Terms and Conditions

DIAMOND AMERICA CORPORATION TERMS AND CONDITIONS OF SALE

Diamond America Corporation, an Ohio, U.S.A. corporation, (“Seller”), agrees to sell certain products, equipment, goods and/or services (“Products”) to customer (“Buyer”) on the basis of the terms and conditions as set forth herein.

  1. Acceptance; Contract Formation. This transaction, including Seller’s sale of Products to Buyer, is expressly limited to and made conditional upon Buyer’s assent to and acceptance of all the terms and conditions contained herein and as set forth in any related Seller document, including, but not limited to any Quotation, Proposal, Acknowledgment, Product Specifications and/or Invoice (collectively referred to hereinafter as the “Seller Documents”). The terms and conditions stated herein shall apply to and govern all Seller Documents, including any agreement, order and/or sale that may result herefrom, and these terms and conditions, along with the Seller Documents, constitutes the entire agreement between Buyer and Seller. Any of Buyer’s terms contained in any request for quotation, purchase order, release, acknowledgement or any other Buyer document which are in addition to or different from the terms contained herein are hereby specifically objected to, rejected and excluded, and shall be of no force or effect. Buyer’s purchase orders and/or releases are subject to written Acknowledgement by Seller within seven (7) working days of submitted purchase orders and/or releases.
  2. Prices.  All Product prices quoted by Seller to Buyer are intended for prompt acceptance by the Buyer and are subject to change at any time and from time to time without notice to Buyer. All Product prices quoted by Seller to Buyer are FOB Seller’s facility in Akron, Ohio, U.S.A., unless other delivery terms are specified in Seller’s Documents and are exclusive of transportation, installation, service and insurance charges. In addition, Product prices as quoted by Seller to Buyer do not include any present or future sales, use, excise or other taxes or duties imposed upon the sale of the Products by any governmental and/or taxing authority. All such taxes (other than income taxes payable by Seller as a result of Seller’s business operations) are the sole and exclusive responsibility of the Buyer and any tax or taxes will be added to the Seller’s Invoice as a separate charge to be paid by the Buyer. 
  3. Terms of Payment. Payment terms are fifty percent (50%) deposit and forty percent (40%) prior to shipment with the final ten percent (10%) payable within thirty (30) days of receipt of Products and except as otherwise agreed in writing between the parties, Buyer shall pay all Invoices within thirty (30) days of the date of Seller’s issuance of each such Invoice. In the event that payment is not made within thirty (30) days, then Seller may charge Buyer a late fee in the amount of one and one-half percent (1.5%) from and after the due date on all past due amounts for each month in which payment is delayed or, if lower, the maximum amount permitted by law. In addition, in the event of late payment, Seller may, at Seller’s sole discretion, withhold further deliveries, suspend further performance, demand cash payments in advance or security satisfactory to the Seller or terminate any contract between Seller and Buyer in total, and the Buyer shall be liable for any and all costs incurred by the Seller including, but not limited to, attorney’s fees and collection agency fees.
  4. Payment Dispute and Other Notices. ALL DISPUTES AS TO THE AMOUNT(S) OWED HEREUNDER AND ALL OTHER NOTICES REQUIRED FROM BUYER TO SELLER HEREUNDER SHALL BE MADE, IN WRITING, TO: DIAMOND AMERICA CORPORATION, 1436 MARTIN RD., MOGADORE, OH 44260, ATTENTION: MIKE MAGEE. SELLER’S ACCEPTANCE OF ANY PARTIAL PAYMENT WILL NOT ACT AS DISCHARGE OF THE REMAINING BALANCE DUE FROM BUYER TO SELLER HEREUNDER.
  5. Delivery. Delivery shall be subject to, and contingent upon, strikes, labor difficulties, riot, civil unrest, war, fire, delay or defaults of common carriers, failure or curtailment in Seller’s usual course of supply, governmental decrees or orders, or, without limiting the foregoing, any other delays beyond Seller’s reasonable control and Seller shall not be liable for any loss or damage arising therefrom. Seller shall have the additional right, in the event of the happening of any of the above contingencies, at its option, to cancel this contract or any shipment or delivery, or for any other cause shall be deemed waived and released by Buyer unless made in writing within ten (10) days after delivery of Products.
  6. Risk of Loss; Transfer of Title. Except as otherwise set forth in Seller’s Documents or as otherwise agreed in writing between Seller and Buyer, all Products will be shipped FOB Seller’s facility in Mogadore, Ohio, U.S.A., and title to and risk of loss of the Products shall transfer upon delivery to the carrier.
  7. Conditions. All purchase orders, releases and/or contracts are accepted with the understanding that they are subject to Seller’s ability to obtain the necessary raw materials, and all purchase orders, releases and/or contracts, as well as shipments applicable thereto, are subject to Seller’s current manufacturing schedules and government regulations, orders, directives, and restrictions that may be in effect from time to time. Products furnished by Seller are to be within the limits and the sizes published by Seller and subject to Seller’s standard tolerances for variations.
  8. Design Changes. Seller expressly reserves the right, without prior notice to Buyer, to make changes, modifications and revisions with regard to the design of Products and/or packaging.  In the event that any such design changes, modifications and/or revisions result in an increase of the price of the Products as reflected in Seller’s Documents, then the parties will mutually cooperate to discuss such price increases.
  9. Nonconformity; Return of Products. All Products sold by Seller to Buyer are to be inspected by Buyer upon receipt and should any of such Products fail to meet the written specifications contained in Seller’s Documents or otherwise agreed in writing between Seller and Buyer (the “Specifications”), then Buyer shall not return the same, but shall notify Seller, stating full particulars in support of Buyer’s claim. Seller will, at Seller’s sole option and discretion, either repair or replace nonconforming Products upon their return to Seller or refund the purchase price of such Products. Claims for Products failing to conform to applicable Specifications, or claims for shortages, delays, or failures in shipment or delivery, or for any other cause shall be deemed waived and released by Buyer unless made in writing within thirty (30) days after receipt of Products. In no circumstance or instance are Products to be returned to Seller without first obtaining Seller’s written permission therefor. Notwithstanding anything to the contrary set forth herein or otherwise set forth in Seller’s Documents, Products built to order are not subject to return for credit under any circumstances.
  10. Cancellation. Any purchase order and/or release, once placed with and accepted by Seller, may not be cancelled except upon Seller’s written consent and upon terms satisfactory to Seller, including, without limitation, Buyer’s indemnification of Seller against loss resulting and/or arising from such cancellation.
  11. Warranty.  Except as otherwise stated in Seller’s Documents, the applicable Seller’s limited warranty for the Product in effect at the time of sale shall apply. In addition to the applicable limited warranty in effect at the time of sale, Seller warrants to Buyer that: (a) the Products to be supplied will conform to the Specifications contained in Seller’s Documents; and (b) Seller will convey good title to the Products free from any valid security interest, lien, or other encumbrances unknown to Buyer. EXCEPT AS SPECIFICALLY STATED IN THIS SECTION 11, THE SALE SHALL BE “AS-IS” AND THE SELLER MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO NON-INFRINGEMENT, MERCHANTABILITY, FITNESS OF THE PRODUCTS FOR ANY PARTICULAR USE OR PURPOSE OR THAT THE DESIGN OF THE PRODUCT OR ANY SERVICES PROVIDED THEREWITH WILL MEET YOUR REQUIREMENTS, OR ANY WARRANTY BASED ON A COURSE OF CONDUCT OR TRADE USAGE IN CONNECTION WITH SELLER’S PERFORMANCE HEREUNDER. SELLER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, DIRECTLY OR INDIRECTLY, ARISING FROM BUYER’S USE OF THE PRODUCTS OR FOR CONSEQUENTIAL DAMAGES. SELLER’S WARRANTIES AS SET FORTH HEREIN APPLY TO AND EXTEND ONLY TO THE INITIAL SALE OF THE PRODUCTS TO BUYER, AND SHALL NOT EXTEND TO ANY SUBSEQUENT SALE OF THE PRODUCTS, OR TO ANY THIRD-PARTY.
  12. LIMITATION OF LIABILITY. SELLER’S SOLE AND EXCLUSIVE LIABILITY FOR ITS PRODUCTS AND BUYER’S SOLE REMEDY AND EXCLUSIVE REMEDY HEREUNDER (WHETHER UNDER THE THEORY OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, OR STRICT LIABILITY OR ANY OTHER LEGAL THEORY OR DOCTRINE), SHALL BE LIMITED TO REPAIRING PRODUCTS DETERMINED BY SELLER TO BE DEFECTIVE OR AT SELLER’S OPTION AND DISCRETION, TO REFUNDING THE PURCHASE PRICE OF SUCH PRODUCTS IN ACCORDANCE WITH SECTION 9 (NONCONFORMITY; RETURN OF PRODUCTS) HEREINABOVE.
  13. DISCLAIMER OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL SELLER BE LIABLE FOR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY SALE OF PRODUCTS TO BUYER, INCLUDING, WITHOUT LIMITATION, BREACH OF ANY OBLIGATION IMPOSED ON SELLER HEREUNDER OR IN CONNECTION HEREWITH. CONSEQUENTIAL DAMAGES FOR PURPOSES HEREOF SHALL INCLUDE, WITHOUT LIMITATION, LOSS OF USE, INCOME OR PROFIT, OR LOSSES SUSTAINED AS THE RESULT OF INJURY (INCLUDING DEATH TO ANY PERSON, OR LOSS OF OR DAMAGE TO PROPERTY (INCLUDING, WITHOUT LIMITATION, PROPERTY HANDLED OR PROCESSED BY THE USE OF THE PRODUCTS). BUYER SHALL INDEMNIFY SELLER AGAINST ALL LIABILITY, COST OR EXPENSE WHICH MAY BE SUSTAINED BY SELLER ON ACCOUNT OF ANY SUCH LOSS, DAMAGE OR INJURY.
  14. Confidentiality; Prohibited Uses. The Products sold to Buyer may incorporate technology, proprietary information and/or trade secrets of Seller. All Seller Documents, Specifications, illustrations, drawings, data and other information provided by Seller to Buyer in connection with or related to the Products (“Information”) are the property of Seller. Buyer shall maintain and protect the confidentiality of any such Information and Buyer shall not copy, reproduce and/or disclose Information to third-parties without the prior written consent of Seller. Absent written permission from Seller, Buyer shall not use any of Seller’s trademarks, trade names and/or logos (collectively “Seller’s Marks”) in combination with any other trademark, word, symbol, letter or design, or as part of Buyer’s company name or in connection with any product other than the Products sold to Buyer hereunder. Buyer shall not adopt or use any trademark, trade name, design, logo or symbol which, in Seller’s reasonable opinion, is similar to or likely to be confused with any of Seller’s Marks. Buyer will not knowingly do or permit to be done any action or thing which will in any way impair Seller’s rights in and to Seller’s Marks.
  15. Patents. Seller makes no warranty that the Products or method or process of using the Products are free from claims by third-parties that the Products or method or process of using the Products infringe upon the patents or other intellectual property rights of third-parties. Buyer, by its acceptance of the Products agrees that there is no indemnification by the Seller of any claims of patent infringement, regardless of any rights under the Uniform Commercial Code or any other law or regulation, and any such rights are hereby waived. Seller has no obligation to defend or pay damages, settlements, attorney’s fees or any other ancillary damages from such a claim of patent infringement brought against Buyer. In addition to any and all other remedies afforded to Seller, Buyer shall indemnify and hold Seller harmless from, and release and not make claim or suit against Seller because of any suits, claims, losses or other liability made against, or suffered by Buyer arising from any claim of, or infringement of, patent, copyright, trademark, or other proprietary right, at common law, or claim of unfair trade or unfair competition, resulting from, or occasioned by, Buyer’s use of the Products.
  16. Export Restrictions. Buyer acknowledges and agrees that “technical data” as defined by the U.S. Export Administration Regulations (EAR), International Traffic in Arms Regulations (ITAR) or locally applicable export control laws or regulations, may only be transferred to U.S. Persons (defined in Part 120 of the ITAR and various parts of the EAR) unless prior authorization is granted by the U.S. Department of Commerce or the U.S. Department of State. Buyer hereby covenants and agrees not to export or re-export, directly or indirectly, any Product containing technical data, including any goods, process or services derived from such technical data, to any destination to which such export or re-export is restricted or prohibited by U.S. or locally applicable law or regulations, without first obtaining, at Buyer’s own expense, all prior authorizations, licenses, clearances and permits from the U.S Department of Commerce, the U.S. Department of State and/or other applicable government authorities to the extent required by those laws or regulations. 
  17. Governing Law; Severability. Any and all disputes arising from or in connection with the buy-sell relationship between Seller and Buyer, including, but not limited to, these terms and conditions, Seller’s Documents, Seller’s sale of Products to Buyer and/or Buyer’s possession and use of the Products, shall be construed in accordance with and governed by the laws of the State of Ohio, U.S.A., including all matters of construction, validity and performance, without giving effect to the conflict of laws provisions of such State. Seller and Buyer acknowledge and agree that neither the United Nations Convention on Contracts of the International Sale of Goods nor any provision thereof shall govern this any aspect of the buy-sell relationship between Seller and Buyer and/or any obligation hereunder. Any provision hereof which may be prohibited by applicable law shall be ineffective to the extent of such prohibition and without invalidating the remaining provisions hereof.
  18. Jurisdiction and Venue. Any action arising from or in connection with the buy-sell relationship between Seller and Buyer, including, but not limited to, these terms and conditions, Seller’s Documents, Seller’s sale of Products to Buyer and/or Buyer’s possession and use of the Products shall be commenced and prosecuted in the Court of Common Pleas of Portage County, Ohio, U.S.A., or in the United States Federal District Court for the Northern District of Ohio, Eastern Division.
  19. Waiver. No waiver by Seller of any of the terms and conditions contained herein or any modification of such terms and conditions shall be effective unless made in writing and signed by an authorized representative of Seller. Any failure of Seller to enforce at any time, or for any period of time, any of the terms and conditions contained herein shall not constitute a waiver of such terms and conditions nor of Seller’s right to enforce each and every provision hereof.
  20. Assignment. This order is not assignable by Buyer in whole or part without prior written consent of Seller.
  21. Set Off. Seller shall be entitled at all times to setoff any amount owing, for any reason, at any time, from Seller (including Seller’s affiliates and subsidiaries), to Buyer against any amount payable at any time by Buyer to Seller.
  22. Reservation of Rights. Seller expressly reserves all rights and remedies which are available to it at law or in equity, including, but not limited to, the rights and remedies set forth in the Uniform Commercial Code as in effect in the State of Ohio from time to time.  
  23. Entire Agreement and Modification. Upon the Seller’s acceptance of the Buyer’s order, the terms and conditions set forth herein and as set forth in Seller’s Documents shall constitute the entire agreement between the Buyer and the Seller and no statement, correspondence, or other terms shall modify or affect the terms hereof or thereof. No change in these terms and conditions will be valid unless approved by the Seller in writing. These terms and conditions govern and control any transaction between the Seller and the Buyer notwithstanding the Seller’s use of Buyer’s purchase order number as an accommodation to the Buyer.
Scroll to Top