24. These Conditions and the Contract shall in all respects be subject to and construed in accordance with English law.
NORTH AMERICAN TERMS OF SALE
A. The following constitute the standard terms and conditions of sale (the “Terms of Sale”) of DORTEK Inc. (“DORTEK”) and are exclusive and in lieu of all other terms and conditions appearing on Customer’s purchase order or elsewhere and apply to all quotations made and all orders accepted by DORTEK for the sale of DORTEK products (“Products”). These Terms of Sale comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, and communications, both written and oral. These Terms of Sale prevail over (i) any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order and/or (ii) terms or conditions implied by trade, custom, practice or course of dealing. Customer’s acceptance is strictly limited to these Terms of Sale. Fulfilment of Customer’s order for Products does not constitute acceptance of any of Customer’s terms or conditions (including, without limitation, any different or additional terms) and does not serve to modify or amend these Terms of Sale.
B. The parties have not relied on any statement, representation, warranty or agreement of the other party or of any other person on such party’s behalf, including without limitation, any representations, warranty or agreement of the other party or of any person on such party’s behalf, including any representations, warranties, or agreements arising from statute or otherwise in law, except for the representations, warranties and agreements expressly contained in the Terms of Sale.
C. No purported variation to these Terms of Sale or any subsequent variation shall be binding on DORTEK unless agreed in writing by a Board Member / Director of Dortek Inc.
D. If Customer has not countersigned the DORTEK order confirmation, than acceptance of the Products (even if later rejected by the Customer in accordance with these Terms of Sale) shall constitute agreement by the Customer to these Terms of Sale.
1. Performance. Performance of any order received by DORTEK is expressly conditioned upon acceptance of such order by DORTEK management. DORTEK employees not in a management role are not authorized to accept orders or make any representations or warranties concerning the Products unless confirmed in writing by DORTEK management. Customer acknowledges that it does not rely on any such representations which are not so confirmed.
2. Orders and Cancellations.
A. All orders placed with DORTEK must be in writing by Customer or in electronic form. All orders should include shipping address, requested delivery dates, quantities and complete description of Products being purchased, as well as Customer’s name, contact name, address, email address, telephone number and fax number. Orders will be a binding contract only when received and accepted by confirmation in writing by DORTEK. Customer shall be responsible for ensuring the accuracy of the information submitted to Customer in any order acceptance by DORTEK.
B. Customer orders requiring an export license will not be accepted until the export license has been obtained. Orders requiring a Letter of Credit will not be accepted until the Letter of Credit is received (unless otherwise negotiated prior to order acceptance and confirmed in writing by DORTEK managment) and meets DORTEK’s standard terms for a Letter of Credit. No production will begin until payments terms are agreed upon in writing by DORTEK management.
C. Customer shall be responsible for ensuring the accuracy of the information submitted to Customer in any order acceptance by DORTEK. Customer shall have 24 hours from receipt of DORTEK’s order confirmation to make any corrections or changes. Failure to do so shall constitute acceptance of DORTEK’s order confirmation.
D. Delivery dates may not be rescheduled without DORTEK’s written approval.
E. No Product order which has been accepted by DORTEK may be cancelled in whole or in part without the written agreement of DORTEK. In addition to applicable cancellation charges described in paragraph F below, Customer shall indemnify DORTEK in full against all loss, costs, damages, charges and expenses incurred by DORTEK as a result of cancellation.
F. If DORTEK agrees in writing to cancel Customer’s order, DORTEK may assess Customer cancellation charges of 20% of the contract price for cancellation of any order or part thereof for (i) standard Products that can readily be resold to DORTEK’s other customers, or (ii) for custom or specially made Products, only if the order is cancelled before DORTEK begins performance. Once DORTEK begins performance on a custom or specially made Customer order, DORTEK’s cancellation charges may include: x) the contract price for all completed Products; and y) with respect to non-completed Products, an equitable charge as determined by DORTEK based upon all costs (including but not limited to cost of materials purchased, labor, storage charges, handling, freight, duties and, taxes, and any destruction or recycling costs) incurred by DORTEK in performance of Customer’s order to the date of cancellation and that DORTEK will thereafter reasonably incur as a result of such cancellation, plus a cancellation fee of 20% of the contract price for such Products, not to exceed in total the contract price. Customer shall pay all cancellation charges due within thirty (30) days of invoicing by DORTEK.
A. The prices of the Products are those specified on DORTEK’s quotation or confirmation of Customer’s order or, if no price is so specified, those in DORTEK’s Price List current at the time of DORTEK’s acceptance of an order. Quotations are valid for 90 days only, after which time they may be altered by DORTEK without notice to Customer. All prices printed in DORTEK’s price list or quoted to individual Customers are subject to change without notice.
B. Prices include standard packaging. Extra charges will be added for special packaging and/or for expediting delivery.
C. Prices for Products do not include any federal, state or local taxes, or other governmental charges, which, when applicable, will be invoiced additionally and which Customer shall pay to DORTEK.
A. Buyer agrees to make payment within thirty (30) days of the date of invoice. Notwithstanding any agreement by Dortek to use Buyer’s form of Purchase Order or otherwise, the foregoing payment terms shall apply to the exclusion of any inconsistent provision contained in Buyer’s order or acknowledgment. Any contract made for the sale of goods by Dortek is expressly conditioned on Buyer’s acceptance of the foregoing. For orders with multiple delivery dates, DORTEK may invoice Customer and Customer shall pay for each delivery separately and each delivery shall be considered a separate and individual contract.
B. If Customer fails to make any payment on the due date, DORTEK shall be entitled to:
(i) terminate the contract with Customer, and any other contracts for sales of Products with Customer, with immediate effect and/or suspend any further deliveries to Customer;
(ii) charge Customer interest on the amount unpaid computed on a daily basis from the due date until paid in full at the rate of one and one-half percent (1 1/2%) per month or the maximum rate permitted by law, whichever is less; and/or
(iii) extend the time for delivery of any additional Products by the same period as the payment was late.
C. DORTEK reserves the right to establish and/or change credit and payment terms extended to Customer when, in DORTEK’s sole opinion, Customer’s financial condition or previous payment record warrants that action.
D. Customer is responsible for and shall pay all costs, fees and expenses, including reasonable attorneys’ fees and the fees of collection agencies, incurred by DORTEK in enforcing any of the terms, conditions or provisions hereof or in protecting DORTEK’s rights herein or with respect to past due Customer accounts.
A. Delivery of the Products will be made in accordance with the delivery address included on DORTEK’s acceptance of a Customer order. Time and date for delivery shall not be of the essence unless previously agreed by DORTEK in writing.
B. Unless otherwise agreed to in writing by DORTEK, all prices quoted or printed in DORTEK’s Price List are F.O.B. DORTEK’s premises or those of DORTEK’s supplier or, with respect to imported goods, F.O.B. United States point of shipment.
C. Customer agrees that all freight, express and delivery charges shall be paid by Customer and shall not be subject to discount. c. If DORTEK has agreed in writing with Customer to arrange for shipping of Products, DORTEK will select the carrier in the absence of specific instructions by Customer and all shipments shall be freight collect, unless otherwise agreed in writing by DORTEK.
D. In no event shall DORTEK be liable for any delay in delivery nor shall the carrier be deemed an agent of DORTEK.
6. Risk of Loss; Transfer of Title.
A. Risk of damage to or loss of the Products shall pass to Customer at the time of delivery to the address stated in DORTEK’S acceptance of a Customer order, or, if Customer wrongfully fails to take delivery of the Products, at the time DORTEK has tendered delivery of the Products.
B. Notwithstanding delivery and the passing of risk in the Products or any other provision of these Terms of Sale, title to the Products shall not pass to Customer until DORTEK has received in cash or cleared funds payment in full of the purchase price for the Products delivered to Customer. Until such time as title to the Products passes to Customer, Customer shall hold the Products as DORTEK’s agent and shall keep the Products separate from those of Customer and third parties and properly stored, protected and insured and identified as DORTEK’s property. The Customer shall still be entitled to sell or use the Products in the ordinary course of its business, but shall immediately account to DORTEK for the proceeds of sale of the Products, including any insurance proceeds.
C. Until such time as the title to the Products passes to Customer (and provided the Products are still in existence and have not been resold), DORTEK shall be entitled at any time to require the Customer to deliver up the Products to DORTEK and to enter upon the premises of Customer or any third party where the Products are stored and repossess the Products.
D. Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of DORTEK but if Customer does so, all monies owing by Customer to DORTEK, shall (without prejudice to any other right or remedy of DORTEK) shall become immediately due and payable.
E. Customer shall not be entitled to withhold payment of any amount payable to DORTEK under any contract because of any disputed claim of the Customer in respect of defective Products or any other breach of contract claim nor shall Customer be entitled to set off against any amount payable under the contract any monies which are not then presently payable by DORTEK for which DORTEK disputes liability.
6. Inspection and Acceptance; Returns.
A. Customer shall have the right to inspect the Products at the time and place of delivery before paying for or accepting them.
B. The Products shall be deemed accepted by Customer unless notice of defect or shortage is received within thirty (30) days of shipping and defective Product is returned to DORTEK within sixty (60) days of shipping. If Customer fails to notify DORTEK in accordance with this Section 6(B), DORTEK shall have not liability for such defect or shortage and Customer shall be bound to pay for the Products in full as if the Products had been delivered in accordance with the contract.
C. Returned Products must be in their original packaging and be in new condition. No Products, other than defective Products, may be returned to DORTEK without DORTEK’s prior written authorization. Customer shall be responsible for all costs associated with the return of Products if the Products are found to be within specification. Otherwise, DORTEK will bear the return cost. Customer shall be responsible for any damage to returned Products resulting from handling by Customer with less than due care.
7. Limited Warranty and Liability
A. Subject to the limitations and conditions set out below, DORTEK warrants to Customer that at the time of delivery all Products will conform to specifications and will be free from defects in material workmanship for a period of 12 months, 365 days, unless otherwise provided in writing by DORTEK management. This warranty is subject to the following conditions:
(i) DORTEK shall have no liability in respect of any defect in the Products arising from any drawing, design or specification supplied by Customer or the failure of Customer to correctly install the Products in accordance with DORTEK’s installation guidelines;
(ii) DORTEK shall have no liability in respect of any defect arising from normal wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow DORTEK’s instructions with respect to the Products, misuse or alternation or repair of the Products, without DORTEK’s approval;
(iii) DORTEK shall have no liability under the above warranty (or any other warranty) if the Products have not been paid for in full by the due date; and
(iv) Customer will be deemed to have waived any warranty claim unless written notice of such claim is given to DORTEK promptly but in any event not later than thirty (30) days from date of discovery of such breach of warranty.
B. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 7(A), DORTEK MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY WARRANTY OF MERCHANTABILITY, OR WARRANTY FOR FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
C. In the event of any valid, timely claim that the Products do not conform to the contract, DORTEK shall be entitled, at DORTEK’s option, to repair or replace the Product or refund to Customer the purchase price paid for the Product. To the fullest extent permitted by law, DORTEK shall have no further liability to Customer.
D. DORTEK’S ENTIRE AND AGGREGATE LIABILITY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT, WHETHER FOR INFRINGEMENT, BREACH OF WARRANTY OR CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE SHALL NOT EXCEED THE PURCHASE PRICE PAID TO DORTEK FOR THE PRODUCTS PURCHASED UNDER THIS AGREEMENT. DORTEK SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OR DAMAGE INCURRED AS A RESULT OF LOSS OF TIME, LOSS OF BUSINESS OR GOODWILL, OR LOSS OF PROFITS, FOR ANY CLAIM MADE IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, THE PRODUCTS, OR THE SALE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE OR NON-PERFORMANCE OF THE PRODUCTS, OR OTHERWISE.
7. Ownership of Production Tooling, Materials and Equipment, No license granted.
A. Unless otherwise agreed in writing, all material, equipment, facilities, and tooling used in the manufacture of the Products purchased by any Customer order shall remain the property of DORTEK.
B. If Products are to be manufactured, or any process is to be applied to the Products by DORTEK in accordance with specifications submitted by Customer, Customer shall indemnify DORTEK against all loss, damage, costs and expenses awarded against or incurred by DORTEK in connection with settlement of any claim for infringement of any patent, copyright, design, trademark or other intellectual property rights of any other person which results from DORTEK’s use of the Customer’s specifications.
C. DORTEK shall not be responsible for any Customer furnished materials or tooling damaged during processing or manufacturing.
E. DORTEK’s supply of Products to Customer does not in any way convey or grant to Customer any license or right to make, have made or use the Products or any additional products (whether or not identical to the Products supplied by DORTEK).
8. Indemnification. To the fullest extent permitted by law, Customer agrees to indemnify and hold harmless DORTEK, its officers, directors, agents, employees and partners (collectively “Indemnitees”) from any and all claims, suits, damages, liabilities, professional fees, including attorney’s fees, costs, court costs, expenses and disbursements (collectively, “Damages”) incurred by any of the Indemnitees arising out of or relating to (i) Customer’s breach of this agreement; (ii) Customer’s use of the Products from and after delivery to Customer; and (iii) claims of bodily injury (or death) or tangible property damage, except to the extent arising entirely from the gross negligence or wilful misconduct of DORTEK.
9. Assignment. Customer’s purchase order shall not be assigned in whole or in part by either party without the written consent of the other party, except that DORTEK may assign its rights, liabilities and obligations arising out of Customer’s purchase order to one or more of its subsidiary or affiliated companies.
10. Statute of Limitations. No claim or cause of action by Customer arising from this Agreement may be brought at any time more than twelve (12) months after the facts occurred upon which the claim or cause of action arose.
11. Export Control. Customer shall be responsible for complying with all applicable U.S. export laws, regulations and treaties relating to export or re-export of the Products. Customer will indemnify and hold DORTEK harmless for any claims, penalties, fines, damages or costs to DORTEK arising from Customer’s failure to comply with this provision.
12. Governing Law. The construction, interpretation and performance of this Agreement and all transactions under it shall be governed by the laws of the State of Delaware excluding any of its conflict of laws provisions. DORTEK and Customer specifically exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.
13. Choice of Forum. Any and all claims or actions challenging the validity, interpretation or performance of this Agreement shall be brought in the state or federal courts located within the State of Delaware and the parties hereby consent to the personal jurisdiction and venue of such courts with respect to such claims or actions. Notwithstanding the foregoing, DORTEK may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged or anticipatory breach of DORTEK’s proprietary rights.
14. Force Majeure. Except for the payment of money due and owing, neither party shall be held responsible for any delay or failure in performance of any part of this Agreement to the extent that delay or failure is caused by causes beyond its reasonable control (“Force Majeure Conditions”), including, but not limited to, fire, flood, explosion, war, strike, embargo, government requirement, civil or military authority, act of God, act or omission of carriers or other similar causes and, with respect to DORTEK, inability to reasonably obtain necessary labor, materials, components or manufacturing facilities. If any Force Majeure Condition occurs, the party delayed or unable to perform (“Delayed Party”) shall give immediate notice to the other party (“Affected Party”), and the Delayed Party, upon giving prompt notice to the Affected Party, shall be excused from performance under this Agreement for the duration of the Force Majeure Condition; provided, however, that the Delayed Party shall take all reasonable steps and cooperate with the Affected Party to avoid or remove the cause of non-performance and shall resume performance hereunder with dispatch when the Force Majeure Condition ceases. If the Force Majeure Condition does not cease within sixty (60) days, the Affected Party may terminate this Agreement. If Force Majeure Condition cause shortages in DORTEK’s supply of Products or materials necessary to produce the Products, DORTEK may, without obligation to obtain similar products or such materials from other sources, first satisfy its own requirements and the requirements of its divisions, subsidiaries and affiliates for such materials and Products and then allocate the remainder among its customers in a manner and amount that, in DORTEK’s sole judgment, is fair and reasonable.
15. Non-Waiver. No course of dealing or failure of either party to strictly enforce any term, right or condition of this Agreement shall be construed as a waiver of that term, right or condition.
16. Enforceability. If any provision of these Terms of Sale are held to be invalid or unenforceable by a court or other body of competent jurisdiction, such invalidity of unenforceability shall not affect the validity or enforceability of the remainder of the Terms of Sale and the invalid or unenforceable provision shall be replaced by a legally valid and enforceable provision coming closest to achieving the same result (to the maximum legal extent) as the invalid or unenforceable provision.