- (Definitions) In these Standard Terms and Conditions, “the Seller” means DURAPAC USA INC. and “the Buyer” means the person described as the customer in any Quotation or Order. Any reference to a “person” includes a corporation. Any reference to “Goods” is to the Goods sold by the Seller to the Buyer pursuant to an acceptance by the Buyer of an Order or Quotation such Goods being as described therein. Any reference to Excluded Goods is a reference to replaceable chisels on DNS-Series Nut Splitters and replaceable blades on HC-Series Cutters. A reference to an “Order” is a reference to an Order placed by the Buyer with the Seller for the purchase of the Goods. A reference to a “Quotation” is to a Quotation made by the Seller setting out the description and quantities of the Goods and the price it will sell those Goods in those quantities to the Buyer. A reference to the “Sellers Specifications” is a reference to the specific instruction manual applicable to any particular item of the Goods. A reference to “Standard Terms and Conditions” is a reference to these Standard Terms and Conditions.
- (Entire Contract) These Standard Terms and Conditions contain the complete agreement between the Seller and the Buyer. No change, amendment or modification of any of the terms or conditions contained herein will be binding unless in writing signed by each of the parties.
- (Limitation of Liability) EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH HEREIN, THE SELLER MAKES NO WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, ORAL OR WRITTEN, WITH RESPECT TO THE GOODS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF: (I) MERCHANTABILITY; (II) FITNESS FOR A PARTICULAR PURPOSE; (III) NONINFRINGEMENT; OR (IV) ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
- (Implied Terms Excluded; No Consequential Damages) All implied terms including warranties in respect to the Goods under any legislation which the parties can by agreement lawfully exclude are hereby excluded. Seller shall not be liable to the Buyer for any indirect, incidental, special, exemplary, punitive or consequential damages of any nature whatsoever, including mental or emotional distress, diminution in value, loss of profits, business opportunities, incurred by the Buyer, whether in an action in contract, tort, breach or otherwise, even if such party has been advised of the possibility of such damages.
- (Claims for Breach) Subject to clause 7 any claim for breach of contract must be commenced by the Buyer within one year from the date of delivery of the Goods.
- (Place of Delivery) Unless otherwise specified, delivery of the Goods shall be Ex Works (INCOTERMS® 2020) at the Seller’s warehouse where the Goods are stored.
- (Warranty) The Seller warrants that the Goods that it sells under the brand name “DURAPAC” shall be free of manufacturing and material defects for a period of three years from the date of sale. In the case of all other Goods, the Seller warrants that the Goods shall be free of manufacturing and material defects for a period of one year from the date of sale. This warranty does not apply to any defect, damage or repair to the Goods where such defect, damage or repair is a direct or indirect consequence of any modification to the Goods, misuse of the Goods or accident in which the Goods are damaged. A misuse of the Goods shall include but not be limited to any use of the Goods outside of the Seller’s Specifications. This warranty shall only oblige the Seller, at the Seller’s absolute discretion to repair the Goods, replace the Goods or provide to the Buyer the parts required in order to repair the Goods. All transport costs to and from the Seller’s designated workshop shall be borne by the Buyer.
- (Excluded Goods) The Seller gives no warranties to the Buyer in respect to the Excluded Goods. Both parties acknowledge that these are consumable items that require periodic replacement, the frequency of which depends on usage.
- (Quotations) All prices quoted by the Seller are for immediate acceptance by the Buyer and shall automatically lapse if not accepted within thirty days of the Quotation being made, and are subject to any specific terms as set out in the Quotation. Upon the acceptance of a Quotation by the Buyer, there is a binding contract between the Seller and the Buyer for the sale of those Goods that are the subject of the Quotation and these Standard Terms and Conditions shall apply to that contract. Any acceptance of a Quotation can be made by email, facsimile or by mail and shall be deemed given upon the sending of the email, the facsimile or five (5) days after the mailing, as the case may be.
- (Orders) If an Order is placed by the Buyer on the Seller for Goods identified in that Order and that Order is accepted by the Seller, there is a binding contract between the Seller and the Buyer for the sale and purchase of those Goods and these Standard Terms and Conditions shall apply to that contract. The applicable price shall be the price contained in any current price list then published by the Seller for those Goods. If there is no current price list for those Goods, the price shall be the price nominated by the Seller in its acceptance of the Order. Any acceptance can be made by email, facsimile or by mail and shall be deemed given upon the sending of the email, the facsimile or five (5) days after the mailing, as the case may be.
- (Price and payment) The Buyer must pay for the Goods in accordance with the terms for payment set forth in the Seller’s invoice and within the time specified therein for payment (the due date). Unless otherwise specified in the invoice, all Goods must be paid for within thirty (30) days from the date of invoice. If the Goods are not paid for by the due date, the Seller may suspend all other deliveries until such payment is made. The Seller may also change the terms of payment in respect to all other deliveries of Goods including requiring payment before delivery.
- (Interest) The Seller may charge interest on all amounts not paid by the Buyer in accordance with the Seller’s Invoice. Interest will be calculated daily from the due date for payment until the date payment is received at the lesser of rate of 1% per month or the maximum rate allowed by law.
- (Lien) Until the Goods are paid for in full, as security for its payment and other obligations hereunder, the Buyer hereby grants to the Seller a purchase money security interest in all of the Goods that the Buyer purchases on credit and that are delivered to the Buyer hereunder and all proceeds thereof and therefrom. The Seller may, at its sole discretion, file a financing statement or similar document in the personal property registry of any jurisdiction in which unpaid Goods are located from time to time in order to perfect its purchase money security interest. The Buyer hereby waives any requirement to receive a copy of any financing statement, verification statement, or financing change statement filed by the Seller.
- (Property in Goods) The Buyer acknowledges that title in the Goods delivered by the Seller to the Buyer does not and will not pass to the Buyer until the Seller has received full payment for those Goods. Notwithstanding that title in the Goods has not passed to the Seller, risk of any damage to or destruction of the Goods passes to the Buyer upon delivery of the Goods to the Buyer or the Buyer’s nominated carrier. The Buyer undertakes to keep the Goods clearly identified as the property of the Seller and separate from any other goods until they are paid for. The Buyer may deal, sell or trade with the Goods in the normal course of its business provided the Buyer continues to comply with these Standard Terms and Conditions. If the Buyer fails to pay the Seller for the Goods by the due date then in addition to all other remedies which the Seller may have, the Seller may retake possession of the Goods and for that purpose, the Seller and its representatives are irrevocably authorized by the Buyer, upon reasonable notice but without legal process, to enter upon any premises where the Goods may be stored or located to retake possession of them and remove them from such premises. The Buyer indemnifies the Seller against any loss, liability or damage it might directly or indirectly sustain as a consequence of taking possession of the Goods.
- (Carriage and Transportation) The price of the Goods includes all costs of usual packaging but does not include carriage and transportation of the Goods from the Seller’s warehouse to the Buyer’s nominated place of delivery. If the Buyer requires any particular packaging to be used, the Buyer must bear the costs of such packaging.
- (Urgent delivery) If urgent delivery of the Goods is required, the Buyer must bear all the costs involved in facilitating the urgent delivery, including (without limitation) all urgent courier and transportation costs and all overtime costs (if any) incurred by the Seller.
- (Delay) While the Seller will use commercially reasonable efforts to deliver the Goods by any particular date or time in the Quotation or Order, the Seller is not and will not be liable to pay any compensation or damages to the Buyer or any other person caused by any delay in delivering the Goods by any particular date or time stated in the Quotation or Order which date or time the Buyer acknowledges is an estimate only. The Buyer may not cancel this contract because of any delay in delivery of the Goods if the Goods are delivered within forty-five days of the date for delivery stated in the Quotation or Order or where the delay in delivery is caused by any circumstances that is beyond the reasonable control of the Seller.
- (Taxes and Charges) The Buyer shall pay any and all duties, tariffs, import, excise, personal property, sales, or use taxes and any other taxes which may be payable in connection with sales of the Goods, except for taxes imposed upon Seller’s net income.
- (Cancellation of uncompleted orders) If the Buyer fails to make any payment by the due date the Seller may, irrespective of any other rights or remedies which the Seller may have, suspend delivery on any uncompleted Orders from the Buyer and unilaterally cancel any obligation of the Seller to later perform any unperformed obligations under any contract with the Buyer. Refusal to deliver any Goods in accordance with this clause will not be considered a breach of any contract by the Seller.
- (Force Majeure and Acts of God) In the event of acts of God, public enemy, government of any country, embargoes, fires, floods, explosions or other catastrophes, epidemics, pandemics or quarantine restrictions, closure order, strikes or other labor stoppages, slow-downs or disputes, unavailability of equipment or materials, or any other cause beyond the control of such party, whether foreseeable or non-foreseeable (each, a “Force Majeure Event”), which renders impossible or delays the performance of any of the obligations of the Seller, but expressly excluding Buyer’s obligation to pay its debts as they come due, the Seller shall be excused the performance of the relevant obligation or obligations upon notifying the Buyer in writing, giving an explanation of the Force Majeure Event in question, and using commercially reasonable efforts to mitigate the effects of the Force Majeure Event.
- (Conflicts with the Buyer’s Terms and Conditions of Sale) Any terms and conditions contained in an Order, Buyer’s special terms and conditions, or any similar document of the Buyer which vary, amend or supplement the terms and conditions herein shall be null and void and of no effect. Acceptance of a Quotation, the placement of an Order by the Buyer, or, in any other instance (where there is no Quotation or Order) the acceptance of delivery of the Goods by the Buyer shall constitute acknowledgement by the Buyer that these Standard Terms and Conditions contained prevail over any other terms and conditions of the Buyer, but only to the extent that they are inconsistent with these Standard Terms and Conditions.
- (Governing Law) The contract formed by acceptance of these Standard Terms and Conditions of sale will be governed in accordance with the laws of the State of Delaware without regard to conflict of law principles thereof. Any dispute arising under or in connection with these Standard Terms and Conditions or the sale of the Goods is to be exclusively brought before the federal or state courts located in Illinois.
- (Notices) Any notice under this Agreement must be:
- in writing, signed and delivered to the party to whom it is addressed at the address of that party set out in this agreement or at such other address as may be notified by that party in writing from time to time;
- may be served personally on the party to whom it is addressed or may be delivered by mail or sent by facsimile transmission to that person.
