Sales Order Acknowledgments
TERMS AND CONDITIONS OF SALE – US & CANADA
1. DEFINITIONS
In these Terms and Conditions of Sale, “Duke” means Duke Manufacturing Co.; “Buyer” means the person, firm, company or corporation by whom an order is given; “Ordering Document” means a Buyer’s purchase order or other document or written message conveying an order, including an order conveyed by or within an email; “Sales Order Acknowledgement” means a Sales Order Acknowledgement issued by Duke in response to Duke’s receipt of an Ordering Document; “Duke Goods” means any goods manufactured and offered for sale by Duke or Duke affiliates. “Non-Duke Goods” means any goods manufactured and offered for original sale by third-parties other than Duke or Duke affiliates and may include third-party goods stored, packaged and shipped by Duke. “Goods” means Duke Goods and Non-Duke Goods collectively (including any Software and Documentation), as set forth in Duke’s Sales Order Acknowledgement; “Services” means any services described in Duke’s Sales Order Acknowledgement; “Contract Price” means the price payable to Duke by Buyer for the Goods and/or Services; “Effective Date” shall be the date of issuance of a Sales Order Acknowledgement, or the date upon which all conditions precedent stipulated in a Contract have been satisfied.
2. THE CONTRACT
2.1 All orders must be made by Buyer by means of an Ordering Document and orders will only be accepted in accordance with and subject to these Terms and Conditions of Sale. Duke’s acceptance of Buyer’s Ordering Document is expressly conditioned on Buyer’s assent to all of Duke’s terms and conditions of sale (which include these Terms and Conditions of Sale). No terms or conditions put forward by Buyer and no representations, warranties, guarantees or other statements not contained in Duke’s quotation or Sales Order Acknowledgement nor otherwise expressly agreed in writing by Duke shall be binding on Duke.
2.2 No contract for sale shall be formed before, and a contract for sale shall become effective only upon, Duke’s issuance of a Sales Order Acknowledgement (the “Contract”). The “Effective Date” of the Contract shall be the date Duke issues the Sales Order Acknowledgement. If the details of the Goods or Services described in Duke’s quotation differ from those set out in the Sales Order Acknowledgement the latter shall control.
2.3 No alteration or variation to the Contract shall apply unless agreed in writing by both parties, except as provided in Clause 3.2 below. However, Duke reserves the right to effect minor modifications and/or improvements to the Goods before delivery, provided that the performance of the Goods is not adversely affected and that neither the Contract Price nor the delivery date is affected.
2.4 Once a Contract is formed, it shall be binding upon the Buyer and Duke, and Buyer becomes subject to the terms and conditions set forth herein, and Buyer shall be obligated to pay the entire amount set forth in the Contract, unless Duke expressly agrees in writing to alter the Contract.
3. VALIDITY OF QUOTATION AND PRICES
3.1 Duke may withdraw or revise a quotation at any time up to the time a Buyer submits an Ordering Document in reliance on such quotation. Unless previously withdrawn or revised, Duke’s quotation is open for acceptance within the period stated therein, or when no period is so stated, within thirty days after its issue date. The prices stated in Duke’s quotation are exclusive of (a) sales, use and Division II value added taxes (collectively, “Sales Taxes”) and (b) any similar and other taxes, duties, levies or other like charges arising in connection with the performance of the Contract, and any interest or penalties levied or assessed thereon.
3.2 Duke and Buyer agree that Duke shall not collect any Canadian federal or provincial Sales Taxes and no amount of any amount paid to Duke shall be collected as or on account of any such Sales Taxes.
3.3 Prices are firm for delivery of Goods that occurs within 60 days of the order date shown on the Sales Order Acknowledgement. For any Goods scheduled for delivery more than 60 days after the order date of the Sales Order Acknowledgement, Duke may, upon written notice to Buyer, adjust the pricing at its sole discretion at any time up to 30 days prior to shipment of the Goods. If the Buyer is unwilling to accept the new pricing then, within 14 days of receiving notice of the new pricing, the Buyer may cancel the order for any Goods for which the pricing has changed by providing Duke with written notice within such 14 day period, of such cancellation. To the extent that Buyer’s cancellation applies to custom/customized Goods, Buyer shall be responsible for any costs Duke has incurred for materials or components specifically required for the custom/customized Goods and for any of Duke’s fabrication costs which have already been incurred on or prior to the date of receipt of such notice of cancellation.
3.4 Prices are for Goods delivered EXW (Ex Works) Duke’s shipping point (Incoterms 2020), exclusive of freight, insurance and handling. Packing materials are non-returnable.
4. PAYMENT
4.1 Payment of the Contract Price shall be made prior to Duke’s shipment of the Goods or provision of the Service (a) in full without set-off, counterclaim or withholding of any kind (except where and to the extent that this cannot by law be excluded), and (b) in the currency of Duke’s quotation, unless credit terms (“Credit Terms”) are expressly agreed to in writing by Duke’s Finance Department.
4.2 In the event that Duke’s Finance Department grants Credit Terms, the following shall be the default terms for payment of the Contract Price unless otherwise provided for in the Credit Terms agreed by Duke’s Finance Department and notified to Buyer: (a) the Contract Price for Goods will be invoiced upon shipment; (b) Payment in full is due within thirty (30) days after the date of invoice; (c) the Contract Price for Services will be invoiced monthly in arrears or, upon completion, whichever is earlier; and (d) without prejudice to Duke’s other rights, Duke reserves the right to: (i) charge interest on any overdue sums at 1.5% per month (18% per annum) during the period of delay; (ii) suspend performance of the Contract (including withholding shipment) in the event that Buyer fails or in Duke’s reasonable opinion it appears that Buyer is likely to fail to make payment when due under the Contract or any other contract; and (iii) at any time require such security for payment as Duke may deem reasonable.
5. DELIVERY PERIOD
5.1 Unless otherwise stated in a Sales Order Acknowledgement, all periods stated for delivery are to be treated as estimates only and are not guaranteed.
5.2 If Duke is delayed in or prevented from performing any of its obligations under the Contract due to the acts or omissions of Buyer or its agents (including but not limited to failure to provide specifications and/or fully dimensioned working drawings and/or such other information as Duke reasonably requires to proceed expeditiously with its obligations under the Contract), the delivery/completion period and the Contract Price shall respectively, be, extended and increased accordingly.
5.3 If delivery is delayed due to any act or omission of Buyer, or if having been notified that the Goods are ready for shipment, Buyer fails to take delivery on the date agreed upon or provide adequate shipping instructions, documents or authorizations, Duke shall be entitled to place the Goods into storage at Buyer’s expense. Upon placing the Goods into storage, delivery shall be deemed to be complete, risk of loss in the Goods shall pass to Buyer and Buyer shall be liable for all related costs and expenses (including, without limitation, storage fees and insurance, if applicable).
6. FORCE MAJEURE
6.1 The Contract (other than Buyer’s obligation to pay all sums due to Duke in accordance with the Contract) shall be suspended, without liability, in the event and to the extent that its performance is prevented or delayed due to any circumstance beyond the reasonable control of the party affected, including but not limited to: Acts of God, war, armed conflict or terrorist attack, riot, fire, explosion, accident, flood, sabotage; pandemics, or epidemics or public health emergencies or communicable disease outbreaks; governmental decisions or actions, or labor trouble, strike, lockout or injunction. Duke shall have no obligation to supply any hardware, software, services or technology unless and until it has received any necessary licenses or authorizations or has qualified for general licenses or license exceptions under applicable import, export control and sanctions laws, regulations, orders and requirements, as they may be amended from time to time. If for any reason any such licenses, authorizations or approvals are denied or revoked, or if there is a change in any such applicable laws, regulations, orders or requirements that would prohibit Duke from fulfilling the Contract, or would in the reasonable judgment of Duke otherwise expose Duke and/or Duke’s affiliate(s) to a risk of liability under applicable laws, regulations, orders or requirements, Duke shall be relieved without liability of all obligations under the Contract.
6.2 In addition to any remedies that maybe provided under the Contract, if either party is delayed or prevented from performance of its obligations by reason of this Clause 6 for more than 180 consecutive calendar days, either party may terminate the then unperformed portion of the Contract by notice in writing given to the other party, without liability provided that Buyer shall be obliged to pay the reasonable cost and expense of any work in progress and to pay the Contract Price for all Goods delivered and Services performed as at the date of termination. Duke, in its sole discretion, may deliver by installments or make partial shipments of Goods, and in such event each delivery shall constitute a separate contract and failure by Duke to deliver any one or more of the installments in accordance with their terms shall not entitle Buyer to terminate the whole Contract or treat it as repudiated. Buyer shall pay for the Goods shipped whether such installments is in whole or partial fulfilment of Buyer’s order.
7. INSPECTION, TESTING, AND CALIBRATION
7.1 Goods will be inspected by Duke or the Goods’ manufacturer and, where practicable, submitted to Duke’s or manufacturer’s standard tests before delivery. Any additional tests or inspection (including inspection by Buyer or its representative, or tests in the presence of Buyer or its representative and/or calibration) or the supply of test certificates and/or detailed test results shall be subject to Duke’s prior written agreement and Duke reserves the right to charge therefore; if Buyer or its representative fails to attend such tests, inspection and/or calibration after notice that the Goods are ready therefore, the tests, inspection and/or calibration will proceed and shall be deemed to have been made in the presence of Buyer or its representative and the Duke’s statement that the Goods have passed such testing and/or inspection and/or have been calibrated shall be conclusive.
7.2 Claims for shortfalls in quantity or for incorrect delivery shall be void if made more than 14 days after delivery.
8. DELIVERY, RISK & TITLE
8.1 Unless otherwise expressly stated in the Contract, the Goods will be made available and delivered to Buyer EXW (Ex Works) Duke’s shipping point (Incoterms 2020). Where Duke agrees to arrange for transportation of the Goods on the EXW basis described above, freight, packing and handling will be charged at Duke’s standard rates. For greater certainty, and notwithstanding anything else in the Ordering Document, Contract, these terms and conditions, or any law, legal delivery of the Goods shall be made to Buyer outside of Canada.
8.2 For greater certainty and consistent with the delivery of the Goods on the EXW basis described above:
8.2.1 Risk of loss shall pass from Duke to Buyer when the Goods are placed at Buyer’s disposal at Duke’s shipping point; and
8.2.2 Buyer shall be responsible for insurance of the Goods after delivery at Duke’s shipping point. Alternatively, if it is expressly stated in the Contract that Duke is responsible for the insurance of the Goods after their delivery to the carrier; such insurance will be charged at Duke’s standard rates.
8.2.3 Title to Goods, except Non-Duke Goods to which Duke does not take title, shall pass at the later of Duke’s receipt of full payment for such Goods or when the Goods are placed at Buyer’s disposal. Title to Non-Duke Goods for which Duke does not take title shall pass according to the terms of sale established between Buyer and the seller of such Goods.
8.3 With respect to the importation of Goods or third party-manufactured goods owned by Buyer (“3rd Party Goods”, and collectively with Goods, the “Buyer’s Goods”) into Canada:
8.3.1 Duke shall not act as or be the importer of record;
8.3.2 Buyer shall be the importer of record and shall be responsible for any taxes (including Division III GST) duties, fees or similar charges related to the importation of Buyer’s Goods (collectively, “Importation Charges”);
8.3.3 At the request of Buyer, Duke may arrange for the importation of Buyer’s Goods as agent for Buyer and may, solely in its capacity as agent for Buyer, enter into agreements with, and/or advance monies to, third parties, including for greater certainty customs brokers, freight forwarders or the Canada Border Services Agency, in satisfaction of Buyer’s liability to pay Importation Charges. Duke shall be entitled to reimbursement by Buyer of any such monies advanced to such third parties as agent for Buyer.
8.3.4 Buyer shall fully and without qualification or restriction indemnify Duke for any amounts payable, charged, assessed or in any other way imposed upon Duke as, or in respect of, Importation Charges, including any penalties or interest applicable thereto.
8.4 No Services shall be rendered in Canada by a Duke employee or agent.
8.5 Prior to delivery, Buyer shall provide to Duke, in writing, its GST/HST account number, and where Buyer carries on any business in the Province of Quebec, its QST account number.
9. DOCUMENTATION AND SOFTWARE
9.1 Title to and ownership of the copyrights in software and/or firmware incorporated into or provided for use with the Goods (“Software”) and documentation supplied with the Goods (“Documentation”) shall remain with Duke or the relevant Duke affiliate (or such other party as may have supplied the Software and/or Documentation to Duke) and is not transferred hereby to Buyer.
9.2 Except as otherwise provided herein, Buyer is hereby granted a non-exclusive, royalty- free license to use the Software and Documentation in conjunction with the Goods, provided that, and for so long as, the Software and Documentation are not copied (unless expressly authorized by applicable law) and Buyer holds the Software and Documentation in strict confidence and does not disclose them to others, or permit others to have access to them (other than Duke’s standard operating and maintenance manuals). Buyer may transfer the foregoing license to another party which purchases, rents or leases the Goods from Buyer (to the extent not prohibited by other agreements between Buyer and third parties such as franchisors) provided the other party accepts and agrees in writing to be bound by the conditions of this Clause 9.
9.3 Notwithstanding Sub-clause 9.2, Buyer’s use of certain Software(as specified by Duke and including but not limited to control system Software) may be governed exclusively by the applicable Duke affiliate or third party license agreement.
9.4 Duke and its affiliates shall retain ownership of all inventions, designs and processes made or evolved by them and, as set out in this Clause 9, no rights in intellectual property are hereby granted.
10. DEFECTS AFTER DELIVERY
10.1 Duke warrants to Buyer, subject to the other provisions of the Contract, good title to and the unencumbered use of the Goods.
10.2 Any other warranties are stated in Duke’s standard warranty statements which are entitled “Limited Product Warranty” and which can vary by type of Good. Limited Product Warranty statements are included with the Goods when shipped.
10.3 Goods or Services sourced by Duke from a third party (not being a Duke affiliate) for resale to Buyer shall carry only the warranty extended by the original manufacturer.
10.4 The foregoing constitutes Duke’s only warranties and Buyer’s exclusive remedy for breach thereof. NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, SHALL APPLY AS TO SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR ANY OTHER MATTER WITH RESPECT TO ANY OF THE GOODS, SOFTWARE, DOCUMENTATION OR SERVICES, WHETHER ARISING BY OPERATION OF LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
11. INTELLECTUAL PROPERTY
Buyer warrants that any design or instructions furnished or given by it shall not cause Duke to infringe any intellectual property rights of any party in the performance of Duke’s obligations under the Contract and shall indemnify Duke against all reasonable costs and damages which Duke may incur as a result of any breach of such warranty.
12. LIMITATION OF LIABILITY
DUKE AND DUKE’S AFFILIATES SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE. THE REMEDIES OF BUYER SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE. IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE, EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE FORESEEABLE) SHALL DUKE’S AND DUKE’S AFFILIATES LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC GOODS PROVIDED BY DUKE GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. BUYER AGREES THAT IN NO EVENT SHALL DUKE’S AND DUKE’S AFFILIATES LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXTEND TO INCLUDE INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES. OR LOSS OF ANTICIPATED PROFITS, BUSINESS INTERRUPTION, LOSS OF USE, REVENUE, REPUTATION AND DATA, OR COSTS INCURRED, INCLUDING WITHOUT LIMITATION, FOR CAPITAL, FUEL, POWER AND LOSS OR DAMAGE TO PROPERTY OR EQUIPMENT. It is expressly understood that any technical advice furnished by Duke with respect to the use of the Goods is given without charge, and Duke assumes no obligation or liability for the advice given, or results obtained, all such advice being given and accepted at Buyer’s risk.
13. STATUTORY AND OTHER REGULATIONS
13.1 If Duke’s obligations under the Contract shall be increased or reduced by reason of the making or amendment, after the date of Duke’s quotation, of any law or any order or regulation having the force of law that shall affect the performance of Duke’s obligations under the Contract, the Contract Price and delivery period shall be adjusted accordingly and/or performance of the Contract suspended or terminated, as appropriate.
13.2 Buyer’s personnel shall, while on Duke’s premises, comply with Duke’s applicable site regulations and Duke’s reasonable instructions, including but not limited to those relating to safety, security and electrostatic discharge.
14. DEFAULT, INSOLVENCY AND CANCELLATION
Duke shall be entitled, without prejudice to any other rights it may have, to cancel or terminate the Contract forthwith, wholly or partly, by notice in writing to Buyer, if (a) Buyer is in default of any of its obligations under the Contract and fails, within 30 (thirty) days of the date of Duke’s notification in writing of the existence of the default, either to rectify such default if it is reasonably capable of being rectified within such period or, if the default is not reasonably capable of being rectified within such period, to take action to remedy the default or (b) on the occurrence of an Insolvency Event in relation to Buyer. “Insolvency Event” in relation to Buyer means any of the following: (i) a meeting of creditors of Buyer being held or an arrangement or composition with or for the benefit of its creditors being proposed by or in relation to Buyer; (ii) a trustee, receiver, administrative trustee or receiver or similar person taking possession of or being appointed over or any distress, execution or other process being levied or enforced (and not being discharged within seven days) on the whole or a material part of the assets of Buyer; (iii) Buyer ceasing to carry on business or being unable to pay its debts; (iv) Buyer or its equity holders or the holder of a qualifying floating charge giving notice of their intention to appoint, or making an application to the court for the appointment of, an administrator; (v) a petition being presented (and not being discharged within 28 days) or a resolution being passed or an order being made for the administration or the winding-up, bankruptcy or dissolution of Buyer; or (vi) the happening in relation to Buyer of an event analogous to any of the above in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets. Duke shall be entitled to recover from Buyer or Buyer’s representative all costs and damages incurred by Duke as a result of such cancellation, including a reasonable allowance for overheads and profit (including but not limited to loss of prospective profits and overheads).
15. MISCELLANEOUS
15.1 No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing or performance, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound.
15.2 If any clause, sub-clause or other provision of the Contract is invalid under any statute or rule of law, such provision, to that extent only, shall be deemed to be omitted without affecting the validity of the remainder of the Contract.
15.3 Buyer shall not be entitled to assign its rights or obligations hereunder without the prior written consent of Duke. 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.
15.4 Duke enters into the Contract as principal. Buyer agrees to look only to Duke for due performance of the Contract.
15.5 The Contract shall in all respects be construed in accordance with the laws of the State of Missouri, USA, and shall be without regard to any conflict of laws or rules thereof which might apply the laws of any other jurisdiction. All disputes arising out of the Contract shall be subject to the exclusive jurisdiction of the State of Missouri and the parties agree to submit to such jurisdiction. No action, regardless of form, arising out of transactions relating to this contract, may be brought by either party more than two (2) years after the cause of action has accrued. The U.N. Convention on Contracts for the International Sales of Goods shall not apply to this Contract.
15.6 The headings to the Clauses and paragraphs of the Contract are for guidance only and shall not affect the interpretation thereof.
15.7 All notices and claims in connection with the Contract must be in writing and addressed to the other Party at its address set forth in the Sales Order Acknowledgement. Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email (in each case, with confirmation of transmission) if sent during the addressee’s normal business hours, and on the next business day if sent after the addressee’s normal business hours; and (d) on the fourth (6th) business day after the date mailed by certified or registered mail by the Canada Post Corporation, return receipt requested, postage prepaid.
15.8 These terms and conditions supersede all other communications, negotiations and prior oral or written statements regarding the subject matter of these terms and conditions.
15.9 No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement these terms and conditions shall be binding unless hereafter made in writing and signed by the party to be bound, and no modification or additional terms shall be applicable to this Contract by Duke’s receipt, acknowledgment, or acceptance of any Ordering Document or any other purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to those set forth herein. Any such modifications or additional terms are specifically rejected and deemed a material alteration hereof. If any Duke document shall be deemed an acceptance of a prior offer by Buyer, such acceptance is expressly conditional upon Buyer’s assent to any additional or different terms set forth herein.
15.10 Provisions of these Terms and Conditions which by their nature should apply beyond their terms will remain in force after any cancellation, termination or expiration of the Contract, including, but not limited to, the following Clauses: 9.5, 12, 13.3, 15.1, 15.5 and this 15.10.
