TERMS AND CONDITIONS OF SALE
The David Round Company Terms and Conditions of Sale
Customer and DRC Acquisitions Inc, doing business as "THE DAVID ROUND COMPANY" (hereinafter "THE DAVID ROUND COMPANY") agree that the purchase and sales of THE DAVID ROUND COMPANY products ("the Products") are made under these terms and conditions, and that THE DAVID ROUND COMPANY SHALL NOT BE BOUND BY CUSTOMER'S ADDITIONAL OR DIFFERENT TERMS. Customer's order and purchase of the Products shall constitute acceptance of these terms and conditions.
- TITLE. Title to the Products shall pass at THE DAVID ROUND COMPANY's plant. THE DAVID ROUND COMPANY retains a security interest and right of possession in the Products until Customer makes full payment.
- TAXES. Product prices are exclusive of, and Customer is responsible for, applicable sales, use, service, value added or like taxes.
- PRICES AND PAYMENT. All quotations shall expire thirty (30) days from date of issuance, unless otherwise set forth on the quotation or agreed in writing. Customer shall make payment in full prior to delivery by wire transfer, ACH payment, Company Check, cashier's check, credit card, or money order, unless THE DAVID ROUND COMPANY approves Customer for credit terms. If THE DAVID ROUND COMPANY approves Customer's credit application, payment shall be due no later than 30 days from the date of THE DAVID ROUND COMPANY's invoice. All sums not paid when due shall accrue interest daily at the lesser of a monthly rate of 1.5% or the highest rate permissible by law on the unpaid balance until paid in full. Payments for orders accepted in the United States shall be made in U.S. Dollars. In the event of any order for several units, each unit(s) will be invoiced when shipped. Exceptions will be made for government purchase orders.
- ORDERS. All orders are subject to acceptance by THE DAVID ROUND COMPANY. THE DAVID ROUND COMPANY's booking of an order shall constitute its acceptance of an order.
- DELIVERY. THE DAVID ROUND COMPANY shall deliver the Products to a carrier at THE DAVID ROUND COMPANY's plant and, if the Products are sold to a Customer outside the United States a freight forwarder will be used at the customer's expense. Customer shall pay all freight charges, applicable import duties, and other necessary fees and shall bear the risks of carrying out customs formalities and clearance. THE DAVID ROUND COMPANY may direct ship product at its sole discretion. Orders are entered as close as possible to the Customer's requested shipment date, if any. Shipment dates are scheduled after acceptance of orders and receipt of necessary documents. Claims for shipment shortage shall be deemed waived unless presented to THE DAVID ROUND COMPANY in writing within forty-five (45) days of shipment.
- LIMITED WARRANTY.: THE DAVID ROUND COMPANY manufactured and branded Products are warranted against defect in material and workmanship for a period of one year to the original purchaser. Products resold by THE DAVID ROUND COMPANY carry the original manufacturer's warranty. Any products found to be defective in material or workmanship will be repaired, replaced with same or similar device, or refunded at THE DAVID ROUND COMPANY's sole discretion. Customer must obtain a Return Material Authorization number from THE DAVID ROUND COMPANY before returning any Products under warranty to THE DAVID ROUND COMPANY. Customer shall pay expenses for shipment of repaired or replacement Products to and from THE DAVID ROUND COMPANY. After examining and testing a returned product, if THE DAVID ROUND COMPANY concludes that a returned product is not defective, Customer will be notified, the product returned at Customer's expense, and a charge made for examination and testing. This Limited Warranty is void if failure of the Products h as resulted from accident, abuse, misapplication, improper calibration by Customer or unauthorized maintenance or repair.
- CUSTOMER REMEDIES. THE DAVID ROUND COMPANY's sole obligation (and Customer's sole remedy) with respect to the foregoing Limited Warranty shall be to, at its option, return the fees paid or repair/replace any defective Products, provided that THE DAVID ROUND COMPANY receives written notice of such defects. Customer may not bring an action to enforce its remedies under the foregoing Limited Warranty more than one (1) year after the accrual of such cause of action.
- RETURN/CANCELLATION/CHANGE POLICY. Customer may not return unwanted Products without a Return Material Authorization Form. All third party products resold by THE DAVID ROUND COMPANY are final. Where special equipment or services are involved, Customer shall be responsible for all related work in progress; however, THE DAVID ROUND COMPANY shall take responsible steps to mitigate damages immediately upon receipt of a written cancellation notice from Customer. A Return Material Authorization number must be obtained from THE DAVID ROUND COMPANY for return of any Products. THE DAVID ROUND COMPANY may terminate any order if any representations made by Customer to THE DAVID ROUND COMPANY are false or misleading. Changes to orders shall not be binding upon nor be put into effect by THE DAVID ROUND COMPANY unless confirmed in writing by THE DAVID ROUND COMPANY's appropriate representative.
- NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE PRODUCTS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED ARE MADE WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. THE DAVID ROUND COMPANY DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE PRODUCTS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE AND DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. THE DAVID ROUND COMPANY EXPRESSLY DISCLAIMS ANY WARRANTIES NOT STATED HEREIN.
- NO LIABILITY FOR CONSEQUENTIAL DAMAGES. The entire liability of THE DAVID ROUND COMPANY and its licensors, distributors, and suppliers (including its and their directors, officers, employees, and agents) is set forth above. To the maximum extent permitted by applicable law, in no event shall THE DAVID ROUND COMPANY and its licensors, distributors, and suppliers (including its and their directors, officers, employees, and agents) be liable for any damages, including, but not limited to, any special, direct, indirect, incidental, exemplary, or consequential damages, expenses, lost profits, lost savings, business interruption, lost business information, or any other damages arising out of the use or inability to use the Products, even if THE DAVID ROUND COMPANY or its licensors, distributors, and suppliers has been advised of the possibility of such damages. Customer acknowledges that the applicable purchase price or license fee for the Products reflects this allocation of risk. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply. If the foregoing limitation of liability is not enforceable because an THE DAVID ROUND COMPANY product sold or licensed to Customer is determined by a court of competent jurisdiction in a final, non-appealable judgment to be defective and to have directly caused bodily injury, death, or property damage, in no event shall THE DAVID ROUND COMPANY's liability for property damage exceed the greater of $50,000 or fees paid for the specific product that caused such damage.
- WARNING: THE DAVID ROUND COMPANY PRODUCTS ARE NOT DESIGNED WITH COMPONENTS AND TESTING FOR A LEVEL OF RELIABILITY SUITABLE FOR USE IN OR IN CONNECTION WITH SURGICAL IMPLANTS OR AS CRITICAL COMPONENTS IN ANY LIFE SUPPORT SYSTEMS WHOSE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO CAUSE SIGNIFICANT INJURY TO A HUMAN.
- FORCE MAJEURE. THE DAVID ROUND COMPANY shall be excused for any delay or failure to perform due to any cause beyond its reasonable control, including but not limited to acts of governments, natural catastrophes, acts of Customer, interruptions of transportation or inability to obtain necessary labor or materials. THE DAVID ROUND COMPANY's estimated shipping schedule shall be extended by a period of time equal to the time lost because of any excusable delay. In the event THE DAVID ROUND COMPANY is unable to perform in whole or in part because of any excusable failure to perform, THE DAVID ROUND COMPANY may cancel orders without liability to Customer.
- LIMITED INDEMNITY AGAINST INFRINGEMENT. THE DAVID ROUND COMPANY shall, at its own expense, defend any litigation resulting from sales of the Products to the extent that such litigation alleges that the Products or any part thereof infringes any United States patent, copyright, or trademark, provided that such claim does not arise from the use of the Products in combination with equipment or devices not made by THE DAVID ROUND COMPANY or from modification of the Products, and further provided that Customer notifies THE DAVID ROUND COMPANY immediately upon its obtaining notice of such impending claim and cooperates fully with THE DAVID ROUND COMPANY in preparing a defense. If Customer provides to THE DAVID ROUND COMPANY the authority, assistance, and information THE DAVID ROUND COMPANY needs to defend or settle such claim, THE DAVID ROUND COMPANY shall pay any final award of damages in such suit and any expense Customer incurs at THE DAVID ROUND COMPANY's written request, but THE DAVID ROUND COMPANY shall not be liable for a settlement made without its prior written consent. If the Products are held to be infringing and the use thereof is enjoined, THE DAVID ROUND COMPANY shall, at its option, either (i) procure for the Customer the right to use the Products, (ii) replace the Products with others which do not constitute infringement, or (iii) remove the infringing Products and refund the payment(s) made therefore by Customer. The foregoing states the Customer's sole remedy for, and THE DAVID ROUND COMPANY's entire liability and responsibility for, infringement of any patent, trademark, or copyright relating to the Products provided hereunder. THIS LIMITED INDEMNITY IS IN LIEU OF ANY OTHER STATUTORY OR IMPLIED WARRANTY AGAINST INFRINGEMENT.
- ACKNOWLEDGMENT/GOVERNING LAW. Customer acknowledges reading these Terms and Conditions, understands them and agrees to be bound by them. A waiver of any provision of this agreement shall not be construed as a waiver or modification of any other term hereof. With respect to all orders accepted by THE DAVID ROUND COMPANY in the United States, disputes arising in connection with these Terms and Conditions of Sale shall be governed by the laws of the State of Ohio without regard to principles of conflicts of laws. With respect to all orders accepted by THE DAVID ROUND COMPANY outside the United States, disputes arising in connection with these Terms and Conditions of Sale shall be governed by the laws of th e country and locality in which THE DAVID ROUND COMPANY accepts the order without regard to principles of conflicts of laws.