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DIFFRACTION INTERNATIONAL
TERMS AND CONDITIONS OF SALE

  1. ACCEPTANCE: Acceptance of Buyer's order is limited to the terms and conditions stated herein. Any additions, deletions or differences in the terms offered by Buyer will not be binding upon Diffraction International (hereafter DI) unless specifically agreed to in writing. DI accepts purchase orders by mail, email or fax.
  2. PRICES: Prices for non-custom items are published to DI's website and are current at the time of publication but we reserve the right to change them without notice. Published prices are 10 percent higher for export orders shipped outside the United States and Canada. Prices for custom items will be quoted on request. Prices quoted are normally held for 60 days.
  3. TAXES AND DUTIES: Unless separately stated, all prices will be quoted, order accepted and invoices rendered exclusive of all federal, state and municipal taxes. DI will not report, collect or pay any tax which may be imposed on Buyer and Buyer shall report and pay all taxes so imposed.
  4. METHOD OF SHIPMENT: Unless separately stated, DI prices include shipping costs. DI shall package, mark and ship all goods and supplies in accordance with the requirements of the order and shall, in the absence of written agreement, secure at its discretion, the most advantageous service and rates consistent with the order. Shipments are generally via Federal Express for expediency and traceability. DI will insure export shipments. DI shall be responsible for filing and processing all claims against the carrier.
  5. SHIPMENTS AS UNITY: Each shipment by DI shall be treated as a separate and distinct unit with respect, but only with resect to terms of payment and the making of claims by Buyer, however, that if Buyer defaults in the payment of any obligation to DI or an installments thereof, under any agreement between Buyer and DI, DI may, on fifteen (15) days written notice to Buyer, either defer further performance on pending or future orders until the defaulted payments are made in full, or make future deliveries for cash in advance only, and credit any payments to the oldest invoices that are in arrears.
  6. PAYMENT METHODS AND TERMS: Payment shall be in United States dollars. DI will accept checks drawn on banks located in the United States of America or payment by bank wire transfer or payment by PayPal.

    Payment terms of Net 30 after date of DI's invoice are available with current credit approval. Failure to pay invoices at maturity date may, at DI's option, cause DI to suspend all subsequent deliveries until overdue account is settled. In the event payment is not made as required by this term, DI may require and Buyer agrees to pay DI a finance charge at the maximum rate permissible by law not to exceed 1-1/2 percent per month on the unpaid balance of Buyer's account from date of DI's invoice.
  7. TITLE: Title to all goods shall pass to Buyer upon shipment.
  8. CHANGES: All changes to Buyer's purchase order must be agreed to in writing by DI prior to the effectivity of such changes unless the order is issued pursuant to a Government contract. Buyers may unilaterally make changes on orders made for use under a Government contract, by written order, within the general scope of the contract in any one or more of the following areas: 1) drawings, designs or specifications where the supplies to be furnished are to be specifically manufactured for Buyer in accordance therewith; 2) method of packaging or shipment; and 3) place of delivery. If any changes cause an increase or decrease in the cost or affects the delivery schedule, an equitable adjustment in the price, schedule or both, shall be negotiated and the contract modified accordingly.
  9. CUSTOMER FURNISHED MATERIAL: DI shall not be liable for any loss or damage from any cause, except for gross negligence or willful misconduct on the part of DI, to property owned by Buyer and furnished to DI or to other material delivered by Buyer to DI. DI is not obligated to insure material furnished to DI by Buyer, and risk of loss of material furnished to or left with DI shall remain with Buyer.
  10. INSPECTIONS AND ACCEPTANCE OF GOODS:
    a) Inspections: All inspections required as part of this order shall be limited to final inspections only. Such inspections may be performed at DI's facility, but shall not include any areas or processes which are proprietary to DI. Advance notification of 72 hours is required for inspections at DI's facility.

    b) Acceptance: Acceptance of goods supplied under this order shall occur within thirty (30) days after delivery to Buyer. Failure to inspect and reject nonconforming items shall be deemed acceptance by Buyer with full responsibility for payment.
  11. RETURNS: All returns must be made within 30 days of the original date of shipment, the products in good condition, with all shipping costs prepaid. A 20 percent restocking charge applies to any catalog product accepted by DI for return to stock. Custom or specially designed products and renewal of software support and upgrade subscriptions are generally not returnable.
  12. WARRANTY: DI warrants for a period of (1) year from date of shipment, unless a different period is specified and agreed to, that all items furnished hereunder will be free from defects in material and workmanship and will conform to specifications, drawings and/or other descriptions expressly made a part of this order.

    Should any failure of the goods to conform to this warranty appear within one (1) year, upon notification thereof and substantiation that the goods have been properly shipped, stored and maintained, and upon return of such goods, DI will, at DI's option, repair or replace such goods free of charge or issue credit in lieu of such repair or replacement.

    THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ANY IMPLIED WARRANTY OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHER WARRANTY OF QUALITY, WHETHER EXPRESSED OR IMPLIED EXCEPT THE WARRANTY OF TITLE AND AGAINST PATENT INFRINGEMENT.
  13. LIMITATION OF LIABILITY: DI SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR SPECIAL OR CONSEQUENTIAL DAMAGES SUCH AS, BUT NOT LIMITED TO, DAMAGE OR LOSS OF OTHER PROPERTY OR EQUIPMENT, LOSS OF PROFITS OR REVENUE, COST OF CAPITAL, COST OF PURCHASED OR REPLACEMENT GOODS, OR CLAIMS OF CUSTOMERS TO THE BUYER. THE REMEDIES OF THE BUYER SET FORTH HEREIN ARE EXCLUSIVE, AND THE LIABILITY OF DI WITH RESPECT TO ANY CONTRACT, OR ANYTHING DONE IN CONNECTION THEREWITH SUCH AS THE PERFORMANCE OR BREACH THEREOF, OR FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, INSTALLATION OR USE OF ANY GOODS COVERED BY OR FURNISHED UNDER THIS CONTRACT WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE, STRICT TORT, OR ANY WARRANTY OR OTHERWISE, SHALL NOT, EXCEPT AS EXPRESSLY PROVIDED HEREIN, EXCEED THE PRICE OF THE GOODS UPON WHICH SUCH LIABILITY IS BASED.
  14. PATENT RIGHTS: DI reserves all rights in any inventions or discoveries made by DI, DI's employees or persons under DI's control, under this purchase order, including title to and rights under any patent application or patent which may be issued thereon throughout the world. Such rights reside solely with DI, together with the exclusive power to determine whether or not and where a patent application shall be filed, and disposition of any rights thereunder. DI does not convey, through sale of products or goods under this purchase order, any license, expressed or implied, estoppel or otherwise, to patent rights, trade names or trademarks. DI reserves the right to grant licenses covering completed equipment, assemblies, methods or processes in which DI's products are used as components.
  15. CONFIDENTIALITY Technical information given to the Buyer and information furnished to or made available to the Buyer and DI are for the Buyer's use in connection with the design and manufacture of the products and are to be kept confidential by both Buyer and DI.
  16. OWNERSHIP OF INFORMATION AND IMPROVEMENTS All optical designs, manufacturing drawings and reports developed by DI under this contract belong to the Buyer.

    All software tools, algorithms, source codes, optical design optimization error functions, and photolithography CAD files developed by DI in the design or manufacture of the contract deliverables remain the property of DI. DI does not convey, through the sale of products or goods under this contract, any license, expressed or implied, to patent rights, copyrights, trade names or trademarks.

    Phototools remain the property of DI unless specifically identified as contract deliverables and shall be retained by DI for a minimum period of two years. Phototools that incorporate the intellectual property of the Buyer will not be used by DI in the performance of other contracts without written permission of the Buyer and will be destroyed promptly upon the written request of the Buyer.
  17. CURE: DI shall have the right to cure any default, nonconforming goods or services or delivery hereunder within thirty (30) days of receipt by DI of written notice from Buyer specifying the default or nonconformity.
  18. ATTORNEY'S FEES: If any legal action is necessary to enforce the terms of this agreement, the prevailing party shall be entitled to reasonable attorney fees in addition to any other relief.
  19. GOVERNMENT CONTRACTS: If Buyer's purchase order is identified in writing as made for use under a Government Contract, only those FAR and DOD FAR Supplement Clauses, required under mandatory flowdown requirements, shall be incorporated herein by reference. Such terms and conditions, required by Federal Law, shall have precedence over the terms and conditions stated herein.
  20. WAIVER: DI's forbearance to insist upon strict performance of any provision of this agreement shall not be considered a waiver of DI's rights or remedies.
  21. FORCE MAJEURE: DI shall not be responsible for any failure of performance or failure to make delivery of all or any part of the merchandise purchased under this Agreement due to federal, state, or municipal action, statute, ordinance, or regulation; strike or other labor trouble; fire damage to or destruction in whole or in part of merchandise or manufacturing plant; lack of or inability to obtain raw materials, labor, fuel, electrical power, water, or supplies; or any other cause, act of God, contingency, or circumstance within or outside the United States not subject to its control which prevent or hinder the manufacture or delivery of the merchandise.
  22. APPLICABLE LAW: This agreement shall be construed and enforced in accordance with the laws of the State of Minnesota.
Last reviewed: 9 December 2013

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Page updated: 17 October 2014

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