Terms and Conditions of Sale – USA
Terms and Conditions of Sale – USA
Last Updated: 07.24.2020
1. ENTIRE AGREEMENT/ORDERS.
This agreement (the “Agreement”) is between CDI Energy Products, LLC (“CDI”), and Purchaser. No order for CDI’s goods or services shall be binding upon CDI until acknowledged in writing by CDI. Such written acknowledgment and these Standard Terms and Conditions of Sale (the “Terms and Conditions”) constitute the entire agreement between CDI and Purchaser. Any purchase order, offer, or counter-offer made by Purchaser before or after CDI’s written acknowledgment is rejected and all documents exchanged prior to CDI’s written acknowledgment are merely preliminary negotiations and not part of any agreement between the parties. For example, orders submitted on Purchaser’s own purchase order forms modifying, adding to, contrary to, or inconsistent with these Terms and Conditions are expressly rejected and of no force or effect, and acceptance is expressly made conditional upon assent to these terms. In no event will CDI be deemed to have in any way changed, enlarged or modified its liabilities or obligations as fixed by these Terms and Conditions including, without limitation, situations in which CDI satisfies an order submitted on Purchaser’s own purchase order form.
Purchaser shall have been deemed to agree to these Terms and Conditions upon the earlier acceptance of CDI’s quotation, acceptance of delivery of the goods or services, or the issuance of a purchase order to CDI.
No acknowledgment by CDI and no provision of CDI’s Terms and Conditions shall be subject to change in any manner except as agreed to in writing by an officer of CDI.
Until acceptance of a purchase order is acknowledged in writing by CDI, all prices are subject to change. Written quotations expire thirty (30) calendar days from the date of quotation unless specified otherwise. Verbal quotations are non-binding on CDI. Quoted prices do not include sales, excise, municipal, state, or any other government taxes. All taxes and other governmental charges upon the production, manufacture, distribution, sale or use of goods or services to the extent required or not forbidden by law to be collected by CDI from Purchaser, shall be paid by Purchaser to CDI unless Purchaser furnishes CDI with exemption certificates acceptable to the relevant taxing authorities. CDI reserves the right to revise final quoted prices of work in process due to any change in the order on the part of the Purchaser.
3. TERMS OF PAYMENT.
Invoices are net thirty (30) days from the date of invoice unless specified otherwise and approved in writing by CDI. Past due accounts will bear interest at the rate of 3% per month of the invoiced amount. All invoices are payable in U.S. dollars unless specified otherwise and approved by CDI in writing. Acceptance of bank drafts, checks, or other forms of payment shall be subject to immediate collection of the full face amount thereof. CDI may, at its discretion, impose a transaction fee on payments processed via wire transfer or by Letter of Credit.
CDI reserves the right at any time to suspend credit or to change credit terms provided herein when in its sole opinion the financial condition of Purchaser so warrants. In such a case, in addition to any other remedies provided herein or by law, CDI may request cash payment or satisfactory security from Purchaser prior to shipment of goods. If delivery is delayed or deferred by Purchaser beyond the scheduled date, payment shall be due in full when CDI is prepared to ship the goods or perform the services. The goods may thereafter, at CDI’s option, be stored at the risk and expense of Purchaser.
In the event of nonpayment of an invoice when due, and without prejudice to other lawful remedies, CDI shall have the right to suspend further work or the delivery of future goods under this Agreement or any other agreement with Purchaser until such invoice is paid in full; provided, however, that if such invoice remains unpaid for more than five (5) days after written demand by CDI, CDI may terminate this Agreement without penalty.
CDI shall not be liable for any damage as a result of any non-delivery or delay due to any cause beyond CDI’s reasonable control, including, without limitation, an act of God; an act of Purchaser; embargo; other government act, regulation or request; fire; accident; strike; war; boycott; slowdown; riot; or delay in transportation or inability to obtain necessary labor, materials, or manufacturing facilities.
5. SHIPMENT/RISK OF LOSS.
Unless otherwise noted, all sales of goods are made FOB point of shipment. CDI will use commercially reasonable efforts to meet delivery dates stated in advance of actual shipment of goods or performance of services, but in no event shall such quoted delivery dates be deemed to represent fixed or guaranteed delivery dates. Claims for shortage or other quantity errors must be made in writing to CDI within five (5) days after receipt of shipment. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Purchaser.
CDI, in its sole discretion, may accommodate Purchaser requests for delivery of goods in installments if such requests are confirmed in writing by CDI. Such installment deliveries, when separately invoiced, shall be paid for when due per invoice without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Purchaser of its obligations to accept remaining deliveries.
All tools, patterns, and other equipment used in the manufacture of any of CDI’s goods or performance of any of CDI’s services shall remain the property of CDI unless otherwise expressly agreed upon in writing. Purchaser shall not permit any third party to use such equipment nor disclose to any third party any technical, dimensional, or design details, or any other information in respect of such equipment at any time.
Purchaser acknowledges that it has selected and ordered goods based on its own skill and judgment and agrees that it is responsible for ensuring that the goods selected are fit for Purchaser’s purpose. CDI warrants only that such goods have been produced in accord with CDI’s standard practices with regard to materials and workmanship and no samples or prior description of goods shall constitute an express warranty. If goods are non-conforming, CDI, at its option and subject to the terms of this paragraph 7 and paragraph 9, will either (i) allow Purchaser to return the goods and receive repayment of the price or (ii) repair or replace the goods. No goods are to be returned to CDI without the prior written consent of CDI and the assignment of a return goods authorization number by CDI.
Purchaser is liable to pay for all associated costs incurred by CDI due to Purchaser’s selection of non-compliant or defective designs and materials. These associated costs are calculated based on any additional costs incurred by CDI in managing the non-compliant or defective products, including, but not limited to, all reworks, investigations, and other consequential costs.
CDI shall not be responsible for any selection made by Purchaser and will not have any liability to Purchaser for any loss, damages, costs, or expenses suffered by Purchaser as a result thereof.
(a) THIS WARRANTY IS IN LIEU OF ANY EXPRESSED OR IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY OTHER OBLIGATION ON THE PART OF THE SELLER.
(b) CDI shall have no obligation under this warranty if damage to the goods occurs because of Purchaser’s failure to comply with CDI’s written storage procedures for the goods or improper handling or operation, modification of the goods, abuse, misuse, unauthorized repairs made or attempted and/or where equipment is operated above rated capacity.
(c) No agent, employee, or representative of CDI has the authority to bind CDI to any affirmation, representation, or warranty concerning the goods sold.
(d) Upon receipt, Purchaser shall inspect the goods. All notice of claims, including claims for alleged defective goods, must be made within (i) thirty (30) days of receipt of such goods; or (ii) prior to the installation of such goods into any other products, whichever period is shorter. If no notice of claim is made within such inspection period, the goods are irrevocably accepted by Purchaser and all claims against CDI are waived and forever barred. Purchaser agrees that any litigation or arbitration relating to any claim must be commenced within one (1) year after date of shipment by CDI. Purchaser hereby expressly assumes all liability for all damage and injury occurring before and after said time periods if notice is not made pursuant to this Agreement.
8. PURCHASER SUPPLIED MATERIALS.
Purchaser warrants that any materials, inserts, or parts supplied to CDI will conform to all indicated specifications and will be timely delivered. CDI shall not be liable for any damages related to parts or materials supplied by Purchaser, including damage to the part or material itself, or damage caused by defective materials, inserts, or parts. CDI extends no warranty and shall not be liable for any CDI goods that are defective as a result of Purchaser supplied materials, inserts, or parts and Purchaser shall be required to purchase any goods into which CDI incorporates any Purchaser supplied materials, inserts, or parts at the then applicable price for such goods
9. LIMITATION OF LIABILITY/ INDEMNITY.
CDI’s liability on any claim for loss or damage arising out of any transactions under this Agreement or from the performance or breach thereof or connected with any goods or services supplied hereunder, or the sale, resale, operation or use of goods, whether based on agreement, warranty, tort (including negligence) or other grounds, shall not exceed the price allocable to such goods or services or part thereof involved in the claim, regardless of cause or fault. Purchaser’s remedies are limited to the return of non-conforming goods and repayment of the price or to the repair and replacement of non-conforming goods, subject to the provisions of paragraph 7. This limitation of liability and remedies reflects a deliberate and bargained-for allocation of risks between CDI and Purchaser and constitutes the basis of the parties’ bargain, without which CDI would not have agreed to the price or terms of this transaction.
CDI SHALL NOT, IN ANY EVENT, BE LIABLE WHETHER AS A RESULT OF BREACH OF AGREEMENT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHER GROUNDS FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF GOODS OR ASSOCIATED PRODUCTS, BUSINESS INTERRUPTION, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES OR SERVICES, DOWNTIME COSTS, OR CLAIMS OF CUSTOMERS OF PURCHASER FOR SUCH DAMAGE. In addition, if CDI furnishes Purchaser with advice or other assistance regarding any goods or services supplied hereunder, or any system or equipment in which any such goods may be installed, and which is not required pursuant to this transaction, the furnishing of the advice or assistance will not subject CDI to any liability, whether based on agreement, warranty, tort (including negligence) or other grounds.
In the event Purchaser modifies CDI goods or incorporates CDI goods into another product or component part, Purchaser agrees to hold harmless and indemnify CDI from any and all claims, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees) involving personal injury or property damage. Purchaser also agrees to hold harmless and indemnify CDI from any patent or other intellectual property claims related to (i) any CDI goods made in accordance with Purchaser’s designs or specifications; or (ii) the use of any drawings provided to CDI by Purchaser for use in the manufacture, production or assembly of such goods.
10. WAIVER AND CHOICE OF LAW.
The failure of CDI to insist in any one or more instances, upon the performance of any of the Terms and Conditions as set forth herein or the failure of CDI to exercise any of its rights hereunder shall not be construed as a waiver or relinquishment of any such terms, conditions or rights and shall not affect CDI’s right to insist on strict performance and compliance with regard to any future performance of these Terms and Conditions. All transactions shall be governed by the laws of the State of Texas, United States of America, excluding conflict law rules. The provisions of the United Nations Convention on Agreements for the International Sale of Goods shall not apply.
11. DISPUTE RESOLUTION/ATTORNEYS’ FEES.
Any dispute, controversy or claim arising out of or related to this transaction where the amount in controversy does not exceed the sum of $50,000, exclusive of interest and costs, shall be resolved by means of binding arbitration. A demand for arbitration shall be served on the other party by certified mail. Within forty-five (45) days after a party demands arbitration, the parties shall select a single arbitrator. The selected arbitrator shall conduct the arbitration in a manner substantially similar to the procedures set forth in the Commercial Arbitration Rule of the American Arbitration Association (“AAA”). If the parties are unable to agree on an arbitrator, the party demanding arbitration shall file a demand for arbitration with the AAA and the arbitration shall then proceed in accordance with the Commercial Arbitration Rules of the AAA. In all circumstances, the arbitration shall take place in Houston, Texas.
Any dispute, controversy or claim arising out of this transaction where the amount in controversy exceeds the sum of $50,000, exclusive of interest and costs, shall be adjudicated exclusively by a court of competent jurisdiction in Houston, Texas. Purchaser consents to personal jurisdiction and venue in Houston, Texas, and agrees not to take any action to challenge such jurisdiction or venue.
In the event of any action or proceeding related to a transaction subject to this Agreement where CDI is determined to be the prevailing party with regard to some or all claims, Purchaser agrees to pay all of CDI’s attorney’s fees and litigation costs up through and including any appeal.
12. ASSIGNMENT, WAIVER, ENTIRE AGREEMENT, SEVERABILITY.
Neither party shall assign or delegate any of its rights or obligations under this Agreement without the prior written consent of the other party, which such consent shall not be unreasonably withheld, except that either party may assign or delegate its rights or obligations hereunder to an Affiliate without the other party’s consent. As used herein, the term “Affiliate” shall mean any entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by or is under common control with the entity specified. CDI may terminate this Agreement upon written notice to Purchaser without any further liability to Purchaser if there is a change of control of Purchaser. The Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior oral or written representations or agreements by the parties with respect to the subject matter of this Agreement. Neither the Agreement nor any of its provisions may be modified, amended or waived, whether orally, through the parties’ course of performance, course of dealing or course of conduct, or manifested in any other way, unless in writing and signed by an authorized officer of CDI. It is the express intention of the parties that such requirement for written modifications, amendments or waivers be strictly enforced notwithstanding judicial precedent or statutory provisions to the contrary. Any provision found invalid or unenforceable will not affect the validity or enforceability of any other provision and the invalid provision may be judicially modified to the extent enforceable.
13. EXPORT CONTROL REGULATIONS COMPLIANCE.
Purchaser shall comply with all applicable laws and regulations with regard to the supply, sale, transfer, export, re-transfer, or re-export of the Products, including economic sanctions; export controls; and, trade embargoes (“Sanctions”). For the avoidance of doubt, all applicable laws and regulations shall include at least those originating out of or related to United Nation’s resolutions, or trade or economic sanctions, laws or regulations of the European Union, of the OSCE, or of the United States of America, including extraterritorial sanctions.
Purchaser shall not cause CDI to, either directly or indirectly, risk any potential violation of any applicable Sanctions. Furthermore, Purchaser will not supply, sell, transfer, export, re-transfer, re-export, otherwise make available or use any Product supplied by CDI in order to circumvent, evade, or avoid any applicable Sanctions.
Where CDI has reasonable cause to suspect that any Product may be or has been supplied, sold, transferred, exported, re-transferred, re-exported, otherwise made available to any jurisdiction subject to Sanctions, or to a Restricted Person, or for any use, purpose or activity which is prohibited or otherwise restricted under Sanctions, CDI reserves the right to:
a. Immediately suspend its performance under the Agreement;
b. Request further information or documentary evidence from the Purchaser, including but not limited to:
i. Any licenses, authorizations, permits, or approvals obtained by the Purchaser with respect to the supply, sale, transfer or export of the Products;
ii. Any End User Certificates or Undertakings supplied to the Purchaser;
iii. Any shipping or commercial documentation, including invoices; or, bills of lading, in order to verify the end use(s) or end-user(s) of the Products.
c. Take any appropriate measure regarding the continuance of its commercial relationship with the Purchaser
In addition, Purchaser shall also respect the CDI Positions, which may go beyond Sanctions as defined above. As of the signature date of the Agreement, the list of countries to which CDI refuses any direct or indirect sales (including transit across these countries) is as follows: Iran, North Korea, and Syria. This list is subject to evolutions during the term of the agreement and CDI reserve the right to regularly notify such changes to the Purchaser.
Purchaser shall indemnify and hold harmless CDI from and against any losses, costs, claims, causes of action, damages, liabilities, and expense, including attorneys’ fees, any expense of litigation or settlement, and court costs, arising from any non-compliance with Sanctions by Purchaser, and Purchaser shall compensate CDI for any losses and expenses resulting thereof. Purchaser shall be responsible for any act or omission of Purchaser, its officers, employees, agents, suppliers, or subcontractors at any tier, in the performance of any of its obligations under this clause.
14. ELECTRONIC SIGNATURE.
Both parties agree that this particular contract may be conducted by electronic means and executed by an electronic signature, and such electronic signature will appear on the agreement just as a handwritten signature would for the purpose of establishing the validity, enforceability, and admissibility of the contract.