1. SALE OF MATERIALS
These Terms and Conditions apply to the sale of materials by Dragon Resources, LLC, hereinafter referred to as “Seller”, to the purchaser of such materials, hereinafter referred to as “Buyer”. Either Seller or Buyer may be referred to individually as “Party”, or collectively as “Parties”. The sale of materials to the Buyer are expressly conditioned upon assent to these Terms and Conditions contained or referenced herein. Buyer’s acceptance of Seller’s offer is expressly limited to these Terms and Conditions. Seller’s acceptance of any Buyer offer is expressly conditioned on Buyer’s agreement with these Terms and Conditions, and to the extent that any provisions offered by Buyer add to, detract from, or conflict with any of these Terms and Conditions, such provisions shall not apply. Any additional or different Terms and Conditions set forth in the Buyer’s Terms and Conditions or otherwise proposed by Buyer are expressly objected to and will not be binding upon Seller unless specifically assented to in writing in Seller’s invoice. Authorization by the Buyer to furnish materials, including any Terms and Conditions, will constitute acceptance of these Terms and Conditions. Seller reserves the right to correct all typographical and clerical errors in any Seller’s quotation, proposal, acknowledgment, or invoice. Seller reserves the right to revise or otherwise modify these Terms and Conditions from time to time. If revised, the revised Terms and Conditions will be posted on the Seller’s website, (www.dragon-resource.com/) and will thereafter be immediately effective for purchase orders accepted thereafter.
2. TITLE AND RISK OF LOSS
Materials furnished hereunder shall be delivered FCA Seller’s loading dock, Incoterms 2020. Title to all material shall remain with Seller until the complete purchase price and all additional costs and charges, as adjusted, are paid by Buyer. Seller shall retain a security interest in, and right to repossess, any such material until it is paid in full. Risk of loss shall pass to Buyer upon delivery.
3. SHIPMENT AND DELIVERY
Unless specified in Seller’s invoice, Seller’s price excludes transportation charges. Seller can arrange for the delivery of the materials and Buyer shall pay transportation charges directly to Seller or to the freight carrier. Any promised delivery date is the best estimate possible. Seller shall not be liable to Buyer and/or Buyer’s customers for lost profits, or damages of any kind for failure to deliver the product on the date specified.
4. ACCEPTANCE, RETURNS AND CHANGE ORDERS
Acceptance shall occur by written notice by Buyer or by proof of delivery. Buyer shall have twenty-four hours from delivery to reject the materials. After such period acceptance by Buyer shall be deemed to have occurred. Sales are final for materials indicated as Special Order (“SO”), as well as for materials shipped directly from manufacturer’s facility. Material purchased hereunder may not be returned for credit or refund without the written approval of Seller. All unauthorized returns will be rejected. Any change order by Buyer will not be considered effective until mutual agreement has been reached between the Buyer and Seller as to the effect of any changes in prices, delivery, and other conditions of the order.
5. EXCUSABLE DELAYS
Seller shall not be liable to the Purchaser for any expense, loss or damage resulting from delay or prevention of performance by Seller caused, in whole or in part, by acts and omissions of any governmental authority, accidents, floods, earthquakes, or other acts of God, strikes, or other labor disturbances, riots, declared or undeclared wars, fires and natural calamities (including, but not limited to floods, earthquakes, storms and epidemics), acts of terrorism, embargoes, delays of carriers, delays of manufacturer, or regular sources of supply, or lack of or inability to obtain source of materials, beyond Seller’s reasonable control (collectively “Excusable Delays”). In the event of any Excusable Delay, Seller’s time of performance shall be extended for a period of time sufficient to compensate for the effect of the delay.
6. PRICE AND PAYMENT
All material sold hereunder are at Seller’s standard prices in effect at the time of invoice and are subject to the approval of Seller’s credit department. Seller reserves the right at any time to modify or withdraw credit terms without notice and to require guarantees, security, or payment in advance of the amount of the credit involved. If Seller at any time doubts Buyer’s financial responsibility, Seller may decline to make shipments hereunder except upon cash payment in advance or receipt of security or other proof of responsibility satisfactory to Seller. Prices as quoted are in U.S. dollars shall be specified on Seller’s invoice and shall be subject to such terms and applicable discounts as may be specified therein, if any. Prices are subject to change without notice to the prices prevailing at time of acceptance. Payments shall be made in cash, legal tender of the United States of America, without deductions or set-offs. Applicable terms of payment are cash before delivery or net thirty (30) days, as specified in the respective invoice. Any invoices that remain unpaid more than thirty (30) days after the due date thereof shall accrue interest at the rate of one and a half percent (1.5%) per month (or portion thereof) until full payment is received by Seller. In the event Buyer fails to make full payment, Seller may suspend any delivery under these Terms and Conditions until full payment is received, without prejudice to any other rights or remedies it may have as a result thereof.
7. SALES AND SIMILAR TAXES
Seller’s prices do not include sales, use, excise, value added or similar taxes. In addition to the price specified, the amount of any present or future sales, use, excise, or other similar tax applicable to the price, sale, or furnishing of materials shall be paid by the Buyer, or in lieu thereof the Buyer shall provide Seller with a tax-exemption certificate acceptable to the taxing authorities. Buyer shall indemnify and hold harmless Seller from claims or liability for any such taxes.
For materials purchased by Buyer from Seller hereunder, Seller warrants to the Buyer that the materials will be new and free from defects in title. The foregoing shall apply only to failures to meet said warranties (excluding defects in title) which appear within six months from the date of acceptance. If any failure to meet said warranty appears within the applicable warranty period, on the condition that Seller be promptly notified in writing thereof, and Seller will correct any such defect in a timely manner by making available replacement materials, at no charge to Buyer. This warranty shall not apply to any materials, or portions thereof, which were consumed by Buyer. All materials replaced under this warranty are warranted for a period of thirty days from delivery to Buyer.
BUYER AGREES THAT THE WARRANTIES AND REMEDIES FOR SAID WARRANTIES SET FORTH IN THIS SECTION 8 ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES WHETHER WRITTEN, ORAL, STATUTORY, EXPRESS, OR IMPLIED (INCLUDING ALL WARRANTIES AND REMEDIES FOR SAID WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE), AND THAT THE REMEDIES CONSTITUTE THE SOLE RESPONSIBILITY OF SELLER AND THE SOLE REMEDY OF BUYER WITH RESPECT TO ANY BREACH OF SUCH WARRANTIES, INCLUDING THOSE ARISING FROM LATENT DEFECTS.
9. LIMITATIONS OF LIABILITY
Seller assumes no obligation or liability related, but not limited to, material composition and defect, material variation in color shades, damage to the structure to which the material is applied and, failure to follow manufacturer’s technical literature and instructions. Seller’s liability on all claims of any kind, whether based on these Terms and Conditions, indemnity, warranty, tort (including negligence), strict liability or otherwise, for all losses or damages arising out of, connected with, or resulting from these Terms and Conditions, or from the performance or breach thereof, including remedial warranty efforts, shall in no case exceed the billing price of the particular material which gives rise to the claim. Except as to warranty of title to any materials furnished hereunder, all such liability shall terminate upon expiration of the respective warranty period specified in Section 8, Warranty, provided, however, that Buyer may enforce a claim of such liability by an action timely commenced in a court of competent jurisdiction in accordance with applicable statute of limitations and/or statute of repose, but in no event later than one (1) year after expiration of the respective warranty period.
10. PRODUCT SAFETY, INDEMNIFICATION AND DISCLAIMER OF DAMAGES
Buyer shall (i) follow all instructions and directions of the respective manufacturer for the use of the material; (ii) use safety protocol installation, devices and protective equipment as specified by the material’s manufacturer; and (iii) follow all applicable legal requirements in the use of the material. Buyer shall indemnify and hold Seller and its affiliates companies, directors, officers, agents, employees, successor and assigns, harmless from and against any and all claims, demands, actions, causes of action, suits, liabilities, losses, damages, judgments, settlements and compromises for bodily injury, death, property damage, or economic loss, as well as any and all costs and expenses relating thereto, including reasonably attorney’s fees, relating to, resulting from, relating to or arising out of the use, installation, ownership or condition of any of the material purchased by Buyer hereunder. The indemnification and hold harmless provisions set forth in these Terms and Conditions shall be binding upon the successors, assigns of Buyer.
NOTWITHSTANDING ANY PROVISIONS IN THESE TERMS AND CONDITIONS OR ANY INVOICE/PURCHASE ORDER ISSUED HEREUNDER TO THE CONTRARY, SELLER SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHETHER IN OR ON ACCOUNT OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PROFESSIONAL LIABILITY, CONTRIBUTION, FAILURE OF REMEDY OR OTHERWISE OR FOR LOSS OF PROFITS OR REVENUE, DAMAGE TO OTHER TANGIBLE PROPERTY OF BUYER, COST OF CAPITAL, COST OF SUBSTITUTE MATERIAL, DOWNTIME COSTS, DELAYS OR CLAIMS OF BUYERS OR THIRD PARTIES FOR SUCH OR OTHER DAMAGES.
Either Party shall be entitled to terminate these Terms and Conditions in the event that the other Party is in breach of any material obligation of these Terms and Conditions and does not take reasonable steps to remedy its breach within thirty (30) days following receipt of a written notice, clearly describing the breach, from the non-defaulting Party.
12. DISPUTE, LAW AND JURISDICTION
In the event a dispute arises between Seller and Buyer regarding the application or interpretation of any provision of these Terms and Conditions, the aggrieved Party shall promptly declare a dispute by notifying the other Party to these Terms and Conditions of the dispute within thirty (30) days after such dispute arises. If the Parties shall have failed to resolve the dispute within sixty (60) days after such dispute is declared, either Party may request that the dispute to be resolved by the courts of Palm Beach County, Florida. These Terms and Conditions, any amendment thereof, and the rights and remedies of the Parties hereof shall be governed by and construed according to the laws of the State of New York, excluding its choice of law rules, and subject to the exclusive jurisdiction of Palm Beach County courts.
13. GENERAL PROVISIONS
Any assignment of these Terms and Conditions, or any rights or duties hereunder, by either Party without the prior written consent of the other Party shall be void.
The provisions of these Terms and Conditions are for the benefit of the parties hereto and not for any other person, except as specifically provided herein. Waiver by either Party, on any one or more occasion(s), of any right under these Terms and Conditions shall not be deemed a waiver of such right for any other or future occasion, or a waiver of any other rights hereunder. These Terms and Conditions contain the entire and only agreement between the Parties and supersede any prior oral and written understandings between the Parties. No modifications, amendment, rescission, waiver or other change of these Terms and Conditions will be binding on Seller unless agreed to in writing by Seller’s authorized representative. Any oral or written representation, warranty, course of dealing or trade usage not contained of reference herein will not be binding on Seller. The invalidity, in whole or part, of any of the sections of paragraphs set forth in these Terms and Conditions will not affect the remainder of such section or paragraph or any other section or paragraph of these Terms and Conditions, and may not be amended, supplemented or modified (or any right or power granted hereunder waived) except by a written instrument signed (electronically or otherwise) by the Parties. These Terms and Conditions are binding on the Parties and its successors.