Terms & Conditions of Sale & Service

1. DEFINITIONS

• “DAPRA”, when used herein, means Dapra Milling Solutions.
• “BUYER”, when used herein, means the person or entity purchasing or receiving goods and/or services from DAPRA.
• “Goods” means the equipment, products, articles, supplies, or other property sold by DAPRA to BUYER under an order.
• “Services” means the services provided by DAPRA to BUYER under an order.
• “Contract” means the purchase order or purchase agreement between DAPRA and BUYER for Goods and/or Services.
• “Order” means the BUYER's order for the Goods.
• “Order Confirmation” means the DAPRA’s written acceptance of the Order.
• “Electronic Data Interchange (EDI)” means the electronic interchange of business documents using a standardized format; a process that allows one company to send information to another company electronically rather than with paper.
• “Standard Product” means the DAPRA’s products which are offered or made available generally, such as an ‘off-the-shelf’ item

2. PLACEMENT OF ORDER

Orders shall be placed through digital commerce (DAPRA Web Store or EDI), email, or by fax transmission to DAPRA. Orders placed by the BUYER shall not become final and binding on DAPRA until accepted by DAPRA and so notified to the BUYER. Orders shall be accepted by DAPRA by sending to the BUYER an Order Acceptance notice by email or by fax. Placing an order for products constitutes acceptance of the conditions of this Agreement unless otherwise indicated in writing.

In the event of any conflict or inconsistency between the documents which together comprise the Contract, the following descending order of priority shall apply:

• a. the Order Confirmation;
• b. these Conditions;
• c. the Specification;
• d. any written agreement made between the parties into which these Conditions are incorporated; and
• e. the Order.

EDI orders submitted by BUYER to DAPRA shall contain all key data, including, without limitation, purchase order number, pricing information, and quantity. BUYER acknowledges and agrees that any software, service provider, and interface used by BUYER to enable EDI transactions are the sole responsibility of BUYER. All costs and expenses incurred by BUYER in connection with implementing and enabling EDI shall be borne by BUYER, including all internal and external resource, equipment and software costs and expenses and all interface and connectivity costs and expenses. In the event BUYER's order contains pricing information that is not within the defined price range established by DAPRA for such Products, such order is hereby rejected and variation will not be binding on DAPRA.

3. PRICE

DAPRA’s published price lists, quotations, and estimates are not offers and are subject to change or withdrawal without notice before an order is acknowledged by DAPRA. DAPRA reserves the right to adjust the invoice price, after the price is quoted and/or acknowledged, to take account of any material variation in DAPRA’s costs beyond DAPRA’s reasonable control since the date of the quotation or (if no quotation is issued) the order acknowledgment, and the invoice so adjusted shall be payable as if the price set out therein were the original contract price.

All sales are subject to increase without notification by the amount of any sales, excise, or other tax or duty levied or charged by any governmental agency and are subject to any price adjustment necessitated by DAPRA’s compliance with any government action.

Any additional and/or different terms and conditions proposed by BUYER and/or any attempt by BUYER to vary any of these terms and conditions shall be deemed a material alteration and is hereby objected to and rejected unless expressly agreed by DAPRA in writing. Only variations or modifications made in writing and signed by DAPRA and BUYER shall be enforceable.

4. CANCELLATION OR RETURNS

BUYER cannot return products or terminate a Contract under any circumstances without BUYER first reaching an agreement in writing (including an RMA #) with DAPRA.

Standard products are eligible for return if they are deemed current by DAPRA, unused, and in original packaging. Returns of standard products, where credit is issued after thirty (30) days of delivery and a replacement order, of greater or equal value, does not accompany a return, are subject to a handling and restocking charge of 20% of the invoice price.

Credit is issued once products have been received and inspected by Dapra and found to be in new and saleable condition.

Products identified, in writing by DAPRA, as custom, special, or non-stock, may not be returned. If the BUYER cancels or changes order for a custom solution under this Agreement, the BUYER shall reimburse DAPRA for all reasonable costs incurred in connection with the order, including but not limited to any time and materials expended prior to the cancellation or change.

Returned Products must also:

• Be in new, unused, and resaleable condition.
• Returned freight pre-paid.
• Securely packaged for transit. Damage by the carrier is the responsibility of the BUYER.

Any non-conforming material or not meeting the return conditions will be returned to the BUYER at the BUYER’s expense.

5. VARIATION

Orders for standard products must be for a quantity that is a standard lot size for such products. Any order for a quantity that is not a standard lot size will be rounded up to the next available lot size. Without limiting the foregoing, all products furnished by DAPRA shall be subject to DAPRA’s standard manufacturing variations and practices with the limits and sizes that DAPRA produces.

6. PAYMENT

The Purchase Price shall be payable in U.S. Dollars and may be made in a method as follows:

• Check
• Credit Card
• Wire Transfer

The timing of payment for the Purchase Price shall be as follows:

• Net 30

Invoices are due and payable in full within the specified period stated on the face thereof. Invoices for products or services delivered under this Agreement are payable only in U.S. dollars unless specifically stated differently on the face of the invoice. Time is of the essence with respect to each payment. A service charge on any past due amounts may be charged by DAPRA at the lower of (i) 1.5% per month; or (ii) the highest rate permitted by law. In addition to late payment charges, DAPRA may add to the amount past due any costs associated with collection thereof, including reasonable attorney’s fees. All Orders shall be subject to credit approval by DAPRA at its sole discretion.

7. DELIVERY

Unless specifically agreed otherwise in this Contract, all sales are F.O.B. DAPRA's plant. DAPRA may, at its discretion, select the carrier unless specified in advance by BUYER. Title to the Goods shall transfer to BUYER upon the earlier of full payment therefore and DAPRA’s delivery of the Goods per the agreed delivery terms. Risk in the Goods shall transfer to BUYER per the agreed delivery terms.

While expected dates of delivery of Products are given in good faith, the same are not of the essence of or in any way terms of this Agreement or representations of fact. All shipping dates given are approximate, and while commercially reasonable best effort is made to maintain schedules, DAPRA will not be liable for damages on account of delay. In case of delay by the BUYER in furnishing complete information, delivery dates may be extended for a reasonable time. DAPRA shall not be responsible for reasonable or excusable delays, nor shall the BUYER refuse to accept delivery because of any such delays. Excusable delays include, without limitation, delays resulting from accidents, fires, floods, severe weather or other acts of God, strikes, lockout or other labor difficulties, embargoes, government controls or other forms of intervention, inability to obtain labor, materials, or services and other causes beyond DAPRA’s control; and include delays caused by force majeure as set forth in Paragraph 14 hereof.

BUYER shall inspect Goods and Services within ten (10) business days after delivery of Goods and completion of Services and notify DAPRA in writing of any defects or any failure of the Goods or Services to conform to the requirements of this Contract. All claims by BUYER for shortages in a shipment of Goods or Goods damaged in transit must be made against the carrier. All claims by BUYER against DAPRA for nonconforming Goods or Services and claims for shortages in a shipment or damaged Goods (other than claims to be made against the carrier) must be made in writing to DAPRA within ten (10) business days after receipt of shipment or BUYER shall be deemed to have accepted such Goods and Services and any claims for nonconforming Goods or Services shall be waived.

DAPRA reserves the right to allocate available Products among its customers at its discretion.

8. LIMITATION OF LIABILITY, CHANGES IN DESIGN

The Products furnished by DAPRA are sophisticated engineered products; accordingly, the CHANNEL PARTNER agrees to use the Products for the intended purpose only and in accordance with published standards and the literature provided with the Products by DAPRA.

Unless otherwise agreed by DAPRA in writing, DAPRA reserves the right to change, modify, or discontinue the design and construction of any product or to substitute material equal to or superior to that originally specified at any time.

9. INTELLECTUAL PROPERTY RIGHTS

All of DAPRA’s specifications, designs, drawings, and indications of physical properties (“the Designs”) are made in good faith and are approximate indications only and are not binding in detail unless DAPRA has agreed in writing to a particular Design upon which BUYER has indicated it is relying; DAPRA shall be entitled to vary the same and/or to correct errors and omissions provided the Goods remain in substantial conformity with the contractual requirements.

BUYER hereby acknowledges and agrees that DAPRA retains all rights in and to DAPRA's intellectual property, including all patents, trademarks, service marks, trade secrets, copyrights, or other intellectual property ("DAPRA IP"). BUYER may, however, receive a limited license while this Agreement is in force and effect to the DAPRA IP in order to use any promotional materials or trademarks or service marks on the Products specifically as DAPRA shipped them. BUYER may not add any DAPRA IP to any product or other material.

10. LIMITED WARRANTY

Except as specifically agreed otherwise in this Agreement, DAPRA warrants that Products sold by DAPRA hereunder shall conform to specifications agreed in writing and shall be free from material defect in material and workmanship for a period of 60 days from date of shipment (the “Warranty Period”). In the event of a breach of such warranty, DAPRA’s sole responsibility shall be to either repair or replace, at DAPRA’s option, any nonconforming Products. Such replacement parts shall be provided at no cost to the BUYER, during regular working hours. DAPRA’s obligation under this warranty shall not include any cost of removal, installation, duty, taxes, or any other charges whatsoever. Further, unless agreed otherwise by DAPRA, Products alleged to be defective must be returned to DAPRA at the BUYER’s expense; DAPRA will pay for freight expenses back to the BUYER upon confirmation that the defects are subject to warranty.

EXCEPT FOR THESE EXPRESS LIMITED WARRANTIES, THE BUYER ACCEPTS THE PRODUCTS “AS IS” WITH NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. DAPRA MAKES NO WARRANTIES REGARDING APPLICATION(S) OR SOLUTIONS.

If the BUYER informs DAPRA of a defect after the Warranty Period has expired, then DAPRA may, at its discretion, offer repair or replacement of Products or additional services.

DAPRA shall be under no liability for breach of the warranty set forth herein for wear and consumable parts or to the extent any damage or nonconformity is caused by: (i) improper installation (if installed by other than DAPRA), use, maintenance and/or service; (ii) modification or alteration by other than DAPRA; (iii) delays in notifying DAPRA of the alleged defect; (iv) equipment, component, materials or parts supplied by.

There are no third-party beneficiaries of the warranty granted by DAPRA herein.

11. WARRANTY OF OTHER MANUFACTURER’S PRODUCTS

Except as expressly agreed by DAPRA otherwise, DAPRA makes no warranties or representations of any kind whatsoever, either expressed, implied, or statutory on any component parts or accessories sold hereunder which are not manufactured by DAPRA. DAPRA hereby extends the manufacturer’s warranty or guarantees, if any, given to DAPRA by the manufacturer of said component parts and accessories, but only to the extent DAPRA would be able to enforce such warranty or guarantees itself. DAPRA does not guarantee warranties of other manufacturers’ products. Claims under any manufacturer’s warranty shall be made in accordance with the manufacturer’s requirements regarding the return, repair, or replacement of the goods. DAPRA agrees to cooperate with BUYER in enforcing any claims against the manufacturer(s) for defects that may occur.

12. INDEMNIFICATION, LIMITATION OF LIABILITY

Indemnification. Each party agrees, if promptly notified by the other and given the right to control the defense and approve any settlements thereof, to indemnify and hold harmless the other from and against all claims or liabilities brought against it by third parties resulting directly or indirectly from any breach by the indemnifying party, its employees, agents of any obligation under this Agreement or arising out of any negligent, reckless, willful act of the indemnifying party, its employees, agents. Such indemnification shall include the payment of reasonable attorneys' fees and other costs incurred by the indemnified party in defending against such claims.

IN NO EVENT WILL DAPRA BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DAPRA’S LIABILITY TO THE CHANNEL PARTNER OR ANY THIRD PARTY FOR A CLAIM OF ANY KIND RELATED TO THIS AGREEMENT OR ANY PRODUCTS WHETHER FOR BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, SHALL NOT EXCEED THE AGGREGATE OF COMPENSATION PAID TO DAPRA FOR THE PRODUCTS INVOLVED IN THE CLAIM. NO ACTION, REGARDLESS OF FORM ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN 1 YEAR AFTER THE EVENTS WHICH GAVE RISE TO THE CAUSE OF ACTION OCCURRED.

13. GOVERNING LAW

This Agreement and any dispute arising hereunder, is governed by the law of the State of Connecticut. For any disputes arising out of this Agreement, the parties irrevocably consent to the personal and exclusive jurisdiction of, and venue in, the Superior Courts for the Judicial District of Hartford, Connecticut.

14. FORCE MAJEURE

DAPRA is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, labor strikes, acts of nature and natural disasters, epidemics, pandemics and other acts which may be due to unforeseen circumstances.