Terms & Conditions of Sale
I. Offer and
Contract
No offer or
contract shall be binding upon Dethlefsen & Balk, Inc.
(the “Seller”)
except by issuance of the Seller’s printed acknowledgement form. Acceptance by
Seller of buyer’s (the “Buyer”) order is expressly made conditional on assent
of these terms and conditions (the “Terms and Conditions”), either by written
acknowledgement or by conduct of Buyer that recognizes the existence of a
contract with respect to the products (the “Products”) and services described
on Seller’s acknowledgement. No additional or different terms or conditions
will be binding upon Seller unless specifically agreed to in writing; failure
of Seller to object to conditions contained in any other writing or other
communication from Buyer shall not be construed as a waiver of these Terms and
Conditions nor acceptance of any such other provisions. These Terms and
Conditions also serve as notice of Seller’s objection to and rejection of any
terms and conditions of purchase or sale included in Buyer’s order or other
writing that are different from or additional to these Terms and Conditions.
Paragraph headings herein are for convenience only and are not to be
considered in interpreting any of the provisions
herein.
II. Delivery and Risk of Loss and Licenses
Delivery of the
Products to a common carrier at Seller‘s principal place of business or at any
other loading point, if so agreed to by the parties in writing, shall
constitute delivery to Buyer (“Delivery”), and regardless of shipping terms or
freight payment, all risk of loss or damage in transit shall upon Delivery,
shift to Buyer. If Buyer is responsible for any shipment delay, Seller‘s
written notification to Buyer that the Products ordered hereunder are ready
for shipping shall constitute Delivery to Buyer, and all further risk of loss
or damage as well as all costs for handling, transportation and storage shall
be borne by Buyer.
Seller shall not be
liable for any damages as a result of any delay or failure to deliver due to
any cause beyond Seller‘s reasonable
control, including without limitation,
any act of God, act of Buyer, embargo or other governmental act, regulation or
request, fire, accident, strike, slowdown, war, riot, delay in transportation
or inability to obtain necessary labor, materials or manufacturing
facilities.
III. Suspension and Cancellation
- If Buyer shall omit
delivery instructions or shall fail to accept Delivery or shall fail to make
any payment when it becomes due or shall commit any other breach of contract,
or if Buyer shall enter into any composition or arrangement with its creditors
or if any distress or execution is levied upon any goods or property of Buyer,
or if Buyer shall commit any act of bankruptcy or, if a corporation, a
receiver shall be appointed of the whole or any part of its undertaking or
assets or if Buyer shall pass a resolution for winding up or if a Court shall
make an order to that effect or if Buyer shall have a receiving order made
against it, then at Seller‘s sole option Seller may defer or cancel any
further deliveries and treat the Contract or any other contract between Seller
and Buyer as terminated, but such termination shall be without prejudice to
Seller‘s right to any unpaid price for goods or materials delivered or cost of
work done under the Contract and to damages for loss suffered in consequence
of such termination.
- If Seller shall be
prevented from delivering goods in accordance with the Contract as a result of
delay or default on the part of Buyer or any other reason beyond Seller‘s
reasonable control Seller shall be entitled to reschedule the Delivery or
performance date or dates as it shall reasonably require.
- Buyer may not cancel or
terminate any orders accepted by Seller in accordance with Article I hereof,
except with Seller’s prior written consent and then only upon such terms as
shall be acceptable to Seller, in its sole discretion. Upon such consent
authorized return shipments must be returned in good order and condition to
Seller’s principal place of business, unless otherwise specified by Seller,
must be accompanied by a packaging slip, and must have transportation and
insurance charges prepaid. Buyer shall receive a credit for the purchase price
for any authorized return shipments, provided that any goods are returned to
Seller in good order and resalable condition as determined by Seller in its
sole discretion.
IV. Products
Seller reserves the right
to revise and discontinue Products at any time and without prior notice.
Seller will ship Products that have the same or similar functionality and
performance of the Products ordered, but changes, including but not limited to
changes with regard to color, measurements and weight, due to technical
requirements between what is shipped and what is described in specification
sheets, catalogs, brochures or the like, are possible and shall not constitute
a defect in the Product or non-compliance on the part of the
Seller.
V. Prices and Payment
- If the Products are
shipped from Seller‘s principal place of business or from any other location
within the U.S.A., the quoted price is ex works Seller‘s principal place of
business or the location of shipment, whichever is applicable unless otherwise
agreed upon in writing. If Products are shipped from outside the
U.S.A., the quoted price is ex
works, port of dispatch, unless otherwise agreed upon in writing.
- A minimum order value of
two hundred U.S. Dollars ($ 200.00) is required. In addition, the minimum
order quantity for tea is two/two lbs (2.2 lbs) or one kilogram (1 kg) per
type of tea and for tea accessories is one packing unit (1 PU) per type of
item unless otherwise expressly stated by Seller.
- Overrun or under run of
fifteen percent (15%) in filling orders using customized packaging shall
constitute full compliance with all orders accepted by Seller.
- The quoted price of the
Products does not include taxes, including but not limited to sales taxes,
freight costs or similar charges which shall be borne by Buyer, unless
otherwise agreed upon in writing. All prices are subject to change prior to
Seller’s issuance of an acceptance form. For all prices, products, and
services Seller reserves the right to make adjustments due to changing market
conditions, product discontinuation, or other extenuating
circumstances.
- Buyer shall be responsible for any shipping
charges of shipments of the Products and Buyer shall reimburse Seller for any
such charges paid by Seller, unless otherwise agreed upon in writing.
- Payment for all orders
must be made by credit card at date of invoice. Net 30 terms can be honored
after approval by Dethlefsen & Balk Inc. management.
- Seller reserves the
right to make deliveries in installments. All such installments shall be
separately invoiced and paid for when due, without regard to subsequent
deliveries.
- Overdue amounts shall
bear a delinquency charge of interest at eighteen percent (18%) per annum or
the maximum rate permitted by law. The interest rate is subject to change at
Seller‘s discretion.
VI. Taxes and Other Charges
Any tax including but not
limited to sales tax, excise tax, duty, custom, inspection or testing fee or
charge of any nature whatsoever imposed by any governmental authority,
domestic or foreign, on or measured by the transaction between Seller and
Buyer shall be paid by Buyer in addition to the price quoted or invoiced. In
the event that Seller is required to pay any such tax, fee or charge, Buyer
shall reimburse Seller therefore unless otherwise agreed upon in writing.
Buyer shall provide a valid certificate of resale or exemption to support any
applicable exemption from taxation.
VII. Limited
Warranties
- Seller warrants that the
Products shall be free from defects in material and workmanship for a period
of seven (7) days from the date of shipment. Seller‘s obligations under the
aforesaid warranty shall be repairing or replacing any part or parts of the
Products, which if used, stored and maintained, prove defective in material
and workmanship.
Such repair or replacement shall be Seller‘s sole
obligation and Buyer‘s sole remedy hereunder and shall be conditioned upon a)
Seller’s receipt of written notice of any alleged defect within seven (7) days
after its discovery, and b) at Seller‘s option, return of such defective
Products freight prepaid to Seller‘s principal place of business. Any Product
repaired or replaced pursuant to this warranty will be warranted for the
remainder of the original warranty period.
- Seller‘s obligations
under paragraph 1. of this provision shall not apply to any component or part
of the Products sold hereunder whicha.
a) is consumed by normal wear and tear,
or
b.) which is consumed by excessive or abnormal use, or
c.) which has
a normal life inherently shorter than the herein stated warranty period,
or
d.) which has been damaged due to negligent or faulty use, alteration,
maintenance, storage, or handling by Buyer.
- Any description or
representation of the Products whether in writing or made orally by Seller or
Seller‘s agents, specifications, samples, bulletins, drawings, or similar
materials used in connection with Buyer‘s order are for the sole purpose of
identifying the Products and shall not be construed as an express
warranty.
Any suggestions by Seller or Seller‘s agents regarding use,
application or suitability of the Products shall not be construed as an
express warranty unless confirmed to be such in writing by Seller.
- The warranty expressed
herein shall be in lieu of any other warranties, expressed or implied,
including, without limitation, any implied warranty of merchantability or
fitness for a particular purpose, and is in lieu of any and all other
obligations ob liability on seller’s part..
VIII. Warranty Claims, Inspection, and Waiver of
Defects
- Written notice of any
alleged covered defect must be presented to Seller within seven (7) days after
its discovery, and Seller must be allowed to inspect the Products while they
are in the alleged defective condition.
- Buyer shall inspect all
Products immediately upon their arrival and shall give written notice to
Seller within seven (7) days after receipt of the Products of any claim that
the Products do not conform to the terms of the contract. Seller shall have
reasonable access to inspect any allegedly non-conforming Products.
- Buyer waives any right
to assert any claim against Seller arising from any non-conformity of the
Products sold hereunder which would have been observable on reasonable
inspection or testing within seven (7) days after
Delivery.
IX. Limitation of Liability
Except as
otherwise agreed in writing, Seller‘s liability with respect to the Products
shall be limited to the warranty provided in Articles VII. and VIII. hereof,
and shall be limited to the contract price.
Seller shall not be subject to any other
obligations or liabilities, whether arising out of breach of contract,
warranty, tort (including negligence and strict liability), or other theories
of law, with respect to the products sold or service rendered by seller, or
undertakings, acts or omissions relating thereto. Under no circumstances will
seller be liable for any incidental or consequential damages, or for any other
loss, damage or expense of any kind, including loss of profits, arising in
connection with the contract or with the use for liability to use seller’s
products furnished under this contract. Seller’s sole liability and buyer’s
sole remedy is limited to either
(1) Repair or replacement of defective
parts or products, and/or
(2) At seller’s option, return of the products
to seller and refund of purchase price.
X. Security Interest
Buyer hereby grants to
seller a security interest in the products sold hereunder to secure payment of
the purchase price of such products and agrees, and appoints seller its agent,
to take all such action and to execute all such documents and instruments as
may be necessary or reasonably requested by seller to perfect and continue
seller’s security interest hereunder.
XI. Severability
If at any time any one or
more of the provisions of these Terms and Conditions become invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions of these Terms and Conditions shall not be in any way
impaired.
XII. Arbitration
All disputes arising
under this Contract shall be settled by final and binding arbitration in the
City of Chicago, Illinois in accordance with the Commercial Arbitration Rules
of the American Arbitration Association then in effect. The parties may agree
on the selection
of a single arbitrator, but in event they cannot agree,
each party shall select an arbitrator and the two selected arbitrators shall
select a third arbitrator. Each party shall be responsible for its costs of
the arbitration. The award by the arbitrator or arbitrators shall be final and
judgement up on the award rendered may be entered in any court having
jurisdiction thereof.
XIII. Governing Law
This agreement and any
sales hereunder shall be construed in accordance with and governed by the laws
of the state of Illinois, without regard to its conflicts of
law rules.
XIV. Complete Agreement
These Terms and Conditions of Sale and Seller’s acceptance form constitutes
the complete and exclusive statement of the agreement between the parties
hereto. It supersedes all prior written and oral statements, including prior
representations, statements, conditions,
or
warranties.