Terms & Conditions
DVM MANUFACTURING, LLC STANDARD TERMS AND CONDITIONS
1. Order Acceptance. During the period of time specified in the Proposal, or, if no period of time is stated, thirty (30) days after the date of the Proposal, Buyer may issue a purchase order (a “Purchase Order”) for the Goods, the Software, and/or the Services to DVM. Acceptance of a Purchase Order by DVM is expressly limited to the terms of such Purchase Order, the Proposal, and this Agreement, and any additional or different terms and conditions are expressly excluded and are not a part of this Agreement. Within ten (10) business days after DVM’s receipt of a Purchase Order, DVM may, in its sole and absolute discretion, accept the Purchase Order by forwarding its written acceptance thereof to Buyer and, in the absence thereof, such Purchase Order is deemed rejected by DVM. A Purchase Order accepted by DVM is hereinafter called an “Accepted Purchase Order” and an Accepted Purchase Order together with these Standard Terms and Conditions and the Proposal are collectively referred to as the “Agreement”. Notwithstanding anything in the Agreement to the contrary, in the event of any conflict or inconsistency of or in the description, amount, or scope of the Goods, the Software, or the Services identified in the Proposal and an Accepted Purchase Order, the Proposal shall be controlling.
2. Changes.
(a) The manufacturer reserves the right to make any
changes in the model and design of its Goods and/or its Software without obligation to similarly alter the Goods and/or the Software previously sold. Buyer may, in writing, within the scope of an Accepted Purchase Order, request changes in the established specifications or delivery schedules of the Goods and/or the Software. If the manufacturer agrees to such changes and these changes alter the amount due under the Accepted Purchase Order or the time required for performance hereunder, the price of the Goods and/or the Software ordered, any license fees, and/or the time for performance are equitably adjusted.
(b) DVM has no obligation to make any changes, additions, or deletions (“Extras”) requested by Buyer to the Goods, the Software, or the Services specified in an Accepted Purchase Order. DVM may, in its sole discretion, deliver or perform such Extras; provided, however, that such Extras are only made if (a) the price and delivery and/or completion date(s) for the Goods, the Software, and/or the Services specified in such Accepted Purchase Order have been equitably adjusted as a result of the Extras and (b) DVM approves, in writing, the Extras and the new price and new delivery and/or completion date(s).
3. Shipment/Delivery. Buyer acknowledges that DVM’s shipping dates are estimates and are subject to change by DVM. Unless otherwise agreed to in writing by DVM, delivery terms are F.O.B. DVM’s shipping point. The manufacturer reserves the right to make partial shipments. Risk of loss or damage and responsibility to insure passes from DVM to Buyer upon delivery to a carrier for shipment to Buyer. Any claims for shortages or damages suffered in transit are the responsibility of Buyer and must be submitted in writing by Buyer directly to the carrier. Shortages and/or damages must be acknowledged and signed for at the time of delivery. If any Goods are held by DVM at Buyer’s request, or due to Buyer’s failure to supply shipping instructions, DVM may invoice Buyer for the full purchase price of the Goods and Buyer agrees to make payment. Any Goods held for Buyer by DVM, for whatever reason, are held at Buyer’s risk and Buyer shall reimburse DVM for any insurance, storage, or other costs incurred by DVM.
4. Prices. Unless otherwise agreed to in writing by DVM, prices for the Goods are F.O.B. manufacturer’s shipping point with no discount. Prices quoted by DVM remain in effect for the period stated in DVM’s quotation or acknowledgment, or, if no period of time is stated, thirty (30) days after the date of same. If DVM does not receive, within such time period, an unconditional authorization from Buyer to ship the Goods or perform the Services, DVM may change the price for such Goods, Software and/or Services to that prevailing at the time of shipment or performance. Prices and license fees do not include installation, freight, handling, hoisting, rigging, insurance, or storage charges, unless otherwise agreed by DVM in writing. Prices and license fees also do not include taxes or duties imposed on the manufacture, sale, delivery, or use of the Goods or the Software; such assessments are for Buyer’s account and DVM will add such assessment to the price stated absent DVM’s receipt of Buyer’s proper exemption certificate. 5. Payment/Security Interest. Payment is due in U.S. currency net thirty (30) days from the date of DVM’s invoice, time being of the essence. Any payment not made when due is subject to a 2% per month interest charge, but in no event more than the maximum rate permitted by law. Partial shipments of the Goods are invoiced and are payable as they occur in accordance with the Agreement. To secure the prompt payment of the prices for any Goods purchased by Buyer, Buyer hereby pledges, assigns, and grants to DVM a first priority security interest in, and lien on the Goods and the products, proceeds, and receivables therefrom and agrees to execute, file, and refile such financing statements or security Agreements, as DVM may request with respect to such Goods. DVM is authorized to file such financing statements on behalf of Buyer without Buyer’s signature as permitted under Article 9 of the Pennsylvania Uniform Commercial Code (the “UCC”). The Agreement constitutes a security Agreement under the UCC. Upon a default by Buyer hereunder, DVM has, in addition to any other rights or remedies, all of the rights and remedies granted to a secured party under the UCC. In addition, DVM may preserve its interest in payment by enforcing any applicable mechanics lien rights, or demanding different terms of payment including, but not limited to, advance cash payment, whenever it appears to DVM that circumstances require such measures. Buyer agrees to comply with any new payment terms imposed by DVM. If Buyer fails to comply with payment terms, then DVM may elect to terminate the Agreement or suspend performance under the Agreement or other Agreements with Buyer and (a) with or without legal process and using such force as may be lawful and necessary, enter into or upon the premises where the Goods are located and take possession of the Goods; (b) cancel all warranties; and (c) pursue any additional remedies provided by law or equity. Buyer is liable to DVM for all expenses, including reasonable attorneys’ fees, relating to the collection of past due amounts.
6. Returned Goods. Except as may be otherwise provided with respect to warranty returns, Buyer must obtain advance written permission from DVM to return rejected Goods. Such Goods must be new, unused, of current manufacture, and free of all liens or other claims, and Buyer must ship such Goods freight prepaid to DVM. Any Goods returned without the prior written permission of DVM will not be accepted by DVM. DVM reserves the right to inspect any Goods prior to authorizing their return. Upon receipt of the returned Goods, DVM will issue a credit to Buyer in an amount equal to the billing price or current price of the Goods, whichever is lower, and deduct an inspection and repackaging charge, the cost of any reconditioning, and restocking charges.
7. Delays. DVM is not liable or responsible for cost, expense, or damage due to non-performance or a delay in performance where such non-performance or delay is due to causes beyond its reasonable control, including, but not limited to, natural disasters, acts of government, power failure, fire, flood, acts of God, labor disputes, riots, acts of war, epidemics, or material and transportation shortages. Deliveries of Goods or performance of Services may be suspended for an appropriate period of time or canceled by DVM upon notice to Buyer of the foregoing, but other Buyer and DVM performance obligations hereunder are otherwise unaffected. If DVM determines that its ability
to supply the total demand of Goods or to obtain material used in the manufacture of Goods is hindered, limited, or made impracticable due to causes set forth in the preceding paragraph, DVM may allocate its available supply of Goods or material among its buyers on such basis as DVM determines to be equitable without liability to Buyer for any failure of performance which may result therefrom.
8. Cancellation. The Agreement and any part of it is subject to cancellation by DVM if the conditions specified herein are not met by Buyer or if Buyer becomes insolvent or bankrupt. In the event of cancellation for this reason, DVM is under no obligation to pay Buyer for any expenses, costs, claims, or liabilities incurred and DVM may retain any portion of the purchase price pre-paid by Buyer as liquidated damages. DVM retains all rights to any other legal remedies it may have against Buyer. Buyer may cancel orders herein only upon reasonable advanced written notice to DVM and upon payment to DVM of DVM’s cancellation charges, which include all costs and expenses incurred by DVM in the course of performance herein and amounts adequate to cover any commitments made by DVM and DVM’s anticipated profit on the sale of the Goods.
9. Software. Any Software purchased and provided to Buyer under the Agreement, unless otherwise specified in writing by DVM, are purchased by DVM from a software provider (a “Provider”). The Goods provided to Buyer may include equipment and/or Software incorporated in or provided separately for use with the Goods. The Software is provided subject to Provider’s or the manufacturer’s standard license terms, which reserves title and grants Buyer a non-exclusive, royalty free license, solely for (a) Buyer’s use with the Goods provided and (b) Buyer’s adaptation for use with the Goods provided.
10. Limited Warranty. At the time of Buyer’s purchase of the Goods, Buyer receives the manufacturer’s standard warranty. Such a warranty is the only warranty applicable to the sale of the Goods and its terms, conditions, and limitations are expressly incorporated herein by reference. The manufacturer’s warranty may be modified only in writing signed by a duly authorized representative of the manufacturer. Buyer assumes all other responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of the Goods, either alone or in combination with other goods whether supplied by DVM or otherwise. Buyer acknowledges that any technical advice furnished by DVM with respect to the use of the Goods is given without charge and DVM assumes no obligation or liability to Buyer for the advice given or results obtained; all such advice is given by DVM and accepted by Buyer at Buyer’s risk.
THE MANUFACTURER’S WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER OR NOT THE PURPOSE OR USE OF THE GOODS HAS BEEN DISCLOSED TO BUYER IN SPECIFICATIONS, DRAWING OR OTHERWISE AND WHETHER OR NOT THE GOODS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED FOR BUYERS USE OR PURPOSE.
The warranty obligations are conditioned upon timely receipt of all payments in accordance with the payment terms specified in the Agreement. During the period any amounts are overdue from Buyer, there are no obligations under this warranty, and the warranty expiration date are not extended upon payment of the overdue amount. To the extent that DVM has relied upon any Buyer specifications, information, representations, or other data in the selection or design of the Goods for Buyer, or the preparation of DVM’s quotations, and conditions arise that are at variance with Buyer’s representations, DVM’s warranty and other provisions herein which are affected by such conditions shall be null and void.
11. Patents and Copyrights. DVM represents that, to the best of its knowledge and belief, the Goods provided hereunder do not infringe upon any valid U.S. patent or copyright in existence on the date of shipment. DVM will defend at its expense any action brought against Buyer to the extent it is based on a claim the Goods supplied by DVM infringe a valid United States patent or copyright. DVM will pay those costs and damages finally awarded against DVM in any such claim, but such defense and payments are conditioned upon the following: (a) Buyer must promptly, and in any event no later than ten (10) days after the Buyer first knew of the claim, notify DVM in writing of any notice of
such claim; and (b) DVM shall have the sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; and (c) should the Goods or the operation thereof become or, in DVM’s opinion be likely to become, the subject of a claim of infringement of a valid United States patent or copyright, Buyer permits DVM, at DVM’s option and expense to: (i) procure for Buyer the right to continue using the Goods, (ii) replace or modify the Goods so they become non-infringing, or (iii) grant Buyer a credit for such Goods, as depreciated, and accept return of same, and (iv) cancel future deliveries of Goods without liability to Buyer. DVM calculates depreciation as an equal amount per year over the life of the Goods.
DVM has no liability to Buyer with respect to any claim of patent infringement based upon: (a) the combination or utilization of the Goods furnished under the Agreement with incompatible equipment or devices or (b) the modification by Buyer of the Goods furnished under this Agreement; or (c) DVM’s compliance with Buyer’s design specifications.
The foregoing states the entire liability of DVM with respect to infringement of patents or copyrights.
12. LIMITATION OF DAMAGES. IN NO EVENT IS DVM LIABLE TO BUYER FOR INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND. IN THE EVENT OF ANY ACTION, SUIT, PROCEEDINGS, OR DISPUTE BROUGHT BY BUYER, BUYER AGREES THAT ANY MONETARY REMEDIES TO WHICH IT MAY BE ENTITLED ARE LIMITED TO THE PURCHASE PRICE ACTUALLY PAID BY BUYER TO DVM FOR THE GOODS AND THE SERVICES WITH RESPECT TO WHICH LOSS OR DAMAGE IS CLAIMED AND BUYER HEREBY WAIVES THE RIGHT TO RECOVER FROM DVM ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.
13. EQUITABLE REMEDIES. Buyer acknowledges that a breach of any of its obligations under this Agreement could cause irreparable harm for which damages would be an inadequate remedy. If any such breach occurs or is threatened, DVM is entitled to an injunction, a restraining order, or any other equitable remedy, in each case without having to post a bond or other security or provide proof of actual damages.
14. LIMITATION OF REMEDY. SECTION 10 (LIMITED WARRANTY), SECTION 11 (PATENTS AND COPYRIGHTS), AND SECTION 12 (LIMITATION OF DAMAGES) PROVIDE BUYER’S SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF WARRANTIES.
15. Drawings/Documentation. DVM’s print or drawings (and the technology depicted) which are furnished to Buyer in connection with the Agreement are the property of DVM and DVM retains all patent, copyrights, and other rights including, without limitation, exclusive rights of use, license, or sale. Buyer’s possession of such prints or drawings does not grant Buyer any rights or license, express or implied therein and, upon DVM’s request, Buyer must immediately return to DVM all copies of such prints or drawings.
16. Confidentiality.
a. Buyer shall keep confidential all information
supplied to it by DVM. Confidential Information includes any information disclosed to Buyer by DVM, either directly or indirectly, in writing, orally, or by inspection of tangible objects; including: a distinctive trade name or logo, blueprints, business plans, customer and client data including names and contact information, data, designs, documents, drawings, financial data, pricing information, literature, market information, marketing and strategy plans, memoranda, mockups, models, plans, research and analysis, software, source code, trade secrets, inventions, business ideas, advertising campaigns and content (whether or not protected by copyright or trademark law), materials and other items used in operating procedures, and intellectual property, whether or not such information has been disclosed by DVM to third parties pursuant to other Agreements or relationships. Additionally, Confidential Information also includes any other information which is disclosed by DVM in any manner and identified or designated as “confidential” or proprietary at the time of disclosure.
b. DVM retains all right, title, and interest in and to the Confidential Information. If Buyer is not an individual, Buyer may disclose Confidential Information only to those employees who have a
need to know such information. Buyer certifies that each such employee has agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by the terms and conditions at least as protective as those terms and conditions applicable to Buyer under this Agreement. Buyer shall not disclose Confidential Information to any third party without the prior written consent of DVM. Buyer acknowledges and agrees that the covenants contained herein are necessary to protect the legitimate business interests of DVM and are reasonable in scope and content. Buyer acknowledges and agrees that the covenants contained herein are necessary to protect the legitimate business interests of DVM and are reasonable in scope and content. Buyer acknowledges that the disclosure or threatened disclosure of the Confidential Information would give rise to irreparable injury to DVM, which injury would be inadequately compensable in money damages. Accordingly, DVM, at its sole discretion, may seek and obtain injunctive relief from the disclosure or threatened disclosure of any Confidential Information, in addition to and not in limitation of any other legal remedies which may be available.
c. Buyer must immediately give written notice to DVM for any unauthorized use or disclosure of the Confidential Information, and DVM in remedying any such unauthorized use or disclosure of the Confidential Information.
d. Buyer shall not, without the prior written consent of DVM, use DVM’s name or logo in any advertising or promotional literature or publish any articles relating to DVM or this Agreement.
e. Buyer’s obligations under Section 16(a) do not apply to Confidential Information that Buyer can demonstrate: (a) was already in the public domain at or subsequent to the time such Confidential Information was communicated to Buyer by DVM through no fault of Buyer; (b) was rightfully in Buyer’s possession free of any obligation of confidence at or subsequent to the time such Confidential Information was communicated to Buyer by Company; or (c) was developed by employees of Buyer independently of and without reference to any Confidential Information communicated to Buyer by Company. A disclosure of Confidential Information by Buyer (a) in response to a valid court order or other governmental body or (b) as otherwise required by law will not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that Buyer must provide prompt written notice thereof to DVM to enable DVM to seek a protective order or otherwise prevent such disclosure.
17. Non-Solicitation of DVM Employees. During the term of the Agreement and for a period of one (1) year thereafter, Buyer shall not directly or indirectly, as an owner, sole proprietor, individual, stockholder, trustee, partner, financier, director, officer, agent, consultant, manager, employee, contractor, joint venturer, representative, or in any other manner, (i) solicit, induce, recruit, or encourage any employee of DVM to leave his or her employment with DVM or (ii) employ or direct to others the employment of any employee of DVM. In the event of a violation of this section, Buyer understands and agrees that actual damages will be difficult to determine and, therefore agrees that it shall pay to DVM the sum of one (1) year’s direct salary of each employee solicited and/or hired as liquidated damages and not as a penalty.
18. Non- Disparagement of DVM. Buyer shall not defame or disparage DVM or any of its respective officers, directors, members, partners, or employees (collectively the “Company Parties”), and shall cooperate with DVM upon reasonable request, in refuting any defamatory or disparaging remarks by any third party made in respect of any of the Company Parties. Buyer shall not, directly, or indirectly, make or cause to be made any comment or statement, oral or written, including without limitation, in the media or to the press, or to any individual or entity, that could reasonably be expected to adversely affect the reputation of any of the Company Parties or the conduct of its business.
19. Indemnification. Buyer hereby indemnifies and holds harmless DVM, its subsidiaries and affiliates, and the members, officers, and employees of the Company and of its subsidiaries and affiliates, from any damages, claims, liabilities, and costs, including reasonable attorney’s fees, or losses of any kind or nature whatsoever (“Loss”) which may in any way arise from the Goods, Software, or Services contemplated hereunder. DVM retains control over the
defense of, and any resolution or settlement to, such Loss. Buyer will cooperate with DVM and provide reasonable assistance in defending any such claim.
20. Export. Each party hereby agrees to comply with all export laws and restrictions and regulations of the Department of Commerce or other United States or foreign agency or authority and not to export or allow the export or re-export of the Goods. The Goods to be supplied hereunder is subject to obtaining any required license or authorization at time of shipment and Buyer agrees that DVM incurs no liability to Buyer if such license or authorization is unavailable.
21. Nuclear. If the Goods supplied hereunder are to be used in nuclear applications, including without limitation, any power generation facility, Buyer fully indemnifies DVM pursuant to DVM’s Special Nuclear Terms of Sale, a copy of which is available upon request.
22. Binding Effect; Assignment. The Agreement is binding on and benefits, and is enforceable by and against, DVM and Buyer and their respective successors and assigns; provided, however, that the Agreement and the rights provided hereunder are not assignable or transferable by Buyer, without the prior written approval of DVM.
23. Entire Agreement. The Agreement is the entire Agreement and understanding of DVM and Buyer with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous oral or written Agreements, negotiations, letters of intent, representations, warranties, covenants and obligations, all of which are intended to be merged with and into the Agreement. No condition or provision of the Agreement may be modified, waived, or amended in any way except in writing signed by both DVM and Buyer and referring specifically hereto. The Parties acknowledge and agree that the terms of any applicable signed Proposal and/or Purchase Order between the Parties are incorporated herein by reference, but that in the event of any conflict between this Agreement and those terms, the terms of the Proposal shall be controlling.
24. Severability. If any provision of the Agreement is found by a court of competent jurisdiction to be prohibited or unenforceable, it is ineffective only to the extent of such prohibition or unenforceability, and such prohibition or unenforceability does not invalidate the balance of such provision to the extent it is not prohibited or unenforceable, nor invalidate the other provisions hereof.
25. Survival. The Parties’ obligations under Sections 16, 17, 18, and 19 survive the termination and expiration of this Agreement.
26. Construction. The Agreement has been negotiated at arm’s length by DVM and Buyer, each of whom has been represented or has had the opportunity to be represented by independent legal counsel of its choice. No provision of the Agreement shall be construed more strictly against or more liberally in favor of a party regardless of which party or which party’s counsel prepared or aided in the preparation of the Agreement, notwithstanding any custom or rule of construction to the contrary. The use of any gender shall include all genders and use of the singular shall include the plural (and vice versa).
27. Applicable Law. The Agreement is governed by, and performance is construed in accordance with the domestic laws and Uniform Commercial Code as adopted in the Commonwealth of Pennsylvania, without reference to its choice or conflict of laws or principals.
28. Venue. Any dispute or claim between DVM and Buyer is subject to the jurisdiction and venue of the Court of Common Pleas of Montgomery County, Pennsylvania, or the United States District Court for the Eastern District of Pennsylvania and DVM and Buyer waive any right to contest or object to such jurisdiction and venue.