Published May 1, 2020
1. Parties. “Seller” means DMX Supply, LLC, a Michigan limited liability company. “Buyer” means the entity or person submitting the purchase order to Seller.
2. Application. These Terms and Conditions of Sale define the relationship of Buyer and Seller and apply to all sales of equipment, parts, supplies, materials, or other personal property (individually and collectively, “Equipment”) by Seller to Buyer. Buyer acknowledges and agrees that these Terms and Conditions of Sale are incorporated in, and are a part of, each quotation, purchase order, invoice, release, requisition, work order, shipping instruction, specification, and any other document, whether expressed verbally, in written form or electronic commerce, relating to the sale of Equipment by Seller to Buyer (these documents are collectively referred to as the “Agreement”).
3. Pricing. Prices for Equipment and other related information shown in any Seller or manufacturer product publication, including but not limited to catalogs, brochures, and websites, are subject to change without notice. Prices do not include related freight charges to Buyer’s door, tariffs, import fees, duties, use tax, sales tax, excise tax, value-added tax, or similar taxes, or charges of any nature whatsoever imposed by any governmental authority unless otherwise expressly noted by Seller.
4. Quotation Expiration. Written quotations are valid for a period of 3 days unless otherwise noted by Seller. Seller will have the right to withdraw any quote that has not been accepted by Buyer within the 3-day time period.
5. Taxes. Prices quoted do not include (and Buyer shall pay) all taxes and fees of any kind that may be levied or imposed on either party by federal, state, municipal, or other governmental authorities in connection with the sale or delivery of the Equipment by Seller with the exception of Seller’s income tax obligations arising out of the sale of the Equipment. All amounts due for taxes and assessments will be added to the customer’s invoice and are the responsibility of the customer. No tax exemption will be granted unless the customer’s “Exemption Certificate” (or other official proof of exemption) accompanies the purchase order. If, after the customer has paid the invoice, it is determined that more tax is due, then the customer must promptly remit the required taxes to the taxing authority or immediately reimburse DMX for any additional taxes paid.
6. Order Acceptance. Acceptance of orders is subject to credit approval and contingencies such as fire, water, strikes, theft, vandalism, acts of God, and other causes beyond DMX’s control. Cancelled orders require compensation for incurred costs and related obligations.
7. Specifications. Quotes are provided according to the specifications provided by client to DMX.
8. Terms. Payment Terms are 50% at time of PO placement with DMX and 50% upon delivery unless otherwise agreed to with DMX in writing. Any amounts due by Buyer to Seller that are unpaid on or after 30 days of Seller’s invoice will bear interest at the rate of 5% per month or the maximum rate permitted by law, whichever is less. The accrual or payment of any interest as provided above will not constitute a waiver by Seller of any rights and remedies in connection with a default by Buyer. Buyer will pay all court costs, attorney fees, and other costs incurred by Seller in collecting past-due amounts, including interest.
If shipment or delivery of Equipment is delayed by or at the request of Buyer, payment will remain due upon original due date agreed upon by the Parties. In such event, Seller may impose, and Buyer shall pay, storage charges and other incidental expenses incurred by Seller as a result of the delay in addition to any interest on late payments as described above.
9. Inspection and Acceptance. Buyer will have 7 days from the date of delivery to inspect the Equipment for defects and nonconformance and to notify Seller, in writing, of any defects, nonconformance, or rejection of the Equipment (other than defects or nonconformities due to damage, shortage, or errors in shipping that will be reported as set forth below). Claims for shipping damage, errors, or shortages must be made in writing to Seller no more than 7 days after receipt of shipment. After this period, Buyer will be deemed to have irrevocably accepted the Equipment, if not previously accepted. After acceptance, Buyer will have no right to reject the Equipment for any reason or revoke acceptance. Claims for damage due to shipping must be made by Buyer to the freight carrier.
10. Security Interest. As security for payment of all amounts due to Seller, Buyer grants to Seller a security interest in all Equipment sold by Seller to Buyer, and Seller will have all rights of a secured party under the Uniform Commercial Code with respect to the Equipment. Buyer appoints Seller as its attorney-in-fact with authority, at Seller’s option, to take actions as Seller deems reasonable in the circumstance to perfect the above security interest in any one or more jurisdictions, and Buyer shall pay all applicable filing fees.
11. Limited Warranty—Disclaimer of Warranties. The warranty obligations of Seller for Equipment sold by Seller will in all respects conform and be limited to the warranty extended by the manufacturer of the Equipment, if transferable. The sole remedy available to Buyer with respect to defects in the Equipment will be against the manufacturer under any applicable manufacturer’s warranty to the extent available to Buyer. TO THE EXTENT THE MANUFACTURER WARRANTY IS NOT TRANSFERABLE TO BUYER, SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO OR IN ANY WAY RELATING TO THE EQUIPMENT, WHETHER BASED ON BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
If Equipment is resold by Buyer, Buyer will include in its agreement for resale provisions that limit recoveries in accordance with the Agreement. In case of Buyer’s failure to include in any agreement for resale the terms providing for such limitations, Buyer will indemnify and hold Seller harmless against any liability, loss, cost, damage, or expense (including reasonable attorney fees) arising out of or resulting from the failure.
IN NO EVENT WILL SELLER BE LIABLE OR RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR EXPENSE OCCASIONED BY THE USE OF DEFECTIVE EQUIPMENT.
BUYER ASSUMES FULL RESPONSIBILITY THAT THE EQUIPMENT PURCHASED UNDER THE AGREEMENT MEETS THE SPECIFICATIONS AND/OR INTENDED USE OF BUYER, AND SELLER MAKES NO REPRESENTATION WITH RESPECT TO THEM.
12. Delivery. Any delivery dates or other schedule of performance by Seller are approximations, and the sole obligation of Seller with respect to the schedule of delivery or performance will be to use commercially reasonable efforts to deliver the Equipment, or otherwise to perform, consistent with the reasonable demands of its business. In any event, Seller will have no liability to Buyer or any other person for delays in performance due to strikes or labor disputes of any type; accidents, fire, floods, acts of God, or actions by governmental authorities; acts, omissions, or delays of Buyer or any other third party; shortages of labor; or without limitation of the above, for any causes reasonably beyond the control of Seller.
13. Title and Risk of Loss. Title to and risk of loss or damage to the Equipment will pass to Buyer on delivery by Seller F.O.B. (a) Seller’s facility, (b) Seller’s supplier’s facility when Equipment is shipped directly from the manufacturer, or (c) as otherwise specifically indicated in the Agreement.
14. Compliance with Laws. Buyer will be responsible for compliance with any and all federal, state, or local laws or regulations respecting safety or respecting use of the Equipment and shall indemnify and hold Seller harmless from and against any and all claims of violations of laws or regulations or other claims of personal injury or property damage directly or indirectly related to the installation, maintenance, or operation of the Equipment.
15. Export Control. Equipment supplied by Seller may be subject to various export laws and regulations. It is the responsibility of the exporter to comply with all laws and regulations. Notwithstanding any other provision to the contrary, if federal, state, or local law requires export authorization for the export or re-export of any Equipment or associated technology, no delivery can be made until export authorization is obtained, regardless of any otherwise promised delivery date. If any required export authorization is denied, Seller and Seller’s supplier will be relieved of any further obligation relative to the sale and delivery of the Equipment subject to denial without liability of any kind relative to Buyer or any other party. Seller will not comply with boycott-related requests except to the extent permitted by federal law and then only at Seller’s discretion.
16. Return of Equipment. All returns will be pursuant to Seller’s instructions. Buyer must contact Seller for a Return Authorization (RA) before returning any Equipment. All returns must reference the RA number along with the original invoice number and the reason for return. Non-warranty returns of normal stock products that are unused and are in resalable condition will be subject to Seller’s return policies in effect at the time, including applicable restocking and transportation charges and other conditions of return.
17. Cancellation or Termination. In the event of cancellation of the Agreement by Buyer, or in the event of default under the Agreement by Buyer that is not cured within 30 days after notice by Seller, Buyer will pay to Seller on demand all direct and indirect costs (including, without limitation, all applicable restocking or cancellation charges, including reimbursement for direct costs assessed by the manufacturer) incurred directly or indirectly by Seller in connection with the Agreement, all as reasonably determined by Seller, plus any profit to be negotiated with Buyer. In no event, however, will any amount payable by Buyer under the Agreement exceed the total price payable by Buyer for the Equipment.
18. Changes. Seller reserves the right from time to time to correct any typographical or clerical errors, including errors in mathematical computation, that may exist in the Agreement.
19. Technical Support. Unless otherwise specifically provided on the quotation or invoice, the Agreement does not include any services of Seller in connection with installation, testing, or evaluation of the Equipment. Seller will, however, consistent with its capabilities and subject to scheduling acceptable to Seller, make available to Buyer, at Buyer’s expense, technical support services relating to the Equipment at the rates then imposed by Seller, together with any out-of-pocket expenses to Seller in connection with the technical support. The sole remedy of Buyer in connection with any acts or omissions of Seller in the provision of technical support will be the provision of further technical support to Buyer reasonably required to correct the act or omission.
20. Modifications and Waiver—Entire Agreement. Neither party has rights, warranties, or conditions expressed or implied, statutory or otherwise, other than those contained in the Agreement. The Agreement contains the entire agreement between Seller and Buyer and can be modified or rescinded only by a writing signed by both parties. No waiver of any provision of the Agreement will be binding unless in writing signed by an authorized representative of the party against whom the waiver is asserted, and unless expressly made generally applicable, will apply only to the specific case for which the waiver is given. Failure of either party to insist on strict performance of the Agreement will not be construed as a waiver of any term or condition of the Agreement.
Any document submitted by Buyer to Seller confirming its intention to purchase Equipment described in the Agreement (purchase orders or releases) will be deemed to constitute a confirmation and acceptance of the Agreement, even if the document states terms in addition to or different from those in the Agreement. All agreements between Seller and Buyer will be solely under the terms and conditions of the Agreement and these Terms and Conditions of Sale, and Seller objects to any and all additional or different terms contained in any document submitted to Seller by Buyer. Any execution by Seller of any other document submitted by Buyer in connection with the purchase of Equipment does not constitute acceptance of or agreement to any terms and conditions in addition to or different from those contained in the Agreement and these Terms and Conditions of Sale, but will constitute only acknowledgment of receipt of the document. In addition, notwithstanding any terms contained in any documents submitted by Buyer in connection with the purchase of Equipment described under the Agreement, the acceptance of delivery by Buyer of Equipment described in the Agreement will constitute a course of conduct constituting Buyer’s agreement to the terms and conditions of the Agreement and these Terms and Conditions of Sale, to the exclusion of any additional or different terms and conditions.
21. Governing Law / Venue. The Agreement will be governed by and construed in accordance with the laws of the State of Michigan. The exclusive venue for any dispute shall be Courts of competent jurisdiction sitting in Kalamazoo County, Michigan and Buyer expressly agrees to the appropriateness of this venue.
22. Authority. Each signatory represents that it has all requisite authority to execute the Agreement on behalf of its principal and that the Agreement is fully enforceable against the principal in accordance with its terms.
Published May 1, 2020
STANDARD TERMS AND CONDITIONS FOR PURCHASE ORDERS
1. Acknowledgment. Seller shall acknowledge this Purchase Order via return mail, email or facsimile transmission with complete delivery Information. Acknowledgment or commencement of performance by Seller shall constitute acceptance of all terms and conditions stated herein. Conditions stated by Seller in its quotation, acknowledgment or otherwise shall not affect DMX's offer as represented by this Purchase Order, and shall not be binding on DMX if in conflict with or in addition to any of the provisions of this Purchase Order unless expressly agreed to in writing by DMX.
2. Quality. All goods must conform to specifications stated herein or to DMX's standard specifications in all respects, or, if no specifications are stated, the goods must be of the best quality. Goods are subject to inspection and approval within a reasonable time after receipt, and any rejected goods may be returned at Seller's expense, including transportation and other charges and expenses paid by DMX. In connection therewith, any Purchase Order by Seller is hereby objected to and shall not be binding on DMX.
3. Shipment Notice of Shipment shall be sent to designated addresses the same day goods are shipped, giving Purchase Order number, description of goods, transportation used and identification. All goods are sold FOB DMX's facility, unless otherwise specified on the face hereof. All expenses and risk of loss for any damagesincurred in the transportation of the goods to the place of destination or storage of the goods at the place of destination Including any risk of loss of loading or unloading shall be borne solely by Seller.
4. Packing. All packages shall be clearly marked with Purchase Order number, also showing gross, tare and net weights. Seller shall package the purchased goods such that they arrive free from damage and in such condition as to permit reasonable handling and 6 months storage under normal environmental conditions with detrimental effects to such goods. No charges will be paid by DMX for packing or storage unless herein stated.
5. Deliveries. If Seller fails to deliver goods of the quality or within the time specified, DMX at its option may cancel this Purchase Order and refuse to accept such goods or any undelivered portions; and in addition to other legal equitable remedies, DMX may purchase the goods elsewhere and charge Seller for any loss incurred.
6. Changes. DMX reserves the right to change quantities, specifications and delivery dates, or to terminate the Purchase Order in Its entirety. Price difference resulting from such changes shall be equitably adjusted in writing. Seller shall not ship excess quantities without written permission.
7. Prices. If Seller's quoted prices for the goods covered hereby are reduced (whether as a price reduction, rebate, allowances or additional discounts offered to anyone) prior to shipment, Seller agrees that the price to DMX for such goods will be reduced accordingly, and that DMX will be billed at such reduced rates. Seller certifies that the prices herein are not higher than prices being charged to other purchasers of similar goods at this particular time and do not discriminate against DMX. Seller shall pay any taxes or duties on the goods unless otherwise agreed.
8. Terms of Payment Terms of payment are as specified herein unless otherwise agreed to in writing by DMX. Any discount will be calculated from the date an acceptable invoice is received.
9. Representations as to Factory Warranties. Seller warrants and represents that it understands and agrees that DMX is a reseller of goods and not the ultimate buyer and use of the goods. Accordingly, Seller warrants and represents that any factory warranty, including without limitation any repair or replacement warranties, which accompanies the goods, and any customer support which is provided by Seller and available to a buyer, shall not be invalidated by DMX selling or transferring the goods on to the ultimate buyer and that any such factory warranties and customer support may be relied upon and utilized by the ultimate buyer as though they were purchasing the goods directly from Seller.
10. Warranty. Seller warrants all goods supplied hereunder (i) to be free from defect of materials or workmanship, (ii) to conform strictly to the specifications or sample furnished, and (iii) to not infringe any U.S. patent, trademark or copyright. Seller warrants any services provided hereunder to be provided consistent with the highest professional or industry standards and using the best efforts and all of the skill, knowledge and experience of Seller. This warranty shall survive any inspection, delivery or acceptance of the materials or services, or payment therefor, by DMX.
11. Indemnification by Seller. Seller shall defend, indemnify and hold harmless DMX and its officers, employees and agents from any claims, damages or expenses, including reasonable attorney's fees, arising or alleged to arise from (1) the Infringement of any valid U.S. patent or copyright due to the production or use of any of the goods, (ii) any asserted deficiencies or defects in the goods, (Iii) Seller's failure to adequately mark the goods or containers therefor with any warnings or other notices required by any federal state or local law, or administrative rule or regulation, (iv) any damage to property or injury to persons (including death) arising from or in connection with the use of the goods; (v) the breach of any terms or conditions stated herein, or (vi) any act or omission of Seller, irrespective of whether such claim, damage or expense is caused, or alleged to be caused, in whole or in part by the joint, several comparative, but not sole, negligence, breach of contract or warranty, or any other breach of duty by DMX or whether such claim, damage, or expense is asserted under a strict or other product liability theory or any other legal theory. Seller shall be liable to DMX for all consequential or Incidental damages (including lost profits) incurred by DMX.
11. Insurance. Seller shall maintain products liability insurance coverage for DMX's benefit in the amount of $10,000,000, naming DMX as an additional insured and providing 30 days prior written notice from the insurer of any termination or reduction in coverage. At DMX's request, Seller shall furnish to DMX a certificate of such insurance. Seller's purchase of appropriate insurance coverage shall not release Seller of its obligations or liabilities. In the event of Seller's breach of this provision, DMX shall have the right to cancel the undelivered portion of any goods or services covered by this Purchase Order and shall not be required to make further payments except for conforming goods delivered or service rendered prior to cancellation.
12. Applicable Laws. Seller warrants full compliance with all applicable laws, rules and regulations of any competent governmental authority covering the production, sale, delivery and installation of the goods supplied hereunder including, but not limited to, the provisions of the Fair Labor Standards Act of 1938, as amended and the Occupational Safety and Health Act of 1970, as amended.
13. Seyerabiljty. In the event that any provision of the Purchase Order shall be found to be invalid or unenforceable, the remaining portions shall remain in full force and effect as if the invalid or unenforceable portion were not part hereof. Should the severance of any portion hereof affect a material right or obligation of a party, the party so affected may terminate this Purchase Order.
14. Assignments. Seller shall not assign this Purchase Order or any interest herein without DMX's written consent.
15. Waiver. Failure of either party to enforce at any time any of the provisions of this Purchase Order, irrespective of any previous action or proceeding taken by it, shall in no way be considered (i) to waive such provisions, (ii) to affect the validity of this Purchase Order, or (iii) to preclude or prejudice the party from exercising the same or any other rights it may have hereunder.
16. Contract. This Purchase Order constitutes a final expression of the agreement between Seller and DMX with respect to the subject matter hereof, and is a complete and exclusive statement of the terms of such agreement, superseding any and all other oral or written arrangements, representations, or communications by or between Seller and DMX relating to the subject matter hereof. This Purchase Order shall be governed by the laws of the State of Michigan, notwithstanding any state's choice of law rules to the contrary. Seller consents and agrees that any action brought to enforce this contract, or for any breach hereof, or for any defect or deficiency of the goods to be delivered, shall be brought solely in state or federal court sitting in Kalamazoo, County, the State of Michigan, United States of America and Seller consents and submits to the jurisdiction of such court.