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Dimation’s Terms and Conditions
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY
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1. GENERAL / OFFER
This quotation (“Quotation”) is a formal written offer from Dimation (“Dimation”, “Seller”, “we”, “us”, “our”) to sell you the Buyer (“Buyer”, “Customer”, “you”, “your”) the products (“Products”, “Goods”) and/or to furnish you the services (“Services”), whether performed by Dimation or a subcontractor, described on the face of this document at the price (“Price”) and in the quantities (“Quantity”) noted thereon. The following terms and conditions of sale (“Terms and Conditions” or “these Terms and Conditions”) shall govern all sales of Goods and performance of Services to you by Dimation. These Terms and Conditions shall apply to all communications related to this transaction from either Party, including, without limitation, Buyer’s purchase orders (collectively “Order”), Dimation’s Quotation or other offer (collectively “Offer”) and Dimation’s order acknowledgement, confirmation or acceptance of your Order (collectively “Order Acknowledgement”, “Confirmation”). Any additional or supplemental terms, conditions and specific details (“Additional Terms and Conditions”) presented in or accompanying Dimation’s Offer or Order Acknowledgement including, but not limited to, written information on the face hereof, attachments, exhibits, supplements, appendices, specifications (“Specifications”, exemplified by, without limitation, J-
2. ACCEPTANCE OF OFFER/ CONTRACT FORMATION
YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND SHALL BE DEEMED TO HAVE ACCEPTED THEM (AND ACCEPTED DIMATION’S OFFER) if you place an Order with Dimation through the issuance of a purchase order or other communication responsive to the Offer or if you accept all or any part of the Products or Services quoted or if you expressly or impliedly allow Dimation to begin performance of the quoted Services or if you make a payment for all or any part of the Products or Services ordered. Orders are not binding on Dimation and no agreement will result unless Dimation accepts the Order(s) by issuing a written Order Acknowledgement or Confirmation. Buyer’s Order responsive to Dimation’s Offer, Dimation’s Confirmation of Buyer’s Order and these Terms and Conditions (whether delivered in connection with Dimation’s Quotation, Order Acknowledgement, invoice or otherwise), shall constitute the entire contract agreement (“Contract”) between Dimation and Buyer (collectively “the Parties”) pertaining to the subject matter hereof which Contract shall supersede all prior or contemporaneous oral or written negotiations, agreements, understanding or representations with respect thereto. Usage of the trade, custom, practice or course of dealing shall not operate to supplement or explain any term used in this contract agreement. Except to the extent the Parties shall have otherwise agreed to in writing, all terms that vary from, differ from or conflict with these Terms and Conditions wherever contained or otherwise presented by Buyer prior to, contemporaneous with, or subsequent to this Quotation and/or Order Acknowledgement are hereby expressly objected to and rejected and shall not be applicable to the Order notwithstanding any act or omission by Dimation such as, for purposes of exemplification but not by way of limitation, filling an order received from Buyer, confirming the quantity, price, and delivery terms stated on Buyer's Purchase Order, and failing to seasonably object to the aforementioned conflicting, inconsistent or additional terms and conditions contained in any Order (oral or written).
3. PRICES, PAYMENT TERMS
The Prices for all Products and Services shall be in U.S. Dollars and Buyer shall make payments in U.S. Dollars. Unless otherwise set forth in a writing by Dimation, the Prices offered apply only to the specific quantities, specifications, and delivery schedules set forth in the accompanying Dimation Quotation and/or Order Acknowledgement and are exclusive of all taxes and other charges referenced herein-
Standard terms for domestic Orders shall be one hundred percent (100%) net due and payable thirty (30) days from the date of Dimation’s invoice, subject to credit approval of Buyer by Dimation’s Credit Department. Alternate terms that are specifically stated in writing on the face of the Quotation shall take precedence over and apply in lieu of the standard terms. Payment terms for international orders will be cash in advance by wire transfer or an irrevocable letter of credit confirmed with Dimation’s bank. Dimation reserves the right, at its sole discretion and without prior notice, to limit, cancel, or modify Buyer’s credit terms as to the amount or the time for which such credit is extended. On any invoice not paid by the maturity date, Dimation may, at its option, charge interest from maturity to date of payment at the maximum legally permissible rate (“Finance Charge”), not to exceed 1.5 percent per month, on any past due amount. Dimation, in its sole discretion and without notice to Buyer, may also withhold, delay or discontinue delivery of any Products of Services during any period of time in which Buyer’s account is past due or exceeds its approved credit limit, or where Buyer fails to fulfill the terms of payment of any prior invoice submitted by Dimation, or if in Dimation’s estimation, Buyer’s financial condition has become impaired. Any such action by Dimation shall be in addition to and without prejudice to any other legal remedies that may be available to it. Dimation reserves the right to require the Buyer to make all or partial payment in advance of shipment or to employ an alternate mode of payment including, without limitation, payment by credit or debit card, letter of credit confirmed with Dimation’s bank, electronic funds transfer using entities such as, by way of example only, PayPal, Automated Clearing House (ACH) credit transfer, or inter-
If Dimation employs any legal process to recover any amount due and payable from Buyer hereunder, Buyer shall pay all costs of collection and reasonable attorney's fees.
All transportation and handling charges, all taxes, duties, fees, or other charges of any nature including, but not limited to, consumption tax, import tax, sales tax, stamp tax, use tax, or value-
4. DELIVERY / ACCEPTANCE:
Unless otherwise specified on the face of the Quotation or a prior agreement as to shipping, a) Dimation will select a carrier and a delivery route. Dimation’s standard method of shipment is UPS Ground Uninsured; b) all Products will be delivered FOB (for domestic shipments) or FCA (for international shipments) (“FOB” and “FCA” as defined and governed by ICC “INCOTERMS 2010”) point of origin Dimation's Burnsville facility of manufacture set forth on the face of the Quotation; and c) title to and risk of loss or damage to the Product shall end, and title shall pass to Buyer when Products are delivered to the carrier for shipment to Buyer or Buyer’s agent (including, without limitation, any test house or other facility/service provider designated by Buyer). Buyer shall pay all shipment charges in addition to the purchase price, taxes and other charges specified in Section 3 of this document. Acceptance of the Product shall occur no later than fifteen (15) days after shipment and shall be based solely on whether the Product passes a mutually agreeable acceptance test procedure or an inspection designed to demonstrate compliance with the Specifications. Product cannot be rejected based on criteria or test procedures that were not mutually agreed upon before the time of Dimation’s Confirmation of Buyer’s Order. Product shall be deemed accepted if not rejected within this fifteen-
5. CANCELLATIONS/ CHANGE ORDERS:
Dimation shall be deemed to have accepted Buyer’s Order and Buyer’s Order shall become binding on the Parties upon Dimation’s issuance of an Order Acknowledgement / Order Confirmation. Following acceptance, Dimation shall commence preparations to fulfill Buyer’s Order. Such preparations may include, but are not limited to, entering purchase commitments with vendors for long lead-
Without limiting the generality of the foregoing paragraph, cancellation or rescheduling of an accepted order for Products or Services or part thereof, a waiver or modification of its terms or conditions or any other change to the accepted order will not be binding on Dimation Inc. unless made in writing by Buyer and approved by a duly authorized officer of Dimation, such approval not to be unreasonably withheld. Should Buyer request and Dimation approve a change request, Dimation will advise Buyer in writing of the adjustments, if any, of the change request on the price, delivery schedule and/or quantities. Dimation’s approval of the change request is premised on Buyer’s acceptance of the adjustments.
In the event the parties agree upon a cancellation, Buyer will pay Dimation according to the following cancellation terms:
1) Customer is liable for 100% of the contract price for all finished Products already shipped, 100% of the contract price for all finished Products in Dimation’s possession and 100 % of the contract price for all work-
2) The actual cost plus a handling charge for all inventory in Dimation’s possession as of the date of cancellation that is not returnable to the vendor for credit or usable for other customers.
3) The actual cost of all inventory for all inventory on order as of the date of cancellation and not cancelable including the actual cost of all Special Ordered Parts. Once such inventory is received, the Customer will be liable for the handling charge incurred by Dimation for disposition of such inventory.
4) 100% of any vendor cancellation charges incurred with respect to inventory accepted for cancellation or return by the vendor.
5) 100% of the contract price for all Services already performed, and 50% of the contract price for all Services for which Dimation has made preparations or has become committed for fulfillment of the contract prior to the date of cancellation.
6) 100 % of the labor, equipment and administrative expenses incurred by Dimation specifically to support Customer’s purchase orders.
Dimation will use reasonable commercial efforts to return unused inventory and to cancel pending orders for such inventory, and to otherwise mitigate the amounts payable by Customer. However, Customer recognizes and agrees that Dimation’s damages arising from any cancellation of any order or termination under this section will be difficult to estimate, and the parties agree that such cancellation charges are reasonable and are not a penalty.
In addition to Dimation’s other rights and remedies available at law or equity, upon cancellation by Buyer hereunder, Dimation shall provide to Customer within (15) business days a detailed invoice of the cost of cancellation and the parties agree that all amounts set forth in such invoice shall become payable by Customer immediately upon receipt of such invoice.
6. TOOLING
All tooling, including without limitation, machines, jigs, fixtures, molds, dies, stencils, measuring and testing devices, templates, models, drawings, software, designs, or equipment procured, produced, or used by Dimation for the purposes of filling Buyer’s Order , for which Dimation has separately charged Buyer and which has been paid for by Buyer in full (“Tooling”) will remain the property of Buyer and, for a period of one year from the date of final delivery of all Products or Services contemplated hereunder, made available to Buyer for pickup from Dimation’s facilities upon reasonable notice to Dimation. After the expiration of the one year period following the date of final delivery, Dimation shall deem the Tooling abandoned and may, in its sole discretion, and without notice to Buyer, dispose the Tooling in any manner it shall see fit, without liability to Buyer.
7. RETURN AUTHORIZATIONS
Buyer cannot return any Products for repairs, replacement, or credit without Dimation’s prior authorization obtainable by submitting a return material authorization (“RMA”) request within thirty days (30) days after the discovery of an apparent defect in the Product or ninety (90) days of delivery whichever occurs first. If approved, Dimation will issue Buyer a RMA number usually within 24 hours of Buyer’s request. Buyer must return the defective Product, freight prepaid, within 30 days of receiving the RMA. The RMA number must appear on the shipping label outside of the shipping container together with all of the paperwork associated with the return. Dimation has the right to refuse a shipment or reject Products returned without the correct RMA number clearly marked on the outside of the shipping container. Issuance of a RMA number does not obligate Dimation to either approve a credit, or to evaluate, repair or replace the returned Product without a fee. Buyer shall be responsible for all shipping charges, freight insurance, import/export duties, and other costs associated with shipment of the Products from and to Buyer. Seller shall bear no liability whatsoever for any damages or loss during shipment to or from Buyer.
8. WARRANTY: DISCLAIMER OF WARRANTY
Dimation warrants only that the Products assembled or customized by it for Buyer hereunder shall be free from defects of materials and workmanship for a period of ninety (90) days after date of original shipment (“Warranty Period”) and that Services performed by Dimation shall be performed by it in a competent, diligent manner and in accordance with any mutually agreed specifications (“Dimation Warranty”). If, Buyer discovers defects in the materials or workmanship of the Product and notifies Dimation in writing of such defects within the Warranty Period and returns the Product to Dimation in accordance with the procedures set forth in Section 7 “RETURN AUTHORIZATIONS” of this document, Dimation, shall, at its option, a1) repair or replace the Product, or have the manufacturer repair or replace it, or b1) refund the purchase price of the Product.
The Dimation Warranty shall not apply to a returned Product if, in Dimation’s sole estimation, the returned Product has been subjected to damage during misuse, alteration, improper installation, repair, neglect, accident, inundation, fire or other causes. The foregoing warranty shall not apply to pre-
This Section 8 WARRANTY: DISCLAIMER OF WARRANTY provides the exclusive remedies for all claims based on failure or defect in Products or Services under this contract irrespective of when and how the failure or defect arises and regardless of whether the claim is represented as arising out of contract, warranty, indemnity, tort, strict liability or otherwise.
Buyer acknowledges and understands that except as specifically set forth or referenced in this paragraph, DIMATION MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND whether EXPRESS, STATUTORY OR IMPLIED INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE NOT EXPRESSLY SET FORTH HEREIN. DIMATION ASSUMES NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR A THIRD PARTY MANUFACTURER’S PRODUCT SPECIFICATIONS OR THE PERFORMANCE OR ADEQUACY OF ANY DESIGN OR SPECIFICATION PROVIDED TO DIMATION BY BUYER OR ON BEHALF OF THE BUYER.
9. LIMITATION OF LIABILITY
In no event shall Dimation be liable for indirect, special, incidental, consequential, punitive or contingent damages of any nature including, without limitation, loss of profit or revenues, loss of use of equipment or systems, interruption of business, cost of capital, downtime costs, loss of data, promotional or manufacturing expenses, overhead, injury to reputation or loss of customers even where Dimation has been advised of the possibility of such damages, nor shall Dimation be liable for claims of Buyer’s customers for any of the foregoing types of damages. Buyer’s recovery from Dimation and Dimation’s liability to Buyer shall not exceed the purchase price of the Product or cost of the Service which gave rise to the claim, irrespective of the nature of or basis for the claim (contract, warranty, indemnity, tort, strict liability or otherwise). Dimation shall have no responsibility or liability for the content or use of advice, assistance or information, technical or otherwise, offered or given to Buyer without charge but which is not required for the work scope under this Contract. Buyer retains sole legal responsibility and liability for the design specifications and performance of the Goods that are the subject of this transaction. Dimation assumes no responsibility or liability for the selection of materials and components that tare the subject of this transaction. Buyer shall be solely responsible to ensure that materials selected for goods to be assembled or customized by Dimation meet any regulatory requirements or specifications including but not limited to the restriction of the use of certain hazardous substances in electrical and electronic equipment (RoHS Directive). Buyer will confirm the veracity of any statements made by Dimation personnel or specifications with the manufacturer of the materials or components used by Dimation in the Products supplied Buyer hereunder
10. INDEMNIFICATION
Buyer shall defend, indemnify, and hold harmless Dimation(and its employees, representatives, and agents) from and against all claims of any kind, whether based on contract, tort or otherwise, for any losses, expenses, damages, penalties, fines and sanctions of any kind (including, without limitation, interest, attorney’s fees, custom duties, taxes, or other governmental sanctions), and liabilities (special, indirect, incidental, consequential or contingent) resulting from, related to, or arising out of any breach of any representation, warranty, or covenant of the Buyer or its affiliates under this transaction or arising out of any assertion that any Products manufactured or Services performed by Seller for Buyer hereunder (or the act of manufacturing such Products or performing such Services) infringes or misappropriates any patent, copyright, trade secret or other proprietary right of a third party where the Product was manufactured or the Service performed according to drawings, specifications, designs or other information provided by Buyer to Dimation or arising out of any use of the Products or consumption of the Services by Buyer or others or otherwise based on events occurring subsequent to delivery by Dimation to Buyer hereunder except for events caused solely by defects in materials or workmanship or by the sole negligence of Dimation, which shall be governed by the provisions limiting liability set forth in Section 9 LIMITATION OF LIABILITY or elsewhere in this document.
11. LIMITATION OF USE
Buyer understands and agrees that ALL PRODUCTS and SERVICES provided hereunder are NEITHER RECOMMENDED NOR AUTHORIZED BY DIMATION FOR USE IN LIFE SUPPORT, SURGICAL IMPLANTATION, NUCLEAR, OR AIRCRAFT APPLICATIONS OR ANY OTHER USE OR APPLICATION WHEREIN THE FAILURE OR MALFUNCTION OF A SINGLE COMPONENT CAN RESULT IN A LOSS OF LIFE OR SUBSTANTIAL HARM TO PERSONS OR PROPERTY. Buyer agrees to fully indemnify, defend and hold Dimation harmless from and against any and all claims, damages, loss, cost, expense or liability arising out of, in connection with or related to the use of the Products and/or the result of Services provided to Buyer hereunder in the applications described in this Section 11 LIMITATION OF USE of this document.
12. ITAR/GOVERNMENT USE
In the event that certain of the Products or Services supplied under this transaction are categorized as Defense Articles by the U.S. Department of State and are subject to the International Traffic in Arms Regulations (or ITAR) and Buyer’s Order is placed under a contract with the United States Government, Dimation agrees to comply with those terms and conditions and other contract provisions and regulations that it must comply with under the law and of which Buyer has placed Dimation on notice at the time of order placement. All rights to and in Dimation’s technical data owned or licensed by Dimation are hereby reserved and deemed restricted or limited. Except as expressly set forth in this Section, no provision or term in Buyer’s contract with the Government shall be binding on Dimation.
13. U.S. GOVERNMENT CONTRACTS / SUBCONTRACTS
If Buyer’s Order is for Products and/or Services that will be directly or indirectly used in the performance of a contract or subcontract with the U.S. Federal government and except where Dimation is otherwise notified by Buyer in writing, the Products to be supplied by Dimation hereunder are “commercial items” and/or “commercially available off-
14. EXPORT CONTROL LAWS
Both Parties shall comply with the then current export and import laws and regulations of the United States and such other governments as are applicable when the Product and/or Services are delivered by Dimation to Buyer. Both Parties hereby certify that they will not directly or indirectly export, re-
15. GOVERNING LAW AND CHOICE OF FORUM
The Contract and any disputes hereunder shall be governed by the laws of the State of Minnesota without regard to the principles of conflict of laws. It is further agreed that all disputes and matters whatsoever arising under, in connection with or incident to this Agreement, shall be instituted, commenced and litigated, if at all, exclusively in and before a state Court located in the County of Dakota in the State of Minnesota or, in the case of federal jurisdiction, federal Courts located in the County of Hennepin, in the State of Minnesota, and any appropriate appellate Court thereof, to the exclusion of the courts of any other state, territory, country or other jurisdiction, and the parties hereby waive the right to change such venue and hereby consent to the jurisdiction of such courts.
16. INTELLECTUAL PROPERTY RIGHTS
Buyer acknowledges that Dimation is the owner of patents, designs, brands, trademarks, copyrights, trade secrets and other intellectual property rights relating to Dimation’s capabilities in providing the Products and performing the Services hereunder. No intellectual property right or license is conveyed under this contract. Buyer may not use Dimation’s trademarks, service marks or other intellectual property rights without Dimation’s prior written consent.
Buyer understands and agrees that Dimation cannot make an investigation as to whether the prototype, schematic, information, specifications or other materials supplied by Buyer to Dimation (collectively “Buyer materials”) or the use, implementation, development or modification of said Buyer materials by Dimation in connection with the design, prototype, process or manufacture requested by and to be delivered to Buyer hereunder (the “Work Product” ) requested by Buyer from Dimation will utilize or infringe the intellectual property rights of any third party in patents, trade secrets, copyrights, mask works or other intellectual property (“Third Party Proprietary Rights”). Therefore, Dimation shall not be liable, and Buyer shall indemnify and hold Dimation harmless against all losses and expenses incurred by Dimation as a result of any claim for infringement of said Third Party Proprietary Rights in connection with the Work Product, or claims of inducement of infringement or contributory infringement resulting from the implementation, use, development or modification of any such Work Product by Buyer or Buyers of Buyer.
17. PROTECTION AND USE OF CONFIDENTIAL INFORMATION
Except as required by law, the Buyer shall not disclose any of the terms and conditions of any accepted Order, including any price terms, to any third party for any reason whatsoever. The Parties agree that all information provided, disclosed or obtained by a receiving party from the providing party in connection with this Contract or the performance of any of the Parties’ activities under this Contract including, without limitation, business and technical information contained in attachments, exhibits, supplements, appendices, addenda, drawings, notes, instructions, statement of work, manuals provided by one party to the other, whether prepared by the party or third parties, contains information which embodies confidential know-
18. TERM / TERMINATION
Either Dimation or Buyer may voluntarily terminate this Contract at any time upon written notice to the other party, but all Orders previously submitted and confirmed shall remain binding upon the parties and subject to the Section 5 CANCELLATIONS/ CHANGE ORDERS of this contract. In no event shall the Term of this Contract be later than Buyer’s acceptance of all Products and/or Services contemplated hereunder and full payment of the Contract Price to Dimation by Buyer or the voluntary termination of this Agreement as provided in this section, whichever occurs first. Termination shall be without prejudice to any rights or remedies Dimation or Buyer may have by reason of any breach of this Contract. Sections 3, 8, 9, 10, 11, 15, 16 and 17
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