These Terms and Conditions of Sale (“Terms”) govern the sale of goods by Diversified Material Specialists, Inc. (“Seller”) to the purchaser (“Buyer”). By submitting a purchase order or accepting delivery of goods, Buyer agrees to be bound by these Terms.
Unless otherwise agreed in writing, all prices and charges stated herein are in U.S. dollars, FOB origin, and are effective for either:
Payment terms shall be established in accordance with the agreement reflected in Buyer’s account and as stated on Seller’s invoices. All invoices are payable in U.S. dollars.
Any invoice not paid within the applicable payment terms stated on the invoice shall be deemed past due. Seller may apply a late fee of fifty dollars ($50.00) to any past-due invoice. Continued delinquency may result in additional fees and the suspension of credit terms until the account is brought current.
Accounts with outstanding balances may be placed on credit hold, which may affect current and future orders. In such event, Seller reserves the right to suspend production, delay or withhold shipments, and/or require prepayment for future orders for any account not in good standing.
Any NET terms are extended solely at Seller’s discretion and may be adjusted, suspended, or revoked based on account activity, credit history, and payment performance. Reinstatement of NET terms shall require review and written approval by Seller’s accounting department.
In the event of nonpayment, Seller reserves the right to pursue collection through any lawful means, including the use of a licensed collection agency and/or legal action to recover outstanding amounts. Buyer shall be responsible for all reasonable costs of collection, including collection agency fees, attorneys’ fees, court costs, and related expenses, to the extent permitted by applicable law.
Freight is not included in product pricing unless expressly stated in Seller’s quotation, estimate, or invoice. All shipping, freight, handling, and related charges are the responsibility of Buyer unless otherwise agreed in writing.
Seller’s products are custom-made to order and are non-refundable once production has begun. If an order has been released to production, Seller reserves the right to invoice Buyer for all work performed and materials procured up to the point of cancellation, regardless of delivery status.
Seller may, in its sole discretion, accept raw materials supplied by Buyer for use in the manufacture of Seller’s products. Unless otherwise agreed in writing, the value of such materials shall not be paid in cash, but shall be issued as a non-cash credit to Buyer’s account.
The amount of any such credit shall be the mutually agreed purchase price of the materials or, where applicable, the value determined by Seller based on the quantity and condition of materials received. Any such credit shall be non-transferable and may be applied by Seller against future purchases by Buyer or against Buyer’s outstanding invoices.
Seller reserves the right to inspect and approve all materials prior to acceptance, reject materials that do not meet Seller’s specifications or quality standards, and determine the final credit value based on the quantity and condition of materials received.
Delivery and performance dates specified herein or otherwise communicated to Buyer are approximate only and are based on conditions existing at the time Seller accepts Buyer’s purchase order.
Delivery shall be complete upon transfer of possession of the goods to a common carrier, FOB origin or FCA Seller’s factory, as applicable. At that point, title and risk of loss, damage, or destruction shall pass to Buyer.
In the absence of specific shipping instructions from Buyer, Seller may select the carrier. Seller shall not be liable for any delay in delivery caused by the carrier, nor shall the carrier be deemed an agent of Seller.
Goods not expressly rejected by Buyer in a written notice delivered to Seller within fifteen (15) days after delivery shall be deemed accepted.
Seller shall not be liable for loss of or damage to DMSI products occurring after delivery to a carrier for shipment.
All claims for loss or damage in transit shall be made directly by Buyer against the carrier.
Seller shall have the right, but not the obligation, at Buyer’s sole expense, to insure shipments against loss or damage in transit.
Legal and beneficial title to the goods specified in the purchase order shall transfer to Buyer at the point of shipment.
Orders accepted by Seller are not subject to change or cancellation by Buyer after materials have been ordered or manufacturing has commenced, except with Seller’s prior written consent and upon payment of a charge sufficient to cover Seller’s costs, expenses, and losses resulting from such change or cancellation.
Unless otherwise agreed in writing by Seller, the charge for any approved change or cancellation shall be determined by Seller based on the stage of procurement, engineering, and production at the time of the request, and may include, without limitation, the cost of materials ordered, labor performed, engineering time, restocking charges, overhead, and any other costs or commitments incurred by Seller.
Products manufactured, assembled, configured, or modified to Buyer’s specifications, including custom products, are non-cancelable and non-returnable (“NCNR”). Once Seller has accepted an order for such goods, Buyer may not cancel, modify, or return the goods except with Seller’s prior written consent. If Seller permits any cancellation or modification of custom goods, Buyer shall remain responsible for all work performed, materials procured, and costs or commitments incurred by Seller up to the time of cancellation or modification, regardless of delivery status.
Seller warrants that, on the date of shipment, all goods manufactured by Seller shall be free from defects in material and workmanship under normal use and service.
This warranty does not apply to:
Seller’s exclusive obligation under this warranty, at Seller’s option, shall be to:
Seller shall not reimburse Buyer for labor or other costs associated with repair or replacement unless such charges are authorized in advance by Seller.
This warranty is conditioned upon Buyer providing written notice of the alleged defect within ninety (90) days from the date of shipment and allowing Seller access to the goods and relevant records to investigate the claim.
No returns will be accepted without a Return Material Authorization (RMA) issued by Seller.
With respect to goods manufactured by third parties, Seller’s only warranty is that Seller will pass through any transferable manufacturer warranties.
EXCEPT AS EXPRESSLY STATED HEREIN, SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Seller shall indemnify Buyer for sums Buyer becomes legally obligated to pay to a third party as a result of liability for:
(a) bodily injury, including death
(b) physical injury to or destruction of tangible property
but only to the extent directly caused by defects in goods sold by Seller or by Seller’s negligence.
If any claim is caused by the negligence of both Buyer and Seller, Seller shall be responsible only for the portion corresponding to Seller’s percentage of fault.
Neither Seller nor its suppliers shall be liable, whether in contract, warranty, tort (including negligence), strict liability, indemnity, or any other legal theory, for:
Seller’s maximum liability arising from any order shall not exceed the invoiced price of the goods, giving rise to the claim.
The limitations and exclusions set forth in this section are independent of and survive any failure of the essential purpose of any remedy.
Seller shall not be liable for failure or delay in performance caused by events beyond Seller’s reasonable control, including but not limited to:
Seller’s time for performance shall be extended for the duration of the delay and its consequences.
Seller shall notify Buyer within a reasonable time after becoming aware of such delay.
Seller reserves the right to change the part number, design, dimensions, weight, or specifications of the goods.
Seller shall not make any change to goods ordered by Buyer that materially impairs the performance or function of the goods without Buyer’s consent.
Any drawings, data, designs, software programs, or other technical information supplied by Seller to Buyer shall remain the property of Seller.
All prices are exclusive of any present or future sales, use, excise, value-added, import duties, tariffs, or similar taxes imposed by any governmental authority.
Such taxes shall be the responsibility of Buyer and shall be added to Seller’s invoice unless Buyer provides a valid tax exemption certificate.
Buyer agrees to comply with all applicable United States export control laws and regulations, including those administered by the U.S. Department of Commerce and the U.S. Department of Treasury.
Buyer shall not export, re-export, or transfer any goods purchased from Seller in violation of such laws.
These Terms and Conditions and all sales by Seller shall be governed by and construed in accordance with the laws of the State of Florida, without regard to conflict of law principles.
Any legal action arising out of or relating to the sale of goods by Seller shall be brought exclusively in the state or federal courts located within the State of Florida, and the parties consent to the jurisdiction and venue of such courts.
Seller’s acceptance of Buyer’s purchase order is expressly conditioned upon Buyer’s acceptance of these Terms and Conditions.
These Terms and Conditions shall govern the transaction notwithstanding any conflicting or additional terms contained in Buyer’s purchase order or other documents, which are hereby rejected unless expressly agreed to in writing by Seller.
Failure of Seller to object to provisions contained in Buyer’s documents shall not constitute a waiver of these Terms and Conditions.