Pricing, Incentives & Payment Terms. Product details (warranty, lead time, etc.), costs, incentives, and other related Product information will be as set forth in a mutually accepted Supplement or agreed upon via email. Except as otherwise noted, Product costs are firm for at least twelve months. Payment terms are net 60 after Product shipment or completion of Services and receipt of your invoice. Payment does not constitute acceptance of any Product, Service or Software provided. If an unresolved customer issue arises before payment would otherwise be due, we reserve the right to withhold that amount of payment related to such issue until it is resolved to our and our customer’s satisfaction.
Communication & Invoicing. You will accept and acknowledge our purchase orders within one business day by EDI (electronic data interchange) or Nucleus (DSM electronic supplier interface system). If our purchase order includes services, You agree to provide the Services identified, unless otherwise mutually agreed to by the parties in writing (e.g. email). The parties agree that the cost quoted by you and confirmed by us in a purchase order is complete and includes all Services, Products, installation, training, implementation, labor, materials, supervision, equipment, supplies, transportation, storage, licenses, inspections, permits, overhead, profit, insurance, and other customary items necessary for your timely and proper performance of your obligations under this Agreement; all other costs are your sole responsibility. You agree to electronically communicate all invoices to us on the day the Products are shipped or by 4:00 p.m. (CST) the day after the Products are shipped. There is no minimum purchase commitment or requirement. If the costs or any other terms on our purchase order(s) are incorrect, you must notify us prior to shipment. Your invoice shall include the costs on our purchase order, the tracking number, either the carrier name or Standard Carrier Alpha Code, and Product serial numbers (where applicable). You agree that our account will not be placed on credit hold without at least three prior business days notice and an opportunity to cure. You agree we have the right to offset any debts and other obligations we may have with you against any debts or other obligations you may have with Direct Supply.
Lead Times. Supplier agrees to proactively notify us when any Product is unavailable for shipment, or Service will not be performed, within the agreed-upon lead-time. Unless we request otherwise, you agree to ship Products FIFO. You agree not to split ship orders without our request or approval. Time is of the essence for each order.
Return Goods Policy. Both parties understand that offering quality products and prompt resolution of any customer concerns is crucial to their success. You agree to promptly process and accept for a full refund all (i) defective Products and (ii) Products which are unused and undamaged. Restocking fees do not apply and you shall incur all return shipping expenses, unless such return is due to our error. At our discretion and your expense, defective Products may be returned to you, returned to us, or destroyed by the customer. You will issue credits in an amount agreed to by the parties within 10 business days of return using EDI, Nucleus, or other reasonable electronic medium which we may identify with all such credits referencing our original purchase order number.
Warranties. Unless otherwise agreed, you will extend your longest warranty and warranty period you make available. In addition, you warrant that all Products will comply with all laws and regulations applicable to them, will be free from defects in material and workmanship, and will conform to the most recently agreed upon version of the feature guideline at the time the Product is produced. If a Product(s) does not meet these warranties, you agree to promptly repair or replace it at your sole cost or we may, at our discretion, return the Product(s) to you for a refund. You understand Products may be sold to individual consumers and you agree to provide all necessary information regarding sales to consumers. Product warranties begin on the date of receipt (or installation, if applicable) at the end user. If applicable, you warrant that all Services will be provided by properly trained individuals using the highest degree of care and skill of similar professionals or trades within the locality and will be warranted for a minimum of ninety (90) days.
Packaging & Branding. You agree to (i) ship Products with the appropriate type and amount of protective packaging consistent with industry standards and appropriate for the nature and quantity of Products being shipped, (ii) reimburse us for damages and claims related to your failure to comply with the packaging obligations set forth herein, and (iii) notify carriers of hazardous materials, if any, to be shipped by you. You may not use our name (including the names of our subsidiaries, affiliates, divisions and product names) in any form of publicity or to release to the public any information relating to the Products, Services, or Software provided to us under this Agreement, or to otherwise disclose or advertise that you have entered into this Agreement, except with our specific prior written approval. You will comply with our Branding Guidelines, which may be updated from time to time by us upon notice to you, as well as any branding requirements set forth in our supplement or feature guidelines. No Product, product documentation, labeling or packaging may contain other Supplier identifying information except as may be limited in a Supplement or as required by law. Unless otherwise agreed, you shall reproduce and include the appropriate product documentation with each Product packaged and shipped and that each Product unit will carry a lot and/or unique serial number as approved by DSM for tracking purposes.
Customer Service. Your customer service department will respond to us via e-mail within one business day of any request and you will promptly contact us should you learn of any customer service issues related to a Product, Service or Software. You agree that, except as otherwise required by law, your representatives will not contact, make any representations to or attempt to resolve any service issue with our customers prior to contacting and coordinating with us regarding the same and you shall not identify your company name to the customer.
Audit Rights.Supplier will permit and cooperate with regular and ongoing quality and compliance audits by DSM or its representative at Supplier’s or its subcontractor’s (as applicable) manufacturing facility(ies) at DSM’s sole cost and in a such a manner so as not to unreasonably interfere with Supplier’s operations. Notwithstanding the foregoing, Supplier will permit, cooperate with, and pay for any audits based on DSM’s good faith suspicion that the Supplier is not in compliance with its obligations under this Agreement.
Shipping. You agree to have all orders for Products drop shipped, F.O.B. shipping point. There is no drop ship penalty, minimum order, handling charge, or cancellation fee. You agree to reference on all shipping labels and packing slips our name, the ship-to information, our customer PO number, and any other shipment notes (excluding Supplier-only notes) in our purchase order. If you utilize multiple shipping points, you agree to ship from the location nearest to the “Ship To” address on our purchase order if that shipping point has Products available.
Third Party Freight Program. Our Third Party Freight (“TPF”) program consists of: (1) a parcel program in which Products are shipped through our designated parcel carrier; and (2) a less-than-truckload (“LTL”) program in which Products are shipped through our designed transportation provider. The following terms apply to TPF:
- Third Party Billing. You will ship Products to our customers utilizing third party billing. The TPF provider will invoice us directly for the freight charges. You will provide the following information to us so that we can accurately calculate freight costs: the weight and carton dimensions of each Product when packaged for shipment and the freight class of each item. In addition, for “parcel” shipments, you will identify the quantity of Products to be shipped by common carrier.
- Claims Filing. We will file claims on our behalf and/or on behalf of our customers. Unless otherwise requested by our operations team, we will be responsible for initiating call tags, ARS labels, or LTL pick-ups for TPF shipments. However, if a claim or return involves some error on your or your Staff’s part, then you will reimburse us for any excess charges.
- Freight Quotes. We or our affiliated company’s Logistics team will manage and provide all freight quotes for TPF shipments; you agree to provide us information we request to complete the freight quote. For orders of Products $5,000 or more, we have authorized our affiliated company’s sales team to directly contact you to request a competitive supplier freight quote for LTL shipments. If contacted, you may provide a freight quote at your reasonable discretion. If a freight quote is provided and our affiliated company’s sales team decides to ship the Product order with that quote, then your network of carriers will arrange for shipment as F.O.B. shipping point, reasonable freight prepaid and added to the invoice.
If you arrange for or are responsible for arranging for freight of a Product order, then (i) we will only be responsible for the actual freight amount charged by the carrier, and (ii) in the event of damage, concealed damage or lost shipment, you will file claims on our behalf or on behalf of our customer as we may advise you. Unless we request otherwise, you agree to initiate call tags, ARS labels, and/or LTL pick-ups within one business day of request. We will reimburse you for all call tags and freight charges, unless the return is a result of your error.
Independent Contractor & Taxes. Each party and their Staff (defined below) are independent contractors and not employees of any other party. You are responsible for the acts and inactions of your Staff and for ensuring your Staff’s compliance with this Agreement. No tax of any kind will be withheld or paid by one party on behalf of another party’s Staff. This Agreement does not create a relationship of partnership, joint venture, employment, or agency whether express or implied. We are purchasing or licensing, as applicable, for resale/sublicensing purposes. Upon request, we will provide you with a copy of our reseller’s certificate. No sales tax should be charged to us on Products, Services or Software.
Product Ownership; Inventory Responsibility. Title to all raw materials, sub-assemblies and Products are Supplier’s property and will be held in Supplier’s or its subcontractor’s inventory until Products have been loaded for shipment at the agreed-upon shipping location within the United States at which point title to such Products will transfer to DSM. There are no minimum quantities or order commitments for Products by DSM from Supplier unless otherwise agreed to by the parties in writing.
Insurance. You and your Staff, as applicable, agree to obtain and maintain at its own expense the insurance coverage and limits as described below during and for three years following the end of the Agreement and provide us with the required Certificates of Insurance evidencing such insurance as a condition of receiving any payment. All policies must be provided through a licensed United States insurance carrier and provide for no cancellation or reduction of coverage without thirty days prior written notice to us. Certificates of insurance must be furnished during and for three years following end or termination of the Agreement. Supplier’s insurance carriers must maintain an A.M. Best’s rating of “A-“ or better. Policies may not include any endorsements or modifications arising from pollution, explosion, collapse, underground property damage, or work performed by subcontractors. A waiver of subrogation endorsement is required for all policies. No deductibles or self-insured retentions may exceed $25,000 without our written consent. Supplier shall carry Commercial General Liability (GL) insurance coverage and product liability/ongoing and completed operations (Prods/Com. Ops) coverage in amounts no less than $2,000,000 each occurrence, $5,000,000 aggregate, and $1,000,000 in Personal and Advertising Injury Coverage (Pers. & Adv. Inj.) naming Direct Supply Manufacturing, Inc. and its officers and employees as an additional insured on a primary basis. For Software, Supplier shall also carry $5,000,000 in Technology & Information Errors & Omissions Liability (Cyberliability) insurance coverage naming Direct Supply Manufacturing, Inc. and its officers and employees as an additional insured on a primary basis. Additionally Supplier must maintain Professional Errors and Omissions coverage with limits not less than $3,000,000 per wrongful act. For all GL policies, you must provide us a copy of your policies’ additional insured endorsements along with a copy of your certificate of insurance. GL Aggregate requirements may be met through GL insurance, Excess/Umbrella coverage or a combination of both. GL Coverage must be on an occurrence coverage form. A “claims made” or “modified occurrence” policy is not acceptable. All GL policies must also provide insurance for bodily injury liability, property damage liability, premises and operations coverage, contractual liability insuring Supplier’s obligations, and broad form property damage. Supplier shall also carry worker’s compensation/employer’s liability as required by the applicable state law; $1,000,000 per each employee, accident, and disease. Supplier shall also carry auto liability insurance coverage for all owned, hired and non-owned autos in amounts no less than $1,000,000 per occurrence with a combined single limit each accident for bodily injury and property damage. If Supplier is performing hazardous material work (e.g. asbestos removal), Supplier must also maintain pollution liability coverage with limits no less than $3,000,000 per occurrence covering losses caused by pollution conditions that arise from Supplier’s operations. This insurance shall provide coverage for bodily injury and death; loss or damage to property, including loss of use of property or of property that has not been physically injured; cleanup costs; and costs and expenses incurred in the investigation, defense, or settlement of claims. Supplier’s liability is in no way limited to the types or amounts of insurance set forth above, and to the extent it maintains insurance greater than these minimum requirements, such insurance shall be applicable to any liability obligations. In specifying minimum insurance requirements, we do not recommend this insurance as adequate to Supplier’s needs or requirements; Supplier is solely responsible to determine its insurance needs. Any other insurance maintained by DSMI is excess and not contributing insurance with the insurance requirement hereunder.
Indemnity. DSM agrees to defend, reimburse, indemnify, and hold harmless Supplier from and against all assessments, claims, demands and judgments for liability, damages (including without limitation punitive damages), costs (including attorneys’ fees and litigation expenses through trial and appeal), and fines (collectively “Liability”) made or recovered against Supplier arising out of or relating to: a) any misrepresentations to DSM’s Customers to the extent caused by DSM or its employees; b) any intentional misconduct or gross negligence by DSM or its employees; c) violation of any third party intellectual property rights caused by the Product Trade Name (defined below) (if provided by DSM); or d) violation of any law by DSM. Supplier agrees to defend, reimburse, indemnify and hold harmless DSM and all of its agents, employees, customers, and insurers from and against all Liability made or recovered against a DSM Indemnitee for any of the following caused by Supplier, Supplier’s employees, contractors, dealers, installers, material suppliers, agents, representatives, principals, subcontractors or related entities (collectively “Staff”), or arising out of or relating to the manufacture, production, design, or shipment of any Product, Service, and/or Software. An indemnitee shall promptly notify the indemnifying party in writing of any claim and cooperate in its defense. “Trade Name” means the Product name, trademark, and logo.
LIMITATION OF LIABILITY. Except for any obligations of indemnification or otherwise expressly provided herein, UNDER NO CIRCUMSTANCE WILL A PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OR LOST PROFITS NO MATTER HOW ARISING OR WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Except for any obligations of indemnification or otherwise expressly provided herein, THE TOTAL LIABILITY, IF ANY, OF DSM WILL BE LIMITED TO THE COST OF THE PRODUCT(S) GIVING RISE TO THE CLAIM.
Inventions. In the event that DSM is purchasing a private label version of Supplier’s existing product and no changes have been made to the product beyond adding a DSM brand, DSM claims no rights to Supplier’s existing patents, copyrights, or trademarks incorporated into the product. Additionally, DSM claims no rights to Supplier’s existing patents, copyrights, or trademarks which were created prior to discussions with DSM began that are not used in or incorporated into the Product. However, all other intellectual property, patents, trademarks, works, copyrights, designs, inventions, trade dress, discoveries, processes and improvements (each a “Work”) arising out of or relating to the Products and any potential Products are DSM’s sole and exclusive property and DSM is deemed to be the inventor, owner, creator, and author of such Works. To the extent any Works are found not to be work for hire, Supplier will assign and transfer (and if applicable cause its Staff to assign and transfer) to DSM all rights, title, royalties, and interest in and to such Works and cooperate with DSM and execute, upon DSM’s request, a signed transfer of all such rights, consent and waiver to any moral rights, and other documentation reasonably required for DSM to secure its rights to such Works. Supplier and Supplier’s Staff will promptly disclose to DSM all Works made or conceived by them arising out of or related to the Products. Upon DSM’s request, Supplier will deliver to DSM, all such Works, records, and information, together with any written or electronic material related thereto. Neither Supplier nor any of its Staff shall apply or file any document for any patent, trademark or copyright for any Work. Supplier will be responsible for breaches by this section by its Staff.