These Terms and Conditions of Quotation and Sale (“Terms and Conditions”) shall apply to any quotation issued by DIVERSIFIED TECHNICAL SYSTEMS, a California corporation (“DTS”), to which they are physically or electronically attached or in which they are incorporated by reference. All orders and sales of DTS products and services (“Goods”) are subject to final approval by DTS and shall be subject to these Terms and Conditions, which shall take precedence over and to the exclusion of any additional or different terms and conditions from the buyer (“Buyer”).
1. Prices. Unless otherwise stated in a quotation, prices quoted are valid for a period of ninety (90) days after which DTS shall have the right to adjust quoted prices upon written notice to Buyer. All quoted prices are in U.S. Dollar (USD) unless otherwise stated. Quoted prices do not include any applicable local, state, federal or foreign taxes and any such taxes, including sales and excise taxes, levied on the Goods shall be added to the specified prices for Goods paid by Buyer and shall remain the sole responsibility of Buyer.
2. Quotation. DTS’s acceptance of any order for Goods delivered by Buyer is conditioned upon Buyer’s acceptance of these Terms and Conditions. All quotations issued by, and all sales of Goods made by, DTS shall be subject to these Terms and Conditions. These Terms and Conditions shall not be modified other than in writing signed by DTS and Buyer and shall become a part of any further or additional order or agreement between the parties regarding the sale of the Goods. Verbal agreements shall not be binding upon DTS unless they have been agreed to in writing.
3. Limitation of Liability. In no event shall DTS be liable to Buyer or to any third party for consequential, incidental or special damages, or for lost profits, resulting from or in any manner related to the Goods, any performance or non-performance by DTS, or the design, use or any inability to use the Goods, whether such damages are claimed under contract, tort or any other legal theory. Buyer understands and agrees that Buyer’s sole and exclusive remedy, and DTS’s limit of liability, for any and all loss or damage resulting from defective Goods or the breach by DTS of any provision or term set forth herein or otherwise, in each case, shall be limited to the purchase price of the particular Goods with respect to which such loss or damage is claimed, plus any transportation charges actually paid by Buyer. This limitation of liability shall survive the termination, expiration or cancellation of any agreement or order with respect to the sale of Goods. Except as otherwise described herein or expressly provided by DTS, there are no other warranties or guaranties, either express or implied, written, oral or arising under custom or trade, including, without limitation, the warranty of title, against liens, infringement, the warranty of merchantability and the warranty of fitness for a particular purpose. No warranties or representations at any time made by any representative of DTS shall be effective to vary or expand the above referenced express warranty or any terms set forth in these Terms and Conditions. Buyer undertakes to include all requirements and specifications relating to the Goods ordered in a quotation.
4. Delay in Performance. DTS shall not be responsible or liable for any delays or failures in performance with respect to any quotation or order for Goods due to any cause or condition beyond the control of DTS, including, without limitation, strikes or labor difficulties, fires, floods and other actions of the elements, inability to secure transportation, shortage of materials or equipment, riots or other civil commotions and acts of God and war. DTS’s liability for real and proven damages shall, regardless the gravity of the failure, be limited to the price of the Goods directly related to the claim.
5. Inspection. Buyer shall inspect all supplied Goods and verify conformity with the quotation promptly upon delivery and before use of such Goods. Goods must not be returned without DTS’s prior written authorization. Goods shall be deemed to have been accepted in the event no written notice specifying in detail any shortages, damages or other claims has been received by DTS within ten (10) days following delivery of the Goods. DTS shall not be liable for any damage, warranty or remedy, and back charges will not be accepted, without prior notification, an opportunity to view and repair, replace or otherwise cure, and approval by DTS. A restocking charge in the amount of 15% of the purchase price of the Goods will be charged on Goods approved for credit. No refunds will be authorized. In the event that Buyer omits to exercise control of the Goods or elects to use nonconforming Goods, Buyer thereby releases and dismisses DTS from any and all liability for the possible consequences of the usage of such Goods.
6. Term of Delivery. All dates and schedules specified by DTS for the performance or delivery of Goods by DTS have been stated only as an estimate from the date of such quotation, and are contingent upon, among other things, the timely receipt of complete specifications, designs, samples and other information reasonably requested by DTS to be provided by Buyer. DTS shall not incur any liability, either direct or indirect, nor shall any quotation or purchase order be cancelled as a result of any delays in meeting such dates or schedules. DTS shall not be responsible for any delays caused by third parties utilized by DTS or the inability of such third parties to provide or deliver their goods or services to DTS. Buyer hereby agrees and acknowledges that DTS’s quote may be based on a quote from a third party and DTS shall not be bound by its own quote if any third party fails to provide its goods or services as promised or agreed. Unless otherwise expressly agreed to in writing, shipment of Goods will be FCA DTS’s location, at which time title and risk of loss shall transfer to buyer at time of shipment. Payment of all shipping and freight charges, along with all customs, duties, costs, taxes, insurance premiums, and other expenses related to the transportation of Goods, shall be the sole responsibility of Buyer. Shipping and freight charges incurred by DTS on behalf of the buyer will be added to the invoice.
7. Cancellation or Change Orders; Default. No orders may be withdrawn or canceled by Buyer, nor may they be deferred when ready, unless DTS shall have previously approved such withdrawal, cancellation or deferral in writing and DTS shall have been paid a withdrawal, cancellation or deferral charge of a reasonable amount acceptable to DTS not to exceed its cost plus anticipated profit. In the event that Buyer shall request changes in any order that has been submitted to DTS, Buyer shall be responsible for all charges and expenses reasonably incurred by DTS with respect to such changes. Buyer shall not have the right by change orders to specify any products or services that are not generally made available by DTS to its customers. In the event of Buyer’s default hereunder, DTS shall have the right to immediately cancel any order, stop work, refuse to ship or stop delivery of any Goods, and DTS shall be entitled to recover any losses or damages incurred by DTS as a result of such default and to seek any other remedy provided by law. Buyer’s default means (i) Buyer’s insolvency or the filing or institution of a proceeding under any bankruptcy, reorganization or similar law, by or against Buyer, (ii) an assignment for the benefit of creditors by Buyer, (iii) the appointment of a receiver, trustee or custodian for any of the property or assets of Buyer, and (iv) Buyer otherwise being in default of any obligation to DTS hereunder or otherwise. By submitting an order to DTS, Buyer warrants, represents and covenants that it is solvent now and will be solvent at shipment and agrees to notify DTS immediately in writing upon the occurrence of any of the events set forth in this paragraph.
8. Conditions of payment. Unless otherwise provided in a quotation, all payments are due thirty (30) days after the date of invoice (net 30 days). Payment must be made in USD unless otherwise indicated. DTS reserves the right to supply certain high value products cash on delivery only, without any deduction. Any possible protest must be communicated within 10 days after the date of invoice. Late payment will cause, ipso jure and without notice, a late payment charge of 10% per annum. Buyer shall also be responsible for any and all costs, including attorneys’ fees, necessary to collect past due accounts. Offsetting against any kind of non-approved counter-claims as well as execution of right of retention of Goods shall be excluded unless established in court or agreed to by DTS. DTS shall remain the sole owner of delivered Goods, and title to Goods shall not pass to Buyer, until such time as DTS receives payment in full for such Goods, including transport costs and taxes and DTS reserves the right to invoice separate parts of a quote separately. DTS reserves the right to refrain from execution of further components of a quote or order, or of any subsequent quote or order, or to terminate a delivery, until such time as any outstanding issued invoices shall have been paid in full.
9. Export Compliance. DTS’s products, technologies and services are subject to the U.S. export laws and regulations. Buyer shall also comply with all applicable export laws and regulations. It is Buyer’s responsibility to determine the appropriate licensing requirements for any proposed retransfer, resale, or reexport of the merchandise subject to this order, and to obtain any necessary authorization(s) from the appropriate U.S. and/or other government authorities exercising jurisdiction over the proposed activity. Buyer will not, unless properly authorized, import, export, reexport, resell, transfer or disclose (directly or indirectly) any DTS products or technical data, or the direct product of any DTS products or technical data: (a) to any person or entity designated on a U.S. restricted parties list or a similar list maintained by other countries having jurisdiction over the Buyer; (a) to any country subject to an applicable embargo or economic sanctions program; or, (a) for any prohibited end-use (i.e., nuclear, missile, chemical/biological weapon proliferation).
10. Indemnification. Buyer shall indemnify and hold harmless DTS and its officers, employees and agents against all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable attorney’s fees) on account of any damaged property or injury or death of persons (including, without limitation, Buyer’s employees) arising out of Buyer’s storage, handling, use, implementation or disposal of Goods purchased from DTS. Buyer shall also hold DTS and its officers, employees and agents harmless from any liability arising from Buyer’s failure to comply with any applicable export laws and regulations. This indemnity obligation shall survive the expiration, termination or cancellation of any agreement or order with respect to the sale of Goods.
11. Proprietary Rights. Any of DTS’s data and its Goods furnished or acquired by Buyer providing confidential or proprietary information concerning DTS’s trade secrets, such as, but not limited to, any formula, design, engineering drawings, device or compilation of information, including DTS’s manufacturing methods or processes, treatment and chemical composition of materials and tooling shall be kept confidential by Buyer, and not disclosed to third parties without DTS’s express written permission. And, Buyer shall not use such data, in whole or I part, or the Goods, to copy, redesign, reverse engineer, replicate or manufacture (or enable manufacture by itself or any third party) the Goods, products similar thereto or products derived therefrom without DTS’s express written permission. The price for the Goods does not include any such data and information.
12. Patent Data. DTS warrants that the use or sale of its Goods will not infringe the claims or any United States patent governing the Goods themselves for a period of twelve months after the Goods are delivered to Buyer. DTS does not warrant against patent infringement by reason of the use of its Goods in combination with others or in the operation of any process. Buyer assumes liability for patent and copyright infringement when goods are made to Buyer’s specifications. Buyer shall indemnify and hold harmless from all damages and costs related to such infringement. All technical advice, specification data, recommendations and services are rendered by DTS free of charge and while based on data believed to be reliable, they are intended for use by skilled persons at their own risk. DTS assumes no responsibility to Buyer for events resulting or damages incurred from improper use. They are not to be taken as a license to operate under or intended to suggest infringement of any existing patent.
. DTS warrants all Goods to be furnished under a purchase order issued by the Buyer to be free from defects due to faulty workmanship or material for the period of [twelve (12) months] from the date of delivery to the Buyer. DTS neither expressly nor impliedly warrants against defects in design, workmanship and materials of parts or materials supplied by others and utilized by DTS in such Goods. DTS shall give the Buyer (insofar as it is assignable) the benefits of any express written warranties given to DTS by such manufacturer or other vendors. DTS shall have no obligation to process any warranty claim against such manufacturer and supplier for the benefit of the Buyer. DTS neither expressly nor impliedly warrants, or makes any representation whatsoever, as to service life of such Goods since conditions of usage and experienced service life are neither within the control of nor knowledge of DTS.
This warranty will apply only on the condition that:
(1) Buyer delivers written notice of its claim under this clause to DTS within such warranty period, but not later than fifteen (15) days after discovery of the defect which is the basis for its claim;
(2) Buyer delivers such Goods to DTS at its plant, FOB or EX WORKS, as applicable, to Seal Beach, CA, USA within thirty (30) days after such written notice;
(3) DTS determines (in its sole discretion) that such Goods are defective and have not been subject to accident, abuse or misuse, and have been operated and maintained in accordance with the manufacturer’s recommendations and specifications; and
(4) The Goods have not been the subject of a replication (i.e., reverse engineering) program, either formal or informal, sponsored or supported by the U.S. Government or any other entity.The obligations and liabilities of DTS under this Warranty are expressly limited to the replacement or the repair by DTS of such Goods, and shall not include any removal, disassembly, failure analyzing fault isolation, inspection, retrofit or reinstallation costs incident to such correction or replacement. Buyer may effect warranty repairs of the Goods at its facility only with the DTS’s prior written approval. DTS will reimburse Buyer for such repair at labor rates to be mutually agreed upon, but not exceeding DTS’s own rates.
THE WARRANTY PROVIDED IN THIS ARTICLE 12, AND THE OBLIGATIONS AND LIABILITIES OF DTS AND THE RIGHTS AND REMIDIES OF BUYER HEREUNDER, ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND DTS HEREBY DISCLAIMS, AND BUYER HEREBY WAIVES, ALL WARRANTIES AND LIABILITIES OF DTS AND ALL CLAIMS AND REMIDIES OF THE BUYER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT IN ANY GOODS, INCLUDING WITHOUT LIMITATION, ANY (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE OR FOR A PARTICULAR PURPOSE, (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE, (C) RECOVERY BASED UPON TORT, WHETHER OR NOT ARISING FROM DTS’S NEGLIGENCE, AND (D) ANY RECOVERY BASED UPON DAMAGED PROPERTY, OR OTHERWISE BASED UPON LOSS OF USE OR PROFIT OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES. THIS WARRANTY SHALL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY DTS AND BUYER. IN THE EVENT THAT ANY PROVISIONS HEREOF SHOULD FOR ANY REASON BE HELD INEFFECTIVE, THE REMAINDER OF THIS WARRANTY SHALL REMAIN IN FULL FORCE AND EFFECT.
14. Credit Report. Buyer hereby authorizes DTS from time to time to obtain Business and Consumer Credit Reports on Buyer or any principals of Buyer or to obtain credit and funding information from any other source. DTS shall have no obligation to commence or continue performance until adequate credit and funding information has been provided, at any time upon the request of DTS. DTS may stop the manufacture or supply of any Goods when it, in its sole discretion, determines that Buyer is in breach of this Agreement or any other contract with DTS, or DTS reasonably believes that Buyer may be unable to make timely payments with respect to any ordered Goods, until such time as payment has been made and any such payment insecurity has been resolved.
15. Governing Law and Jurisdiction; Attorney’s Fees. This Agreement shall be deemed to have been made under, and shall be construed and interpreted in accordance with the laws of the State of California, without regard to any choice of law principles. Buyer and DTS hereby agree to submit to the jurisdiction of the state and federal courts for the State of California, Orange County, and such courts shall have exclusive jurisdiction and venue to adjudicate the rights and obligations of the parties relating in any manner hereto. The parties hereby waive any argument relating to the convenience of forum. In the event of litigation relating to the subject matter hereto, the substantially prevailing party shall be entitled to recover from the non-prevailing party all reasonable attorney’s fees and costs relating to such litigation.
16. General. These Terms and Conditions shall govern the entire relationship between DTS and Buyer. The parties agree that there are no other understandings between the parties concerning the subject matter hereof, whether verbal or written. By acceptance of the quotation, Buyer agrees that any additional terms and conditions of a purchase order or change order shall not be applicable unless expressly agreed to by DTS in writing and DTS specifically objects to the inclusion of any different or additional terms or conditions by Buyer in confirming or accepting any quotation. Delivery of a purchase order by Buyer pursuant to this quotation shall be deemed to be an acceptance by Buyer of these Terms and Conditions. In the event Buyer includes different or additional terms and conditions in its purchase order, acceptance, confirmation or other written form sent in response to any quotation, neither DTS’s delivery of all or part of the Goods, nor any other action except a written notice from DTS, shall constitute acceptance of such additional or different terms, but instead these Terms and Conditions shall apply.
17. Severability. If any provision of these Terms and Conditions is held by any court to be invalid or unenforceable, such provision shall be deemed to be modified or deleted, but only to the extent necessary to enable that and the remaining provisions of this Agreement to be valid and enforceable.
BY ACCEPTING THE QUOTATION AND/OR PROVIDING A PURCHASE ORDER TO DTS, BUYER ACKNOWLEDGES RECEIPT AND ACCEPTANCE OF THESE TERMS AND CONDITIONS.