TERMS AND CONDITIONS
These Terms and Conditions (“Terms”) govern the products (“Products”) and services (“Services”) sold by Quartzdyne, Inc., a Delaware corporation (“Quartzdyne,” “our,” “Seller,” “us,” “we,” or “us”) to a customer (“Customer,” “you,” or “your”). By purchasing our Products and Services, you agree to these Terms. We or you are a “party,” and we and you are the “parties.” Except when a Quote terminates or expires as explained below, reference to Terms, Quote, PO, and Sales Order are collectively, “Terms”.
1. Purchase Process. Our purchase process consists of our delivery of a quotation (“Quote”) for Products and Services; you accept the Quote by delivery a purchase order (“PO”) to us; and, upon our receipt of your PO, we will deliver a sales order confirmation (“Sales Order”) to you. Upon our delivery of the Sales Order, the Quote shall terminate. Other terms in the Quote, PO, or Sales Order may provide for additional rights and responsibilities. If there is a conflict between the Quote, the PO, and the Sales Order, the PO prevails over the Quote, and the Sales Order prevails over the PO. If there is a conflict between these Terms and a Sales Order, the Sales Order shall prevail.
2. Prices. Our Quotes are subject to the following:
3. Payment. Unless we grant you credit, you shall pay us for Products before delivery. Products shipped on approved credit shall be due in full within 30 days from date of invoice. Past due balances may be subject to a service charge of the higher of 1.5% per month (18% per annum) or as permitted by applicable law. Partial shipments will be billed as made and payments are subject to the terms in this Section. You may not withhold payment for any reason other than when you reasonably dispute a charge. You must pay all undisputed charges in accordance with these Terms, and may only dispute a charge by delivering written notice of the disputed charge to us within 30 days of the date of the invoice containing the disputed charge. The parties shall use commercially reasonable efforts to resolve the disputed charge. Delay in delivery of required documentation may not be the basis for a disputed charge. We reserve the right to cancel or delay delivery of Products sold on credit if you fail to make timely payment per the terms in this Section. We will not make shipments if the total of your outstanding invoices exceeds the credit limit we have extended to you. We reserve the right to ship Product to you on a COD basis for the costs of transportation, the Products, or both.
4. Term and Termination. The term (“Term”) of these Terms shall begin on the date we deliver a Quote to you, and shall terminate upon any of the following (each, a “Termination Event”): (a) as required by law; (b) by mutual written agreement of the parties; (c) 10 days after a non-breaching party has delivered written notice of a breach of this Terms to the breaching party, and such breach remains uncured; (d) immediately upon delivery of written notice by us to you of your breach of any representation, warranty, confidentiality, or indemnity provision in these Terms; (h) upon the earlier of your acceptance of all Products or expiration of any applicable Warranty Period (as defined below). Following termination of these Terms, you shall pay us any unpaid amounts for Products and Services ordered by you and accepted by us prior to the termination date. The following Sections of these Terms shall survive any termination or expiration of these Terms for any reason: 3, 4, 6, 7, 9, 10, 13, 14, 15, and 20.
5. Acceptance. You shall be deemed to have accepted the Product we deliver to you unless you deliver to us within 30 days of delivery written notice that the Product is defective or nonconforming as determined by quality assurance testing. Notwithstanding the foregoing, your (or your employees’, agents’, contractors’, and licensees’) use of any Product for any purpose after our delivery shall constitute your acceptance of the Product. After you accept the Product, no refund or return of the Product is permitted by us.
6. Risk of Loss, Transfer of Title. You are responsible for all costs of transportation, including applicable taxes. You agree to pre-pay such costs upon our request, or we may elect to invoice you for those costs and you agree to pay us per the terms in Section 3. We reserve the right to ship Products by a carrier of our choosing, the means of transportation, and routing. We may ensure the full value of the Products to the transportation carrier at the time of delivery, and all such freight and insurance costs shall be for and on your account. Risk of loss for Products shall pass to you upon our delivery of the Products to the transportation carrier at FOB shipping point (usually our warehouse or our manufacturer), whether or not our delivery to such carrier is provided with our assistance or supervision. Confiscation, delay, damage, or loss of Products shall not release, reduce, or in any way affect your liability to pay us for the Products. Notwithstanding any defect or nonconformity, or any other matter, risk of loss shall remain with you until you return, at your expense, the Products to us at FOB shipping point or another location may designate in writing in accordance with the Warranty (as defined below). You, at your expense, shall fully insure Products against all loss or damage until you have paid us in full for the Products, or you have returned the Products to us. Title to the Products shall remain with us, and shall not pass to you until you have paid us in full for the Products. To the maximum extent permitted by applicable law, you hereby grant us a security interest (without the need for an additional security agreement) in the Products we sell to you under these Terms until you have paid us in full for the Products, and you shall cooperate with us to execute, file, and record such documents as we may reasonably request, including financing statements and extensions.
7. Warranty. The warranty set forth in this Section is your sole and exclusive warranty and our sole and exclusive liability to you for the Products (and their parts) that we manufacture. The warranty is explained at http://www.quartzdyne.com/warranty.html (“Warranty”). If there is a conflict between these Terms and the Warranty, these Terms shall prevail. Products are warranted solely against defects in materials and workmanship for the applicable period described in the Warranty (“Warranty Period”) calculated from date of delivery to you. Our sole and exclusive liability under a valid Warranty claim is limited to, in our sole discretion, repair or replacement. The Warranty does not apply to items affected by normal use or wear and tear. All Warranty repairs or replacements shall be limited to Product malfunctions which, in our discretion, are due to defects in original workmanship. All of our obligations under the Warranty for the Products shall cease in the event of you abuse the Products, have an accident with the Products, alter the Products, use the Products in combination with non-authorized equipment, misuse the Products, neglect the Products, or fail to maintain the Products. In-Warranty repaired or replaced parts are warranted only for the remaining unexpired portion of the applicable Warranty Period. After expiration of the applicable Warranty Period, we will charge you at the then-current prices for our Products and Services, including for parts, labor, and travel. The Warranty may be limited by a Product (in whole or in part) third party manufacturers’ warranty, and we assume no liability for such third party manufacturers’ warranties. A Warranty claim under this Section must be delivered to us within the Warranty Period. Product you return to us under a Warranty claim must be sent by prepaid transportation. You assume responsibility for returned Product that is delayed, damaged, or destroyed for any reason, including from improper packing, or loss in transit.
8. Relationship. These Terms are non-exclusive, and we may sell to third parties products and services that are the same or similar to the Products and Services, and you may purchase from third parties products and services that are the same or similar to the Products and Services. The parties shall be at all times during the Term of these Terms independent contractors in fact and law, and not in an employer-employee relationship. Neither party shall hold itself out as an employee, joint venturer, agent, representative, or partner of the other party, and neither party shall have any power or authority to incur any debt, obligation, or liability on behalf of the other party.
9. Confidentiality. You shall not disclose to any person or entity any of our confidential or proprietary information (collectively, “Confidential Information”). Confidential Information includes trade secrets, methods, systems, lists of actual and potential customers, vendors, suppliers, manufacturers, contractors, and employees, reports, pricing and pricing methodology, market plans and strategies, intellectual property, and other such information of any nature, whether marked as Confidential Information, made available to you by us under these Terms. You shall maintain Confidential Information as confidential during the Term of these Terms and after its termination or expiration.
10. Intellectual Property. Nothing in these Terms grants to a party any right, title, interest, or license in and to the other party’s intellectual property, including patents, trademarks, service marks, trade dress, or any other intellectual property arising out of these Terms. We shall own all right, title, interest, and license in and to any ideas, designs, drawings, sketches, models, instructions, specifications, and developments (the foregoing collectively, “Developments”) and any derivatives of the Developments whether in whole or in part (“Derivatives”) arising out of these Terms.
11. Independent Decision. You represent to us that you possess the requisite experience, skill, and understanding of the Products and their intended use, and for each PO for Products have made reasonable investigation and an independent decision as to the suitability of the Products for your intended uses. You acknowledge that each PO for Products is not based on any representations, warranties, or otherwise concerning the Products, except as expressly stated in these Terms.
12. Risks. You acknowledge there are inherent risks and hazards in your transportation, installation, use, and maintenance of the Products, you agree to assume those risks and hazards, and you shall exercise reasonable care in connection with the Products.
13. Representations and Warranties. You represent and warrant to us as of the Effective Date and during the Term of these Terms the following:
14. Indemnification. You shall indemnify, defend, and hold harmless us and our affiliates, and their shareholders, directors, members, managers, officers, employees, contractors, representatives, agents, suppliers, customers, attorneys, insurers, heirs, predecessors and successors in interest, heirs, and assigns from and against any and all claims, liability, or damages (collectively, “Claims”) arising out of or in connection with any of your or your contractors’: (a) breach of these Terms, including a breach of any warranty or representation; (b) negligent, intentional, or other acts or omissions, including death, bodily injury, or property damage; (c) Claims by a third party alleging intellectual property infringement arising out of Products we manufactured or caused to be manufactured for you based upon your specifications, designs, drawings, and the like that you supplied to us; and (d) except for subsection (c) in this Section, Claims by a third party arising out of the Products.
15. Disclaimers, Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT FOR PARTY’S GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, OR INDEMNITY OBLIGATIONS HEREUNDER: (A) IN NO EVENT WILL EITHER PARTY BE LIABLE HEREUNDER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, WHETHER ARISING IN TORT, INCLUDING NEGLIGENCE, CONTRACT, OR ANY OTHER LEGAL THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) OUR MAXIMUM CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF THESE TERMS WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US FOR THE PRODUCTS AND SERVICES UNDER THESE TERMS; (C) EXCEPT AS EXPRESSLY STATED IN THESE TERMS, WE DISCLAIM ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTIES REGARDING THE PRODUCTS AND SERVICES, INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND DELIVER THE PRODUCTS AND SERVICES AS IS, WHERE IS; AND (D) WE MAKE REPRESENTATION OR WARRANTY THE PRODUCTS AND SERVICES WILL BE ERROR-FREE, OR THAT YOU WILL DERIVE ANY AMOUNT OF REVENUE BY USE OF THE PRODUCTS AND SERVICES.
16. Force Majeure Events. We shall be excused from performing our obligations under these Terms and shall not be liable because of any delay in performance under these Terms due to any of the following events (each, a “Force Majeure Event”): unforeseen circumstances or causes beyond our reasonable control, including strikes, lockouts, riots, terrorism, war, fire, floods, earthquakes, hurricanes, tsunamis, other acts of God, accident, fuel shortages, failure or breakdown of third party manufacturers, transportation carriers, delays caused by you, inability to obtain labor, materials or manufacturing facilities for customized Products, act of governmental body, or your failure to comply with any applicable law. Performance of our obligations under these Terms shall be deemed extended for a reasonable period after the conclusion of the Force Majeure Event as is practicable under the then-existing circumstances.
17. Notices. All notices required or permitted in these Terms shall be in writing and shall be deemed to have been duly given if hand-delivered with confirmation of delivery, or sent by First Class U.S. Mail, return receipt requested, postage pre-paid, return receipt requested, or sent by reputable courier company, postage pre-paid, proof of delivery requested, to the registered agent listed in our state of formation if to us, and to the address on your PO is to you, or such other addresses as the parties may designate from time to time in accordance with this Section.
18. Assignment. You may not assign, delegate, or subcontract your rights or obligations under these Terms to any other entity or person without our prior written consent, which consent we may withhold in our sole discretion. Any assignment, delegation, or subcontract not made in accordance with this Section is void, and shall have no effect. These Terms shall inure to the benefit of and bind the respective parties’ permitted successors and assigns.
19. Construction. These Terms constitute the entire agreement of the parties concerning the subject matter hereof. These Terms supersede any and all agreements, arrangements, dealings, and understandings, whether oral or written, heretofore made by the parties with reference to the subject matter hereof. These Terms may not be modified without the written agreement of the parties. Any pre-printed terms in your documents that alter these Terms or that conflict with these Terms shall be of no effect. The provisions of the Terms shall not be construed for or against a party on the basis that a party is deemed the drafter of these Terms. The word “including” shall be deemed to mean “including, without limitation,” each as the context may require.Any failure by either party to exercise any of its rights hereunder shall not be deemed a waiver of any rights or remedies that such party may have. Previous custom, practice, or course of dealing shall not be deemed a waiver of any rights or remedies that the parties may have hereunder. If a court of competent jurisdiction determines that any provision of these Terms is void, invalid, or unenforceable, the remainder of these Terms shall continue in full force and effect as if such provision were not contained herein, and the parties shall agree upon a substitute provision, and failing agreement of the parties then such court shall determine a substitute provision most closely approximating the provision to be replaced as written.
20. Enforcement. These Terms shall be governed by, construed, and enforced in accordance with the laws of the State of Utah, without regard to its conflicts or choice of law principles. These Terms shall not be governed by the Uniform Commercial Code or the United Nations Convention on Contracts for the International Sale of Goods. The exclusive venue for any judicial action arising out of these Terms shall the federal and state courts of competent jurisdiction located in Salt Lake City, Utah, and the parties hereby waive any claim that such venue is inconvenient. The prevailing party in any such action shall be entitled to collect from the non-prevailing party its reasonable costs, fees, and expenses, including, for attorneys’ fees, court costs, depositions, travel, and expert witnesses.
Updated: January 31, 2018.
© 2020 Quartzdyne, Inc. All Rights Reserved. An ChampionX Company