Selling Terms and Conditions
1. COMPLETE AGREEMENT
This Order, Purchase Order, or Invoice (collectively the “Order”) and the Terms and Conditions herein constitute the complete agreement between the parties and may not be altered or modified except in writing duly executed by each party. Any additional terms or conditions contained in Buyer’s or Supplier’s (hereinafter “Buyer”) acceptance or acknowledgement of the Order, or in any other document, shall be deemed objected to by Dubuque Screw Products Inc. (“Dubuque Screw Products”) without the need for further notice of objection, and shall be of no effect, nor shall they be binding upon Dubuque Screw Products under any circumstances unless expressly accepted by Dubuque Screw Products in writing (and not accepted through reference by another document). Dubuque Screw Products’ acceptance or rejection of one or more additional terms or conditions shall not constitute an acceptance of any other additional term or condition. Trade custom, trade usage and past performance are superseded by this Order and shall not be used to interpret this Order and these Terms and Conditions.
2. ORDER CHANGES
Dubuque Screw Products shall at any time have the right to make changes to an Order without limitation; including in the quantities, specifications, or delivery schedule; without incurring liability to Buyer. Information, such as technical direction or guidance provided to Buyer by Dubuque Screw Products’ representatives in connection with either party’s performance hereunder, shall not be construed either as a change within the meaning of this provision or as direction to proceed outside the scope of the Order.
3. CANCELLATION
Dubuque Screw Products alone reserves the right to cancel the Order in whole or in part upon notice to Buyer, without incurring any liability to Dubuque Screw Products. Cancellation will not have the effect of waiving damages to which Dubuque Screw Products might otherwise be entitled. Buyer may not cancel any order without the prior written approval of Dubuque Screw Products. If the Order is canceled by Buyer, and unless otherwise waived by Dubuque Screw Products in writing, Dubuque Screw Products shall be entitled to be paid (1) the purchase order price for products completed and delivered prior to termination, (2) the cost to cover the reasonable costs expended by Dubuque Screw Products on products terminated and not delivered, and (3) the profits anticipated by Dubuque Screw Products for any products terminated but not delivered or any product processed by Dubuque Screw Products but not purchased by Buyer.
4. DELAYS
Dubuque Screw Products shall not be liable for any damages resulting from its failure to perform which arise from causes that are beyond its reasonable control. In such event, Buyer shall not reduce or withhold payment for such delay in performance.
5. PRICE
The price of products or services in the Order shall not be modified without written consent of Dubuque Screw Products. In the event of a subsequent reduction in price of a product or service offered by Dubuque Screw Products, after the date of an Order, Buyer will not be entitled to a reduction in price, a refund, or a rebate for any product or service covered by the Order.
6. RETURNED PRODUCTS
Orders may not be returned without prior authorization from Dubuque Screw Products. If Dubuque Screw Products authorizes a return, it reserves the right to charge reasonable handling fees for any returned products. Any costs incurred by Dubuque Screw Products to analyze the cause of a defect, remedy, or replacement of a defective product purchased by Buyer from Dubuque Screw Products may be billed to Buyer at Dubuque Screw Products’ discretion. In no event may Buyer require Dubuque Screw Products to report or disclose the procedures undertaken in response to returned product or products. In no event is Buyer entitled to compensation from Dubuque Screw Products for injury or damages, including consequential damages, for any delay in delivery because a product is returned.
7. CLAIMS
All claims for shortages in shipment, defective products, or any other error must be made within ten (10) days after Buyer’s receipt of the Order. After ten (10) days, Buyer waives all remedies it may otherwise be entitled to for shortages in shipment, defective products, or any other error related to the Order.
8. WARRANTY
The sole warranty offered by Dubuque Screw Products is that products furnished by the Order will be in accordance with the specifications or description furnished by Buyer and free from defects in workmanship. By placing this Order with Dubuque Screw Products, Buyer affirms that it has not relied upon the skill, judgment, or opinion of any agent or employee of Dubuque Screw Products to select or furnish a product or service for any particular purpose. Buyer also agrees that this order is made without any warranty from Dubuque Screw Products that any product or service furnished by Dubuque Screw Products is: (1) suitable for any particular purpose, (2) free of any design defect, (3) merchantable, or (4) that the product or service furnished by Dubuque Screw Products are not in violation of any intellectual property rights of any third party.
9. DURATION OF WARRANTY
Dubuque Screw Products’ liability to Buyer is terminated once further processing, assembling, or any other work has been undertaken on any product provided by Dubuque Screw Products in the Order. Any warranty expires after twelve (12) months from delivery to Buyer by Dubuque Screw Products of any product.
10. GENERAL INDEMNITY
Buyer assumes the risk of all damage, loss, cost, and expense, and agrees to indemnify and hold harmless Dubuque Screw Products, its officers, agents, employees, and representatives from and against any and all liability, damage, loss, cost, and expense which may accrue or be sustained by Dubuque Screw Products, its officers, agents, customers, or employees for the death of or injury to persons or destruction of property involving Buyer, its employees, agents and representatives, sustained in connection with performance of the Order, related to products delivered pursuant to the Order, and arising from any cause whatsoever.
11. INTELLECTUAL PROPERTY
Buyer will exonerate, indemnify, or hold harmless Dubuque Screw Products and its affiliated entities, successors or assigns, customers, officers, agents, or employees from any and all liability, damage, loss, cost, or expense which may accrue or be sustained on account of any claim, proceeding, suit, or action brought for actual or alleged infringement of any patent (including copyright, trademark, trade name and third party property right). Buyer will defend any such claim, suit, or action on behalf of Dubuque Screw Products under any circumstances. In such event, Buyer agrees that, upon Dubuque Screw Products’ request, it will defend, at its own expense, Dubuque Screw Products, Dubuque Screw Products’ agents and officers, and Dubuque Screw Products’ customers against any such claim, suit, or action.
12. EXTENT OF LIABILITY
In no event shall Dubuque Screw Products’ liability exceed the purchase price of the products sold or service rendered by Dubuque Screw Products pursuant to the Order. Any claim brought against Dubuque Screw Products must be brought within one (1) year of the date Buyer received delivery of the product.
13. ASSIGNMENT OR SUBCONTRACT
Buyer agrees that Dubuque Screw Products may assign or subcontract any portion of the Order to a third party at any time and for any reason; provided, however, Dubuque Screw Products remains liable as presented in the Terms and Conditions.
14. INSURANCE REQUIREMENT
Dubuque Screw Products expressly objects to any clause in any other document regarding minimum insurance requirements.
15. CHOICE OF LAW AND FORUM
The Order and these Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Iowa; and without application of any conflict of law provisions. The parties agree that the District Court for Dubuque County, Iowa and the United States District Court for the Northern District of Iowa have exclusive jurisdiction over all claims, causes of action, and disputes arising under these Terms and Conditions or the Order. Both parties waive any objection which it may now or hereafter have to the bringing of any such action or proceeding in any court in the State of Iowa. The parties agree the UN Convention of Contracts for the International Sale of Goods shall not apply to the sale of products hereunder.
16. RIGHT TO JURY TRIAL
Both parties waive the right to a jury trial with respect to or in any suit, action, proceeding, claim, counterclaim, demand, or other matter arising out of this Order and these Terms and Conditions.