General Terms and Conditions
§ 1 Application
(1) The general terms and conditions (“Terms”) are the only terms which govern the sale of the goods (“Goods”) by the seller Dreve America Corporation (“Dreve”).
(2) The Terms shall apply in accordance with the most recent version without any need of express reference thereto or agreement thereon and shall also apply if Dreve performs delivery services.
(3) Any other agreement between the parties that contains terms that are inconsistent with these Terms shall not apply unless these terms are expressly agreed upon in writing by Dreve.
(4) The accompanying invoice and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of buyer's general terms and conditions of purchase regardless whether or when buyer has submitted its purchase order or such terms. Fulfillment of buyer's order does not constitute acceptance of any of buyer's terms and conditions and does not serve to modify or amend these Terms.
§ 2 Offers, Acceptance
(1) Dreve’s offers shall not be binding; in particular, with reference to quantities, price and delivery time.
§ 3 Prices
(1) Buyer shall purchase the Goods from Dreve at the prices (the “Prices”) set forth in Dreve's published price list in force as of the date that Dreve accepts buyer's purchase order. If the Prices should be increased by Dreve before delivery of the Goods to a carrier for shipment to buyer, then these Terms shall be construed as if the increased prices were originally inserted herein, and buyer shall be billed by Dreve on the basis of such increased prices.
(2) All Prices are exclusive of all sales, use, excise taxes, VAT taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by buyer. Buyer shall be responsible for all such charges, costs and taxes and which are payable at the date of delivery; provided, that, buyer shall not be responsible for any taxes imposed on, or with respect to, Dreve's income, revenues, gross receipts, personnel or real or personal property or other assets. The buyer will be charged separately for costs of packaging and delivery and transport insurance, except as otherwise expressly agreed upon.
(3) If, as a result of a change of law between the agreement date and the delivery date, additional or increased charges (e.g., duties, levies, currency compensation payments) shall be payable, then Dreve shall have the right to increase the purchase price accordingly. The same shall apply to any fees for examination.
§ 4 Payment
(1) Payment shall be made within 30 days strictly net from date of invoice. New export customers are only supplied after payment is received, i. e. cash in advance.
(2) If the invoice is not paid within 30 days after the date of invoice or as at another due date, then Buyer shall pay interest on all late payments at the lesser rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Dreve for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees and costs. In addition to all other remedies available under these Terms or at law (which Dreve does not waive by the exercise of any rights hereunder), Dreve shall be entitled to suspend the delivery of any Goods if buyer fails to pay any amounts when due hereunder and such failure continues for 14 days following written notice thereof.
(3) If buyer becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then Dreve shall have the right to declare all outstanding claims as immediately payable, even if Dreve shall have accepted checks. The same shall apply if the buyer defaults on payments as discussed in Section 4(2) or other incidents give rise to doubts about buyer’s creditworthiness. Moreover, Dreve may in such event demand prepayments or a security deposit.
(4) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Dreve, whether relating to Dreve's breach, bankruptcy or otherwise.
§ 5 Quantity of Custom-Made Products, Delivery
(1) At all times, Dreve shall have the right for custom-made products to supply 10 % more or less than the agreed amount.
(2) Dreve shall have the right to deliver in installments.
§ 6 Hazardous Materials
(1) Some of the products sold may be hazardous. These products will be labeled and accompanied by Material Safety Data sheets in compliance with the Occupational Safety & Health Administration (“OSHA”).
§ 7 Shipment, Delivery
(1) Delivery shall be made FOB at Dreve’s facilities. The Goods shall be transported insured at the risk of the buyer and at the expense of the buyer. This shall also apply in cases of any delivery free of charge and regardless of which means of transport are used. Any transport insurance shall be provided only upon express demand of the buyer. Any costs arising therefrom shall be at the expense of the buyer only.
(2) Dreve shall not be liable for any delays, loss or damage in transit.
(3) Unless otherwise agreed in writing by the parties, Dreve shall deliver the Goods to Dreve’s facilities (the “Delivery Point”) using Seller's standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within two days of Seller's written notice that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
(4) Dreve may, at its sole discretion, without liability or penalty, make partial shipments of Goods to buyer. Each shipment will constitute a separate sale, and buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of buyer's purchase order.
(6) Dreve’s delivery obligation shall at all times be subject to timely and orderly receipt of the goods from Dreve’s own suppliers.
(7) Unless otherwise expressly agreed in writing, any indicated time of delivery or unloading shall be non-binding.
(8) If for any reason buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Dreve's notice that the Goods have been delivered at the specified location, or if Dreve is unable to deliver the Goods at the specified location on such date because buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Dreve, at its option, may store the Goods until buyer picks them up, whereupon buyer shall be liable for all related costs and expenses including, without limitation, storage and insurance.
§ 8 Non-delivery
(a) The quantity of any installment of Goods as recorded by Dreve dispatch from Dreve's place of business is conclusive evidence of the quantity received by buyer on delivery unless buyer can provide conclusive evidence proving the contrary.
(b) Dreve shall not be liable for any non-delivery of Goods (even if caused by Dreve's negligence) unless buyer gives written notice to seller of the non-delivery within 2 days of the date when the Goods would in the ordinary course of events have been received.
(c) Any liability of Dreve for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
§ 9 Duty of Inspection and Rejection of Nonconforming Goods1
(1) Buyer shall inspect the Goods within 2 days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Dreve in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Dreve. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in buyer's purchase order; or (ii) product's label or packaging incorrectly identifies its contents.
(2) If buyer timely notifies Dreve of any Nonconforming Goods, Dreve shall, in its sole discretion: (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Dreve's facilities. If Dreve exercises its option to replace Nonconforming Goods, Dreve shall, after receiving buyer's shipment of Nonconforming Goods, ship to buyer, at buyer's expense and risk of loss, the replaced Goods.
(3) Buyer acknowledges and agrees that the remedies set forth in Section 9(2) are buyer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 9(2), all sales of Goods to buyer are made on a one-way basis and buyer has no right to return Goods purchased under this Agreement to Dreve.
§ 10 Limited Warranty
(1) Dreve warrants to buyer that for a period of one year from the date of shipment of the Goods (“Warranty Period”), that such Goods will materially conform to Dreve’s published specifications in effect as of the date of manufacture under the corresponding transaction. The warranty obligation does not refer to natural wear and tear or to damage occurring after the transfer of risk due to improper or unsuitable handling, excessive stressing, unsuitable operating material, and chemical, electrochemical or electrical influences of a nature not provided for according to the contract. In the event that improper alterations, repairs or maintenance are carried out by the buyer or third parties, Dreve’s warranty obligations and liability for consequences caused thereby are rendered void.
(2) Except as set forth in Section 10(1), DREVE, ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES MAKE NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(3) DREVE DISCLAIMS ANY LIABILITY FOR ANY DEFICIENCY IN TREATED UNITS.
(4) Dreve, its agents, officers, directors, employees, successors, assigns, and affiliates, shall not be liable for a breach of the warranty set forth in Section 10(1) unless: (i) buyer gives written notice of the defect, reasonably described, to Dreve within 2 days of the time when buyer discovers or ought to have discovered the defect; (ii) Dreve is given a reasonable opportunity after receiving the notice to examine such Goods and buyer (if requested to do so by Dreve) returns such Goods to Dreve's place of business at buyer's cost for the examination to take place there; and (iii) Dreve reasonably verifies buyer's claim that the Goods are defective.
(5) Dreve, its agents, officers, directors, employees, successors, assigns, and affiliates, shall not be liable for a breach of the warranty set forth in Section 10(1) if: (i) buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because buyer failed to follow Dreve's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) buyer alters or repairs such Goods without the prior written consent of Dreve’s.
(6) BUYER AGREES THAT ANY LIABILITY OF DREVE SHALL BE LIMITED TO REPAIR OR REPLACEMENT AT DREVE’S SOLE DISCRETION. THE REMEDIES HEREIN ARE THE SOLE AND EXCLUSIVE REMEDIES PROVIDED HEREUNDER.
(7) THE REMEDIES SET FORTH IN THIS SECTION SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND DREVE'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10(1).
§ 11 Limitation of Liability
(1) IN NO EVENT SHALL DREVE, ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(2) IN NO EVENT SHALL DREVE'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD FOR THE PURCHASE ORDER OR $100,000, WHICHEVER IS LESS.
§ 12 Grant of Security Interest
(1) As collateral security for the payment of the purchase price of the Goods, buyer hereby grants to Dreve a lien on and security interest in and to all of the right, title and interest of buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Minnesota Uniform Commercial Code.
§ 13 Compliance with Law
(1) Buyer shall comply with all applicable laws, regulations and ordinances.
(2) Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
(3) Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance.
(4) Dreve may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
§ 14 Termination
(1) In addition to any remedies that may be provided under these Terms, Dreve may terminate this Agreement with immediate effect upon written notice to buyer, if buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for 20 days after Buyer's receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
(2) If any agreed time of delivery or unloading shall be exceeded and there shall be no incident referred to in Section (§17) below, then the buyer must specify to Dreve a reasonable cure period of a minimum of two weeks. If Dreve shall fail to meet such deadline also, then the buyer will have the right to terminate the Agreement.
(3) A termination of the contract, in whole or in part, is possible as long as the order has not been processed. Dreve does not accept any responsibility for termination requests which are not received in due time. The buyer is obligated to accept the order if the termination is submitted late. In individual cases, fair consideration will be given to requests for retroactive termination or the exchange of defect-free consignments.
(4) Dreve reserves the right to charge lump-sum compensation for expenses in the amount of 10 % of the net order value in such cases. Exchanges or return deliveries are subject to our prior agreement and may not be shipped freight forward.
(5) If the buyer, contrary to Agreement, returns the Goods freight forward, it shall be obligated to bear the costs billed by Dreve to cover the expenses. The costs in this case shall comprise the payment which is due and lump-sum compensation for expenses in the amount of 10 % of the net order value.
§ 15 Waiver
(1) No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller.
(2) No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof.
(3) No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
§ 16 Confidential Information.
(1)All non-public, confidential or proprietary information of Dreve, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Dreve to buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Dreve in writing.
(2) Upon Dreve's request, buyer shall promptly return all documents and other materials received from Dreve.
(3) Dreve shall be entitled to injunctive relief for any violation of this Section.
(4) This Section 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.
§ 17 Force Majeure
(1) Dreve its agents, officers, directors, employees, successors, assigns, and affiliates, shall not be liable or responsible to buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Dreve including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials (including, but not limited to, cease of export or import opportunities), materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 30 days, buyer shall be entitled to give notice in writing to Dreve to terminate this Agreement]. Under the circumstances identified in this Section 17, Dreve is released from the obligation to comply with any agreed time for delivery or unloading. Further, the above inability to supply gives Dreve the right to withdraw from the Agreement without giving the right to the buyer to claim for indemnity or other rights.
§ 18 Assignment
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Dreve. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves buyer of any of its obligations under this Agreement.
§ 19 Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
§ 20 No Third-Party Beneficiaries
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
§ 21 Governing Law & Venue
(1) All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule (whether of the State of Minnesota or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Minnesota.
(2) All actions, claims, disputes or proceedings arising under or relating to this Agreement shall be brought in the federal courts of the United States District Court for the District of Minnesota or the State of Minnesota and County of Hennepin, and each party irrevocably waive any and all objections which any party may now or hereafter have to the exercise of personal and subject matter jurisdiction by the federal or state courts in the State of Minnesota and to the laying of venue of any such suit, action or proceeding brought in any such federal or state court in the State of Minnesota.
§ 22 Notices
(1) All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing.
(2) All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). (3) Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
§ 23 Severability
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
§ 24 Survival
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following sections: 10, 11, 13, 16, 21 and 24.
Act. January 2017