Terms of Sale

DME COMPANY LLC (“SELLER”)

TERMS AND CONDITIONS OF SALE

1. ACCEPTANCE OF TERMS: Seller’s offer is expressly conditioned upon Buyer’s acceptance of these Terms and Conditions, and Seller expressly objects to any additional or different terms proposed by Buyer. Any subsequent purchase order issued by Buyer shall constitute Buyer’s agreement to these Terms and Conditions.  Any contrary terms and conditions contained in any purchase order, facility entry form, or other instrument issued by the Buyer are expressly rejected and shall not apply to this transaction.  Unless otherwise specified in the quotation, Seller’s quotation shall expire 30 days from its date and may be modified or withdrawn by Seller before receipt of Buyer’s conforming purchase order.
2. PAYMENT TERMS: Payment is due in accordance with any applicable progress, advance or other agreed upon payment schedule, or, if no such schedule has been agreed to, no later than 30 days from the date of invoice. Buyer shall pay a late payment charge computed at the lower of 1.5% per month on any overdue balance, or the maximum rate permitted by law. No cash discount is provided. If at any time Seller reasonably determines that Buyer’s financial condition or payment history does not justify continuation of Seller’s performance, Seller shall be entitled to require full or partial payment in advance or otherwise restructure payments, request additional forms of payment security, suspend its performance or terminate the order.
3. DELIVERY
   • In the United States, products are sold FCA Incoterms 2020 point of origin; for export sales, terms are FCA Incoterms port of export. Unless otherwise agreed in writing, title and risk of loss shall pass at the time of shipment. Buyer is responsible for all taxes, duties, fees, or other governmental charges related to its purchase of goods, with the sole exception of taxes on Seller’s income. Unless otherwise agreed, Buyer shall pay all packing and delivery costs.
   • Seller’s quoted lead times and targeted delivery dates are good faith estimates and are not binding on Seller. Buyer’s acceptance of delivery of Seller’s products from the carrier shall constitute a waiver of any claim for delay. If Seller notifies Buyer that the products are ready for shipment and Buyer delays delivery, then Seller may charge Buyer a storage fee equal to 1.5% of the contract price per month for each month of delay. Such storage fees are in addition to any other remedies Seller may have.
   • Buyer shall have a reasonable opportunity to inspect any products prior to shipment. Products shall be deemed to be accepted upon the earlier of: (i) inspection at Seller’s plant (provided that no reasonable objection is then raised by Buyer), or (ii) if no inspection is requested, then at shipment.  If an objection is made during inspection, then Products shall be deemed accepted upon resolution of the objection by Seller.
4. WARRANTY:
   • 4.1 Seller’s express product warranty be as stated in DME’s order specification documentation and shall run from the date of shipment (the “Warranty Period”). During the Warranty Period, Seller warrants that the products and services sold hereunder will be free from material defects in material, workmanship and title (the “Warranty”).
   • 4.2 If, during the Warranty Period, Seller reasonably determines that the products do not meet the Warranty, then Seller shall, at its option, repair or replace the defective product or component thereof, reperform any defective services at Seller’s expense, or refund or credit to Buyer its purchase price for the defective products or services.
   • 4.3 The Warranty will be void and will not apply: (i) when Buyer fails to promptly notify Seller of any alleged defect, (ii) when Buyer fails to properly install, maintain, or operate the products, (iii) to any product or parts thereof with a useful life, under normal operating conditions, inherently shorter than 1 month, or (iv) to products which were not made by Seller or any of Seller’s affiliates, provided that in such cases Seller shall use reasonable efforts to pass on to Buyer the manufacturer’s warranty.
   • 4.4 If Seller provides any parts or services to repair a product that is not under Warranty, then such parts and services will be billed to Buyer at Seller’s prevailing rates for time and materials.
   • 4.5 The Warranty set out above is the sole and exclusive warranty provided by Seller for its products and is in lieu of, and Seller expressly disclaims, all other warranties, express or implied, oral, written or statutory. THERE ARE NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE FOR SELLER’S PRODUCTS.
5. LIMITATION OF LIABILITIES:
   • 5.1 Seller’s total liability to Buyer arising out of or resulting from this Contract or related in any way to Seller’s products or parts thereof shall not exceed the contract price for such products.
   • 5.2 Seller shall not be liable for loss of profit or revenues, loss of use of products, interruption of business, downtime costs, increased operating costs, or any special, consequential, incidental indirect or punitive damages, whether incurred by Buyer or Buyer’s customers.
   • 5.3 Because the conditions of actual production in each end user’s plant vary considerably, Buyer assumes all risk for the results obtained by use of Seller’s products in the practice of any process, whether in terms of operating costs, general effectiveness, success or failure, and regardless of any oral or written statements made by Seller related to the use of its products.
6. SECURITY INTEREST. Buyer agrees that the Seller shall have and retain a purchase money security interest in the Products securing the payment of all sums becoming due hereunder. Such security interest shall attach, upon completion of manufacture, to the Products and to any parts or accessories attached to the Products and to the proceeds of any sale thereof. Buyer represents that the Products are being acquired for use in its business and that such Products will not, without prior written consent of the Seller, be sold or removed from the Buyer’s place of business to which delivery is made.  Buyer agrees upon Seller’s request to execute any financing statements or other documents required to perfect, continue or renew Seller’s security interest in the Products.
7. CANCELLATION: Unless otherwise agreed, Buyer may cancel all or any part of the order by written notice received by Seller before the completion of the order. On receipt of such cancellation notice, all work on the order or part thereof canceled will be stopped as promptly as is reasonably possible. Buyer will then be invoiced for and will pay to Seller as liquidated damages a cancellation charge. For completed items, the charge will be equal to their established prices. For items not completed, the charge will be equal to 135% of Seller’s full cost as determined by Seller in accordance with Seller’s standard accounting practices (which includes burden and overhead), plus a charge for any packing and storage, less a credit for the balance of the material as scrap.
8. RETURNS: All returned items require a Return Merchandise Authorization (RMA) number from DME. Returns are subject to a quality inspection to validate whether it can be returned to inventory. Mold bases, plates, special components, made-to-order products and other date-sensitive products are non-returnable items. Items returned to DME without prior authorization(RMA)may be returned to sender. Items returned for stated defect or non-conforming reason require detailed explanation. No products are returnable beyond 30 days after receipt.
9. CONFIDENTIALITY. Any nonpublic information, including without limitation, Seller’s pricing information and the contents of Seller’s quotation or proposal and Buyer’s purchase order, exchanged between the parties is deemed confidential (“Confidential Information”).  Each party agrees to maintain the other party’s Confidential Information in confidence, to not disclose the same to any third parties, and to use it only in connection with this sale.  These restrictions shall expire two (2) years after the date of disclosure. This provision does not modify or supersede any separate confidentiality or nondisclosure contract signed by the parties.
10. FORCE MAJEURE: Seller shall not be liable for any delay in performance or nonperformance which is due to war, fire, flood, pandemic, acts of God, acts of third parties, acts of governmental authority or any agency or commission thereof, accident, breakdown of products, differences with employees or similar or dissimilar causes beyond Seller’s reasonable control, including but not limited to, those interfering with production, supply or transportation of products, raw materials or components or Seller’s ability to obtain, on terms Seller deem reasonable, material, labor, products or transportation.
11. MERGER CLAUSE: This Contract entirely supersedes any prior oral or written representations, correspondence, proposals, or contracts between the parties regarding the products. This writing constitutes the final and total expression of such contract between the parties, and it is a complete and exclusive statement of the terms of that contract.
12. ASSIGNMENT: Neither party may assign this Contract without the written consent of the other party, except that Seller may assign this Contract to a third party that acquires substantially all of Seller’s assets and Seller may assign the flow of funds arising out of this Contract.
13. COMPLIANCE WITH LAWS. Each party agrees to comply with all applicable laws in the performance of its obligations; Buyer shall not trans-ship, re-export, divert or redirect Products outside of the original country of delivery without Seller’s prior written consent.
14. GOVERNING LAW: This Contract shall be governed by and construed in accordance with the laws of the State of Michigan, without regard to the Convention for the International Sale of Goods (CISG), which shall not apply.

By signing below, Buyer accepts these terms and conditions and agrees that these terms shall prevail over any contrary terms contained in any past or subsequent purchase order, website, or any preprinted forms exchanged between the parties in connection with the order.