Driflower™ Terms & Conditions
Standard Terms and Conditions of Sale; Disclaimers
- DEFINITIONS. “Seller” shall mean DriFlower LLC. “Buyer” shall mean Seller’s customer as described in any proposal, quotation, invoice or order acknowledgment provided by Seller to Buyer in this Terms & Conditions statement.
- EFFECT OF DRIFLOWER™ TERMS AND CONDITIONS. The Driflower™ terms and conditions contained herein shall apply to each proposal, quotation, invoice or order acknowledgment provided by Seller to Buyer, and such terms and conditions shall supersede all prior oral or written statements or documents made with respect to the subject matter contained herein. The Driflower™ terms and conditions contained herein as well as in any proposal, quotation, invoice or order acknowledgment provided by Seller to Buyer shall also supersede any terms or conditions contained in any purchase order or other communication provided by Buyer to Seller. Any terms or conditions not specifically contained herein or in any proposal, quotation, invoice or order acknowledgment provided by Seller to Buyer shall be inapplicable to any transactions between Seller and Buyer, and Seller hereby specifically notifies Buyer of its objection to all terms and conditions not specifically contained herein or not contained in any proposal, quotation, invoice or order acknowledgment provided by Seller to Buyer.
- PRICES AND TAXES. All prices for the products, equipment, services and/or parts (collectively, the “Goods”) described in any proposal, quotation, invoice or order acknowledgment are quoted in U.S. Dollars, and unless otherwise indicated, are exclusive of all current and future federal, state, municipal or other governmental excise, sales, use or other taxes as well as any tariffs applicable to the Goods. Such taxes, when applicable, will be paid by Buyer and will appear as separate, additional items on each invoice provided by Seller to Buyer unless Buyer provides Seller with a tax exemption certificate acceptable to the applicable taxing authorities. Prices are based on costs and market conditions existing on the date of proposal, quotation or order acknowledgment and are subject to change by Seller prior to the date of invoice if such costs and market conditions should change.
- TERMS OF PAYMENT. Payment for any order placed by Buyer and accepted by Seller shall be due within thirty (30) days from the date that Seller submits an associated invoice to Buyer. Invoices shall be submitted by Seller to Buyer on the date that Seller substantially completes any services or ships any products, equipment or parts. In the event Buyer fails to pay any invoice in full within such 30 day period, any overdue amount shall bear interest at the rate of one and one half percent (1.5%) per month until paid in full. Additionally, if Buyer fails to pay any invoice in accordance with this paragraph, in addition to any other amounts owed hereunder, Buyer shall pay all costs and expenses incurred by Seller in the course of collection, including, without limitation, all reasonable attorneys’ fees incurred by Seller. If payment is in the form of a check or draft and the check is returned for insufficient funds or is refused by any bank, a service charge of $30 will be payable by Buyer to Seller. If Seller determines, in Seller’s sole discretion, that Buyer is financially unstable, if Seller has reasonable doubts as to Buyer’s financial responsibility, or if Buyer is past due on any payment or other amount owing hereunder, Seller reserves the right, without liability and without prejudice to any other remedies, (a) to suspend performance, decline shipment, or stop any material in transit, until Seller receives payment of all amounts owing from Buyer and (b) to require that Buyer pay all amounts in full prior to Seller delivering any Goods with respect to future purchases.
- LEAD TIMES. Buyer acknowledges that the lead times for Seller’s production and delivery of any Goods shall be as specified in any order acknowledgment submitted by Seller to Buyer. Buyer further acknowledges that such lead times are for estimation purposes only, and Seller shall bear no liability for any loss resulting to Buyer due to Seller’s failure to meet such lead times, provided that Seller produces and delivers the Goods within a reasonable time considering industry standards and market conditions.
- QUANTITY VARIANCES. Buyer specifically acknowledges that all Goods produced by Seller hereunder are considered custom and specialty metal Goods. Buyer further acknowledges that that the standard within the specialty metal Goods industry allows for quantity variances of +/- 10%. Therefore, Buyer agrees that all orders specifying a quantity of Goods shall be filled within a tolerance of +/- 10% from the quantity term specified in each order acknowledgment sent from Seller to Buyer. Seller reserves the right to ship and invoice Buyer for the actual quantity of Goods shipped, and provided the quantity of Goods actually shipped to Buyer complies with the quantity tolerance stated in this paragraph. If the actual quantity so shipped complies with the quantity tolerance state in this paragraph, such order shall be considered fulfilled and complete.
- DELIVERY. Unless otherwise stated in any proposal, quotation, invoice or order acknowledgment submitted by Seller to Buyer, all Goods furnished hereunder will be shipped F.O.B. point of origin at Seller’s place of business. Title to, right of possession, and risk of loss or damage to such Goods shall pass to Buyer upon Seller’s release of any such Goods to a common carrier for shipment. Buyer shall be responsible for any insurance with respect to such shipments and shall also be responsible for making any and all claims with any common carrier resulting from delay, non-delivery, damage or loss to the Goods shipped. Unless otherwise stated in any proposal, quotation, invoice or order acknowledgment submitted by Seller to Buyer, the cost of all shipping will be the responsibility of Buyer, and such cost shall be included in each invoice submitted to Buyer and shall be payable in accordance with Section 4 above.
- FORCE MAJEURE. Seller shall not be liable for and Buyer shall have no rights with respect to any delay or failure in performance or non-performance which is due to acts beyond Seller’s reasonable control. Such acts shall include, but shall in no way be limited to, acts of God, acts of third parties, acts of governmental authorities or any agencies or commissions thereof, acts of war, accidents, breakdowns of equipment, strikes, lockouts, riots, fires, communication line failures, or other interference with production and the supply or transportation of products, raw materials or components.
- CANCELLATION. Once Seller submits an order acknowledgment to Buyer, such order may not be canceled by Buyer without Seller’s prior written consent, and without Seller being reimbursed by Buyer for any and all expenses incurred with respect to such order, including, but not limited to, all manufacturing expenses, labor costs, specialized design costs, and other costs related to the order.
- LIMITED WARRANTY. Seller warrants that the Goods manufactured and sold by Seller will, on the date of shipment, be free from defects in material and workmanship under normal use and service. THIS LIMITED WARRANTY IS GIVEN ONLY TO THE ORIGINAL BUYER AND DOES NOT EXTEND TO ANY SUBSEQUENT BUYER OR TRANSFEREE OF SELLER’S PRODUCTS OR TO PRODUCTS OR COMPONENTS THAT HAVE BEEN REPAIRED OR ALTERED WITHOUT GUIDANCE FROM DRIFLOWER™. THE ORIGINAL BUYER IS NOT ENTITLED TO EXTEND OR TRANSFER THIS WARRANTY TO ANY OTHER PARTY. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE.
No dealers, distributors or other sales representatives have any authority from DriFlower LLC to alter, amend or extend the warranty.
Seller makes no implied warranty about the life of the paint finish on any of its products. Touch-up paint may be provided to cover blemishes, scrapes, chips, banding marks, rust, etc., which may occur in the course of shipping and handling.
Seller further disclaims any liability for any consequential damages caused by its products or any damages in tort or otherwise caused by misuse of its products, to the extent allowed by law.
- LIMITATION OF REMEDIES AND LIABILITIES. Buyer agrees that Seller’s liability and Buyer’s sole and exclusive remedy pursuant to any claim of any kind, including but not limited to a claim in contract, negligence or strict liability, against Seller shall be (a) the repair or replacement, at Seller’s option, of defective Goods, or (b) a refund of the price attributable to the defective Goods if Seller is unable to effectively repair, replace or correct the defect in a reasonable time after using Seller’s best efforts. UNDER NO CIRCUMSTANCES SHALL SELLER HAVE ANY LIABILITY WHATSOEVER FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, COST OF ANY SUBSTITUTE FOR THE GOODS, CLAIMS OF THIRD PARTIES, OR INJURY TO PERSON OR PROPERTY.
- GENERAL CONDITIONS. (a) No modification, amendment, rescission, discharge, abandonment or waiver of these Driflower™ terms and conditions shall be binding upon Seller unless set forth in writing and signed by a representative of the Seller (other than a salesperson, dealer or distributor). (b) Neither party may assign these Driflower™ terms and conditions without the written consent of the other party, except that Seller may assign these Driflower™ terms and conditions without Buyer’s consent to any company with which it merges or to which it sells all or substantially all of its assets. (c) These Driflower™terms and conditions shall be governed by and construed in accordance with the laws of the State of Oregon, and any contract resulting therefrom shall be deemed to be made in the State of Oregon, and Seller and Buyer hereby consent to the exclusive jurisdiction of the courts of the State of Oregon located in Jackson County, with respect to any controversy or claim arising out of, or relating to, any contract resulting from these terms and conditions. (d) Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial [or other] Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
- DISCLAIMER OF REPRESENTATIONS MADE ON WEBSITE, ETC.
DriFlower™ has made every attempt to ensure the accuracy and reliability of the information provided on this website. However, the information is provided “as is” without warranty of any kind, including any warranty of fitness for a particular purpose. DriFlower™ does not accept any responsibility or liability for the accuracy, content, completeness, legality, or reliability of the information contained on this website. DriFlower™ cannot and will not guarantee that this website is free from computer viruses or anything else that has destructive properties.