TERMS AND CONDITIONS OF SALE

STANDARD TERMS AND CONDITIONS OF SALE

1. ACCEPTANCE. A purchase order signed by an authorized representative of Buyer is required before an order will be accepted. Acceptance of an order is expressly conditioned on Buyer’s acceptance of and agreement to the Standard Terms and Conditions of Sale set forth below and all terms stated on the face of this form. The Contract shall not include any deviating or additional terms contained in Buyer’s purchase order or other forms unless expressly agreed to in writing and signed by an authorized representative of Dan-Loc Group, LLC. (“Seller”). The term “Contract” includes all accepted quotations, purchase orders, releases, requisitions, work orders, shipping instructions, specifications, and other documents pertaining to the sale by Buyer.  The Contract supersedes all prior oral or written agreements, proposals, discussions, correspondence, representations, warranties, and covenants. No course of prior dealings, acceptance, or acquiescence in a course of performance and no usage of the trade shall be relevant to supplement, explain or modify the Contract. All representations, promises, warranties or statements by an agent or employee of Seller that differ in any way from the Contract shall be given no effect or force.

 

2. QUOTATIONS. All quotations are made for prompt acceptance and any terms quoted therein are subject to change without notice after thirty (30) days from the date thereof or subject to prior sale of material unless specifically stated otherwise on the quotation.

 

3. TAXES. All prices quoted are exclusive of federal, state, local or foreign sales, use, or excise taxes and any other fees, tariffs, duties or licenses levied upon, or measured by the sale, the sales price, or use of the goods ordered by Buyer, which are imposed upon Seller by reason of the manufacture, sale or delivery of such goods. Buyer agrees it is responsible for and shall pay any and all such taxes and fees.

 

4. CREDIT AND PAYMENT. All orders are subject to approval of credit and Seller may require full or partial payment in advance. Payment is due as noted on Seller’s invoice. Past due amounts bear interest at the rate of one and one half percent (1.5%) per month (or the highest rate allowed by applicable law, whichever is less) beginning from the date first due until paid in full. If the shipments are delayed by Buyer for any reason, payments shall become due from date on which Seller was prepared to make shipment and storage shall be at Buyer’s risk and expense. If manufacture is delayed by Buyer for any reason, a partial payment based upon the proportion of the order completed as well as any storage cost shall become due from date on which Seller is notified of the delay.

 

5. DELIVERY DATE. Delivery dates will be determined from the date of Seller’s acceptance of the Contract, subject to approval of Buyer’s credit. Delivery dates are approximate, and Seller will not be liable for delay of shipment unless specified in the Contract.

 

6. CANCELLATIONS. If all or part of a Contract for goods is cancelled by Buyer, Seller will invoice Buyer in accordance with the following cancellation schedule less any applicable milestone invoices already paid by Buyer: If cancellation is initiated after Buyer’s commencement of production of goods, Seller will invoice for the cost of any applicable goods produced based on percentage of completion plus Seller’s normal profit. If at the time of cancellation, the applicable goods are eighty percent (80%) or more completed, Seller will invoice for one hundred percent (100%) of the Contract price for the goods. Orders, once placed and accepted, can be canceled, or changed only with Seller’s consent and in accordance with terms that will save Seller from loss.  Seller reserves the right, at its discretion, to cancel the order if Buyer becomes bankrupt or insolvent.

 

7. SHIPMENTS AND TITLE. All prices quoted are exclusive of shipping and handling charges unless explicitly stated otherwise. All shipments of goods are EXW (Incoterms 2010) unless otherwise agreed upon. Buyer assumes all responsibility and liability for loss and damage resulting from the handling, storage or use of goods upon delivery to the shipper at Seller’s plant. However, title to the goods shipped only passes to Buyer upon Buyer’s payment in full for the goods.

 

8. FORCE MAJEURE. Seller will not be liable for delay or failure to manufacture or ship the goods due to acts of God; acts of Buyer; acts of civil or military authority; wars, riots or terrorism; fires, strikes, floods or power failures; delays or shortages in transportation; inability due to causes beyond its reasonable control to obtain necessary labor, raw materials or components; or other causes beyond Seller’s reasonable control. Under any such circumstance, Buyer agrees to accept deliveries in accordance with such plan or schedule as Seller may adopt.

 

9. INSPECTION. Buyer agrees to inspect any goods supplied by Seller upon receipt and to give notice in writing to Seller of any damage, defect, or other claim within fourteen (14) days of the date of receipt. Failure to provide such written notice of a claim within the specified time constitutes an unqualified acceptance of the goods and a waiver of any and all claims with respect to the goods.

 

10. RETURNS. Prior approval shall be obtained from Seller in writing before the return of any merchandise for credit or adjustment.  Upon such approval, merchandise shall be returned prepaid, in unused condition, and shall consist of merchandise currently listed in Seller’s catalog or price list.  A thirty percent (30%) restocking charge will be applied to all items that are found not to be defective.  Items manufactured from Buyer’s specifications, which are of unusual or unique design, size, material, or quantity shall not be subject to return for credit or replacement.

 

11. COSTS OF COLLECTIONS AND ATTORNEY FEES. Buyer shall be responsible for all of Seller’s costs and expenses, including attorney fees, incurred by Seller in collecting the purchase price for goods or services sold beyond its due date inclusive of delinquency charge.

 

12. NO SET-OFF RIGHT. Buyer shall not have, and acknowledges that it does not have, any right, under the Contract, any order, or any other agreement, or under law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Seller.

 

13. LIMITED WARRANTY; DISCLAIMER OF OTHER WARRANTIES; LIMITATION OF DAMAGES. Seller warrants that products it manufactures are free from defects in material and workmanship for a period of (i) one (1) year from start of service, or (ii) eighteen (18) months from the date of shipment from Seller’s factory, whichever comes first.  If goods furnished by Seller prove to be defective in material and workmanship, Seller is notified in writing within ten (10) days of identification of defect, and the product has been returned to Seller’s factory prepaid; Seller, at its sole discretion (and as Buyer’s sole remedy), will either repair the goods or supply identical or substantially similar replacement goods, EXW Seller’s factory. Any repair or replacement goods will be warranted against defects in material and workmanship for the unexpired portion of the warranty applicable to the original goods. Goods not manufactured by Seller are subject only to warranties of Seller’s vendors (which shall be Buyer’s sole remedy with respect to such goods) and Seller hereby assigns to Buyer all rights Seller has, if any exist, in such vendor’s warranties. However, Seller shall furnish to Buyer reasonable assistance in enforcing such rights (at Buyer’s expense). This limited warranty will be voided if: (a) the goods were not stored, installed, or maintained in accordance with best accepted industry practice and any specific instructions provided by Seller; (b) the goods were subjected to any accident, misapplication, environmental contaminant, corrosion, abrasion, abuse, misuse, neglect, negligence, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Seller; (c) Buyer used, repaired, or modified the goods after discovery of the defect without Seller’s prior written consent to continue use; and/or (d) Buyer fails to permit Seller to examine the goods.

 

Any recommendation or suggestion relating to the use of the goods made by Seller whether in its technical literature or in response to specific inquiry, or otherwise, is based on data believed to be reliable; however, the goods and information are intended for use by Buyers having the requisite skill and know how in the industry, and therefore it is for Buyer to satisfy itself of the suitability of the goods for its own particular use and it shall be deemed that Buyer has done so, at its sole discretion and risk.  Variations in environment or changes in procedures or use may cause unsatisfactory results.  THIS SECTION 14 SETS FORTH BUYER’S SOLE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION 14.  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 14, NEITHER SELLER NOR ANY PERSON ON SELLER’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

 

UNDER NO CIRCUMSTANCES WILL SELLER BE RESPONSIBLE FOR ANY DIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST INCOME, LABOR CHARGES, DELAYS IN PRODUCTION, IDLE PRODUCTION, WHICH DAMAGES ARE CAUSED BY ANY DEFECTS IN MATERIAL AND/OR WORKMANSHIP AND/OR DAMAGE OR DELAYS IN SHIPMENT. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER PURSUANT TO THE APPLICABLE ORDER GIVING RISE TO THE CLAIM.

 

14. INDEMNIFICATION BY BUYER. BUYER RELEASES AND WILL DEFEND, INDEMNIFY AND HOLD SELLER (AND ITS OWNERS, OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES) (COLLECTIVELY “INDEMNITEES”) HARMLESS FROM ANY AND ALL LOSSES, LIABILITIES, SUITS, DAMAGES, CLAIMS, DEMANDS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES) (“CLAIMS”), WHETHER BASED ON CONTRACT OR TORT (INCLUDING STRICT LIABILITY), INCLUDING ANY CLAIMS THAT ARISE SOLELY, OR IN PART, FROM THE ACTIVE, PASSIVE OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OF ANY INDEMNIFIED PARTY, THAT (I) RESULT FROM A CLAIM BY A THIRD PARTY (INCLUDING ANY EMPLOYEE OF BUYER OR ANOTHER PARTY) BASED ON ACTIONS BY SELLER UNDERTAKEN UPON THE INSTRUCTIONS OF BUYER (INCLUDING INFRINGEMENT OF PATENT OR OTHER PROPRIETARY RIGHTS), OR (II) ARISE OUT OF SELLER’S PROVISION OF THE GOODS, OR BUYER’S MODIFICATION OR MISUSE OF THE GOODS AFTER RECEIPT BY BUYER.  THIS INDEMNITY WILL NOT COVER ANY LOSS, LIABILITY, CLAIM AND EXPENSE ARISING OUT OF SELLER’S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

 

EXPRESS NEGLIGENCE: THE INDEMNIFICATION, AND RELEASE PROVISIONS PROVIDED FOR IN THIS CONTACT SHALL BE APPLICABLE WHETHER THE LOSSES, COSTS, EXPENSES AND DAMAGES IN QUESTION AROSE SOLELY OR IN PART FROM THE ACTIVE, PASSIVE OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OF ANY INDEMNIFIED PARTY. BUYER AND SELLER ACKNOWLEDGE THAT THIS STATEMENT COMPLIES WITH THE EXPRESS NEGLIGENCE RULE AND IS CONSPICUOUS.

 

15. ASSIGNMENT.   Buyer shall not assign the order or claims against Seller without the prior written consent of Seller.

 

16. SEVERABILITY. If any of these provisions are invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, it will not affect the validity of any other provision and the remaining provisions will remain in full force and effect.

 

17. GOVERNING LAW AND VENUE. It is understood and agreed that this Contract shall be interpreted under and pursuant to the laws of the State of Texas without regard to its choice of law provisions.  Buyer further agrees that any action at law or suit which is related to this Contract brought against Seller shall be filed exclusively in a federal or state court located in Harris County, Texas.

 

18. SECURITY INTEREST. Seller hereby reserves a security interest in all of the goods sold under this Contract until full payment of the purchase price is received by Seller.  Buyer shall execute and deliver such financing statements and other documents as may be requested by Seller from time to time for the purpose of evidencing the security interest of Seller in the goods.

 

19. SURVIVAL. Any provision that, in order to give proper effect to its intent, should survive such expiration or termination of the Contract, including, without limitation, Sections 5, 12, 13, 14, 15, 17, 18, and 19 will survive the expiration or earlier termination of the Contract.

 

20. INTELLECTUAL PROPERTY RIGHTS. Buyer acknowledges and agrees that all intellectual property rights relating to the manufacturing of the goods are the sole and exclusive property of Seller, and Buyer shall not acquire any ownership interest in any of Seller’s intellectual property rights under the Contract. Any goodwill derived from the use by Buyer of Seller’s intellectual property rights inures to the benefit of Seller. Without limiting the foregoing, all tooling, dies, test and assembly fixtures, gauges, jigs, patterns, casting patterns, cavities, molds, and documentation (including engineering specifications and test reports) used by Seller in connection with its manufacture and sale of the goods, together with any accessions, attachments, parts, accessories, substitutions, replacements and appurtenances thereto are owned by Seller (“Seller Tooling”) and Buyer has no right, title, or interest in or to any of the Seller Tooling.

 

21. CONFIDENTIALITY. All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, that Seller discloses to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and regardless of whether marked, designated, or otherwise identified as “confidential,” in connection with the Contract, is confidential, solely for the use of performing the Contract, and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer will promptly return all documents and other materials received from Seller.  Seller will be entitled to injunctive relief for any violation of this Section 22, without having to post bond or establish the insufficiency of a remedy at law. This Section 22 does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

 

22. RIGHT TO MANUFACTURE AND SELL COMPETITIVE GOODS. The Contract does not limit Seller’s right to manufacture or sell, or preclude Seller from manufacturing or selling, to any person or entity, or entering into any agreement with any other person or entity related to the manufacture or sale of, the goods and other goods or products that are like or competitive with the sold under this Contract.

Terms and conditions effective as of February 1, 2024.