DAIRY ENGINEERING COMPANY
TERMS AND CONDITIONS OF SALE
1. AGREEMENT: THE ACCEPTANCE OF CUSTOMER’S ORDER IS EXPRESSLY MADE CONDITIONAL ON CUSTOMER’S ASSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN, AND DAIRY ENGINEERING COMPANY (“COMPANY”) AGREES TO FURNISH THE PRODUCTS COVERED THEREBY (“PRODUCTS”) ONLY UPON THESE TERMS AND CONDITIONS OF SALE. Any terms and conditions that may be contained in any purchase order or other form of Customer shall be absolutely without force and effect, regardless of when received by Company. Notwithstanding the foregoing, Company may set forth Product-specific terms in an applicable quote or order confirmation (“Order”). Any such Product-specific terms are incorporated herein by reference and shall be deemed to supplement, but not replace or supersede the terms and conditions set forth herein unless such terms expressly supersede these terms and conditions. No waiver, alteration, or modification of any of the provisions hereof shall be binding on Company unless made in writing and signed by an authorized representative of Company. Company reserves the right to accept or reject any order in whole or in part.
2. RENTAL PRODUCTS: To the extent that Customer rents any Products from the Company (“Rental Products”), the terms of this Section 2 shall supersede any conflicting terms within this Agreement with respect to such Rental Products.
A. Customer agrees as follows: (a) the Rental Products will remain at all times the property of Company; (b) Customer will neither take nor suffer any action to be taken that interferes with or threatens Company’s rights thereto; (c) Customer will ensure that any certificates of title prepared by or caused to be prepared by Company for the Rental Products designate Company as owner; (d) Customer will not permit Company’s rights hereunder or in the Rental Products to be subject to any lien, charge or encumbrance that may be levied against or imposed upon the Rental Products; and (e) Customer and Company hereby agree that the Rental Products is and will remain personal property regardless of the manner in which it may be affixed or attached to real estate. Although the parties hereby create a relationship of bailment with respect to the Rental Products, Company may require an informational or precautionary filing from time to time under the Uniform Commercial Code as in effect in any state in which Customer has been authorized by Company to hold the Rental Products. For purposes of such filing, this Agreement constitutes a security agreement and Customer grants to Company a security interest in such Equipment.
B. Customer may not transfer a Rental Product to any third party without Company’s prior written consent. Customer shall not use the Rental Products for any purpose other than a purpose contemplated by, and consistent with this Agreement. Customer shall use the Rental Products in a safe manner and only in the conduct of its business at its business premises.
C. Upon execution of an Order for Rental Products, Customer will deposit with Company the amount specified in such Order (the “Deposit”). The Deposit shall be retained by Company and may be applied by Company, to the extent necessary, to pay and cover any damage to the Rental Products sustained by Company by reason of the failure of Customer to comply with any provision of this Agreement or the applicable Order.
D. Customer shall return the Rental Products to Company in good working order on or before the Due Date specified in the Order. If Customer fails to return a Rental Product by the Due Date the Deposit will be forfeited and Customer will be charged for an additional month of rental fees. If Customer fails to return the Rental Products before 30 days after the Due Date, Customer will be invoiced for the full market value of the Rental Products, less any rental fees already paid for the Rental Product by the customer. Customer shall package Rental Products in accordance with Company’s instructions using the packaging in which the Rental Products was delivered.
E. Customer assumes all risk of loss and damages to the Rental Products during the rental term specified in the Order (the “Rental Term”), with the exception of ordinary wear and tear. A repair charge may be charged by Company for all Rental Products that are damaged beyond ordinary wear and tear, which amount may be deducted from the Deposit. Company reserves the right to invoice Customer for any additional costs to repair damage to the Rental Products.
F. Customer acknowledges and agrees that no defect or failure of the Rental Products to operate in
accordance with the published specifications for the applicable Product (“Specifications”), which are incorporated herein by reference, will relieve Customer of any of its obligations under this Agreement, which obligations will remain in full force and effect.
G. Company will have the right to inspect the Rental Products at any reasonable time during the Rental Term and for this purpose may enter Customer’s premises where the Rental Products are located.
3. CANCELLATION: Cancellation or modification of Orders (prior to shipment) are subject to Company’s prior written consent in each instance, which may be withheld in Company’s sole discretion. Company reserves the right to charge a cancellation, restocking, change, or similar fee in its sole discretion.
4. PRICE CHANGES: Quoted prices are subject to change with notice to Customer from time to time. Products are invoiced at prices prevailing on the date of shipment.
5. PAYMENT; TAXES: Payment shall be in accordance with the terms set forth in the applicable Order. Subject to credit approval and unless otherwise set forth on Company’s Order or otherwise agreed upon by the parties in writing, payment shall be made within thirty (30) days of the date of Company’s Order. Outstanding balances shall accrue interest at a rate equal to the lesser of one- and one-half percent (1.5%) per month and the maximum rate permitted by applicable law, from due date until paid, plus Company’s reasonable costs of collection. Company reserves all other rights granted to a company under the Uniform Commercial Code for Customer’s failure to pay for Product(s) or any other breach by Customer of these terms and conditions of sale. Under no circumstances shall
Company be obligated to pay or accept any back charges from Customer. There shall be added to the purchase price of each Product amounts equal to any sales, use, or equivalent taxes required to be collected by Company, unless Customer provides Company with an appropriate exemption certificate. Notwithstanding any specified payment terms, Company may require payment of a Deposit, or payment in full, in advance of shipment at Company’s sole discretion. The purchase price shall become immediately due and payable and Company may cancel any unfilled portion of a shipment upon Customer's failure to make any payment when due.
6. SECURITY INTEREST: Customer hereby grants to Company a purchase money security interest in each Product delivered hereunder and in proceeds from the sale, exchange, collection, or disposition thereof, until Customer has paid the applicable purchase price in full for such Product. Customer shall, upon request by Company, provide all information and signatures required by Company to perfect such security interest. Company reserves all rights granted to a secured creditor under the Uniform Commercial Code, including the right to repossess upon default by Customer.
7. DELIVERY: Unless otherwise set forth in an applicable quote or order confirmation issued by Company, or otherwise agreed upon by Company in writing, delivery terms are FOB Company’s place of business (Incoterms 2020). Any surcharges levied on Company by suppliers or freight carriers will be charged to Customer. Customer is advised that quoted ship dates are based on estimates at the time of quotation and that Company will devote its commercially reasonable efforts to meeting such schedules; provided, however, Company assumes no liability for additional costs or damages resulting from late deliveries. Unless otherwise agreed by Company in writing, Company may deliver Products in partial shipments or in advance of the specified delivery date
8. ACCEPTANCE: Customer shall inspect the Products as soon as delivered. If no notice of defect is received by Company within five (5) business days of Customer’s receipt of the Products, the Products are irrevocably accepted. If Company determines that the Products are defective and Customer provides notice of such defect within the required period of time, Company may, as its sole obligations and at its option, either correct the Products or substitute the defective Products with non-defective Products.
9. RISK OF LOSS: Unless otherwise set forth in an applicable Order issued by Company, Company shall not be liable for any Product(s) lost, damaged, or destroyed while in transit, and Customer acknowledges and agrees that any risk of such loss, damage, or destruction transfers to, and is assumed by, Customer upon delivery of Product(s) to a common carrier or when otherwise placed in transit.
10. COMPLIANCE: Customer shall comply with (a) all instructions, requirements, and restrictions (if any) set forth in the published specifications for the applicable Product (“Specifications”) which are incorporated herein by reference and (b) all applicable federal, state, and local laws, rules, regulations, including, without limitation, any of the foregoing related to Customer’s storage, use, removal, and disposal of Products and any materials or debris resulting from use of the Products.
11. CUSTOM ORDERS: To the extent that a Product is customized for Customer, Customer agrees to defend, protect, and hold harmless Company against all suits at law or in equity and from any and all damages, claims, and demands for personal injury or actual or alleged infringement of any United States or foreign intellectual property right and to defend any suit or actions which may be brought against Company for such injury and/or any alleged infringement because of the manufacture and/or sale of the material covered thereby. Custom ordered Products shall be described in the Order at or before the time that their manufacture or assembly commences.
12. LIMITED WARRANTY: The sole and exclusive warranties for the Products are set forth in this Section 12.
A. Any Products which are certified as refurbished by the Company (“Refurbished Products”) are subject to a one (1) year limited warranty (“Warranty Period”). If a defect arises during the Warranty Period, the Company shall, at its sole option, in whole or in part, (1) repair the Refurbished Product at no charge using new or refurbished parts or parts that are equivalent in performance and reliability; (2) replace the Refurbished Product with a product substantially equivalent to the original product; (3) refund the original purchase price of the Refurbished Product; or (4) any combination of the foregoing. This warranty does not extend to cosmetic defects or imperfections if such a defect rises during the Warranty Period. This warranty also excludes normal depletion of consumable parts such as batteries and lights, unless failure has occurred due to a defect in materials or workmanship and, damage resulting from abuse, accident, modifications, unauthorized repairs or other causes that are not defects in materials and workmanship.
B. The original manufacturer of a Product may offer a warranty for that Product. The Company is not
responsible for such warranty and any claims made pursuant to that warranty must be directed at the original manufacturer.
C. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 12, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. COMPANY DOES NOT WARRANT THAT THE PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS. EXCEPT AS EXPRESSLY SET FORTH IN THE WARRANTY DOCUMENT NO WARRANTIES ARE MADE BY ANY OF COMPANY’S LICENSORS OR SUPPLIERS. UNLESS OTHERWISE SET FORTH ON COMPANY’S INVOICE, OR OTHERWISE AGREED UPON BY COMPANY IN WRITING, ALL PRODUCTS, INCLUDING THOSE REQUIRED TO MEET EXACT SPECIFICATIONS, SHALL BE SUBJECT TO INDUSTRY STANDARD TOLERANCES AND VARIATIONS.
13. RETURNED GOODS POLICY: All returns are subject to prior authorization of Company, in its sole discretion. All returns (excluding warranty items) are subject to a restocking charge of up to 50%, exclusive of any additional restocking fees which may be charged by the manufacturer of the Product. The amount of such restocking charge may vary based on the extent to which the Product was customized for Customer and the extent to which the Product may be repurposed by Company after the return. The amount of such restocking charge shall be at Company’s sole discretion. Any restocking charges assessed to Company as a result of Customer’s return of the Product shall be passed on to the Customer in full.
14. PROPRIETARY INFORMATION: Company may provide proprietary information to Customer in connection with the Products. Customer agrees that such information shall include all information which Customer knows or reasonably may know is confidential to Company. Such information shall remain the exclusive property of Company, and Customer agrees to preserve and protect such information and to take all other acts reasonably requested by Company with respect to it. Upon Company’s request, Customer will return to Company all documents containing Company’s proprietary information and retain no copies thereof. Customer agrees that its obligation to protect
Company's proprietary information shall be ongoing and shall not cease upon completion or termination of these terms and conditions.
15. ADVICE: Company may provide Customer technical advice regarding the Products, but Company does not control or supervise the subsequent manufacture, fabrication, or installation of its Products or their use after sale and does not warrant or guarantee such advice.
16. INDEMNIFICATION: Customer is solely responsible for its storage, use, removal, and disposal of Products and any materials or debris resulting from use of the Products. To the fullest extent permitted by applicable law, Customer agrees to defend, indemnify, and hold harmless Company, its subsidiaries, affiliates, parents, partners, their successors and assigns, and each of their past and present directors, officers, employees and agents (collectively “Indemnitees”), jointly and severally, from and against any and all losses, damages, liabilities, demands, claims, actions, judgments, charges, court costs, and legal or other expenses, including, without limitation, reasonable
attorneys’ fees and expenses, which Indemnitees may sustain, incur, or become liable for in defending or compromising any suit, action, or other proceeding arising out of, related to, or in any way connected with Customer’s purchase, sale, or use of Product(s), including, but not limited to, (a) Customer’s misuse of such Product(s) or (b) any other acts or omissions, willful misconduct or negligent misconduct, whether active or passive, on the part of Customer; provided, however, Customer shall have no indemnity obligations under this paragraph for any losses, damages, liabilities, demands, claims, actions, judgments, charges, court costs, and legal or other expenses to
the extent caused by the willful misconduct or negligent misconduct of an Indemnitee.
17. LIMITATION OF LIABILITY: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (A) IN NO EVENT WILL COMPANY BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) COMPANY’S TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO ANY PRODUCT SHALL BE LIMITED TO GENERAL MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL AMOUNTS PAID TO COMPANY BY CUSTOMER FOR THE PRODUCT GIVING RISE TO THE CLAIM, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT AGAINST COMPANY. WITHOUT LIMITING AN APPLICABLE WARRANTY, NO ACTION RELATING TO THE PRODUCTS MAY BE BROUGHT BY CUSTOMER MORE THAN ONE YEAR AFTER SHIPMENT. CUSTOMER AGREES THAT COMPANY’S AFFILIATES HAVE NO OBLIGATION OR RESPONSIBILITY IN CONNECTION WITH THE PRODUCTS OR ANY ORDER THEREFORE.
18. EXPORT: These terms and conditions are subject to all laws, regulations, orders, and other restrictions on the export from the U.S. or re-export of the Products. Customer shall not export directly or indirectly any Products to any country for which an export license or other governmental approval is required at the time of export without first obtaining all necessary licenses and approvals. Customer shall hold Company harmless from any liability arising from Customer’s failure to comply with such laws, regulations and orders, or the provisions of this paragraph.
19. FORCE MAJEURE: Company shall not be liable for any delays in making delivery in the event of strikes, differences with workers, or any causes beyond the control of Company, including, but not limited to, fires, floods, accidents, action of any governmental authority, war, insurrection, or riots, or shortages of labor, energy, raw materials, production facilities, or transportation. Where delays or failures of delivery are caused by labor difficulties, Company shall not be obligated to seek or obtain any settlement which, in Company’s sole judgment, is not in Company’s best interest.
20. ARBITRATION: The parties agree that any and all disputes, claims or controversies arising out of or relating to any Product(s) that are not resolved by their mutual agreement (a) shall be brought by a party in such party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding and (b) shall be submitted to final and binding arbitration before JAMS (formerly Judicial Arbitration and Mediation Services), or its successor. The arbitration will be conducted in accordance with the provisions of JAMS’ Comprehensive Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration. The Arbitration shall take place in the city in which Company’s headquarters are located and in the English language. The parties will share equally in the costs of the arbitration. The provisions of this Section may be enforced by any Court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees, and expenses, including attorneys’ fees, to be paid by the party against whom enforcement is ordered.
21. MISCELLANEOUS: Customer acknowledges that is has not been induced to purchase any Product from Company by any representation or warranty not expressly set forth herein. This document constitutes the entire agreement of the parties and supersedes all existing agreements and all other oral or written communication between them concerning its subject matter. None of the terms and conditions contained herein may be added to, modified, superseded, or otherwise altered except by a written document signed by an authorized representative of Company. The paragraph headings contained herein are intended for convenience of reference only and shall not affect the interpretation of any provision. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. These terms and conditions of sale and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the state in which Company is headquartered, without reference to its choice of laws rules that would require the application of the laws of a different jurisdiction.