Terms and Conditions

  1. General. These Terms and Conditions shall govern the sale of products sold by d&b consulting, LLC’s (hereinafter “d&b”) to Buyer. Buyer shall be bound by these Terms and Conditions upon the earliest to occur of: (i) Buyer’s written agreement to be bound hereby, (ii) Buyer’s payment of any portion of d&b’s invoiced amount, or (iii) Buyer’s acceptance of delivery of any products from d&b. These Terms and Conditions take precedence over any additional or different terms or conditions of Buyer (including, without limitation, any purchase order attached hereto), to which notice of objection is hereby given. In the event of a conflict between these Terms and Conditions and any such additional or different terms or conditions of Buyer, these Terms and Conditions shall control. In no event shall d&b’s delivery of any products hereunder be deemed or construed as an acceptance of any additional or different terms or conditions of Buyer.
  2. Price and Payment Terms. Unless otherwise agreed to in writing by d&b, (i) all prices quoted are F.O.B. d&b’s designated shipping point, (ii) all payments shall be in U.S. Dollars, and (iii) Buyer agrees to pay all invoices upon order unless otherwise agreed upon by d&b. The price quoted does not include finishing of molded parts, other than the polish derived directly from the molding process. All payments will be received in full upon order or at the time of delivery. d&b will also charge Buyer a fee equal to the lesser of $50 or 5% of the invoice amount for each time any Buyer check does not clear Buyer’s bank due to insufficient funds. Regardless of any prior approval of credit for an order, d&b may at any time and without liability suspend performance until receipt of any requested advance payment or security satisfactory to d&b. Until payment in full of all amounts owed to d&b by Buyer hereunder, d&b shall have a purchase money security interest in all of the products replacements and proceeds thereof. Buyer agrees to execute, file and deliver, and authorizes, d&b to execute and file, any UCC-1 financing statements in any jurisdictions as d&b deems appropriate to maintain and perfect its security interest hereunder.
  3. Delivery. d&b shall use its commercially reasonable best efforts to deliver products in accordance with any commercially reasonable requested delivery schedule. Where strict compliance with a requested delivery schedule is not commercially reasonably possible, d&b will make delivery as soon as commercially reasonably possible. d&b shall not be liable for delay in delivery or for failure to give notice of any delay. Buyer acknowledges that d&b may ship up to plus or minus 10% of the quantity of products ordered without obtaining any approval from Buyer, and Buyer agrees such shipment shall be considered complete and Buyer agrees to pay d&b in full for all products delivered, including all products delivered in excess or short of the ordered amount (and any agreed-upon shortage of products shall be credited toward future orders of products by Buyer). Should Buyer delay the delivery or shipment date of any products, d&b may charge storage charges for any products which it holds for Buyer.
  4. Taxes and Other Charges. d&b’s prices are exclusive of any federal, state, local or foreign sales, use, withholding, excise or similar taxes or any United States or foreign customs duties or other charges that may be assessed, charged, imposed or levied by any public authority on the manufacture, sale, delivery, use or other handling of the products sold hereunder. All such taxes or charges shall be paid by Buyer.
  5. Title; Risk of Loss; Shipment. Title, risk of loss and damage shall pass upon delivery of the products purchased hereunder to common freight carrier or to Buyer’s representative at d&b’s designated F.O.B. shipping point. Buyer shall (i) reimburse d&b for all shipping charges paid by d&b plus an administration surcharge of 20% of such charges or (ii) directly arrange for and pay its own shipping charges, provided that Buyer provides d&b with Buyer’s shipping account information prior to shipping. All products shall be packed for shipment and storage in accordance with standard commercial practices. In no event shall d&b assume any liability in connection with shipment, nor shall the common carrier be deemed an agent of d&b. Any claims for damage or loss in transit must be made against the carrier by Buyer.
  6. Inspection / Acceptance of Goods / Returns / CREDITS. Buyer shall inspect all goods and samples within fifteen (15) days after receipt by Buyer. All claims for shortages, defects, or other non-conformities shall be made in writing by Buyer within fifteen (15) days after receipt by Buyer. Failure to notify d&b in writing of any claim within such fifteen (15) day period shall constitute an irrevocable acceptance of the goods or samples (as applicable) and an admission by Buyer that such goods or samples comply fully with all terms, conditions and specifications of the corresponding order. Credit will not be allowed on any parts which have been altered or defaced in any manner or are otherwise not in saleable condition. d&b’s sole liability for any products which is defective or materially differs from the applicable specifications is, at d&b’s option, the repair or replacement of such products or return of such products for credit in the amount paid to d&b for such products.
  7. Limited Warranty / Disclaimer of Warranties. Unless otherwise agreed to in writing by d&b , d&b hereby warrants that all products will conform to Buyer’s order request and the applicable products specifications as determined in accordance with the American Society for Testing materials and The Society of the Plastics Industry, each as in effect on the time of delivery to Buyer of the products (the “Minimum Industry Quality Standards”). This warranty extends to only Buyer and reasonably foreseeable users.. d&b will, at its option, replace, repair or issue Buyer a credit for any products which does not meet or exceed the Minimum Industry Quality Standards. No further warranty of any kind is expressed or implied. d&b hereby expressly disclaims all other warranties, expressed or implied, with respect to all products delivered hereunder, including but not limited to any implied warranty (i) of merchantability, (ii) of fitness for a particular purpose, and (iii) arising out of course of dealing, custom or usage of trade. Buyer’s remedies with respect to the sale, delivery or resale of any products delivered by d&b hereunder, whether in contract, in tort (including negligence, products liability and strict liability), under any warranty or otherwise, shall be exclusively as set forth above. Under no circumstances shall d&b have liability hereunder for any damages exceeding the amount actually paid by Buyer hereunder FOR THE PRODUCTS SOLD TO BUYER GIVING RISE TO SUCH LIABILITY OF D&B, or for incidental, indirect, special, punitive or consequential damages, including but not limited to for loss of profits or revenue, loss of use, or claims of buyer’s customers, notwithstanding (a) that d&b may have been advised of the possibility of such damages, losses or claims or (b) the failure of any remedy of its essential purpose. Under no circumstances shall any failure of d&b to replace, repair or credit Buyer’s account for any defective products affect the foregoing disclaimer of consequential damages. d&b in no way warrants that the products sold hereunder will be compatible for use with any other products or component, or that the products sold hereunder will be suitable for Buyer’s or any third party’s intended use, and assumes no responsibility therefor.
  8. Force Majeure. d&b shall not be liable for failure to perform its obligations hereunder due to events beyond its reasonable control, including, but not limited to, strikes, parts or materials shortages, manufacturing difficulties, riots, wars, actual or threatened acts of terrorism, fires, acts of God, delays of carriers or suppliers, and acts in compliance with any applicable law, regulation or order (whether valid or invalid) of any governmental body.
  9. Assignment; Amendment. Buyer may not assign its rights or obligations hereunder without d&b’s prior written consent, and any assignment in violation of this provision shall be null and void. No change or modification of any of these Terms and Conditions shall be valid or binding on d&b or Buyer unless such change or modification is in writing and signed by an authorized representative of both parties.
  10. Indemnity. Buyer acknowledges that it is Buyer’s responsibility to ensure that any final products incorporating products sold by d&b is manufactured, packaged, used, and sold in a safe and careful manner. Buyer assumes all risk associated with the use of products sold by d&b, and Buyer shall indemnify, hold harmless and defend d&b and its directors, officers and employees from and against any claim, action, loss or judgment (including attorneys’ fees and costs), whether based in contract or tort, which arise as a result of the use, manufacture, sale, handling. or other distribution of products sold by d&b, including any products incorporating any products sold by d&b.
  11. Period for Commencement of Claim. Notwithstanding any statute of limitations to the contrary, in no event shall Buyer be entitled to commence any action for breach of any warranty, expressed or implied, or for any loss or damage related to the products sold by d&b more than one year after the date of Buyer’s receipt of such services or goods.
  12. Governing Law; Jurisdiction and Venue. These terms and conditions shall be governed by and construed in accordance with Colorado law without regard to any conflict of laws principles. In the event of any litigation hereunder, the parties submit to the exclusive jurisdiction and venue of the Second Judicial District of Colorado for the County of Denver or the United States District Court for Colorado, and each of the parties consents to the personal jurisdiction of and laying of venue in any such court, and waives any objection based on lack of personal jurisdiction or forum non conveniens.
  13. Attorneys’ Fees. In the event any party initiates any legal action regarding these Terms and Conditions, and d&b is the prevailing party in any such action (including, without limitation, any collection action, mediation or alternative dispute resolution the parties may agree upon) d&b shall be entitled to recover its reasonable attorneys’ fees and costs. 14. Severability. If any provision of these Terms and Conditions is held to be unenforceable or invalid, the remaining provisions shall remain in full force and effect.

 

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