The supply and sale of goods by Danese Creations, LLC (“Danese Creations”) is subject to the following standard terms and conditions unless expressly modified in writing by Danese Creations and the Buyer (collectively the “Parties”). The final and entire agreement pertaining to the sale of goods to Buyer by Danese Creations is set forth herein; any prior understandings, agreements, and representations, oral or written, shall be deemed superseded and merged in this contract. Any typographical, clerical, or other errors or omissions in any sales literature, catalogues, quotations, price lists, offers, invoices, manuals, or any other document issued by Danese Creations shall be corrected without any liability to Danese Creations. Agents and salespersons of Danese Creations have no authority to make any representations not included herein. Danese Creations hereby rejects any different or additional terms previously or hereafter proposed by the Buyer, none of which shall be effective unless embodied in writing signed by an authorized employee of Danese Creations. Any preprinted terms on Buyer’s purchase order shall be given no force or effect and no terms of a purchase order that conflict with this Agreement shall be binding on Danese Creations.
The goods and other items or services covered by these term and conditions shall be sold and invoiced at Danese Creation’s prices and charges in effect at the time of each shipment of goods. Danese Creations reserves the right to change, without notice, the published list prices referenced on any purchase order or the face of this contract. Prices do not include sales, excise, use, value added or other taxes now in effect or hereafter levied by reason of this transaction. The Buyer shall pay all such taxes.
- Terms of payment are within Danese Creation’s sole discretion, and unless otherwise agreed to by Danese Creations, payment must be received by Danese Creations prior to Danese Creation’s acceptance of an order. In all other circumstances payment terms are net thirty (30) days from the date of invoice. All payments must be made without set-off, counterclaim, withholding or other deduction. Danese Creations reserves the right to require alternative payment terms, including, without limitation Sight Draft, Letter of Credit, or Payment in Advance. If shipments are delayed or rescheduled by the Buyer, payment shall be made based on the contract price and percentage of completion. Buyer shall be liable for the price of all products substantially conforming to the contract, notwithstanding that the Buyer may not have accepted, or may have revoked acceptance of those products.
- If payment is not received by the due date, a service charge will be added at the rate of 1.5% per month (18% per year) or the maximum legal rate, whichever is less, to unpaid invoices from the due date thereof.
- Remittances will be received by a bank simply as clearing agency. The receiving bank has no authority to determine whether the amount remitted constitutes payment in full. Remittances marked to indicate payment in full will be deposited by the bank notwithstanding such markings and such deposit shall not indicate Danese Creations’s acceptance of the remittance as payment in full unless the remittance actually constitutes payment of all sums owed.
Danese Creations may, at any time, and in its sole discretion, limit or cancel Buyer’s credit as to time and amount and as a consequence may (1) demand payment in cash before delivery of any unfilled portion of this contract; and (2) demand assurance of Buyer’s due performance. Upon making such demand, Danese Creations may suspend production, shipment, and/or deliveries. If, within the period stated in such demand, but in no event longer than 30 (thirty) days, the Buyer fails to agree and comply with such different payment terms, and/or fails to give adequate assurance of due performance, Danese Creations may (a) by notice to Buyer, treat such failure or refusal as a repudiation by the Buyer of the portion of the contract not then fully performed, whereupon Danese Creations may cancel all further deliveries and any amounts unpaid hereunder shall immediately become due and payable; or (b) make shipments under reservation of a security interest and demand payment against tender of documents of title. If Danese Creations retains a collection agency and/or attorney to collect overdue amounts, all collection costs, including attorney’s fees, shall be payable by the Buyer. Buyer hereby represents to Danese Creations that the Buyer is now solvent and agrees that each acceptance of delivery of the goods sold hereunder shall constitute reaffirmation of this representation at such time.
Danese Creations may make delivery in installments and may render a separate invoice for each installment, which shall be paid when due, without regard to subsequent deliveries. Each installment shall be deemed a separate sale. Delay in delivery of any installment shall not relieve the Buyer of its obligation to accept delivery of remaining installments. Any delivery not in dispute shall be paid for on its due date, as provided in this contract, without offset defense or counterclaim and regardless of controversies relating to other deliveries or undelivered products.
- iBuyer or Buyer’s agent may inspect the goods at the place of manufacture. Buyer shall accept any tender of the goods by Danese Creations which substantially conform to the description of the goods set forth herein.
- Buyer shall be deemed to have accepted any product and Buyer’s right to cancel, reject, or claim any damages for breach of warranty or breach of Danese Creation’s obligation under this contract shall cease, unless Buyer gives Danese Creations notice in writing of Danese Creation’s breach: (a) in the case of defects discoverable through inspection, 14 (fourteen) days after arrival of the shipment or (b) in the case of defects not discoverable through inspection, 30 (thirty) days after invoice date.
- In the case of nonconforming goods, Buyer shall immediately notify Danese Creations whether Buyer will continue to accept similarly nonconforming goods. Acceptance of any nonconforming goods shall constitute a waiver by Buyer of specification requirements for said goods.
- In any event, when the product shall have been altered from its original state, Buyer shall be deemed to have accepted the product. Buyer’s acceptance of goods tendered under this contract shall be final and irrevocable.
Danese Creations will use every reasonable effort to effect shipment on or before the date indicated. Danese Creations shall not be liable, directly or indirectly, for any delay or failure in performance or delivery or inability to perform or delivery where such delay, failure, or inability arises or results from any cause beyond Danese Creation’s control or beyond the control of Danese Creation’s suppliers or contractors, including, but not limited to, strike, boycott, or other labor disputes, embargo, governmental regulation, inability or delay in obtaining materials. In no event shall Danese Creations, in the event of delays, or otherwise, be liable to the Buyer or any third parties for any consequential, special, or contingent damages. In the event of any such delay or failure in performance, Danese Creations shall have such additional time within which to perform its obligations hereunder as may reasonably be necessary under the circumstances; and Danese Creations shall also have the right, to the extent necessary in Danese Creation’s reasonable judgment, to apportion fairly among its various Buyers in such manner as Danese Creations may consider equitable, the goods then available for delivery. If, as a result of any such contingency, Danese Creations is unable to perform this contract in whole or in part, then to the extent that it is unable to perform, the contract shall be deemed terminated without liability to either party but shall remain in effect as to the unaffected portion of the contract, if any.