1. ACCEPTANCE OF TERMS
All sales by D3 Industrial Products, INC and its subsidiaries and affiliates (“D3”) to Buyer of the units of products specified in the document to which these Terms Of Sale are attached (the “Products”) will be governed by these terms and conditions (these “Terms of Sale”). If the terms and conditions of any offer from Buyer or any other buyer document differ from these Terms of Sale, these Terms of Sale shall be construed as a counteroffer and will not be effective as an acceptance of Buyer’s terms and conditions, which are hereby rejected. THESE TERMS OF SALE SHALL BE THE COMPLETE AND EXLUSIVE STATEMENT OF THE TERMS OF AGREEMENT BETWEEN BUYER AND D3. Buyer’s failure to dissent to these Terms of Sale in writing within five (5) days of receipt thereof or buyer’s acceptance of the Products shall constitute acceptance of these Terms of Sale. No addition to or modification of these Terms of Sale will be effective unless made in writing signed by D3.
2. QUOTATION AND PRICES
Unless otherwise stated in writing by D3, all prices included on any quotation issued by D3 shall be exclusive of shipping, insurance, taxes, license, fees, customs duties and other charges related thereto, and Buyer shall pay all such charges related thereto; provided that, if D3, in its sole discretion, chooses to pay any such charges, buyer shall reimburse D3 therefor in full upon demand.
Except as otherwise specified, all payments are due and payable in U.S. dollars within thirty (30) days from the invoice date. D3 reserves the right to require alternative payment terms, including, without limitation, a letter of credit, cash on delivery, credit card payment, or payment in advance. Payments not made by the due date may incur, at the sole discretion of D3, a late payment service charge of the lesser of one and one-half percent (1-1/2%) per month or the maximum rate permitted by law, computed from the date of payment was due. If, for any reason, this invoice becomes delinquent, Buyer, or his agent, agrees to pay all costs of collection, including, but not limited to, reasonable attorney fees and legal costs. Buyer agrees to waive any objections to venue and agrees to submit to a court of competent jurisdiction selected by D3.
Shipping and delivery dates are estimates only, and in no event shall D3 be liable for any delay in delivery or assume any liability in connection with shipment. All Products shall be delivered F.O.B. D3’s place of shipment. Shipment costs shall be prepaid by Buyer if requested by D3.
ALL PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED ARE MADE WITH RESPECT TO THE PRODUCTS, INCLUDING BUY NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. D3 DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE PRODUCTS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE AND DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. D3 EXPRESSLY DISCLAIMS ANY WARRANTIES NOT STATED HEREIN.
6. LIMITATION OF LIABILITY
It is the sole obligation and responsibility of the Buyer of the Products to determine the character of the merchandise and to select suitable Products for the purpose intended. To the extent not prohibited by applicable law: (a) D3’s aggregate liability to Buyer from claims related to the Products, whether for breach or in tort, including negligence, is limited to the amounts Buyer has paid to D3 for the Products; and (b) D3 WILL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THESE TERMS OF SALE, THE PRODUCTS OR THE SALE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE OR NON-PERFORMANCE OF THE PRODUCTS (INCLUDING, BUT NOT LIMITED TO, REPLACEMENT COSTS OR LOSS OF BUSINESS, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE), HOWEVER THEY ARISE, WHETHER FOR BREACH OR IN TORT, INCLUDING NEGLIGENCE, EVEN IF D3 HAS BEEN PREVOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The parties acknowledge that if D3 provides the Products to Buyer, it does so in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. Liability for damages will be limited and excluded as set forth in this paragraph, even if any exclusive remedy provided for in these Terms of Sale fails of its essential purpose.
7. RETURN/CANCELLATION POLICY
At D3’s discretion and when written approval has been given, Buyer may return unwanted Products within thirty (30) days of the delivery date. Buyer shall pay a twenty five percent (25%) restocking charge on any unwanted Products returned to D3. Where custom goods or non-stock goods are involved, Buyer shall be responsible for all related work in progress; however, D3 shall take reasonable steps to mitigate damages upon receipt of written cancellation notice from Buyer. A Return-Goods-Authorization (RGA) number must be obtained from D3 prior to any return of Products.
All Products delivered hereunder shall be deemed accepted by Buyer, unless written notice of defect or nonconformity is received by D3 within ten (10) days of receipt of Products at Buyer’s designated receiving address; provided that Buyer may only reject Products for failure to meet the Products specification. It is the responsibility of Buyer to inspect goods upon receipt and make notations on the Bill of Lading as to nonconformity or dispute of quantities of Products received by Buyer prior to signing the Bill of Lading.
9. ACKNOWLEDGEMENT/GOVERNING LAW
Buyer acknowledges reading these Terms of Sale, understands them and agrees to be bound by them. A waiver of any provision of this agreement shall not be construed as a waiver or modification of any other term hereof. With respect to all orders accepted by D3, disputes arising in connection with these Terms of Sale shall be governed by the laws of the State of California at the election of D3 without regard to principles of conflicts of laws.