1. FORMATION OF CONTRACT:
These terms and conditions constitute a complete statement of the agreement between Client and Deschamps Mat Systems Inc. (“DMS”), which shall not be supplemented or amended, except as superseded by a document issued by DMS or by a separate written agreement signed by both parties. Terms and conditions of Client additional to or varying from those set forth herein, including but not limited to terms set forth in an accepted purchase order, are objected to and shall not be binding on DMS unless specifically agreed to in writing by DMS.
2. CANCELLATIONS OR CHANGE ORDER:
Orders are firm upon receipt of the order form by DMS. DMS declines any responsibility in a case of mistake or omission on the order form by client. Cancellations and change of orders, for any reason whatsoever, must be done within 7 days after placing the order. They shall require a confirmed acceptance in writing by DMS. In a case of order cancellation, whether partial or total, Client will be charged for all work already performed and expenses incurred by DMS up to the receipt by DMS of the cancellation notice.
3. QUOTATIONS; PRICE:
Written quotations automatically expire ninety (90) calendar days from the date issued unless otherwise stated on the face of the quotation. Quotes are subject to termination by written notice within that period. Quotations are subject to correction in the event of stenographic or clerical errors. Prices quoted are for Client named in the quotation only, and for the specific quantities shown, released for manufacture and shipment at one time to one destination unless otherwise stated. Any change in the quantity of an order and/or split shipments are subject to price revision.
Unless otherwise agreed to in writing by DMS or set forth in DMS’ quotation, the total amount of the order will be due and payable at the time of placing the order. Payments are to be made in U.S. Dollars. If Client fails to make any payment in accordance with the price or these terms and conditions, , or for any other reason deemed good and sufficient by DMS including, but not limited to a change in Client’s ability to meet its obligations, DMS may, in its sole discretion and without incurring any liability of any kind, cancel any order or orders. DMS may require Client to give such security as DMS may specify to insure payment of its invoice. All costs and expenses incurred by DMS as a result of its exercise of any right or option under this paragraph, including reasonable attorney’s fees shall be for the account of Client.
5. INTEREST ON LATE PAYMENT:
Client will be required to pay interest on an overdue invoice at the rate of twelve percent (12%) per annum
DMS invoice may not include city, state or federal taxes on manufacture, sales, use, and the like. Wherever applicable, a separate charge shall be made for such taxes, to be paid by the Client. The Client will be informed of such additional charge.
7. SHIPMENTS; DELIVERY:
All prices are DAP Client’s named destination (INCOTERMS 2010) unless otherwise stated. If delivery is requested at another location than the one initially named by Client, any duties, customs taxes, storage and other costs shall be Client’s sole responsibility. Method and route of shipment are at DMS’ discretion, unless Client supplies explicit shipping instructions. When Client specifies method of shipment, any additional shipping expense will be charged to Client. Delivery dates are estimates only and DMS will not be liable for late delivery. DMS shall mark all containers or pallets with necessary lifting, handling, and shipping information, purchase order numbers, and date of shipment. An invoice and an itemized packing list shall be provided by DMS with respect to each shipment. Client shall dispose of the packaging materials and other refuse at its own cost. Unless otherwise stated on the face of the quotation, all packaging will be in accordance with DMS’ standard practices. Products are delivered at the address given on the order form within the time frame specified in DMS’ quote. If, for any reason, the delivery should take longer, DMS will inform Client. Delivery shall be subject to and contingent upon strikes, labor difficulties, riot, war, governmental interference or embargoes, fires, floods, accidents, acts of God, force majeure, shortages of fuel, power, materials or supplies, transportation delays, or any case beyond the control of DMS. All deliveries are subject to restrictions imposed from time to time by government and customs regulation, order or directive. In the event of such delay, DMS shall have the option to extend the time for delivery of a period equal to the number of days of such delay.
8. INSPECTIONS – RETURNS:
Client must inspect all products promptly upon delivery. Claim of shortage, breakage and other observable non-conformities must be made within 10 days from delivery and, in any event, before the product is used or altered in any manner whatsoever whether by Client or its customer. In such event, the Client may be asked to return the product to rectify the problem. DMS may, at its option, either (a) repair or replace such product, or (b) repay the purchase price of such product upon its return by Client. All returns shall be made at DMS’ facility within 30 days of receipt at the Client’s expense. Shipping materials must be comparable to those used by DMS to ship its products. The cost of shipping replacement products will be borne by DMS.
9. LIMITED WARRANTY:
DMS warrants that its products, when properly , used, and maintained, in accordance with DMS’ instructions, will be free from defects in materials and workmanship for a period of one year from date of first shipment to the original purchaser. The specific warranty for each product is included in the packaging thereof and is incorporated herein by reference. Client shall not hold DMS liable for degradation, malfunction, damages and/or accidents due to improper use, storage, exposure, use of tracked vehicles or tracked utility equipment, installation of the products or alteration made to the products without DMS’ consent and instructions. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF, AND DMS EXPRESSLY EXCLUDES AND DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESSED OR IMPLIED, OR STATUTORY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE. DMS will, at its sole option, repair, replace or credit Client’s account for any equipment or part which proves defective under its warranty provided that Client notifies DMS in writing of such defect within the appropriate warranty period. This warranty does not include reimbursement for the expense of installation, removal of equipment, transportation or any other expenses that may be incurred. Authorization must be obtained from DMS before any product is returned. Except for the express warranty provided in this Section 10, neither Client nor any of its agents shall make any representation or warranty on behalf of DMS.
10. LIMITATION OF LIABILITY:
In no event shall DMS be liable for lost profits, or indirect, incidental, special, punitive or consequential damages. DMS cumulative limit of liability for claims hereunder, shall in no event exceed the purchase price of the products. Should the remedy of repair or replacement of defective products be found inadequate or to have failed of its essential purpose for any reason whatsoever, Client agrees that return to it of the purchase price of the particular product [less depreciation] by DMS shall prevent the remedy from failing of its essential purpose and shall be considered by Client a fair and adequate remedy. The remedies set forth herein are exclusive.
Client will will afford DMS reasonable opportunity to examine the product. Pending such examination by DMS, the product shall not be used, or altered in any manner whatsoever, and if Client shall use, or alter the product, this shall constitute an unqualified acceptance of the same. DMS shall have absolutely no responsibility in respect to it. Failure to follow strictly the procedures established by this paragraph shall constitute a waiver of any claim of defect. DMS shall not be liable for normal production variations from Client specifications. Client should anticipate shrinkage and other modifications to the products as a result of weather conditions, notably in the case of extreme temperatures.
Client shall be in default hereunder if any one or more of the following events occurs: (A) Client shall default in fulfilling any of its obligations to DMS; (B) a receiver, liquidator, or trustee of Client, or of any of its property, is appointed by court order; (C) Client is adjudicated bankrupt or insolvent; (D) any property of Client is sequestered by court order; (E) a petition is filed by or against Client under any bankruptcy, reorganization, arrangement, insolvency, dissolution or liquidation law of any jurisdiction; or (F) Client becomes insolvent, makes an assignment for the benefit of its creditors, admits in writing its inability to pay its debt generally as they become due, or consents to the appointment of a receiver, trustee, liquidator of Client or of all or any substantial part of its property. In any such case, all unpaid amounts shall, at DMS’ option, become immediately due and payable and DMS shall have the right to consider this contract with Client cancelled and to recover damages, and shall further have all the rights and remedies, including those of a secured party, provided by applicable law.
12. TITLE RETENTION CLAUSE:
All sales are subject to title retention by DMS. Consequently, transfer of ownership of the products sold to Client is suspended until full payment of the purchase price, interest and incidental costs has been made. Risks are borne by Client from the time the products are delivered at Client’s designated location. Client must therefore ensure good conservation of the products and their packaging, their conformity with the sales documents, as well as their identification in Client’s warehouses and business locations, until transfer of ownership to Client. In case of non-payment for the products upon the due date, as in the case of non-fulfillment of any of Client’s obligations, DMS, in its sole discretion, shall have the right to cancel the sales contract. DMS shall also have the right to repossess the products or to obtain a security interest in the same. To this effect, Client hereby gives an irrevocable power of attorney to DMS to complete, sign and file, at Client’s cost, any financing statement. If DMS must repossess any unpaid products, Client agrees to pay as liquidated damages a sum equal to 15% of the agreed upon purchase price of such products for each month in which such products were in the possession of Client. DMS shall have the right to apply all partial payments made by Client for such products to the payment of the liquidated damages heretofore mentioned.
Any dispute, controversy, or claim arising out of or relating to the contract formed by the placing of an order or the performance hereof or the product provided hereunder shall be referred to, and determined and settled by, arbitration in accordance with the Rules of Practice and Procedure then obtaining of the International Centre for Dispute Resolution of the American Arbitration Association (the “AAA”). Both DMS and Client waive the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. Arbitration will be conducted solely on an individual basis. Neither DMS nor Client will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings. The arbitration shall be conducted by a single arbitrator chosen by the parties or, if the parties cannot agree upon a single arbitrator within fifteen (15) days after a party giving notice to the other of a proposed choice for an arbitrator, then by a single arbitrator appointed by the Newark, New Jersey office of the AAA. The arbitration shall be conducted in the English language in Newark, New Jersey. The arbitrator shall have the power to decide all questions of arbitrability. The arbitration proceedings shall be governed procedurally by said Rules, without reference to state arbitration law, and at the request of either party, the arbitrator will enter an appropriate protective order to maintain the confidentiality of information produced or exchanged in the course of the arbitration proceedings, which information shall be used for the sole purpose of said arbitration. The final judgment of the arbitrator shall be in the form of a reasoned, written opinion, and shall be issued within sixty (60) days of the conclusion of the arbitration proceeding. The arbitrator may award to the prevailing party, if any, as determined by the arbitrator, all of its costs and fees, including, without limitation, AAA administrative fees, arbitrator fees, travel expenses, out-of-pocket expenses (including, without limitation, such expenses as copying, telephone, facsimile, postage, and courier fees), witness fees, and reasonable attorneys’ and other professional fees. The awards of the arbitrator shall be specifically enforceable by any federal or state sitting in Newark, New Jersey, to which court Client and DMS hereby consent and submit to its jurisdiction. Client and DMS further agree that the said court may issue such orders or judgments as may be necessary to compel arbitration hereunder. The authority of the arbitrator is expressly subject to the provisions of Paragraph 11 of these Terms and Conditions, which shall control.
14. LAW CONTROLLING:
The contract formed by the placing of an order shall be governed and construed in accordance with the laws of the State of New Jersey, without regard to any conflict of laws provisions.
If any of the provisions hereunder shall, for any reason, be deemed invalid, illegal or unenforceable the remaining provisions shall remain in full force and effect, and shall control.