1. By requesting that DMT provide certain services (“Services”) on the goods of the customer (“Goods”), customer agrees that these Terms and Conditions of Sale & Limited Warranty (“Terms”) shall apply notwithstanding any contrary provisions contained in any document delivered by customer to DMT, including, without limitation, any purchase order, shipping document or acknowledgment form provided by customer, even if such documents contain language mandating that the provisions contained in such documents override any contrary provisions contained in these Terms. By paying DMT’s invoices for Services, customer agrees that these Terms shall apply to Services covered by said invoice and that no provision stated herein shall be modified by any provision in any document presented by customer at any time. Should DMT accept an offer by customer for the performance of Services, DMT’s acceptance is expressly conditioned on agreement by customer to these Terms.
2. Charges for the Services are due net 30 days from date of billing without any right of set-off unless otherwise mutually agreed, in writing, and signed by customer and an authorized representative of DMT prior to the time Services are rendered. DMT reserves the right on any past due accounts to (i) place past due accounts on C.O.D. status, (ii) suspend performance of any order for the customer and/or withhold delivery of any of the customer’s Goods, (iii) exercise other remedies provided herein, by credit agreements between customer and DMT, if any, and/or as otherwise permitted by law, and/or (iv) to charge interest at the lesser of the maximum legal rate permitted by law or 18% per year until paid in full. Additionally, DMT shall be entitled to recover its costs, including reasonable attorney fees, to collect any amounts owed by the customer and for any action brought to enforce or interpret the terms hereof. All quotes by DMT are open for acceptance within three months from the date issued.
3. DMT warrants that it will perform Services in a good and workmanlike manner in accordance with the order agreed with the customer and that such Services will be free from material defect. It is the duty of the customer to inspect Goods immediately upon their return, and all claims under these Terms must be reported prior to the earlier of (i) 90 days following the delivery of the Goods to the customer, or (ii) the time that the Goods are put to use or sold to others and before any further processing, assembling or other work has been done on said Goods (“Warranty Period”). All claims for breach of warranty must be submitted in writing to DMT within the Warranty Period. All warranties are void if (i) Goods are misused, abused, or modified following delivery thereof to the customer, (ii) Goods are improperly or incorrectly stored after delivery to or collection by customer, or (iii) customer has made any use of Goods after it first discovers (or should have reasonably been able to discover) that such Goods were damaged, defective or the subject of incorrect Services. DMT makes no warranty, either expressed or implied, that goods serviced by DMT are merchantable or fit or suitable for any particular use or purpose. DMT makes no other warranty, express or implied, except as is expressly stated herein. All other warranties are rejected.
4. DMT shall not be liable for any special, indirect, incidental, consequential or liquidated damages in connection with Services to Goods or for the breach of any of the obligations owed to customer. Customer recognizes that there are certain hazards involved in Services performed by DMT. Accordingly, in the event legal liability of DMT is established for any cause or reason whatsoever, including, without limitation for breach of warranty, the sole and exclusive liability of DMT and the exclusive remedy of
customer shall be for DMT, at its sole option, to re-perform Services to Goods at no charge or to provide customer with an amount equal to customer’s documented direct and actual damages, provided such damages shall not exceed two times the amount of the original charges for the Services to the Goods that gave rise to the liability (first, to reimburse for the charges and secondly, as full payment for all damages sustained by customer or damaged person whether actual, general, incidental, indirect, punitive, consequential, special or otherwise). DMT also reserves the right to issue credit memos to customer for any monetary warranty or other obligations owed to customer. All charges are net of any applicable taxes. Unless otherwise stated, all quoted prices are F.O.B. DMT. DMT quotations are based on information supplied by customer. Should any information be altered by customer at any time, DMT reserves the right to alter its quotation accordingly. All work is accepted subject to “Terms and Conditions of Sale and Limited Warranty of Darby Metal Treating, Inc.”.
5. DMT assumes no obligation to perform any type of metallurgical or laboratory testing of the Goods for hardness, cracks, tensile strength, elasticity or otherwise; as all such testing is the sole responsibility and obligation of the customer unless a duly authorized representative of DMT has certified in writing that it has performed such tests separately. DMT shall have no liability for alleged shortage in weight or count unless claim therefore is presented within five working days after receipt of Goods by customer and then only in the event such shortage in weight or count, if any, is verified by DMT. DMT shall have no liability for shrinkage, expansion, deformity or rupture of Goods resulting from Services except by written agreement. In the event of suspension of work on Goods at customer’s request or as a result of the inadequacy or inaccuracy of customer’s instructions; any price quoted by DMT may be increased to cover any additional costs or expenses incurred by DMT as a result.
6. Customer shall be liable for all costs, charges and expenses whatsoever in connection with the opening, advising, confirmation, negotiation and operation of any letter of credit, the transfer of cash to DMT and/or the release of any shipping documents. The cost of any variation or modification to an order requested by customer after the date of the acceptance of an order shall, if such variation or modification is accepted by DMT, be borne by customer.
7. Customer shall be solely responsible for adequate packing of Goods to protect them in transit against weather conditions, impact damage and other transport risks. Customer shall use packing materials suitable for re-use by DMT where DMT is responsible for delivering Goods to customer. No warranty whatsoever is given by DMT that packing materials, cases, cartons and pallets will be returned to customer but wherever possible these will be returned to customer with Goods. Customer shall be responsible for all crating, freight, and other charges for round trip transportation of any Goods that become the subject of any warranty claim to the place designated by DMT for inspection and for all transportation costs to ship the same to and from DMT’s facility unless otherwise agreed, in writing, by DMT.
8. Goods shall remain for the account and at the sole risk of customer during transportation to and from DMT’s facility, during loading and unloading, and while located at DMT’s facility. DMT has no responsibility for insuring the Goods. Customer agrees that if Goods are damaged while in transit in DMT trucks or during loading or unloading by DMT personnel and if DMT was responsible for such damage, DMT’s liability to customer or to any other person or entity for the damaged Goods shall not exceed the lesser of the fair market value of the raw materials or $10,000. Customer warrants that Goods will not represent any hazard, environmental or otherwise, to DMT’s facilities or personnel. Customer further
warrants that it is either the owner of Goods or that it is authorized by the owner of Goods to accept these Terms on the owner’s behalf.
9. Customer agrees to pay any excise, sales, gross receipts, uses or occupation tax or other tax levied upon any Service, contract, shipment or delivery incident thereto and to be responsible for compliance with all applicable import/export laws of the United States or any foreign country Goods come from when delivered to DMT’s facility or that are delivered to after Services have been completed.
10. DMT shall not be responsible for breach or delays in performance due to war, acts of God or of the public enemy, acts of government, fire, floods, strikes, labor trouble, interruption of utilities, inability to obtain supplies or fuel, sabotage, equipment problems, freight or transportation shortages or delays, and other delays or causes beyond its control.
11. No agent, employee or representative of DMT is authorized to alter, amend or waive these Terms or to assume any other obligation or liability for DMT except in writing duly approved by an authorized officer of DMT.
12. The performance of any Services covered in each order shall have been performed in compliance with the Fair Labor Standards Act of 1938, as amended to the extent applicable to DMT.
13. Each party may furnish the other party certain of its trade secrets and other confidential information (meaning such information as has been identified as confidential, was not already known to the other and is not publicly known or available unless through the fault of the other). Each party agrees to maintain the other’s confidential information in confidence and not to disclose the same to any third party or use it without the prior written consent of the other. Each party shall retain ownership and all rights in and to such information disclosed. Customer acknowledges that DMT’s business is primarily providing Services to Goods and that DMT has developed expertise and know-how over many years that may be useful in providing Services to Customer. Customer further acknowledges that DMT may perform Services in the normal course of its business for its other customers, without restriction. If the parties, individually or jointly, develop inventions, whether patentable or not, or other confidential information, in connection with Services to Goods under these Terms, then the parties agree that, with respect to the Services, DMT shall be the sole owner thereof and the customer shall have no rights therein except as may be acquired by purchase of Services from DMT, and that, with respect to Goods, that customer shall be the sole owner thereof and DMT shall have no rights therein except in the performance of Services.
14. Customer shall indemnify DMT and hold DMT harmless from and against any damage, loss, expense, or cost incurred by DMT whatsoever from (i) DMT following customer’s specification and processing requirements for Services to Goods, (ii) defects in Goods, (iii) Goods having different characteristics or qualities than as identified by customer, or (iv) Goods not being in a prepared and clean condition, consisting only of the specified material, and save as expressly agreed in a specification, free from any oil, grease, dirt, chemicals or other contaminating matter when delivered to DMT for Services. If an incident occurs while DMT is performing Services to Goods, DMT shall be permitted to retain possession of Goods for a reasonable period of time without any liability to customer for such delayed possession to afford DMT the opportunity to inspect the same as part of its investigation into the cause of the incident.
15. Times quoted for Services are estimates only. Times quoted for Services shall run from the latter of: (i) receipt by DMT of Goods at the place Services are to be performed, and (ii) receipt by DMT of all
information required to complete Services. In any event, the time for completion of any Services shall be extended by a reasonable period if completion of Services is delayed as a result of the nature or lack of instructions from customer, or by any other cause beyond DMT’s control.
16. Each order shall be subject to DMT being satisfied as to customer’s credit status both prior to and during the period of the order. If DMT becomes dissatisfied with customer’s credit status at any time, DMT may suspend performance of the order or withhold delivery of the Goods until customer provides adequate assurances as provided by the Delaware Uniform Commercial Code as to customer’s creditworthiness or gives DMT such security as DMT shall deem appropriate in its reasonable judgment.
17. Notwithstanding any termination or suspension in accordance with these Terms, customer shall pay DMT for all work done up to and including the date of such suspension or termination.
