GENERAL SALES CONDITIONS

 

1.         Definitions

1.1.      " NYVE, CORP. d/b/a MD-DARIO USA" (herein "MD-DARIO") refers to NYVE, CORP. d/b/a MD-DARIO USA, located at 18 Bridge Street, Unit 4C, Brooklyn, NY, 11201, including its successors and representatives.

1.2.      “PURCHASER” here after refers to the company or idividual indicated on the Purchase Order as PURCHASER of the PRODUCTS, including its successors and representatives.

1.3.      “PRODUCTS” here after refers to the products indicated on the PURCHASE ORDER.

1.4.      “INCOTERMS 2010” here after refers to the official rules of the interpretation of commercial terms of the Chamber of International Commerce, published in 2011.

1.5.      “PARTIES” here after refers to both MD-DARIO and the PURCHASER.

1.6.      “PURCHASE ORDER” here after refers to the document which contains the objective elements of a possible sale of the Products between the Purchaser and MD-DARIO, which becomes a sales contract following the explicit or tacit acceptance by the Order Confirmation (as outlined here under).

1.7.      “ORDER CONFIRMATION” here after refers to the form sent by MD-DARIO to the PURHASER, referring to the present General Sales Conditions and which, if not refused within 2 working days of reception (proof of e-mail or fax sent by MD-DARIO), render the PURCHASE ORDER binding between the PARTIES as a sales contract and subject to the present General Sales Conditions.

2.         Sole Agreement

2.1.      The present General Sales Conditions constitute the only sales conditions and the sole agreement between the PARTIES regarding the sale of the PRODUCTS and substitutes any and all other related preceding agreements. The General Sales Conditions are sent together with the first offer via e-mail. The reception of the ORDER CONFIRMATION by the PURCHASER without any written objection within 2 working days following its reception results in the acceptance of the present General Sales Conditions on behalf of the PURCHASER. No other declaration will be considered to have been made outside of those indicated in these General Sales Conditions.

2.2.      Any issues conflicting with the present General Sales Conditions, indicated in any written document (including correspondence between the PURCHASER and MD-DARIO), are null and only the present General Sales Conditions will be applied unless otherwise officially communicated by MD-DARIO and signed by the legal representatives of both PARTIES.

2.3.      Should any individual aspect of these General Sales Conditions be void, wholly or partially, the remainder will continue to be valid and fully effective.

3.         Applicability

3.1.      The present General Sales Conditions apply to any and all PURHASE ORDERS stipulated by the PURCHASER from the date of their acceptance, unless otherwise officially indicated in writing by the PARTIES and according to point 2.2 of the present General Sales Conditions.

4.         Delivery

4.1.      MD-DARIO will deliver the PRODUCTS in conformity to the INCOTERMS 2010, agreed upon by the PARTIES and indicated in the PURCHASE ORDER. MD-DARIO will respect the delivery terms agreed upon in the ORDER CONFIRMATION. In case the delivery of the PRODUCTS were to become impossible respecting the agreed upon terms for substantial production problems, the PARTIES will do their utmost to agree on new delivery terms keeping the above mentioned problems in consideration.

4.2.      The delivery times and dates of delivery are only approximate. MD-DARIO shall endeavor to respect these. At any rate, MD-DARIO shall be entitled, even if binding dates of delivery have been agreed upon, to extend the delivery time sufficiently without being obligated to pay any compensation or penalty, if unforeseen circumstances, acts of God, interruption of work and particularly strikes or delays in the arrival of necessary material should occur. If in such a case it was found that by such interruptions it is impossible for MD-DARIO to fulfill the contract, MD-DARIO shall be entitled to withdraw from the contract without being liable to pay any damages whatsoever.

4.3.      Should for any reasons whatsoever, especially if it is impossible for MD-DARIO to fulfill the contract (especially for an impossibility of MD-DARIO to supply the PRODUCTS), the latter be cancelled, the assertion of claims for damages in respect of compensation for any indirect or direct loss will be excluded.

4.4.      It will be to MD-DARIO’s discretion to effect partial shipment if it should be necessary. Each partial shipment can be invoiced separately.

4.5.      When the PURCHASER is notified of the PRODUCTS being ready for dispatch, the PURCHASER must retrieve the PRODUCTS immediately. Should the PURCHASER fail to do so or should there be no possibility of shipping the PRODUCTS, MD-DARIO shall be entitled to store the PRODUCTS at MD-DARIO’s discretion and at the PURCHASER’s risk and expense and to charge the PRODUCTS as delivered ex works thereby entitling MD-DARIO to invoice the PRODUCTS. The Purchaser cannot refuse any shipment or any partial shipment.

4.6       PACKAGING, MARKING AND SHIPPING.  (A) MD-DARIO shall pack, mark and ship the parts in accordance with the requirements of PURCHASER and the carrier. MD-DARIO shall reimburse PURCHASER for all expenses incurred by PURCHASER as a result of improper packing, marking, routing or shipping.  (B) Upon request, MD-DARIO shall advise PURCHASER with regard to packing, marking, routing, and shipping that will enable Buyer to secure the most economical transportation rates.  (C) MD-DARIO shall not charge separately for packing, marking or shipping or for materials used therein unless PURCHASER specifies in writing that it will separately reimburse MD-DARIO for such changes.

4.7       Unless otherwise agreed in writing between the PARTIES, delivery shall be made either FOB Dayton, Ohio (MD-DARIO's) warehouse location; or by delivery direct to the PURCHASER.

 

 

5.         Reservation of the transfer of property

5.1.      The propriety of the PRODUCTS will pass to the PURCHASER only upon complete payment of the relative Invoice on behalf of the PURCHASER, according to Article 7 of the present General Sales Conditions. MD-DARIO will remain proprietor of the PRODUCTS sold and eventually delivered until the complete payment on behalf of the PURCHASER. Therefore, all MD-DARIO sales are always stipulated with the above stated reserve of propriety of the PRODUCTS. The PURCHASER, on the other hand, assumes all risks and responsibilities relative to the PRODUCTS as indicated in the PURCHASE ORDER as well as in the INCOTERMS 2010 and, therefore, must be insured against these risks and responsibilities.

5.2.      The presentation of a letter of credit or other commercial documentation does not constitute complete payment.

5.3.      Until the property of the PRODUCTS passes to the PURCHASER, the PURCHASER will hold the PRODUCTS as trustee holder of MD-DARIO, but will not have the faculty of using the PRODUCTS for his normal commercial activities.

5.4.      The PURCHASER will have to stock the PRODUCTS sold by MD-DARIO until their complete payment, in a way that they remain clearly identified as property of MD-DARIO and cannot remove, hide or modify stickers or marks present of the PRODUCTS which permit the identification of the PRODUCTS as being property of MD-DARIO. Furthermore, the PURCHASER will allow MD-DARIO to access its stores with the scope of inspecting the PRODUCTS.

5.5.      If the PRODUCTS not yet completely paid for are non identifiable and are stocked with other PRODUCTS of the same type supplied by MD-DARIO, it will be assumed that those PRODUCTS are the unpaid PRODUCTS and object of reservation of property of MD-DARIO.

5.6.      In the case of non payment, and without any prejudice for the interests of these General Sales Conditions, MD-DARIO can request the restitution of the PRODUCTS at the PURCHASER’s risk and cost.

5.7.      In case the PURCHASER were not to return the PRODUCTS immediately, the PURCHASER can be obligated to do so coercively resorting to judicial intervention, which authorizes MD-DARIO to take possession back of the PRODUCTS, for which MD-DARIO continues to reserve the property, at the PURCHASER’s address or elsewhere, all at the PURCHASER’s expense. It is the PURCHASER’s obligation to assure that this clause be imposed and applied to respect the spirit of this clause in case the PRODUCTS were in a country that does not apply this specific clause.

5.8.      MD-DARIO reserves the copyright to any and all documentation created by MD-DARIO. All details or documentation pertaining to MD-DARIO offers or ORDER CONFIRMATIONS will remain property of MD-DARIO. No extract or information supplied by MD-DARIO may be copied, communicated, sent or made available to third parties.

5.9.      All supplies, materials, equipment, tools, jigs, dies, gauges, fixtures, molds, patterns, equipment and other items purchased, either directly or indirectly, by PURCHASER and/or furnished to MD-DARIO to perform the PURCHASE ORDER or for which MD-DARIO has been reimbursed by PURCHASER (collectively referred to as “Bailed Property”), shall be and remain the property of PURCHASER. MD-DARIO shall bear the risk of loss of and damage to Bailed Property in MD-DARIO's possession, custody or control. Bailed Property shall at all times be properly housed and maintained by MD-DARIO; shall not be used by MD-DARIO for any purpose other than the performance of the PURCHASE ORDER; shall be deemed to be property; shall not be commingled with the property of MD-DARIO or with that of any third person; and shall not be moved from MD-DARIO’s premises without PURCHASER's prior written approval.  Upon the request of PURCHASER, Bailed Property shall be immediately released to PURCHASER or delivered to PURCHASER by MD-DARIO, at PURCHASER's direction and expense.  PURCHASER shall have the right to enter onto MD-DARIO's premises at all reasonable times to inspect Bailed Property and MD-DARIO’s records with respect thereto.  MD-DARIO agrees that it will comply with the obligation hereunder to release Bailed Property notwithstanding any offsetting claim it might have against PURCHASER and that MD-DARIO shall be liable for any loss or damage to PURCHASER resulting from MD-DARIO’s failure to release Bailed Property when requested.  MD-DARIO warrants that it is sufficiently insured against these risks and responsibilities.

6.         Risks

6.1.      The PURCHASER is responsible for all risk of loss or damage to the PRODUCTS in conformity to Article 4 of the present General Sales Conditions.

7.         Payments

7.1.      Unless otherwise agreed upon, MD-DARIO will produce an invoice for the PURCHASER at the moment of dispatch of the PRODUCTS in conformity to the present General Sales Conditions and the PURCHASER will effect the payment according to the terms indicated in the invoice.

7.2.      Unless otherwise clearly indicated, all payments are to be considered in advance. [NKC1] 

7.3.      Unless otherwise clearly indicated, all payments are to be made by bank transfer.  If made by wire transfer, there shall be an additional $35 fee.

7.4.      In any moment, MD-DARIO has the faculty to request payment guarantee to the PURCHASER if MD-DARIO judges it to be necessary.

7.5.      All sums overdue are subject, at MD-DARIO’s faculty to renounce, to interests to be calculated daily on a yearly rate of 700 base points (7.00%) plus the ECB rate, as of the overdue date which will be due without the request by MD-DARIO.

7.6.      Upon overdue payments, MD-DARIO will have the faculty to resolve all or part of the PURCHASE ORDERS with the PURCHASER and/or completely or partially suspend deliveries to the PURCHASER of the PRODUCTS based on PURCHASE ORDERS. The PURCHASER will have 5 working days to respond to a communication of this faculty as of the date of reception of this written position made by MD-DARIO.

7.7.      In any case, any claim or legal action undertaken by the PURCHASER for any reason will not entitle the PURCHASER to any retention or compensation right of any nature whatsoever.

7.8.      Unless otherwise clearly indicated, all prices indicated by MD-DARIO are in American Dollars and are considered ex works Dayton, Ohio, without packaging included, VAT excluded, excluding certificates and without any tests or special supply characteristics.

8.         Warrantee

8.1.      MD-DARIO Warrants that the products supplied are free from defects in material and workmanship and will perform according to the requirements of their individual specifications.  MD-DARIO warrantees, for a period of 12 months fro[NKC2] m the delivery date, that the PRODUCTS supplied or produced by MD-DARIO will perform as expected and will be free from such defects in quality or workmanship.  MD-DARIO also warrantees that the PRODUCTS conform to the specifications outlined in the PURCHASE ORDER. MD-DARIO does not warrantee that the PRODUCTS are appropriate for the use and scopes specified in any way.

8.2.      The PURCHASER must inform MD-DARIO within 5 days of the discovery of a defect, or 5 days from the date in which a diligent PURCHASER should have known the defect and within 15 days of the delivery of the PRODUCTS in the case of an obvious defect. The lack of a communication from the PURCHASER to MD-DARIO within these lead times relieves MD-DARIO from any responsibility of any nature.

8.3.      MD-DARIO’s responsibility following this warrantee will only be limited to the substitution or reimbursement of the purchasing price of the defective PRODUCT.

8.4.      MD-DARIO only responds for the PRODUCTS and not for any other supplies or Services from other companies.

8.5.      MD-DARIO’s warrantee obligations are not applicable to any PRODUCTS or parts of these which

8.5.1.   are normally consumed during the use,

8.5.2.   have a normal life time inferior to the above stated warrantee,

8.5.3.   were not correctly stocked, installed, used, maintained or repaired,

8.5.4.   differently modified from the instructions indicated by MD-DARIO or without having obtained MD-DARIO’s approval,

8.5.5.   have undergone any kind of non correct use or dangerous exposure, or were part of a dangerous event of which MD-DARIO cannot absolutely be responsible for.

8.6       Proprietary Rights.  (A) MD-DARIO warrantees that the products provided are sold free of any encumbrances legal or otherwise.  MD-DARIO at its expense will defend and indemnify PURCHASER from and against any claim that may be brought against PURCHASER or against those selling or using any product of PURCHASER for any alleged infringement of any present or future patent, copyright, industrial design right or other proprietary right, based on the sale or use of the Parts supplied hereunder.

8.7       PURCHASER understands that the PRODUCTS are high-powered and precision saws and their parts and materials.  These PRODUCTS present for usage in particular circumstances.  PURCHASER warrants and represents that the PRODUCTS are being purchased and will be used for appropriate purposes consistent with the PRODUCTS and their intended uses.  PURCHASER hereby indemnifies and holds harmless MD-DARIO and its successors, assigns, agents and representatives from any and all claims made by any entity that arises out of the improper use of the PRODUCTS.  This indemnification includes the payment by PURCHASER of all attorneys fees, costs, judgments, settlements or otherwise, that inure to MD-DARIO's detriment.

9.         Resolutions

9.1.      In case the PURCHASER were in financial difficulties, becomes insolvent, or declares bankruptcy, MD-DARIO will have the faculty to resolve all PURCHASE ORDERS immediately with the PURCHASER.

10.       Limitation and exclusion of responsibility

10.1.    MD-DARIO’s responsibility for any damage, cost, expense or loss of any nature whatsoever, resulting from the execution or non execution of a PURCHASE ORDER will be limited to the compensation for direct or indirect damages, costs, expenses and losses for the total amount no greater than the value of the PURCHASE ORDER.

10.2.    None of the Parties will be responsible to the other for loss of profitability, of turnover, of sales, or for any indirect damage (for example loss of production, cost of productive structure, labour costs, general administration and management expenses).

10.3.    Any right non expressively indicated in these General Sales Conditions will not be taken into consideration and is to be considered non applicable.

11.       Responsibility of respect of the law relative to the use of the PRODUCTS

11.1.    The PURCHASER will have to respect the laws and regulations relative to the use of the PRODUCTS. PURCHASER agrees to comply with all Federal, State and Local Law, Executive Orders, Rules, Regulations and Ordinances which my applicable to the purchase of and use of the PRODUCTS.

11.2     MD-DARIO agrees to comply with all Federal, State and Local law, Executive Orders, Rules, Regulations and Ordinances which may be applicable to MD-DARIO's performance of its obligations under this agreement.

12.       Applicable laws

12.1.    The PURCHASER ORDER is regulated in any and every aspect by the New York law.

12.2.    Any controversy rising from the PURCHASE ORDER and/or these General Sales Conditions, including its validity, interpretation, execution and resolution will be dealt with in legal forum of New York County, New York and this agreement shall be construed in accordance with and be governed by the law of New York County, New York, and any dispute resolution arising from this agreement shall be brought only in that jurisdiction, without regard to any provisions of such jurisdiction’s, conflicts of laws rules to the contrary.

13.       Miscellaneous

13.1     MD-DARIO and PURCHASER are independent contracting parties and nothing in the Purchase Order shall make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.

13.2     ASSIGNMENT.  PURCHASER reserves the right to assign any PURCHASE ORDER to any of its subsidiaries or affiliates at any time without further notification or penalty. MD-DARIO may not assign nor subcontract any of its substantive obligations under this agreement without PURCHASER’s written consent.

13.3     ADVERTISING.  MD-DARIO shall not, without first obtaining the written consent of PURCHASER, in any manner advertise or publish the fact that MD-DARIO has contracted to furnish PURCHASER the parts or services referenced herein, or use any trademarks or trade names of Buyer in MD-DARIO's advertising or promotional materials.

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