STANDARD TERMS AND CONDITIONS
These Standard Terms and Conditions apply to any sale of products, equipment, parts, materials and related services (the “Products”) by 800DPF.com (“800DPF.com”) to a 800DPF.com customer (the “Customer”) and acceptance of these Standard Terms and Conditions is an express condition of such a sale.
These Standard Terms and Conditions, the quotation (the “800DPF.COM Quotation”) and/or order confirmation (the “800DPF.COM Order Confirmation”) issued by 800DPF.COM in respect of each supply of Products and any other document expressly incorporated by reference by 800DPF.COM in a 800DPF.COM Order Confirmation (collectively, the “Agreement”) constitute the entire agreement between 800DPF.COM and the Customer regarding a sale of Products by 800DPF.COM to the Customer and supersede all other discussions, proposals, negotiations, statements, representations, understandings and the like, whether written or oral. 800DPF.COM rejects any differing or supplemental terms which may be printed or otherwise found in any purchase order or other document sent by the Customer, except as expressly accepted by 800DPF.COM by the signature of an authorized representative. Unless otherwise specifically and expressly set forth in writing by a duly authorized representative of 800DPF.COM, if there are inconsistencies in the documents constituting the Agreement, such documents shall take precedence in the following order: (i) these Standard Terms and Conditions, (ii) the 800DPF.COM Order Confirmation, and (iii) the 800DPF.COM Quotation or other contract document incorporated by reference by 800DPF.COM in the 800DPF.COM Order Confirmation.
Terms of Payment. Unless otherwise agreed by 800DPF.COM in writing, 800DPF.COM invoices for the Customer’s purchase of Products are payable within thirty (30) days of the date of the invoice. Should payment of any amount owing to 800DPF.COM under the Agreement not be made to 800DPF.COM when due, such payment shall bear interest at the rate of one and one-half percent (1½%) per month or the maximum rate allowed by law, whichever is lower. The charging of such interest shall not be construed as obligating 800DPF.COM to grant any extension of time in the terms of payment. No cash discount shall be available to the Customer. If prior to any delivery of Products, 800DPF.COM has concern regarding timely payment of the purchase price because of a material adverse change in Customer’s circumstances or otherwise, 800DPF.COM may require payment of all or additional parts of the purchase price before shipment or delivery and/or 800DPF.COM may require satisfactory security for the payment of the purchase price.
Title Retention. Title or ownership of the Products shall not pass to the Customer, notwithstanding delivery thereof, but shall remain vested in 800DPF.COM until the purchase price of the Products is paid in full. As security for the full payment of the purchase price of the Products, the Customer hereby grants to 800DPF.COM, and 800DPF.COM hereby reserves, a purchase money security interest and charge in the Products and in all substitutions, replacements and additions thereto and the proceeds thereof. Until such time of full payment, the Customer shall: (a) insure the Products against loss, damage or destruction for full replacement value; and (b) execute such additional documents as 800DPF.COM requests for the confirmation or perfection of 800DPF.COM’s ownership or security interest and charge. Upon default by the Customer, and subject to applicable law, 800DPF.COM may repossess and deal with the Products as it sees fit and retain all payments which have been made by the Customer on account of the purchase price as partial damages. Upon any such realization of security, the Customer shall remain liable for any deficiency in the purchase price and shall reimburse 800DPF.COM for all costs and expenses, including reasonable legal fees, incurred in enforcing its rights. All rights and remedies of 800DPF.COM are cumulative and in addition to those available at law or in equity.
Risk of Loss. Unless otherwise specified or confirmed in the 800DPF.COM Order Confirmation, the risk of loss or damage to the Products including any repaired or replaced items, and the responsibility for the payment of insurance premiums and freight passes to the Customer upon 800DPF.COM’s delivery of such Products to the Customer’s carrier as provided in Section 4. No loss or damage to the Products or any portion thereof shall relieve the Customer from its obligations hereunder.
Limited Warranties. 800DPF.COM warrants that each Product is free of defects in material and workmanship strictly in accordance with the terms and conditions of the limited warranty statement specified or confirmed in the applicable 800DPF.COM Quotation or 800DPF.COM Order Confirmation at the time of purchase (the “Product Warranties”). Additional copies of Product Warranties are available from 800DPF.COM upon request.
No Other Warranties. THE LIMITED PRODUCT WARRANTIES REFERRED TO IN SECTION 11 ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS IN RESPECT OF THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY OTHER WARRANTIES ARISING BY OPERATION OF LAW, COURSE OF DEALING, TRADE USAGE, REPRESENTATION, STATEMENT OR OTHERWISE. THE REMEDIES PROVIDED IN THE APPLICABLE PRODUCT WARRANTY ARE THE CUSTOMER’S SOLE REMEDIES FOR ANY FAILURE OF 800DPF.COM TO COMPLY WITH ITS WARRANTY OBLIGATIONS. Applicable law may not allow exclusions of implied warranties, so the above exclusions may not apply.
Limitation of Liability. 800DPF.COM SHALL NOT UNDER ANY CIRCUMSTANCE BE LIABLE TO ANYONE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS AND LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT 800DPF.COM WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. IN NO EVENT SHALL 800DPF.COM BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS. 800DPF.COM’S MAXIMUM TOTAL CUMULATIVE LIABILITY FOR ANY REASON SHALL NOT EXCEED THE AGGREGATE PURCHASE PRICE FOR THE APPLICABLE PRODUCTS SUPPLIED UNDER THE AGREEMENT. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. CUSTOMER HAS ACCEPTED THE DISCLAIMER OF WARRANTIES IN SECTION 12 AND LIMITATION OF LIABILITY IN THIS SECTION 13 AS PART OF A BARGAIN WITH RESPECT TO THE PRICING OF THE PRODUCTS AND UNDERSTANDS THAT THE PRICING WOULD BE HIGHER IF 800DPF.COM WERE REQUIRED TO BEAR LIABILITY IN EXCESS OF THAT STATED HEREIN. 800DPF.COM neither assumes nor authorizes any person, firm or entity to assume for 800DPF.COM any other additional liability or responsibility in connection with the Products, including any affirmation, representation, or warranty concerning the Products made by an agent, employee, or representative of 800DPF.COM.
Indemnification. Customer shall defend, indemnify and hold harmless 800DPF.COM, its officers, directors, agents, employees, successors, assigns and other customers against any and all losses, liabilities and expenses (including all legal fees) or judgments arising from or in connection with any claim made or action brought as a result of (a) the use, storage, sale, processing, or other disposition of the Products sold to such Customer under the Agreement, or the action or inaction of Customer or, if applicable, its employees, customers, or agents, which may cause injuries or damage giving rise to claims against 800DPF.COM, or (b) an alleged infringement arises out of Customer’s use of the Products or incorporation of the Product(s) as components into any other product.
Intellectual Property. Neither Customer, nor its affiliates (nor their respective successors, assigns, licensees or other transferees) shall enforce (or attempt or purport to enforce) against 800DPF.COM or its affiliates, (sub)licensees, manufacturers, and distributors any existing or future patent that claims (or purports to claim) any or part of the Products or the use, design, manufacturing, layout and packaging thereof. This nonassertion covenant shall be a covenant that transfers with any sale, license or other disposition or grant of rights under the applicable patent rights.
Re-sale of Products. Without limiting the generality of anything set forth in the Agreement, in respect of any re-sale of the Products or sale of any product which incorporates a Product as a component, the Customer shall indemnify, defend and hold harmless 800DPF.COM, its officers, directors, agents, employees, successors, assigns and other customers against any and all claims, actions, losses, liabilities and expenses (including all legal fees) or judgments arising from or in connection with a representation or warranty for the Products, including in their capacity or use as a component part of other products, made by the Customer, other than as limited by the applicable Product Warranties, or arising from an allegation of patent infringement relating to Customer’s product(s) in which the Products are used as a component part.
Force Majeure. 800DPF.COM is excused from the timely performance of its obligations in the sale or other supply of Products if its performance is impeded or prevented by circumstances beyond its control (a “Force Majeure Event”) and 800DPF.COM is taking all reasonable steps to mitigate the effect of the delay. Following the occurrence and the termination of a Force Majeure Event, 800DPF.COM shall provide the Customer with written notice and reasonable particulars of the Force Majeure Event. Either party may terminate any Agreement affected by a Force Majeure Event if such circumstances continue for more than six (6) months. Upon and notwithstanding any such termination, the Customer shall pay 800DPF.COM for that portion of the Products manufactured or delivered prior to the date of the abovementioned initial notice of the Force Majeure Event. Notwithstanding anything in this Section 19, the Customer shall extend any security granted for the payment of the purchase price of Products for a period equal to the delay caused by the Force Majeure Event.
Confidential Information. Customer shall not disclose proprietary or confidential business or technical information disclosed by 800DPF.COM or related to any Products to any third parties and shall not use such information for its own benefit or for any purpose other than for the express purpose for which it was disclosed as set forth in writing by 800DPF.COM at the time of disclosure.