General Terms for the Sale of Goods and Services
1. General Terms for the Sale of Goods and Services
The supply and sale of goods and services by Diamond Arctic Ice, LLC (Diamond Arctic Ice) is subject to the following standard terms and conditions (Terms) unless expressly modified in writing by Diamond Arctic Ice and Buyer (collectively the "Parties"). The final and entire agreement pertaining to the sale of goods and services to Buyer by Diamond Arctic Ice is set forth herein; any prior understandings, agreements, and representations, oral or written, shall be deemed superseded and merged in this contract. Any typographical, clerical, or other errors or omissions in any sales literature, catalogues, quotations, price lists, offers, invoices, manuals, or any other document issued by Diamond Arctic Ice shall be corrected without any liability to Diamond Arctic Ice. Agents and salespersons of Diamond Arctic Ice have no authority to make any representations not included herein. Diamond Arctic Ice hereby rejects any different or additional terms previously or hereafter proposed by Buyer, none of which shall be effective unless embodied in writing signed by an authorized employee of Diamond Arctic Ice. Any preprinted terms on Buyer’s purchase order shall be given no force or effect and no terms of a purchase order that conflict with this Agreement shall be binding on Diamond Arctic Ice.
The goods and other items or services covered by these term and conditions shall be sold and invoiced at Diamond Arctic Ice's prices and charges in effect at the time of each shipment of goods. Diamond Arctic Ice reserves the right to change, without notice, the published list prices referenced on any purchase order or the face of this contract. Prices do not include sales, excise, use, value added or other taxes now in effect or hereafter levied by reason of this transaction. The Buyer shall pay all such taxes.
3. Payment Terms
i. Terms of payment are within Diamond Arctic Ice's sole discretion, and unless otherwise agreed to by Diamond Arctic Ice, payment must be received by Diamond Arctic Ice prior to Diamond Arctic Ice's acceptance of an order. In all other circumstances payment terms are due and payable thirty (30) days from the date of invoice. All payments must be made without set-off, counterclaim, withholding or other deduction. Diamond Arctic Ice reserves the right to require alternative payment terms, including, without limitation Sight Draft, Letter of Credit, or Payment in Advance. If shipments are delayed or rescheduled by the Buyer, payment shall be made based on the contract price and percentage of completion. Buyer shall be liable for the price of all products substantially conforming to the contract, notwithstanding that the Buyer may not have accepted, or may have revoked acceptance of those products.
ii. If payment is not received by the due date, a service charge will be added at the rate of 1.5% per month (18% per year) or the maximum legal rate, whichever is less, to unpaid invoices from the due date thereof.
iii. Remittances will be received by a bank simply as clearing agency. The receiving bank has no authority to determine whether the amount remitted constitutes payment in full. Remittances marked to indicate payment in full will be deposited by the bank notwithstanding such markings and such deposit shall not indicate Diamond Arctic Ice’s acceptance of the remittance as payment in full unless the remittance actually constitutes payment of all sums owed.
Diamond Arctic Ice may, at any time, and in its sole discretion, limit or cancel Buyer’s credit as to time and amount and as a consequence may (1) demand payment in cash before delivery of any unfilled portion of this contract; and (2) demand assurance of Buyer's due performance. Upon making such demand, Diamond Arctic Ice may suspend production, shipment, and/or deliveries. If, within the period stated in such demand, but in no event longer than 30 (thirty) days, the Buyer fails to agree and comply with such different payment terms, and/or fails to give adequate assurance of due performance, Diamond Arctic Ice may (a) by notice to Buyer, treat such failure or refusal as a repudiation by the Buyer of the portion of the contract not then fully performed, whereupon Diamond Arctic Ice may cancel all further deliveries and any amounts unpaid hereunder shall immediately become due and payable; or (b) make shipments under reservation of a security interest and demand payment against tender of documents of title. If Diamond Arctic Ice retains a collection agency and/or attorney to collect overdue amounts, all collection costs, including attorney's fees, shall be payable by the Buyer. Buyer hereby represents to Diamond Arctic Ice that the Buyer is now solvent and agrees that each acceptance of delivery of the goods sold hereunder shall constitute reaffirmation of this representation at such time.
5. Several Shipments
Diamond Arctic Ice may make delivery in installments and may render a separate invoice for each installment, which shall be paid when due, without regard to subsequent deliveries. Each installment shall be deemed a separate sale. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept delivery of remaining installments. Any delivery not in dispute shall be paid for on its due date, as provided in this contract, without offset defense or counterclaim and regardless of controversies relating to other deliveries or undelivered products.
6. Transportation, Title, Risk of Loss, Insurance
Title to each shipment of the goods sold hereunder and risk of loss thereon shall pass to the Buyer when Diamond Arctic Ice or its agent delivers such shipment to a common carrier or licensed trucker consigned to the Buyer, or his/her/its agent, but such shipment shall remain subject to Diamond Arctic Ice's rights of stoppage in transit and of reclamation. If a strike, embargo, governmental action, pandemic, or any other cause beyond Diamond Arctic Ice's control prevents shipment or delivery to Buyer or his agent, or if shipping instructions for any shipment are not received before shipment date, or if payment is to be made on or before delivery, title and risk of loss shall pass to Buyer as soon as the shipment has been set aside by Diamond Arctic Ice and invoiced to Buyer (subject to Diamond Arctic Ice's rights as an unpaid supplier) and payment shall be made in accordance with invoice as though the goods had been shipped and accepted by Buyer and Diamond Arctic Ice shall be under no duty to carry insurance thereafter.
i. Buyer or Buyer's agent may inspect the goods at the place of manufacture. Buyer shall accept any tender of the goods by Diamond Arctic Ice which substantially conform to the description of the goods set forth herein.
ii. Buyer shall be deemed to have accepted any product and Buyer's right to cancel, reject, or claim any damages for breach of warranty or breach of Diamond Arctic Ice's obligation under this contract shall cease, unless Buyer gives Diamond Arctic Ice notice in writing of Diamond Arctic Ice's breach: (a) in the case of defects discoverable through inspection, five (5) calendar days after arrival of the shipment or (b) in the case of defects not discoverable through inspection, ten (10) calendar days after invoice date.
iii. In the case of nonconforming goods, Buyer shall immediately notify Diamond Arctic Ice whether Buyer will continue to accept similarly nonconforming goods. Acceptance of any nonconforming goods shall constitute a waiver by Buyer of specification requirements for said goods.
iv. In any event, when the product shall have been altered from its original state, Buyer shall be deemed to have accepted the product. Buyer's acceptance of goods tendered under this contract shall be final and irrevocable.
Diamond Arctic Ice will use every reasonable effort to effect shipment on or before the date indicated. Diamond Arctic Ice shall not be liable, directly or indirectly, for any delay or failure in performance or delivery or inability to perform or delivery where such delay, failure, or inability arises or results from any cause beyond Diamond Arctic Ice's control or beyond the control of Diamond Arctic Ice's suppliers or contractors, including, but not limited to, strike, boycott, or other labor disputes, embargo, pandemic, governmental regulation, inability or delay in obtaining materials. In no event shall Diamond Arctic Ice, in the event of delays, or otherwise, be liable to Buyer or any third parties for any consequential, special, or contingent damages. In the event of any such delay or failure in performance, Diamond Arctic Ice shall have such additional time within which to perform its obligations hereunder as may reasonably be necessary under the circumstances; and Diamond Arctic Ice shall also have the right, to the extent necessary in Diamond Arctic Ice's reasonable judgment, to apportion fairly among its various Buyers in such manner as Diamond Arctic Ice may consider equitable, the goods then available for delivery. If, as a result of any such contingency, Diamond Arctic Ice is unable to perform this contract in whole or in part, then to the extent that it is unable to perform, the contract shall be deemed terminated without liability to either party but shall remain in effect as to the unaffected portion of the contract, if any.
8. Disclaimer of All Warranties
No warranties, expressed or implied, are given. Diamond Arctic Ice expressly disclaims all other warranties, including and without limitation, the implied warranties of merchantability and fitness for a particular purpose. Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to particular end users. The remedy set forth below regarding binding artbitration is Buyer’s sole and exclusive remedy for warranty claims and is expressly in lieu of all other remedies that may be available to Buyer at law or in equity.
Diamond Arctic Ice's WARRANTY, AS DESCRIBED HEREIN, IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. Diamond Arctic Ice SHALL NOT BE LIABLE FOR ANY DAMAGES SUSTAINED BY BUYER ARISING FROM DELAYS IN THE REPLACEMENT OR REPAIR OF PRODUCTS. AS SET FORTH BELOW, BINDING ARBITRATION IS THE BUYER’S SOLE AND EXCLUSIVE REMEDY FOR WARRANTY CLAIMS. UNDER NO CIRCUMSTANCES WILL Diamond Arctic Ice BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOST PROFITS, DIMINUTION OF GOOD WILL, OR ANY INCIDENTAL, CONSEQUENTIAL INDIRECT, SPECIAL OR CONTINGENT DAMAGES REGARDLESS OF WHETHER Diamond Arctic Ice HAD ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. Diamond Arctic Ice's LIABILITY FOR DAMAGES ON ACCOUNT OF A CLAIMED DEFECT IN ANY PRODUCT DELIVERED BY Diamond Arctic Ice SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCT ON WHICH THE CLAIM IS BASED. Diamond Arctic Ice SHALL NOT BE LIABLE FOR DAMAGES RELATING TO ANY INSTRUMENT, EQUIPMENT, OR APPARATUS WITH WHICH THE PRODUCT SOLD UNDER THIS AGREEMENT IS USED. The Parties further agree that the limitations and exclusions of liability and disclaimers specified in these Terms will survive and apply even if found to have failed of their essential purpose.
10. Insurance Recommendation Upon Return of Product By Buyer
Diamond Arctic Ice recommends that the end user fully insure the shipment (at the full purchase price) in case of loss or damage during transit. It is recommended that the end user keep a record of the shipping manifest and the tracking number. The end user assumes sole responsibility of products returning to Diamond Arctic Ice. Diamond Arctic Ice is not responsible for lost and/or damaged goods during transit.
Transportation Costs: Return shipment to end user will be at Diamond Arctic Ice's expense. Buyer shall be responsible for return shipment charges for product(s) returned where Diamond Arctic Ice determines that there is no defect or where Diamond Arctic Ice determines that the product is not eligible for repair or replacement.
If Buyer fails, with or without cause, to furnish Diamond Arctic Ice with specifications and/or instructions for, or refuses to accept deliveries of, any of the products sold under this contract, or is otherwise in default under or in repudiation of this contract or any other contract with Diamond Arctic Ice or fails to pay when due any invoice under this contract, then in addition to any and all remedies allowed by law, Diamond Arctic Ice without notice may (1) bill and declare due and payable all undelivered products under this or any other contract between Diamond Arctic Ice and Buyer; and/or (2) defer shipment under this or any other contract between Buyer and Diamond Arctic Ice until such default, breach, or repudiation is removed; and/or (3) may cancel any undelivered portion of this and/or any other contract in whole or in part (with Buyer remaining liable for damages).
12. Risk of Loss
Buyer shall bear risk of loss or damage for product in transit to Diamond Arctic Ice. Diamond Arctic Ice shall assume risk of loss or damage for product in Diamond Arctic Ice’s possession. In the absence of specific written instructions for the return of product to Buyer, Diamond Arctic Ice will select the carrier, but Diamond Arctic Ice shall not thereby assume any liability in connection with the return shipment.
All products shall be suitably packed for shipment unless otherwise requested by Buyer and agreed to in writing by Diamond Arctic Ice.
14. No Assignment
This contract and Buyer's rights thereunder may not be assigned by Buyer except with the prior written approval of Diamond Arctic Ice. Any assignment or transfer made in violation of the foregoing shall be void.
Waiver by Diamond Arctic Ice of any provision of this contract or of a breach by Buyer of any provision of this contract shall not be deemed a waiver of future compliance with this contract, and such provision, as well as all other provisions of this contract, shall remain in full force and effect.
16. Handling of Confidential Information
Buyer shall refrain from reproducing all or portions of the samples and goods it has purchased or seen, and from transmitting data to third parties permitting the total or partial reproduction of these samples or goods.
Buyer shall not disclose any confidential information obtained from Diamond Arctic Ice, regarding Diamond Arctic Ice or Diamond Arctic Ice's goods or business. Should Buyer disclose any such information, Diamond Arctic Ice shall be entitled to terminate immediately the relevant contract and to obtain a sum equal to the value of Buyer's total purchases from the preceding year.
All drawings, designs, patterns, documents, elements, models, technical information, advertising materials, and similar items given to Buyer remain Diamond Arctic Ice's property and must be destroyed or returned on request. Buyer undertakes not to copy, reproduce, disclose to third parties by any means the foregoing materials and shall make its best efforts to keep them strictly confidential. Failure to comply with the foregoing provision shall entitle Diamond Arctic Ice to immediately terminate the relevant contract and to immediately suspend any order in course, even though related to separate contracts, and to claim damages.
17. Severability, Governing Law & Dispute Resolution Procedure
In the event that any sections, paragraphs, sentences, clauses or phrases of these Terms shall be found invalid, void, and/or unenforceable, neither these Terms generally nor the remainder of these Terms shall be rendered invalid, void, and/or unenforceable, but instead each provision and (if necessary) other provisions, shall be reformed by mutual agreement or by a neutral arbitrator so as to effect, as is practicable, the intention of the parties as set forth in these Terms. Notwithstanding the preceding sentence, if such neutral arbitrator is unable or unwilling to effect such reformation, the remainder of these Terms shall be construed and given effect as if such invalid, void, and/or unenforceable provisions had not been a part hereof.
These Terms shall be governed by the laws of the state of South Dakota. The parties waive all rights to jury or court trial in any action or proceeding instituted in connection with these Terms. Rather, any such controversy or claim shall be settled by binding arbitration using the guidelines established by the American Arbitration Association. The parties agree that the binding arbitration shall be conducted in Lincoln County, South Dakota, and the neutral arbitrator employed to resolve the dispute shall be acceptable to each party. Each party shall be responsible for one-half (1/2) of the neutral arbitrator’s fees. The Parties expressly disclaim the application of the United Nations Convention for the International Sale of Goods.
If an infringement claim is made against Buyer alleging that a product furnished under these General Terms infringes a patent or copyright of the United States, Diamond Arctic Ice may, at its option and expense, (1) replace or modify the product so that it becomes non-infringing; or (2) procure for Buyer the right to continue using the product; or (3) require the return of the product and refund to Buyer the including price paid less a reasonable allowance for use.
Buyer must: (1) notify Diamond Arctic Ice promptly in writing of the action and (2) provide Diamond Arctic Ice all reasonable information and assistance to settle or defend the action. If Buyer furnishes specifications to Diamond Arctic Ice, Buyer agrees to hold Diamond Arctic Ice harmless against any claim that arises out of compliance with the specifications. Any description of the goods contained in these Terms is for the sole purpose of identifying the goods, is not part of the basis of the bargain, and does not constitute a warranty that the goods shall conform to that description. Any sample or model used in connection with these Terms is for illustrative purposes only, is not part of the basis of the bargain, and is not to be construed as a warranty that the goods will conform to the sample or model.
Notwithstanding the foregoing, Buyer shall indemnify and hold Diamond Arctic Ice harmless from any claim, loss, damage, suit, liability, fees or expenses (including reasonable attorney's fees) which may be suffered by Diamond Arctic Ice on account of: (1) the use of components or goods not supplied by Diamond Arctic Ice; (2) the modified goods which become infringing as a consequence of the modification; (3) the use of the goods in infringing combinations or systems or apparatuses; (4) the use of the goods in infringing processes; and (5) the use of the goods in association with third parties trademarks or distinctive signs.
21. General provisions
i. Parties are responsible for all their own legal, accountancy or other costs and expenses incurred in the performance of their obligations arising from these Terms.