SALE TERMS & CONDITIONS
ACCEPTANCE IS LIMITED TO THE TERMS AND CONDITIONS CONTAINED HEREIN.
1. PRICE: The purchase price of the Equipment shall be as set forth in any provided quote. Unless otherwise specified above, the purchase price is FOB, Amarillo, Texas. Any applicable surcharges, sales taxes, excise taxes, customs expenses, tariffs, duties, or the charges imposed by any government authority shall be added to the purchase price.
2. TERMS: If for any reason prior to the time payment is due as heretofore provided Buyer should default in any of its covenants, agreements with Diamond Business Services, Inc.; also known as: DBS, Diamond; may at its option declare the entire unpaid balance due and payable or demand guarantees or assurances that payment will be made.
(a) The place of delivery shall be at the facilities of Diamond Business Services, Inc. in Amarillo, Texas unless previous drop-ship arrangements are made. Any delivery date stated above is tentative and subject to Method and route of shipment are at Diamond’s discretion,
unless the Buyer supplies explicit instructions. All shipments are made at the Buyer’s risk. Identification of the goods to the contract shall occur as each shipment is placed in the hands of the carrier.
(b) Buyer agrees to accept delivery promptly, and Buyer shall pay any demurrage or other costs accrued due to Buyer’s delay in accepting the delivery, and shall reimburse Diamond on demand for any such demurrage or other costs which Diamond has paid.
(c) If delivery is to be made in installments, Buyer agrees that if Buyer defaults in accepting any installment then Diamond may, at its sole option, treat such default as a breach of the entire Agreement.
(d) Buyer acknowledges that Diamond will comply with limitations or controls placed upon Diamond by the United States government or any other government having authority over the manufacturing sale or shipment of any part of the Equipment.
(e) In any event Diamond shall not be responsible for failure to ship or delay in shipping due to fire, flood, accident, labor difficulties, the inadequacy of transportation facilities, or of the supply of power, labor, or raw materials, war, acts of the public enemy, compliance with any allocation policy of any government or any department thereof, or any cause beyond the control, of Diamond, and the Buyer’s obligations hereunder shall continue notwithstanding any such failure to ship or delay in shipping. Furthermore, Diamond shall not in any case, be liable for penalties or for special or consequential damages caused by its failure to ship or delay in delivery for any reason.
4. RISK OF LOSS: Risk of loss or damage to the Equipment shall pass to Buyer on the date of delivery regardless of whether or not Diamond shall retain title to or a security interest in the Equipment after delivery. If the Buyer requires a product shipment to guarantee a signature on receipt, they must include instructions on order and pay any applicable extra fees.
5. DEFAULT: Buyer shall be in default under this Agreement if:
(a) Buyer fails or refuses to accept delivery, or
(b) Buyer fails or refuses to make any payment when due and payable, or
(c) Any warranty representation or statement made by Buyer to Diamond in connection with this Agreement proves to have been false when made, or
(d) Any bankruptcy or insolvency proceedings are begun by or against Buyer or Buyer makes any assignment for the benefit of creditors, or
(e) Any event occurs that causes the acceleration of the maturity of any indebtedness of Buyer to any other person, or
(f) Buyer defaults in any other agreement between Buyer and Diamond.
6. DIAMOND’S RIGHTS UPON DEFAULT: Upon default by Buyer, or at any time thereafter, Diamond at its option may declare the entire unpaid balance of the purchase price hereunder along with any other sums owed hereunder, immediately due and payable, and shall have all the rights and remedies available under the Uniform Commercial Code. If Diamond is granted or retains a security interest in the Equipment,
(a)Diamond may enter upon any premises on which the Equipment or any part of the Equipment may be located and removed the same therefrom;
(b)Diamond may require Buyer to assemble the Equipment and make it available at a location which Diamond chooses so Diamond may take possession of the Equipment and dispose of it;
(c) Diamond may at its option sell the Equipment at public or private sale or otherwise dispose of the equipment at any place whatsoever to the highest bidder, or on the most favorable terms in Diamond’s discretion. Diamond will give Buyer reasonable notice of the time and place of any public sale or the time after which a private sale or any other intended disposition hereof is to be made. The requirement of reasonable notice will have been met if such notice is mailed, postage prepaid, at least five (5) days before the time of the sale or disposition. Expenses of retaking, holding, preparing for sale, selling or the like including Diamond’s reasonable attorney’s fees and legal expenses shall be borne by Buyer. The proceeds
of any such sale or disposition shall first be applied to the aforesaid expenses and then to the amount due and payable hereunder, and the Buyer shall be responsible for any deficiency.
7. TITLE: Diamond and Buyer agree that title in and to the Equipment shall remain in Diamond’s name until the full purchase price as provided herein shall be paid by Buyer.
8. WARRANTY: As Diamond’s sole warranty, Diamond warrants that the equipment meets the
the description contained herein. The buyer acknowledges that the Equipment is manufactured by companies other than Diamond, and as sole remedy, Buyer acknowledges that Diamond shall assign all of its rights in any manufacturers’ warranty to the Buyer. In no event shall Diamond be liable for consequential or special damages, or for transportation or other expenses which may arise in connection with such equipment or parts.
THIS WARRANTY IS EXPRESSLY MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT, SHALL DIAMOND BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO
CLAIMS FOR LOST PROFITS, BUSINESS INTERRUPTION OR LOST EFFICIENCY OR FOR
TRANSPORTATION, INSTALLATION, ADJUSTMENT, OR OTHER EXPENSES WHICH MAY ARISE IN CONNECTION WITH SUCH EQUIPMENT OR PARTS.
As Diamond’s sole warranty for Equipment manufactured by Diamond, Diamond warrants that the equipment meets the description contained herein. Diamond agrees to replace or, at its option, to repair any equipment or parts thereof which are found defective in material or workmanship within 30 days from the date of delivery. Diamond’s obligation with respect to such equipment or parts shall be limited to replacement or repair, at Diamond’s option, F.O.B., Diamond Business Services, Inc, Amarillo, Texas
THIS WARRANTY IS EXPRESSLY MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT, SHALL DIAMOND BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO CLAIMS FOR LOST PROFITS, BUSINESS INTERRUPTION, OR LOST EFFICIENCY OR FOR TRANSPORTATION, INSTALLATION, ADJUSTMENT, OR OTHER EXPENSES WHICH MAY ARISE IN CONNECTION WITH SUCH EQUIPMENT OR PARTS.
9. SALES AND USE TAX: If Diamond has not collected sales tax from you at the time of your purchase, you may have state requirements to report all purchases that are not taxed and pay use tax on those purchases. For more information, please visit your state’s department of revenue website. For our Tax Exempt Customers, Diamond does NOT collect sales tax when we have your current exemption certificate on file.
10. LIMITATION OF LIABILITY: It is understood and agreed that Diamond’s liability whether in
contract, in tort, under any warranty stated above, in negligence or otherwise shall not exceed the return of the amount of the purchase price paid by Buyer for the Equipment in question. The
purchase price stated for the Equipment is a consideration in limiting Diamond’s liability hereunder. No action, regardless of form, arising out of the transactions under this Agreement may be brought by the Buyer more than one year after the cause of action has accrued.
11. COMPLIANCE: The Buyer agrees to instruct its employees, agents, and customers with respect to the safe use of said equipment. The buyer agrees that the equipment will be utilized in accordance with all applicable laws and regulations and in compliance with any regulatory or governmental agency that has jurisdiction over such matters. Since Diamond has no control over the Buyer’s (or other’s) use of the Equipment, the Buyer assumes the entire responsibility thereof and agrees to indemnify and hold Diamond harmless from any claim, demand, or cause of action by Buyer, Buyer’s employees and/or others arising therefrom.
12. ADDITIONAL TERMS:
(a) Buyer and Diamond agree that this Agreement shall be deemed to have been made in and shall be construed in accordance with the laws of the State of Texas, and Buyer hereby consents to subject itself to the jurisdiction of the courts of the State of Texas. Diamond, at its option, may require that any dispute arising under this Agreement, either before or after default by Buyer, shall be submitted to arbitration in Amarillo, Texas under the rules of the American Arbitration Association or its successor, and the results of such arbitration shall be binding upon the parties.
(b) The amount of the present or future sales, revenue, excise, or other taxes applicable to the
the equipment listed herein shall be added to the purchase price and shall be paid by the Buyer, or in lieu thereof the Buyer shall provide Diamond with a tax exemption certificate acceptable to the taxing authorities.
(c) In the event of Buyer’s cancellation of this Agreement prior to delivery for any reason, Buyer shall pay at least the following stipulated damages which shall include, but are not limited to all costs and expenses incurred by Diamond in obtaining and processing the order, any special engineering costs and commitments
incurred by Diamond prior to the time of cancellation, and the cost of any Equipment or parts thereof already produced which Diamond cannot reasonably use to fill other firm orders in hand at the time of cancellation.
(d) Any returns of Equipment shall be subject to the then-current Diamond Return Policy. Diamond will only accept returns of products sold by Diamond. Diamond cannot accept returns of any products that a) have custom manufacturing; b) have special encoding or programming applied to them; or c) have custom printing on them. All returned products must be in their original condition and be in their original packaging. Certain products cannot be returned to Diamond after 25 days, because Diamond does not stock these products and the manufacturer or distributor of the product will not take returns after this period. Product
can only be returned after Diamond authorizes the return and has issued a Return Merchandise Authorization number (RMA number) to the customer. All returns are subject to full inspection by Diamond on their return. In no case will a return be accepted for a product delivered over 90 days prior to the return.
Some returns will be subject to a restocking fee.
(e) This Quotation and these Terms and Conditions constitute the entire agreement between the parties hereto with regard to the subject matter hereof. No course of prior dealings between the parties and no usage of trade shall be relevant or admissible to supplement, explain, or vary any of the terms of this Agreement. Acceptance of, or acquiescence in, a course of performance rendered under this or any prior agreement shall not be relevant or admissible to determine the meaning of this Agreement. No other representations, understandings, or agreements have been made or relied upon in the making of this agreement other than those specifically set forth herein. This Agreement can only be modified in a writing
signed by the parties or their duly authorized agents.
(f) All of Diamond’s rights hereunder are separate and cumulative, not one of them, whether or not exercised, shall be deemed to be an exclusion of any other rights and shall not limit or prejudice any other legal or equitable right which Diamond may have.
(g) If any provision or part thereof shall be judicially declared invalid, void, or unenforceable, each and every other provision, or part thereof, nevertheless shall continue in full force and effect.
(h) No term or provision hereof shall be deemed waived, and no breach excused unless such waiver or consent shall be in writing and signed by the party against whom the waiver or consent is asserted.
(i) This Agreement shall be binding upon and shall inure to the benefit of the parties, their legal
representatives, successors, and assigns provided that Buyer shall not assign this Agreement without Diamond’s prior written consent.
(j) All of Diamond’s quotations are good for 45 days unless stated otherwise specifically in the quote.
(k) NOTE: Starting on May 1, 2022, when a credit card is used to pay a Diamond invoice, there will be an extra 3.0% credit card processing fee (against the gross amount of the invoice) unless the payment is within ten (10) days from the invoice date, and the total amount of the invoice is $10,000 or less.