Terms and Conditions
The following terms and conditions shall apply to each order for products and services of Design Mark and shall constitute the entire agreement between the parties. The terms and conditions may not be varied, and no modification or addition shall be of any force or effect unless specifically accepted by Design Mark In writing. Acceptance of orders that contain additional or different conditions of purchase printed on the order or other form shall not be binding upon Design Mark unless specifically agreed to In writing by an authorized representative of Design Mark. If any conflict exists between the terms and conditions as set forth herein, and those terms and conditions as contained on Buyer’s purchase order, acceptance or other order form, THESE TERMS AND CONDITIONS SHALL SUPERSEDE AND GOVERN.
Upon Design Mark’s acceptance of a written purchase order, Design Mark will supply products at the price stated in Design Mark’s quotation, or if no quotation exists, then in Design Mark’s price list. Design Mark reserves the right to revise prices if Buyer has not placed an order for products or services subject to any quotation given to Buyer within thirty (30) days of the date on the quotation. In all other cases, Design Mark reserves the right to revise prices at any time without notice prior to the date of shipment of products. Buyer shall pay any extra costs reasonably and necessarily incurred by Design Mark as a result of any changes or modifications to specifications requested by Buyer.
Buyer may not cancel or revise any order accepted by Design Mark without prior written consent of Design Mark. Upon cancellation or revision of an order, Buyer shall pay Design Mark all costs reasonably and necessarily incurred In reliance upon the Initial order received by Design Mark, including but not limited to costs relating to work-in-process, unused raw material, and engineering up to the total cost of the purchase order. All such charges will be determined by Design Mark in its sole discretion at the time of cancellation or revision by Buyer.
Payment terms are thirty (30) days net from date of invoice. Design Mark reserves the right, however, to modify the credit terms hereunder or to require payment In advance or C.O.D. when deemed advisable by Design Mark, in Its sole discretion.
4. Late Payment.
Design Mark reserves the right to charge Buyer Interest at 1.5% per month or the maximum legal rate, whichever is less, for any payments more than thirty (30) days overdue. Buyer shall also pay collection costs or court costs plus reasonable attorneys’ fees if its account is referred to a collection agency or attorney for collection.
Unless otherwise agreed in writing, all material, processes, equipment, facilities and custom tooling, including but not limited to dies, molds, patterns and other special equipment, used in the manufacture of products covered by an order shall be and remain the property of Design Mark. Design Mark agrees to maintain all custom tooling furnished by Design Mark In operating condition for its ordinary life, but not more than two years after the completion of the most recent product order.
In addition to the stated purchase price, Buyer will pay any tax imposed by any federal, state, or other governmental authority on the sale of the products and/or services.
Any delivery schedule that Design Mark may provide to Buyer represents a good faith estimate of delivery dates and shall not bind Design Mark to anything more than its reasonable efforts to meet such estimates. Design Mark will not be liable for any loss or expense (consequential or otherwise) incurred by Buyer as a result of any delay In delivery.
All deliveries hereunder to destinations in the United States, Canada or Mexico will be F.O.B. Design Mark’s plant. All deliveries hereunder to destinations other than the United States, Canada or Mexico will be EX WORKS Design Mark’s plant. All deliveries will be via a carrier selected by Buyer at its option or otherwise by Seller, freight collect, to Buyer and will be packed in Seller’s standard shipping packages. In all such cases title and risk of loss or damage will pass to Buyer upon Seller’s delivery of the products to the carrier for shipment to Buyer and no loss or damage will relieve Buyer of any obligation hereunder, Including payment for lost or damaged products.
Unless Buyer notifies Design Mark In writing thirty (30) days from the date of shipment of any products that said products are rejected, they will be deemed to have been accepted by Buyer. Buyer must also specify the reasons for the products being rejected In order for the notice of rejection to be effective.
Buyer assumes responsibility for errors In sketches, prints, specifications and samples submitted to Design Mark and/or approved by Buyer. Design Mark reserves the right to correct clerical or stenographic errors or omissions.
Design Mark reserves the right to discontinue providing products or services to Buyer upon Buyer’s failure to perform any material obligation under the terms and conditions set forth herein. Buyer’s obligation to pay all amounts owing to Design Mark pursuant hereto will survive any Design Mark discontinuation or termination.
12. Fair Labor Standards Act.
Design Mark certifies that the products furnished hereunder have been or will be shipped in compliance with the Fair Labor Standards Act, as amended, and regulations and orders of the United States Department of Labor issued thereunder.
13. Force Majeure.
Neither party shall be responsible for circumstances beyond its reasonable control which make its performance impossible or delay its performance hereunder. To the extent that a party is delayed by such causes, the time to perform will be extended.
Buyer agrees to comply with all applicable federal, state and local laws, rules and regulations and to indemnify and save harmless Design Mark for and from any and all liabilities, expenses, costs and damages which Design Mark may incur or suffer as a result of Buyer’s failure or omission to do so. Buyer will not use any product, or sell any product to any party for use in connection with or as a “medical device” as defined by federal law. If any product is used or resold for a “medical device” related use, Buyer agrees to defend Design Mark against and indemnify Design Mark for all liability, loss and expense arising out of, or in connection with, that use. Buyer shall also Indemnify and hold Design Mark harmless for any and all liabilities, costs and damages which Design Mark may incur or suffer as a result of Buyer’s failure to comply with the terms and conditions stated herein. Buyer will indemnify and save hamiess Design Mark for and from any and all liabilities, expenses, costs and damages which Design Mark may incur or suffer as a result of any actual or alleged infringement of any patents, copyrights or trademarks arising from the manufacture or sale of products in accordance with patterns, designs, specifications, drawings, directions, technical Information, or data furnished to Design Mark by Buyer.
Design Mark agrees not to disclose to third parties any information regarding Buyer or its business or its customers, or use such Information for any purpose other than performing Buyer’s order, without written approval of Buyer.
16. Independent Contractor.
Design Mark shall at all times act in its own capacity and right as an Independent contractor, and nothing contained herein shall be construed to make Design Mark an agent or partner of Buyer.
17. Governing Law.
The laws of the Commonwealth of Massachusetts shall determine the validity, enforceability and interpretation of the Agreement. Any controversy arising hereunder which the parties cannot resolve by negotiation with one another shall be heard In a court of proper jurisdiction located In Plymouth County, Massachusetts, and Buyer submits, consents and waives objection to jurisdiction and venue in such courts. Design Mark’s products and data may be subject to export restrictions provided with the International Traffic and Arms Regulations (ITAR). Buyer shall be responsible for compliance with all U.S. export control laws and regulations and, when required by such laws and regulations, shall obtain validated export and re-export licenses required for goods and services delivered under this order. Design Mark shall not be liable to Buyer for any failure to provide goods or services as a result of the United States Government’s refusal to grant an export or re-export license or its cancellation of an export or re-export license, or as a result of any subsequent interpretation of U.S. export control laws and regulations after the date of this order that has a material adverse effect on the cost of Design Mark’s performance of this order.
These terms shall continue to be effective until all obligations hereunder or any agreement formed pursuant to any quotation given to Buyer have been performed. (Either party shall, however, have the right to terminate any such agreement at any time without cause upon thirty (30) days’ written notice to the other)
Design Mark warrants that the products and services furnished to Buyer shall be free from defects In material and workmanship. The warranty period will be measured from Design Mark’s shipment date and Is ONE YEAR, except for products with a shelf life of less than one year. In that case, the shelf life period Is the warranty period. If a product or service Is proven not to have met Design Mark’s warranty, then Design Mark’s sole obligation and Buyer’s EXCLUSIVE REMEDY will be, at Design Mark’s option, to repair or replace the products, perform services again or refund the amount which Buyer paid for the non-conforming products or services. Design Mark has no obligation for any product that has been modified or damaged through misuse, accident, neglect, mishandling, improper maintenance or subsequent modification or alteration by anyone other than Design Mark.
THE WARRANTY IS MADE IN LIEU OF ALL OTHER WARRANTIES, RIGHTS, OR CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING FROM A COURSE OF DEALING, CUSTOM OR USAGE OF TRADE. BUYER IS RESPONSIBLE FOR DETERMINING IF A PRODUCT FITS BUYER’S PARTICULAR PURPOSE AND IS SUITABLE FOR BUYER. Design Mark BEARS NO LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Design Mark SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR OTHER PECUNIARY LOSS) ARISING OUT OF DELAY IN Design Mark’S PERFORMANCE, OR THE USE OR INABILITY TO USE PRODUCTS OR SERVICES PROVIDED TO BUYER, EVEN IF Design Mark HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL Design Mark’S CUMULATIVE LIABILITY FOR ANY CLAIM, ACTION OR DAMAGE, WHETHER ARISING IN CONTRACT, TORT OR STRICT LIABILITY, EXCEED THE TOTAL AMOUNT WHICH BUYER PAID FOR THE AFFECTED PRODUCTS OR SERVICES REGARDLESS OF WHETHER THE CONTRACT HAS BEEN BREACHED.
No product may be returned to Design Mark without Design Mark’s prior consent. Before returning a product to Design Mark, please contact Design Mark (800-451-3275) for a return authorization number (RMA#) and shipping Instructions. Design Mark will pay for the return shipment of any defective product. Any replacement products will be shipped at Buyer’s expense.