These Terms and Conditions of Sale are entered into by and between D&D Technologies (USA), Inc. (“D&D”) and the purchaser identified on D&D’s acknowledgement form (“Purchaser”). No order shall be binding upon D&D until acknowledged in writing by D&D. D&D’s written acknowledgement along with these Terms and Conditions of Sale (“T&Cs”) represent the entire agreement (“Agreement”) between D&D and Purchaser and supersede any and all prior oral or written representations or agreements by the parties regarding the subject matter of this Agreement. Purchaser and D&D acknowledge and agree that no representation, inducement, or statement has been relied upon in entering into this Agreement that is not expressly included herein. Any terms contained on any of Purchaser’s own forms that modify, conflict, add to, or are inconsistent with these T&Cs are expressly rejected and of no force and effect. Acceptance is expressly conditional upon Purchaser’s assent to these T&Cs. Purchaser will be deemed to have agreed to these T&Cs upon the earlier to occur of: (i) acceptance of D&D’s quotation, (ii) acceptance of delivery of the Goods (defined below), or (iii) the issuance of a purchase order to D&D. No provision of these T&Cs may be altered or changed except as agreed upon in writing by a duly authorized representative of D&D.
Capitalized terms shall have the meanings set forth in this Section 2 or as otherwise defined in these T&Cs.
"D&D” or “D&D Technologies" means D&D Technologies (USA), Inc. “Goods” means the D&D products identified in a purchase order and confirmed by D&D in a written acknowledgement.
Any advice, recommendation, information, assistance or service provided by D&D Technologies in relation to the application or use of the Goods is given in good faith and is believed by D&D Technologies to be appropriate, but is given without any warranty, liability, or responsibility on D&D Technologies’ part.
Notwithstanding prior quotations or acknowledgement of prices, prices specified for the Goods may, at D&D Technologies’ option, be subject to alteration in accordance with D&D Technologies’ prices and charges in effect at the time of shipment. Written quotations shall only be valid for a period of thirty (30) calendar days, unless otherwise agreed upon by the parties. Quoted prices exclude any sales, excise, municipal, state, or other government taxes. All taxes and other government charges imposed on the production, manufacture, distribution, sale or use of the Goods, to the extent such taxes may be assessed to Purchaser shall be paid by Purchaser to D&D Technologies unless Purchaser provides D&D Technologies with the appropriate exemption certificates acceptable to the relevant taxing authorities.
Payment terms are 1 % 15 days/net 30 days or otherwise agreed in writing by D&D Technologies. Standard payment methods accepted are Checks, ACH direct deposit and bank 2 transfers. Credit card payments are not a standard payment method but Visa and Mastercard transactions (only) will be accepted and will incur a 3% surcharge on the total transaction amount at point of entry. Any past due amounts on invoices shall bear the greater of: (i) interest of 1.5% per month on the outstanding amounts due, or (ii) the maximum interest rate permissible by applicable law. In the event of non-payment by Purchaser on an invoice when due, in addition to any other rights or remedies D&D Technologies may have, D&D Technologies shall also have the right to suspend any further performance or the shipment and delivery of any future Goods under this Agreement or any other agreement with Purchaser until such invoice is paid in full. If any outstanding amounts under a past due invoice go unpaid for more than seven (7) calendar days after Purchaser’s receipt of a written demand for payment from D&D Technologies, then D&D Technologies shall have the option to terminate this Agreement without penalty or prejudice to D&D Technologies’ rights and remedies.
Unless otherwise stated on the invoice or agreed in writing by D&D Technologies the Goods are supplied subject to the specification of tolerances of weight, quantity, size, dimensions, finishes, chemical composition and physical properties as listed in D&D Technologies' published Product Data ruling as at the date hereof (and/or in any drawings issued by D&D Technologies on or before the date hereof in relation to the Goods, or, if not so specified subject to tolerances normally regarded as being commercially acceptable.
The date for delivery (if any) shown on the front of any document is the estimated date for delivery only and D&D Technologies shall not be liable for any loss or damage howsoever arising if the Goods are not delivered by that date. D&D Technologies shall not be liable for any delay or non-delivery that is due to a cause beyond D&D Technologies’ reasonable control, including without limitation: (i) acts of God, (ii) accidents to machinery, (iii) differences with workmen, strikes, or lockouts, (iv) breakdowns, (v) labour shortage, (vi) fires, floods, earthquakes or other acts of nature, (vii) priorities required or requested by any Government or agencies thereof, (viii) delays in transportation, lack of transportation facilities, (ix) restrictions imposed by any laws or (x) any cause beyond the control of D&D Technologies (each, a “Force Majeure Event”). If D&D Technologies suffers a Force Majeure Event, it shall notify Purchaser of such Force Majeure Event, the anticipated duration, and shall use good faith efforts to resume performance as quickly as possible after the Force Majeure Event has concluded. During any Force Majeure Event, the estimated date for delivery shall be extended until the cessation of the effect of such matter or matters.
D&D Technologies reserves the right to deliver the goods in whole or by instalments. As well as to deliver prior to the date of delivery (if any) shown on the invoice. Where the Goods are to be delivered by instalments, each instalment shall be deemed to be sold under a separate contract. Any failure on the part of D&D Technologies to deliver within the time stated shall not entitle Purchaser to repudiate the contract with regard to the balance remaining undelivered.
Unless otherwise agreed upon in writing by the parties, all sales of Goods hereunder shall be Ex Works D&D Technologies’ facility (Incoterms 2020). Risk of loss in the Goods shall, unless otherwise agreed in writing, pass from D&D Technologies to Purchaser or its agent when the Goods are made available to Purchaser’s chosen carrier.
(a.) Ownership of the Goods shall remain with D&D Technologies and D&D Technologies reserves the right to dispose of the Goods until such time as:
(i.) full payment is made for all amounts owing by Purchaser to D&D Technologies under these conditions, or
(ii.) the Purchaser sells the Goods (whether in their original form, or altered, or as part of other products) to its customers in the ordinary course of business.
(b.) if the Purchaser fails to pay all or any part of the Purchaser's total indebtedness to D&D Technologies under these T&Cs, or an Event of Default as specified in Section 11 occurs, D&D Technologies may without notice and without prejudice to any of its other rights and remedies recover and/or resell the Goods or any of them and may enter upon a Purchaser’s premises by its agents for that purpose.
(c.) Until payment in full for all amounts owing by the Purchaser to D&D Technologies under the T&Cs:
(i.) Purchaser shall store the Goods in a way that clearly manifests D&D Technologies' title.
(ii.) Purchaser shall hold the Goods as bailee and is a fiduciary for D&D Technologies: and
(iii.) in the event of sale of the Goods (whether in their original form, or altered, or as part of other products), Purchaser in its position as fiduciary shall:
(a.) assign to the benefit of any claim against the Purchaser; and
(b.) account fully to D&D Technologies for the proceeds of sale.
Each of the following shall constitute an event of default (“Event of Default”): (i) Purchaser’s failure to pay any sum due under this Agreement when it becomes due; or (ii) Purchaser becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. If Purchaser suffers an Event of Default, then:
(a.) D&D Technologies may (without having to give notice thereof to Purchaser) suspend all further deliveries until the Event of Default has been cured or cancel this Agreement or any further contract with regard to future deliveries of Goods.
(b.) D&D Technologies may refuse, change or withdraw extensions of credit at any time, and may demand the immediate cash payment of all moneys owing under this Agreement and any other such contract.
(a.) D&D Technologies warrants that:
(i.) upon payment in full by Purchaser to D&D Technologies, D&D Technologies shall convey good title to the Goods;
(ii.) the Goods delivered pursuant to the Agreement conform to the mutually agreed upon description reflected on D&D Technologies’ written acknowledgement pursuant to Section 1 of these T&Cs and in D&D Technologies published Product Data ruling at the date hereof 4 and/or in any drawings issued by D&D Technologies on or before the date hereof in relation to the Goods, subject to the tolerances referred to in Section 6 of these T&Cs; and (iii.) subject to paragraph (b.) of this Section, the Goods shall be free from defects in material and workmanship, except such defects as are normally regarded as being commercially acceptable, for the periods defined in the Limited Lifetime Warranty and Limitation of Liability document, which is incorporated by reference herein and available at https://us.ddtech.com/pages/warranties or on the D&D Technologies’ website, by product type, from the time of shipment.
(b.) (i.) in the event that (whether before, at the same time as, or after the time of the invoice or the delivery of the Goods) D&D Technologies issues to Purchaser, or a third party at the request of Purchaser, an express written warranty in respect of the Goods these T&Cs shall be read and construed subject to the terms and conditions of the warranty and in the event of any inconsistency, the terms and conditions of that warranty shall prevail.
(ii.) So far as surface coatings (if any) are concerned, D&D Technologies’ warranty is that at the time of delivery of the Goods the properties of such coatings conform with the specification of such coatings as listed in D&D Technologies published Product Data ruling as at the date hereof, and except as provided in any express written warranty as referred to in the preceding paragraph (i.) of this subsection (b) no other representation, condition or warranty is given in respect of the same.
(c.) Remedies
(i.) If Purchaser alleges and provides notice to D&D Technologies that the Goods are non-conforming or otherwise patently defective (e.g. products are broken, incorrect, or delivered in insufficient quantities), and D&D Technologies agrees that any of those Goods do not conform with the warranties set forth in this Section, then, provided that those Goods are preserved intact and available for inspection by a representative of D&D Technologies and are returned to D&D Technologies, where applicable, in the same order and condition as that in which they were delivered, D&D Technologies shall, at its option either: (1) repair or replace the non-conforming goods with conforming Goods, or (2) reimburse the Purchaser for the amount of the purchase price paid for them, provided, however, that such claims regarding patent defects are made within seven (7) days from the date of delivery of those Goods. THE REMEDIES SET FORTH IN THIS SECTION 12 ARE MADE IN LIEU OF ALL OTHER REMEDIES UNDER THE LAW
(d) DISCLAIMER
EXCEPT AS OTHERWISE PROVIDED IN SECTION 12, D&D TECHNOLOGIES MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, REGARDING THE GOODS AND HEREBY DISCLAIMS ANY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES IMPLIED BY VIRTUE OF COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OF TRADE, TRADE PRACTICE, OR OTHERWISE.
(a) In the event that Purchaser modifies or otherwise incorporates the Goods into another product or component, Purchaser agrees to fully defend, indemnify and hold D&D Technologies, including its officers, directors, employees, and representatives harmless, from and against any and all patent, copyright, or other intellectual property claims asserted by a third party, arising out of or in connection with: (i) any Goods made in accordance with Purchaser’s designs, specifications, or drawings; or (ii) any modification or incorporation of the Goods into another product or component that was not provided by or approved in writing for use by D&D Technologies.
(b) Purchaser agrees to fully defend, indemnify and hold D&D Technologies, including its officers, directors, employees, and representatives harmless, from and against, any and all lawsuits, claims, demands for damages, or other proceedings asserted by a third party, arising out of or in connection with: (i) any modification of the Goods by Purchaser that is not preapproved in writing by D&D Technologies; (ii) any incorporation of the Goods into other goods not provided or approved for use by D&D Technologies; (iii) death, personal bodily injury, or property damage caused by an act, omission, or negligence of Purchaser, including its employees or subcontractors, in connection with the use of the Goods in a manner not approved by or authorized in D&D Technologies’ documentation for the Goods giving rise to the claim; or (iv) any violation of this Agreement.
EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS IN SECTION 13, NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ANY OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, SPECIAL DAMAGES, LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, COST OF CAPITAL, LOSS OF GOODWILL, DAMAGE OR LOSS TO REPUTATION, OR ANY OTHER SIMILAR TYPE OF DAMAGES. THE LIMITATIONS IN THIS SECTION 14 SHALL APPLY REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR SOME OTHER THEORY OF LIABILITY AND REGARDLESS OF WHETHER A PARTY WAS WARNED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE. THE ALLOCATION OF RISK IN THIS SECTION 14 IS AN ESSENTIAL TERM OF THE AGREEMENT WITHOUT WHICH THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL D&D TECHNOLOGIES’ TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE PRICE ACTUALLY PAID BY PURCHASER TO D&D TECHNOLOGIES FOR THE GOOD GIVING RISE TO THE CLAIM.
(a.) Alterations, changes, or modifications to orders – whether concerning size, dimensions or physical properties of Goods will not be accepted in regard to orders which are either completed or in production.
(b.) Cancellation of orders - where Purchaser cancels all or part of an order prior to commencement of production of the Goods, it shall pay to D&D Technologies, as liquidated damages. an amount equal to 5% of the price of the cancelled Goods. Where Purchaser cancels all or part of the order after the commencement of production of the Goods Purchaser shall pay the full price of the Goods cancelled, less the current scrap value thereof as determined by D&D Technologies.
c.) Deferment of delivery - where Purchaser requests a deferment of delivery of the Goods & such deferment is agreed to by D&D Technologies, the date to which delivery is deferred shall be deemed to be the date on which delivery is to be made for the purpose of Section 7. From the originally nominated delivery date until the date of actual delivery Purchaser shall pay a warehousing fee as nominated by D&D Technologies.
The failure by D&D Technologies to enforce any of these T&Cs or to take action in respect of any breach shall not be a waiver of any of these T&Cs even if such failure or breach is continuing and habitual or repeated from time to time and no estoppel may be pleaded against D&D Technologies either at law or in equity in any circumstances whatsoever.
In the event that a court or tribunal of competent jurisdiction determines that any term or condition contained herein is illegal, unenforceable, or invalid, such determination shall not effect any other term or condition hereunder, which shall continue in full force and effect.
These T&Cs shall be governed by and construed in accordance with the laws of State of North Carolina, without regard for any conflict of law rules or procedures that would result in the application of the laws of jurisdiction other than North Carolina, U.S.A.. The parties hereto agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to any transaction under the terms of this Agreement.
Purchaser shall not assign, delegate, or transfer this Agreement, whether by operation of law or otherwise, without the prior written consent of D&D Technologies. Any assignment in violation of this Section shall be null and void.
Purchaser shall comply with all applicable laws in connection with its use and/or resale of the Goods. Purchaser shall also comply with all applicable laws and regulations with regard to the supply, sale, transfer, export, re-transfer, or re-export of the Goods, including, but not limited to those relating to trade sanctions and export controls. Purchaser shall not engage in any direct or indirect sales to the following countries, as they may be updated from time to time upon written notice from D&D Technologies: Cuba, Iran, North Korea, Russia, and Syria. In violation of this Section 20 shall be deemed a material breach.