DIVERSIFIED PLASTICS, INC.’S (“SELLER”) ORDER ACKNOWLEDGEMENT
TERMS & CONDITIONS
SELLER’S ACCEPTENCE OF ANY OFFER BY BUYER IS EXPRESSLEY CONDITIONED ON BUYER’S ASSENT TO SELLER’S TERMS AND CONDITIONS AS SET FORTH IN THIS ORDER ACKNOWLEDGEMENT. NOTIFICATION OF OBJECTION TO ANY TERMS AND CONDITIONS CONTAINED IN BUYER’S OFFER WHICH ARE DIFFERENT THAN THOSE CONTAINED IN THIS ORDER ACKNOWLEDGEMENT IS HEREBY GIVEN. BUYER’S ACCEPTANCE OF GOODS FURNISHED BY SELLER PURSUANT TO THIS ORDER ACKNOWLEDGMENT SHALL BE DEEMED ASSENT TO THE TERMS AND CONDITIONS CONTAINED HEREIN.
- Acceptance of Offer:Seller’s acceptance of any offer by any Buyer is expressly conditioned on Buyer’s assent to the Terms & Conditions (“T&C”) set forth herein. Notification of objection to any T&Cs provided by Buyer is hereby given. Buyer’s acceptance of any goods furnished by Seller pursuant to this Order Acknowledgment shall be deemed as assent to the T&Cs contained herein. No change in these T&Cs shall be valid unless agreed to in writing by Seller.
- Delivery:Buyer expressly acknowledges and agrees that all deliveries of Seller’s goods shall be subject to Seller’s manufacturing schedule and lead time/ordering requirements. Seller shall have no responsibility for meeting delivery deadlines imposed by Buyer’s customers, resellers, or any end users and no liability associated with such delivery deadlines. Buyer shall be responsible for all of Seller’s restocking costs and expenses associated with any cancelled orders.
- Transportation & Packaging:All goods shall be delivered FOB Shipping Point. Risk of Loss shall transfer to Buyer upon transfer to any common carrier. Buyer shall be responsible for all transportation and packaging expenses and costs.
- Acceptance of Goods:Buyer shall be deemed to have accepted all goods delivered by Seller seven (7) days after delivery of same unless Buyer rejects same in writing within said seven (7) day inspection period. Seller shall have no obligation with respect to goods accepted by Buyer after said seven (7) day inspection period other than pursuant to the limited warranty set forth herein.
- Price & Payment:The price payable for Seller’s goods shall be the price accepted by Seller pursuant to this Order Acknowledgment or the average price charged by Seller for identical goods on the open market, whichever is higher. The terms and conditions of Seller’s sales to other merchants shall have no bearing on the price owed by Buyer under this P.O., unless used to compute the average open market price. Payment by Buyer shall be due in accordance with the terms set forth in this Order Acknowledgement.
- Indemnification:To the fullest extent permitted by law, the Buyer agrees to defend, indemnify, and hold harmless Seller from and against all claims, actions, awards, damages, costs, expenses (including reasonable attorneys’ fees) arising out of or related to the use, resale, or modification of the goods sold by Seller, expressly including any claims or actions asserted by any third-party customers of Buyer or end users, regardless of whether such claims, actions, awards, damages, costs, or expenses are caused in part by a party indemnified hereunder. This provision is in addition to and does not waive, release, or alter any other indemnification right Seller has against any Buyer. Buyer’s obligations hereunder shall continue until all matters for which indemnification and defense are required are finally adjudicated.
- Limited Warranty:The sole warranty obligation of Seller under these T&Cs shall be to repair or replace, or have its authorized dealer repair or replace, any defective products within forty-five (45) business days of a rejection of Seller’s goods, issued in writing, to Seller. Except as expressly provided herein, Seller shall not be liable for the breach of any warranty, express or implied, including without limitation any warranty of merchantability or fitness for a particular purpose, of for any damages or other liability arising out of or in connection with Buyer’s use of any goods supplied hereunder, or Seller’s, or its authorized representatives, designing, manufacturing, or supply of such goods. In no event shall Seller be liable for any direct, special, incidental, or consequential damages, including without limitation, lost sales or profit, lost production or output, supply chain damages, interest, finance charges, injury to property or reputation, or any other damages whether arising in contract or tort or otherwise (whether or not attributable to the fault or negligence of Seller). Under no circumstances shall any recovery of any kind against Seller be greater in amount than the price of the goods furnished pursuant to the individual contract for which this Order Acknowledgement was given.
- Dispute Resolution:Any controversy or claim may at the Seller’s sole election be required to be submitted to arbitration. If the Seller elects arbitration, it will direct Buyer to file that arbitration with the AAA in Missoula, Montana and the matter shall be arbitrated by a single arbitrator. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. This Article shall be specifically enforceable by any court of competent jurisdiction. Should Seller not elect to require arbitration, any dispute shall be resolved by a Court of competent jurisdiction sitting in Missoula, Missoula County, Montana. Any contract between Seller and Buyer shall be governed by and construed in accordance with the laws of the State of Montana, without regard to any conflict of laws principals.
- Insurance:Seller shall have no obligation, of any kind, to provide any type of insurance for the benefit of Buyer. To the extent that Seller carries any insurance providing coverage applicable to this contract, Seller shall be the sole insured and/or beneficiary of such insurance policy or policies and Buyer hereby acknowledges that it shall have no claim under any policy or policies carried by Seller.
- Cancellation/Changes:Buyer may cancel or make changes to the order that is the subject of this Order Acknowledgement, provided that such cancellation/changes are received by Seller in writing prior to any goods being released for manufacturing. Buyer shall be responsible and liable for all direct costs and expenses incurred by Seller for any cancellation/changes that are incurred after any goods are released for manufacturing. Buyer shall always remain liable for the price of any goods actually manufactured in accordance with this Order Acknowledgment.
- Termination/Default:Seller may terminate any contract with Buyer, for any reason, with or without fault, by issuing a sixty (60) day written notice of termination. Upon expiration of such termination period, Seller shall have no further obligation to Buyer of any kind, including, without limitation, no obligation to accept additional orders or manufacture additional goods. In addition to the foregoing right of termination, Seller may terminate its relationship with Buyer immediately upon any of the following events of default: i) Buyer’s insolvency, ii) Buyer’s filing a voluntary Petition of Bankruptcy, iii) the filing of an involuntary petition to have the Buyer declared Bankrupt, iv) the appointment of a Receiver or Trustee of Buyer, v) the execution by Buyer of an Assignment for the Benefit of Creditors; vi) the failure of Buyer to pay amounts invoiced by Seller within sixty (60) days of Seller’s invoice or within forty-five (45) days of Seller’s demand for payment, whichever occurs first. Buyer shall be liable for all of Seller’s direct, indirect, or consequential damages, including attorneys’ fees, arising out of or relating to a termination for any of the causes set forth herein.
- Consequential Damages:Buyer hereby waives any and all claims for any consequential damages, including without limitation, lost sales or profit, lost production or output, supply chain damages, interest, finance charges, injury to property or reputation, or any other damages whether arising in contract or tort or otherwise (whether or not attributable to the fault or negligence of Seller).
- Waiver:The failure of Seller to enforce any of these terms and conditions shall not act as a waiver against future enforcement and Buyer acknowledges and expressly agrees that Seller shall at all times be entitled to enforce each and every provision of these terms and conditions, even if it has not done so previously.
- Severability:In the event that any statutory provision or other law applicable to this contract renders any of these terms and conditions unenforceable, such unenforceable provision shall be deemed removed, the governing law shall be applied, and the remainder of these terms and conditions shall be construed as if the invalid clause, section, or provision had never existed.
- Patent/Copyright:Buyer hereby warrants that it has all legal and intellectual property rights required to place the order for the goods to be manufactured by Seller and to utilize such goods. To the fullest extent permitted by law, Buyer hereby agrees to defend and indemnify Seller from all claims, liability, costs or expense, (including, without limitation, court costs and reasonable attorneys’ fees) arising out of or related to any alleged infringement of any patent, copyright, or trademark rights in the goods ordered by Buyer or manufactured by Seller.
*Any additional terms and conditions contained in Seller’s catalogue are expressly incorporated herein by reference, but only to the extent they are not inconsistent with the foregoing terms and conditions.
LIMITED WARRANTY DISCLAIMER & EXCLUSIONS
The Seller warrants that the Goods and/or Service will be free from defects in material and workmanship for a period of three months from date of their initial use or six months respectively from delivery, whichever is the first to expire.
The sole obligation of Diversified Plastics, Inc. under this Limited Warranty shall be to repair or replace or have its Authorized Distributor repair or replace any defective products within 45 business days of a complaint communicated in writing to Diversified Plastics, Inc. Except as expressly provided herein, Diversified Plastics shall not be liable for the breach of any warranty, express or implied, including without limitation any warranty of merchantability or fitness for a particular purpose, or for any damages or other liability arising out of or in connection with customers’ use of supplier products or Diversified Plastics or the authorized distributor designing, manufacturing or selling supplied products. In no event shall Diversified Plastics be liable for direct, special, incidental or consequential damages, including without limitation lost sales or profit, lost production or output, injury to property or reputation, or any other damages whether arising in contract or tort or otherwise (whether or not attributable to the fault or negligence of Diversified Plastics). Under no circumstances shall any recovery of any kind against Diversified Plastics be greater in amount than the price of the products and/or service to the end user.
NOTE: Products that have been modified and/or altered from their original state without express, written consent of a Diversified Plastics representative shall void this and any other warranty written or expressed. All returned materials shall be evaluated by Diversified Plastics engineering and sales staff prior to credit and rework. Product being returned for evaluation must include a valid “Returned Goods Authorization” number (RGA#).
To the fullest extent permitted by law, the Purchaser of any products described herein agrees to defend, indemnify, and hold harmless Diversified Plastics, Inc. from and against all claims, actions, awards, damages, costs, expenses (including reasonable attorneys’ fees) arising out of or related to the use, resale, or modification of such products sold by Diversified Plastics, Inc., expressly including any claims or actions asserted by any third-party customers of the original Purchaser from Diversified Plastics, Inc., regardless of whether such claims, actions, awards, damages, costs, or expenses are caused in part by a party indemnified hereunder. This provision is in addition to and does not waive, release, or alter any other indemnification right Diversified Plastics, Inc. has against any Purchaser of its products. Purchaser’s obligations hereunder shall continue until all matters for which indemnification and defense are required are finally adjudicated.
We cannot anticipate all conditions under which this information and our products, or the products of other manufacturers in combination with our product, may be used. We accept no responsibility for results obtained by the application of this information or the safety and stability of our products, either alone or in combination with other products. Users are advised to make their own tests to determine the safety and suitability of each such product or product combination for their own purposes, unless otherwise agreed in writing.