1. These DECAM Standard Terms and Conditions of Sale apply to purchase orders accepted by DECAM.
2. All prices quoted by DECAM are subject to any applicable domestic local, provincial and/or state sales tax, use tax or other taxes in the Buyer’s jurisdiction. Any such taxes will be paid by Buyer. Buyer agrees to pay for the Goods that it orders from DECAM in accordance with the payment terms stated within these terms and conditions of sale.
3. DECAM’s normal and customary lead time for the manufacture and delivery of Goods is eight (8) to ten (10) weeks from: (a) in the case of Buyer providing any agreed upon supplementary materials for inclusion in the Goods, the date that DECAM receives such materials from Buyer or its supplier; and (b) in all other cases, the date that DECAM accepts the order from Buyer. This manufacture time is provided as an estimate and shall not serve as a guarantee from DECAM of manufacture and/or delivery within such period.
4. All Goods will be invoiced on shipment. All purchase orders from Buyer that are accepted by DECAM shall require Buyer to remit a deposit of one-third (1/3) of the order’s total price within ten (10) business days of the order’s acceptance by DECAM, a payment from Buyer of one-third (1/3) of the order’s total price prior to the date on which DECAM ships the Goods, and a payment of the remaining one-third (1/3) upon delivery. All invoiced amounts for purchases shall be paid by electronic bank transfer to a bank account specified by DECAM from time to time which account may be in the United States of America, Catalonia, Spain or elsewhere. A late payment charge of one and one-half percent (1½ %) per month (annual rate of 18%) or the maximum amount otherwise allowed by applicable law will be added to past due accounts. Buyer shall pay all reasonable attorneys’ fees, collection costs and other expenses incurred by DECAM for collection of past due invoices.
5. Unless otherwise agreed in writing delivery is F.O.B. DECAM’s principal place of business in manufacturing site in Sant Feliu de Guixols, Girona, Catalonia, Spain, packaged and packed as directed by DECAM for international shipment. Risk of loss and title shall pass to Buyer upon delivery. In the event that Buyer designates a specific carrier, DECAM will attempt to use that carrier. However, DECAM may select an alternate carrier to transport the Goods if, in its sole and exclusive discretion it determines use of such alternative carrier is necessary to satisfy delivery requirements. All freight, insurance, and other shipping expenses as well as customs duties and brokerage fees shall be borne by Buyer. Buyer shall inspect shipments for freight damages at time of receipt and immediately notify carrier of any freight damage, file its claim directly with the carrier, and notify DECAM of the damage. DECAM is not liable for freight damage or for losses incurred by Buyer as the result of freight damage or delays.
6. Buyer shall be solely responsible for all of Buyer’s own expenses incurred in the installation, distribution, marketing and/or re-sale of Goods, including, but not limited to, design fees, project management fees and installation fees. DECAM shall have not any liability for the provision of any of the foregoing services or the costs associated therewith.
7. In the event that DECAM finds that Buyer has breached any other order or contract with DECAM, DECAM may terminate this Order, in whole or in part. Buyer, however, remains liable under this Order in the event of such termination by DECAM. DECAM has the right to terminate this Order, after giving Buyer three (3) days written notice of such termination, in the event Buyer makes, or it reasonably appears it shall make, an assignment for the benefit of creditors, is subject to any voluntary or involuntary provincial, state or federal receivership, insolvency or bankruptcy proceedings, becomes unable, or admits in writing its inability, to meet its obligations as they mature, fails to give adequate assurances of its ability to perform, or is dissolved or liquidated.
8. Unless otherwise specified by DECAM, the Goods are covered by DECAM’s Limited Warranty. DECAM warrants that all Goods it manufactures and sells shall be free from manufacturing defects in materials and workmanship. Also, subject to the limitations set out below, DECAM also warrants the following components of the Goods for the terms set out below: (a) Accessories (eg. table, drip pole, oxygen support, blood donor holder, etc.): 2 years (b) Castors: 2 years (c) Motors and gas cylinders: 3 years (d) Upholstered fabric: 2 years (e) Electronic components including handset controller: 2 years (f) Finishes, filling materials, mechanisms and mechanical components: 2 years (g) Frame: Functional lifetime of the Goods. During a covered Goods’s warranty period, DECAM will, at DECAM’s sole option and discretion repair directly or arrange for the repair of the defective component or Goods without charge orreplace the defective component or Goods without charge.
9. This Limited Warranty is made by DECAM only to the Buyer and to no other purchaser or transferee of the Goods. This Limited Warranty extends only to defects in materials and workmanship which occur during a Goods’s normal, intended use. This Limited Warranty: (a) Does not apply to any “customer’s own material” or non-standard materials selected by and used at the request of the purchaser. (b) Does not apply to damage resulting from misuse or abuse. (c) Does not apply to damage resulting from any modifications or alterations made by the purchaser to the Goods, including those resulting from the repair or service of the Goods by anyone other than DECAM approved personnel. (d) Does not apply to concealed damages sustained by the Goods during original transit to purchaser as all such damages should be noted on the bill of lading at the time of the original delivery. (e) Does not apply to damages to any wood, plastic, metal or other finishes inflicted by impacts and/or abrasion. (f) Does not apply to damage resulting from purchaser’s application of cleaners, germicides or other chemicals not approved by DECAM, or to damage caused by corrosive chemicals such as acids or solvents, or dyes, inks, paints, bodily fluids and other related substances.
(g) Does not apply to damage resulting from people sitting, stepping on and/or kicking the footrest, side tables or other accessories. (h) If any material or part(s) used in any defective Goods is unavailable at the time of repair or if DECAM elects to repair the defective Goods, DECAM reserves the right to substitute materials or parts of equal quality and value as determined in the sole and absolute discretion of DECAM.
10. THE LIMITED WARRANTIES AND REMEDIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES, VERBAL OR WRITTEN, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT, WHETHER BASED ON CONTRACT OR TORT OR OTHER LEGAL THEORY, SHALL DECAM BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES TO OTHER PROPERTY, INCONVENIENCE, LOSS OF GOODWILL, LOST PROFITS OR REVENUE OR OTHER FINANCIAL LOSS, LOSS OF USE OF THE Goods, OR CLAIMS FOR DAMAGES RESULTING FROM USE OF THE Goods. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages so the above limitations may not apply to some purchasers.
11. Buyer acknowledges that the all DECAM trademarks associated with the Goods are the trademarks of DECAM, and shall not rebrand the Goods for resale, seek to obtain any rights in the DECAM trademarks through the filing of trademark application. Buyer also agrees that all other intellectual property rights in the Goods, including the aesthetic and functional designs of the Goods, are the property of DECAM and that Buyer shall not seek to obtain any intellectual property rights in the Goods. All improvements that Buyer may make to the Goods are the property of DECAM, and Buyer hereby assigns such improvements to DECAM. Buyer shall not challenge the ownership or validity of DECAM’s trademarks or intellectual property rights.
12. The rights, duties, obligations and liabilities of the parties under this Agreement shall be separate and individual, not joint, or collective, nor joint and several, and nothing in this Agreement shall create any partnership, distributorship, franchise or agency relationship between or among DECAM and Buyer. Without limiting the generality of the foregoing, Buyer shall not be deemed by reason of any provisions of this Agreement or otherwise to be the partner, agent, principal, distributor, franchisee or legal representative of DECAM nor shall any Buyer have any authority or power to act for or to undertake any obligation or responsibility on behalf of DECAM except where otherwise agreed to by DECAM in writing.
13. DECAM shall not be held responsible or liable to Buyer or any other person for any delay or failure in performance of any of its obligations hereunder to the extent that such delay or failure is caused, directly or indirectly, in whole or in part, by fire, flood, explosion, casualty, accident, or natural catastrophe, war, riot, strike, lock-out or other labor dispute or industrial disturbance, embargo, court, tribunal or military authority, shortage of, or inventory, appropriate supplies, materials, equipment, transport or labor, beyond DECAM’s control, including delays due to Buyer acts, omissions or rush circumstances. Under such circumstances, DECAM, among other things, may extend the date of delivery for a reasonable period of time after the period of the delay, apportion its Goods among its customers in such manner as it deems equitable and substitute for Goods which cannot be obtained within a reasonable period of time.
14. All rights and remedies conferred upon the parties hereto by this Agreement or by law, in equity or otherwise shall be cumulative of each other, and neither the exercise nor the partial exercise nor the failure to exercise any such right or remedy or the exercise of any the right or remedy shall be deemed an exclusive remedy, except as may be expressly provided in any warranty. Except as expressly provided in this Agreement, no failure or delay on the part of DECAM in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or of any other right or remedy, nor may any provision of this Agreement be waived except in a writing signed by DECAM. If any one or more of the provisions, or parts of any provisions, contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect by an arbitrator or court of competent jurisdiction as permitted by this Agreement, the same shall not invalidate or otherwise affect any other provisions or part of any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision or part of any provision had never been contained herein.
15. This Agreement shall be governed by and construed in accordance with the laws of the state of Catalonia, Spain, without regard to the principles of conflicts of law thereof. Buyer acknowledges the exclusive jurisdiction of the courts of Catalonia, Spain. Any claims or disputes under this Limited Warranty shall be heard exclusively in any state or federal courts sitting in Catalonia, Spain, and Buyer expressly consents to the personal jurisdiction and venue of Catalonia, Spain for such actions.
16. This Agreement is not assignable by Buyer without the prior written consent of DECAM. This Agreement is assignable by DECAM and shall inure to the benefit of and be enforceable by any successor, assignee or legal representative of DECAM. This Agreement may not be amended or modified except by a further written agreement signed by the Parties hereto.