Fri, Jul 12, 2019
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1.1 The terms and conditions of sale set forth herein apply to all contracts of sale or license entered into by DYNAMIC GUY or DG for its represented goods or services (“Products”), including associated proprietary information. The Products covered by these Terms and Conditions are based upon DG’s standard specifications, final acceptance test procedures, manufacturing schedules, and the standard Statement of Work. Changes to these baseline documents or schedules to meet a specific BUYER requirement may be made upon mutual agreement between DG and BUYER and if required with DG’s principal, and shall be subject to separate negotiation, as necessary.
1.2 All quotations, proposals, bids, or similar communications from DG shall be considered solicitations of offers. All orders placed by BUYER shall be considered offers, which shall be deemed accepted upon written notice thereof from DG. Notwithstanding terms and conditions that may be included on BUYER’s purchase order form or otherwise, DG’s acceptance is conditional upon BUYER’s assent to the terms and conditions set forth herein. Any term or condition in BUYER’s purchase order or acceptance in addition to or not identical with any of these terms and conditions shall not become part of the contract unless such term or condition is stated in writing and approved and signed by an officer of DG. DG’s failure to object to any term or condition contained in any communication from BUYER shall not be deemed assent to such term or condition or a waiver of these terms and conditions.
2.1 Pricing shall be valid for a period of sixty (60) days. Verbal quotations expire the day they are made. DG may make any changes to the List Prices at any time for all Products, services, and training included in the List Prices. 2.2 List prices will remain firm through delivery to BUYER unless BUYER requires shipment of Hardware and Software beyond a six (6) month period from order receipt by DG.Prices for new Hardware or Software items or integration services, not defined in the original Order bill of material, that are added by Change Order, shall be priced based upon the then current List Price.
Orders placed directly with DG will be quoted, invoiced and paid in U.S. dollars for customers outside of Bangladesh or BDT taka for customers in Bangladesh, unless otherwise agreed by both parties. Unless otherwise stated in the offering, prices not quoted in U.S. currency or BDT are based on the rates of exchange between the U.S. dollar or BDT and the quoted currency ruling at the date of offering. Any variation between such rates ruling at the date of offering and date of payment to DG shall be for BUYER’s account. All quoted prices are subject to additions which may be necessary to cover any duty, tax or charge, now existing or hereafter imposed by Government authorities upon equipment or services quoted by DG, or upon the production, sale, distribution, delivery, import or export thereof, or upon other features related thereto. All exceptions to the above will be mutually agreed upon by both parties.
4.1 On orders under BDT 10,000,000, 50% value of the hardware shipment, as well as engineering services, will be billable upon receipt of order and paid within 15 days and the remaining 50% billable and paid before the time of shipment.
4.2 For project orders with engineering and integration content, which exceed BDT 10,000,000 in value, the following milestone-billing schedule will apply:
| Billing Percentage | Milestone |
|---|---|
| 30% | Upon receipt of order |
| 40% | Upon submittal of final arrangement drawings for approval |
| 20% | Upon completion of factory acceptance test (FAT) |
| 10% | Upon shipment from factory* |
4.3 The labor hours for engineering services on a Time and Materials order will be billed at published rates on a monthly basis. In addition to these labor hour billings, any associated travel, living, and other expenses incurred will be billed at actual costs plus 10%.
4.4 Unless otherwise specified, BUYER’s payment is due within thirty (30) days from the date of each invoice, subject to credit approval by DG. Partial payments shall be provided when so specified or as a result of changes in accordance with the Changes clause, in which event DG and BUYER will mutually agree upon modified payment terms. BUYER agrees to pay DG in BDT in Bangladesh, or in another currency or location, as mutually agreed to by both parties. Payment shall be made by electronic funds transfer, cheque, or by any other form of payment specified by DG in its acknowledgment of BUYER’s order, including an irrevocable, confirmed letter of credit from a reputable bank, payable at sight. DG reserves the right to establish and/or change the credit and payment terms, when in the sole opinion of DG, BUYER’s financial condition or previous payment record warrants such action.
5.1 DG Indemnification - DG shall defend indemnify and hold BUYER harmless from and against any and all claims, losses, expenses, or damages, including attorney’s fees, resulting from damage to all property, private or public, and injuries, including death, to all persons, arising from any negligent acts or omissions or willful misconduct of DG.
5.2 BUYER Indemnification - BUYER shall defend, indemnify, and hold DG harmless from and against any and all claims, losses, expenses, or damages, including attorney’s fees, resulting from damage to all property, private or public, and injuries, including death, to all persons, arising from any negligent acts or omissions or willful misconduct of BUYER. 5.3 LIMITATION OF LIABILITY – Neither party shall be liable to the other party for any special, indirect, incidental, or consequential damages nor for any loss of profit or loss of expected sales revenue whether arising out of performance of this agreement, any order issued pursuant to this agreement, including damages based on warranty, contract, negligence or any other cause or combination of causes whatsoever, real or alleged.
6.1 DG will use its best efforts to deliver Products in accordance with mutually agreed delivery dates. All deliveries shall be Ex Works, DG’s principal facilities. Title to all Products, EXCLUDING SOFTWARE, and risk of loss of damage shall pass to buyer upon delivery to the carrier. DG will pack and ship all Products in accordance with good commercial practice. DG shall have the right to make partial shipments for any order placed by BUYER, and the BUYER shall be required to pay for such partial shipments. Products held or stored for BUYER by DG shall be at the risk and expense of the BUYER. Prices may be adjusted upward 0.5% of the contract price for each month or minimum charge of SGP100 dollars per day the scheduled shipment date is delayed at BUYER’s request.
6.2 In the absence of specific written instructions, DG shall select the carrier and obtain insurance for the full value of the shipment and bill the BUYER for the full cost of such shipping and insurance, but such carrier or insurer shall not be deemed to be the agent of DG, and in no event shall DG be liable for any delay in delivery or assume any liability regarding shipment, including the risk of loss or damage.
The place of final inspection and acceptance for Products shall be at DG’s principal facility, scheduled in advance, during normal working hours. The successful completion of DG’s principal test procedures and diagnostic test programs performed at DG’s principal plant on the Products shall constitute BUYER’s acceptance of the Products. If the buyer does not perform the acceptance at DG’s principal plant, DG shall deliver the Products only after written confirmation from the buyer that the Products meet all requirements in the Factory Test. Then, the Products are considered as accepted by the Buyer.
8.1 Component, Module, and Hardware Only – Orders are typically ready for delivery sixty (60) days after receipt of order. Any order accepted by DG with delivery requirements of less than 60 days may be subject to an expedited fee as indicated.
| Shipment Date | Expedite Charge |
|---|---|
| Between 15 and 30 days from receipt of order | 10% of net invoice price |
| Less than 15 days from receipt of order | 20% of net invoice price |
8.2 Project Orders with Engineering and/or Integration Content - Depending on factors such as order size, configuration, engineering and/or integration content, project orders are typically ready for delivery ninety (90) days after receipt of order. Any systems order accepted by DG with delivery requirements of less than 90 days may be subject to an expedited fee as indicated.
| Shipment Date | Expedite Charge |
|---|---|
| Between 60 and 90 days from receipt of order | 10% of net invoice price |
| Between 30 and 59 days from receipt of order | 20% of net invoice price |
| Less than 30 days from receipt of order | 30% of net invoice price |
9.1 In general, the Buyer may, from time to time during the period of performance of an order, by written notice issued by the Buyer, request changes to the order, including changes to the Specifications, method of shipping and packing, and time or place of delivery. If any such change request causes an increase or decrease in the cost of, or in the time required for the performance of the work under the order, the Parties shall negotiate an equitable adjustment in the price, delivery date, or both and in other such provisions as may be affected. The order will be modified accordingly prior to DG being obligated to implement the change request. Failure to reach agreement on an equitable adjustment shall be resolved under the provisions of Arbitration. Changes in any other provision of this contract, including time of delivery, or addition or deletion of work etc. may be made only by mutual agreement of the parties.
9.2 However, changes to an accepted purchase order containing hardware for modules, components, configured systems or the like will be subject to the following charges:
| Date receipt of Notice | Applicable Charge |
|---|---|
| Between 30 and 60 days before the scheduled shipment date | 1) Changes to delete items will incur a restocking fee of 10% of the amount deleted.2) Changes to add items will incur an expedite fee of 10% of the net amount added. |
| Less than 30 days before the scheduled shipment date | 1) Changes to delete items will incur a restocking fee of 20% of the amount deleted. 2) Changes to add items will incur an expedite fee of 20% of the net amount added. |
| After shipment of hardware | Return of any items will incur a restocking fee of 35% of the value of the items returned. |
Cancellation of an accepted order will be subject to charges for the burdened costs expended plus applicable profit by DG prior to cancellation, including but not limited to hardware purchases, systems design, planning, drawings, program translation, and documentation as well as program closeout costs. Cancellation charges for custom assemblies, subassemblies, or software will incur a 100% cancellation fee after such item is manufactured or produced, or on a percentage of completion basis, as applicable. The minimum cancellation fee will be 25% of the net order value.
11.1 DG warrants the Products against defects in materials and workmanship under normal use and service for eighteen (18) months from the date of shipment from DG’s principal facility or twelve (12) months from system startup, whichever is shorter. In case of failure, DG liability shall be limited to furnishing, but not installing, necessary repair parts or, at the option of DG, to repairing the defective Product at its plant, providing the equipment is returned at BUYER’s expense. DG will pay the freight costs associated with returning the Products to the BUYER. The warranty period for a repaired or replacement Product is ninety (90) days or the balance of the term of the original warranty period, whichever is longer. DG makes no other warranties, expressed or implied, with respect to its Products and further disclaims any other such warranties, including any warranty of merchantability or fitness for a particular purpose. In no event shall DG be liable for incidental or consequential damages or for the loss of profit, revenue or data even if it has been advised of the possibility of such damages. The sole obligation and liability of DG shall be to repair and/or replace, at the discretion of DG, defective Products or parts thereof returned to the service facility of DG’s principal following written notice of the defect given by BUYER during the warranty period and within thirty (30) days of discovery thereof.
11.2 The warranty contained in this Section shall be void and of no effect or validity unless BUYER has complied with the following conditions:
(a) BUYER has installed the Products in accordance DG’s principal installation specifications, has used the Products in accordance with DG’s principal technical documentation and has performed maintenance and inspections as prescribed in DG’s principal maintenance schedule and service manual, including prompt replacement or repair of defective parts.
(b) The Products, or parts thereof, have not been subjected to any misuse, alteration, neglect or accident and have not been repaired by any person other than by an employee or an authorized representative of DG.
11.3 All services provided by DG, including repairs and installations, are warranted free of defects in workmanship for a period of ninety (90) days from the date of service. In case of failure, DG liability shall be limited to furnishing the necessary materials and labor to replace or repair only those parts supplied by DG. The BUYER shall pay all travel expenses incurred by DG as a result of this work.
11.4 During the warranty period, DG shall pay all labor costs of repairing or replacing any defective or non-complying Product; provided, however, that BUYER shall pay DG for all actual labor costs incurred, including travel and living expenses, if any, should DG determine that a Product which DG has been requested to repair or replace under the warranties herein has failed to operate as warranted due solely to BUYER’s actions or due to BUYER’s failure to properly operate the Product.
11.5 Optional Extended Warranty provides the same coverage as the Standard Warranty.
12.1 Returns For Repair Any Product to be returned to DG’s principal for repair, upgrade, or exchange must have a Returned Material Authorization (“RMA”) number assigned before shipment to DG or it’s principal. The RMA number must be referenced on all documents accompanying the returned Product, as well as any subsequent associated documentation, and prominently displayed on the outside of the shipping container. Products that are no longer under warranty due to expiration of the warranty period or due to misapplication or misuse will be repaired or replaced at the option of DG. All costs associated with the shipment of out-of-warranty Products to DG or it’s principal and reshipment of repaired or replacement Products to BUYER shall be borne by the BUYER. The cost of repair or replacement of out-of-warranty Products shall be at least fifty percent (50%) of DG’s principal then-current list price for those Products. It is DG’s policy to ship repaired or replacement Products within ten (10) working days of receipt of the out-of-warranty Products at DG or DG’s principal factory. In emergency situations, BUYER may request that a replacement Product be shipped to BUYER before return of a defective Product to DG or its principal. DG will make every reasonable effort to comply with such “Ship Ahead” requests. In the event DG or its principal ships the replacement Product before receipt of the defective Product, in addition to the standard repair charge noted in the paragraph above; an expedite fee of USD $500.00 will be charged, which will include the cost of overnight shipment to BUYER. It is BUYER’s obligation to ship the defective Product to DG or DG’s principal immediately upon receipt of the Ship-Ahead Product. If BUYER does not ship the defective Product to DG or it’s principal within 15 days of receipt of the Ship Ahead Product, BUYER agrees to pay full list price for the Ship Ahead Product and will be invoiced as such by DG. Upon receipt of the defective Product, DG or its principal may elect to consider the Ship-Ahead Product as a replacement for the defective Product. 12.2 Returns For Credit Any Product to be returned to DG for credit must have a Returned Material Authorization (RMA) number assigned before shipment to DG. The RMA number must be referenced on all documents accompanying the returned Product as well as any subsequent associated documentation, and prominently displayed on the outside of the shipping container. A Product may only be returned for credit if the equipment is unused and is in the original shipping container and the return occurs less than one year from the original date of shipment by DG. The restocking charge for all returns is a non-discountable 35% of the list price of the equipment returned. 12.3 Engineering Integration Content The engineering integration content of the order may not be returned after delivery. These items include but are not limited to all deliverables, which are not manufactured by DG and its principal.
In the event BUYER or any of its employees, agents, or any other independent contractors makes or causes any modification or enhancement to any Product that is not approved by DG and its principal, BUYER agrees to protect, defend, indemnify, and hold DG and its principal harmless from all sums, costs, expenses, including attorneys’ fees that DG and its principal may incur as a result of any liability caused by such modification or enhancement.
Neither party shall assign, pledge or in any way transfer its rights, obligations or duties related to this agreement or any order entered under this agreement, either in whole or in part, without the prior written consent of the other party, which will not be unreasonably withheld.
In the event that BUYER intends to export or deliver all or any portion of the Products outside the Bangladesh to a country in which an export license would be required, BUYER agrees to notify DG of its intent to do so and agrees to obtain all necessary export licenses and clearances with respect to such delivery. BUYER agrees to indemnify DG for all costs, damages, and expenses due to the failure to comply with this Section. BUYER also agrees to comply with all applicable export control laws and regulations of the Bangladesh and any other country having proper jurisdiction and shall obtain all necessary export licenses in connection with any subsequent export, re-export, transfer and use of all Products, documentation and technology provided under this agreement.
Ownership of and title to the software shall at all times remain with DG or its principal.
DG and BUYER will maintain in confidence and not disclose, reproduce, or copy materials, documentation, or specifications that are provided to either party and marked as “confidential” or “proprietary” or with some other similar designation. Subject to any existing agreement between DG and BUYER, proprietary or confidential information obtained upon either party’s visit to the other’s plant or otherwise obtained from the disclosing party shall be retained as confidential and not disclosed to any third party without the written consent of the disclosing party. DG retains all rights in any invention, improvement, discovery, or patent it conceives relating to any or all of the Products.
No rights in any intellectual property residing in the Products or any data (“Product Data”) furnished with the Products are granted hereunder. BUYER shall have no right to copy, reproduce in whole, or in part any Product Data without the prior written consent of DG and its principal.
DG shall not be liable for delay in delivery or performance, or for non-delivery or non-performance or failure to manufacture, in whole or in part, caused by the occurrence of any contingency beyond the control of DG or it’s suppliers, including, without limitation, war (whether an actual declaration thereof is made or not), sabotage, insurrection, rebellion, riot or other act of civil disobedience, act of public enemy, failure or delay in transportation, act of any government or agency or subdivision thereof, judicial action, labor dispute, fire, accident, explosion, epidemic, quarantine, restriction, storm, flood, earthquake or other act of God, shortage of labor, fuel, raw materials, components, services, facilities, vehicles or machinery, delays of suppliers or technical failure against which DG has exercised ordinary care. If any such contingency occurs, DG may allocate production and deliveries among DG’s customers, and the date of delivery or performance shall be extended for a period of time equal to the time loss caused by such contingency.
Should a matter arise which cannot be settled by the parties to their mutual satisfaction, then and only then should this matter be subject to resolution under arbitration. The parties agree that any such arbitration shall be conducted in the country and state of the Product point of manufacture under the laws of such place. In any such arbitration, each party shall bear its own costs and attorney’s fees and the parties shall share equally the fees and expenses of the arbitrator.
This agreement is made and shall be governed by, construed, and enforced in accordance with the laws of the country or state of the Product(s) manufacture.