper use of the Products by the Purchaser or their end-users; (d) failure by Purchaser to instruct end-users in the proper way to use products; (e) any use or resale of the Products by Purchaser; (f) any negligence or willful misconduct of Purchaser; and/or (g) any claim of patent, trademark, copyright or trade secret infringement, or infringement of any other proprietary rights of third parties to the extent that any Products are manufactured in accordance with drawings, designs or specifications proposed or furnished by Purchaser. Company shall give Purchaser written notice of any claim for which indemnification is sought under the Agreement, provided that the failure to give such written notice shall not, however, relieve Purchaser of its indemnification obligations, except and only to the extent that Purchaser forfeits rights or defenses by reason of such failure. Company, may, at Company’s option, assume and control the defense of the claim, and in such case, Purchaser shall indemnify Company from and against losses, damages, costs and expenses (including attorneys’ fees, court fees, and other defense costs) incurred by Company in defending such claims. If Company decides not to assume the defense of a claim, then Purchaser shall assume and control the defense of such claim, at Purchaser’s expense and by Purchaser’s own counsel (which counsel shall be subject to the approval of Company, which approval will not be unreasonably withheld or delayed); provided that Company shall have the right to participate in the defense of any claims with counsel selected by it at Company’s expense. Company and Purchaser shall cooperate with each other in all reasonable respects in connection with the defense of any claims. Notwithstanding any other provision of this Agreement, Purchaser shall not consent to the entry of any judgment or enter into any settlement of any claims without the prior written consent of Company.
At Purchaser’s expense, Purchaser agrees to carry, with reputable insurance companies, insurance coverage of the types and in the amounts reasonably requested by Company from time to time. Purchaser shall ensure that Company is named as an additional insured on such insurance policies, and Purchaser shall provide Company with certificates of such insurance upon request.
Purchaser shall not assign its rights or delegate its duties under the Agreement. Any such attempted assignment or delegation shall be null and void.
Any and all designs, sketches, models, or samples, drawings, bills of materials, blueprints, plans, devices, machinery, specifications, processes, techniques, expertise, business and financial records, part numbers, plans and projections, and other similar information, items, documents and materials made available by Company or its affiliates to Purchaser or its affiliates, or otherwise acquired, obtained or developed by Purchaser under or in connection with these Terms (collectively, the “Confidential Information”) are and at all times shall remain the exclusive property of Company. “Confidential Information” shall not include any item of information that Purchaser can demonstrate by documentary evidence: (a) is or has become public knowledge, whether by publication or otherwise, through no act, omission or fault of Purchaser or any of its employees, officers, directors, agents or affiliates, or (b) is disclosed to Purchaser by a third party who is in lawful, rightful possession of the information and who has the legal right to make disclosure thereof without confidentiality restrictions. During the Confidentiality Period, Purchaser agrees that it shall not (i) make any use whatsoever of the Confidential Information except for the purpose(s) specified in these Terms; or (ii) disclose the Confidential Information to any third party. The “Confidentiality Period” shall mean, for all Confidential Information that constitutes a ‘trade secret’ under applicable law, the period beginning on the date of disclosure to Purchaser and ending on the later of (x) the date such Confidential Information is no longer a trade secret under applicable law, or (y) the date that is three (3) years after the date that Company accepts the last purchase order submitted by Purchaser; and shall mean, for all other Confidential Information, the period beginning on the date of disclosure to Purchaser and ending three (3) years after the date that Company accepts the last purchase order submitted by Purchaser. Purchaser acknowledges and agrees that money damages for any and all breaches of Purchaser’s obligations under this paragraph are both incalculable and insufficient and that any such breach would irreparably harm Company. Therefore, in the event of an actual or prospective breach of any such obligation, Company shall be entitled to seek a permanent and/or preliminary injunction to prevent or remedy such breach and shall have the right to specific enforcement of this paragraph against Purchaser in addition to any other remedies to which Company may be entitled at law or in equity.
RELATIONSHIP OF PARTIES
Purchaser and Company are independent contractors, and nothing herein shall be construed to create a partnership, joint venture, agency, or employment relationship. Neither party has nor will have any power to bind the other, or to assume or create any obligation or responsibility, express or implied, on behalf of the other party.
THESE STANDARD TERMS MAY BE MODIFIED, AMENDED AND UPDATED FROM TIME TO TIME AT THE DISCRETION OF THE COMPANY.
Updated May 2022