GENERAL TERMS AND CONDITIONS OF SALE AND LIMITED WARRANTY
Disruptive Materials Operations AB (Publ.)
Valid from 2024-04-04
1. These general conditions (the “General Conditions”) shall apply on all sales of materials (the “Material(s)”) made by Disruptive Materials USA Inc. (publ), a Delaware Corporation, corporate registration number 7779125, having a registered address of 325 N. Saint Paul Street, Suite 3100, Dallas TX 75201, USA (”DMINC”) to the purchaser of the Materials located within the United States or any territorial regions of the United States (the “Purchaser”).
These general conditions (the “General Conditions”) shall apply on all sales of materials (the “Material(s)”) made by Disruptive Materials Operations AB (publ), corp., a Swedish corporation, corporate registration number 559118-9401 (”DMAB”) to the purchaser of the Materials located anywhere else in the world than within the United States and/or U.S. territories (the “Purchaser”).
DMINC and DM are referred to interchangeably as DM based on the legal entity entering into any contract with Purchaser as set forth above in this Section.
2. Modifications and amendments to these General Conditions shall not bind DM unless made in writing and signed by the parties.
3.
These General Conditions are hereby incorporated into the quotation, invoice, order or other document to which the General Conditions are attached, referenced or relate, and thereby apply to Purchaser. All purchases by Purchaser and sales by DM are expressly limited to and conditioned upon acceptance of the General Conditions. DM objects to and rejects any provision additional to or different from the General Conditions that may appear in Purchaser’s purchase order, acknowledgement, confirmation, writing, or in any other prior, contemporaneous or subsequent communication from Purchaser to DM, unless such provision is expressly agreed to by DM in a writing with an expressed reference to the section of these General Conditions intended to be superseded, and the writing is signed by an authorized employee of DM.
4. By placing an order of the Materials, the Purchaser agrees that these General Conditions will apply to the order, future orders as well as future legal relationships between DM and the Purchaser.
5. If a specific provision of these General Conditions is or becomes invalid, the remaining provisions shall remain valid.
6. DM may modify these General Conditions from time to time. Such amendments will take effect thirty (30) calendar days after DM’s notification to the Purchaser.
7. A contract between the parties is concluded by DM’s written confirmation of the Purchaser’s order. For clarity: a valid confirmation may be made by e-mail. Any DM accepted order may not be cancelled or rescheduled by Purchaser, and Material(s) may not be returned, without DM’s prior written consent and, in the event such consent is given, DM shall be entitled (at DM’s sole and absolute discretion) to reimbursement from Purchaser for DM’s costs including, without limitation, lost profit, cost of labor and materials used, damages, charges, and expenses incurred by DM as the result of such cancellation. Order requests can be rejected by DM (in whole or in part) at DM’s sole and absolute discretion. DM may limit or cancel quantities available for purchase on any order on any basis and may alter the availability or duration of any special offers at any time. Purchaser shall ensure the accuracy of any and all terms, information, and specifications in any order, and for providing DM with all necessary assistance and information necessary for DM to provide the Material(s) pursuant to the order and these General Conditions.
SHOULD ANY MATERIAL(S) BE MANUFACTURED OR ANY PROCESS BE APPLIED TO ANY MATERIAL BY DM PURSUANT TO PURCHASER’S INSTRUCTIONS, PURCHASER SHALL INDEMNIFY AND HOLD DM HARMLESS AGAINST ANY PURCHASER AND/OR THIRD PARTY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT AND/OR INJURY TO PERSON AND/OR PROPERTY RELATING TO ANY SUCH PURCHASER INSTRUCTION.
DM RESERVES THE RIGHT TO MAKE CHANGES TO THE MATERIALS, SPECIFICATIONS, AND/OR DESIGN OF MATERIAL(S) AND/OR DOCUMENTATION, LABELING, PACKAGING, INSTRUCTIONS, AND/OR WARNINGS AS REQUIRED TO COMPLY WITH ANY APPLICABLE LEGAL REQUIREMENT, TO FULFIL (IN DM’S ASSESSMENT) PURCHASER’S SPECIFICATIONS WHICH HAVE BEEN ACCEPTED BY DM; AND/OR TO IMPROVE THE PERFORMANCE AND/OR APPLICATION OF ANY MATERIAL.
Although reasonable precautions are taken to ensure accuracy of all DM information—all descriptive matter, colors, dimensions, and other documentation supplied by DM and the descriptions and illustrations contained in DM’s catalogues, website, price lists, and other advertising materials are approximate only and are merely intended to generally describe the Material(s). Therefore, any such information shall not be relied upon, with respect to any Material, as forming any part of a contract of sale, warranty or representation unless the parties have separately agreed in writing to such effect on a case-by-case basis and have expressly stated the intention to amend a specific section of these General Conditions.
DM reserves the right, by giving notice to Purchaser at any time before delivery, to increase the price of any Material to reasonably reflect any increase in the cost incurred to DM which results from any factor beyond the reasonable control of DM, such as, without limitation, currency exchange fluctuation; increases in duties or the costs of labor, materials, manufacture, and/or transport; any change in delivery dates, quantities or specifications requested by Purchaser.
DM reserves the right to cancel any order (in whole or in part) if Purchaser enters into liquidation, bankruptcy, or insolvency (“Financial Event”). In any Financial Event, all outstanding payments to DM shall be accelerated and become immediately due notwithstanding any prior agreement between the parties.
8. All specifications, descriptions, information, and data contained in general Material documentation and price lists, whether in electronic or any other form, are binding only to the extent they are expressly included in the contract in question by express reference.
9. Unless otherwise agreed to in writing, orders accepted by DM will be invoiced at the price confirmed in writing by DM to the Purchaser.
10. If the price has not been fixed in the contract, Purchaser shall pay the amount stated in DM’s general price list applicable at the relevant time, excluding VAT and any other statutory taxes or duties. DM has the right to revise and change its general pricelist at any time.
11. If (i) a definite price has been agreed to and (ii) an export- or import charge, tax or other similar surcharge is imposed or changed for the Materials after the conclusion of the contract, DM reserves the right to change the price accordingly to cover such charge.
12. The Purchaser shall make full payment of any amounts invoiced to the Purchaser for Materials (including freight, taxes or other relevant costs) as per terms specified on the order acknowledgement and/or invoice. An interest rate of two (2) percent per commenced month shall apply to any amount not paid on or before such payment due date. DM may further charge an administration fee according to law, for each non-payment reminder sent to the Purchaser. Purchaser shall indemnify DM for all court costs, collection costs, and attorney fees incurred in connection with recovering any delinquent payments.
13. The Purchaser shall not be entitled to withhold or set-off payment for Materials delivered for any reason whatsoever.
14. If there are reasonable grounds for assuming Purchaser will not fulfill its obligations to make payment, DM has the right to demand Purchaser lodge an acceptable security (irrevocable letter of credit or a bank guarantee or other reasonable security).
15. Without in any way prejudicing any of its rights under the contract, DM may withhold further deliveries of Materials or other agreed performance until Purchaser has remedied its default in full.
16. The Materials remain the property of DM until paid in full by the Purchaser.
17. The terms of delivery shall be EXW (Incoterms 2020) Uppsala Sweden, or such other facility that DM may direct.
18. If DM assists Purchaser in arranging and/or prepaying freight and insurances, such costs may be invoiced by DM to Purchaser.
19. DM shall use reasonable endeavors to deliver the Materials in accordance with the delivery dates as set out in its order confirmation. Partial deliveries shall be permitted unless otherwise agreed in writing. Late deliveries or non-delivery are no basis for any claims against DM, and the Purchaser hereby waives all rights to make claims for liability based thereon. DM shall not be liable for any delays other than set out in this Section 19. In the event of any non-conforming Material(s), apparent defects, missing Material(s) or any other purported deficiency in the Material(s) received (with respect to an order confirmed by DM in writing), any claim in relation thereto must be submitted in writing to DM (by registered mail and with acknowledgement of receipt) within seven (7) calendar days of the date of receipt of the respective Material(s)—otherwise acceptance shall be conclusively presumed.
20. The Purchaser may only use the Materials in accordance with the purpose agreed between the parties as set forth in the Safety Data Sheet. For more information on the Safety Data Sheet, please contact us at https://disruptivematerials.com/contact/.
21. Furthermore, the Purchaser may only use the Materials in accordance with the provisions of these General Conditions, the order confirmation, and DM’s other written instructions, Safety Data Sheet, and warning information provided to the Purchaser, from time to time.
22. DM warrants to the initial Purchaser only that the Materials sold to the Purchaser, when delivered, conform to the Material specification, when applicable, and otherwise are free from any deficiencies in material or workmanship (the “Limited warranty”).
23. DM’s liability under the Limited warranty only covers defects arising during the Limited warranty period as defined below. The Limited warranty period shall begin on the date the Material is delivered to the Purchaser and shall continue for twelve (12) months.
24. DM is not liable for, and the Limited warranty does not extend to:
(ii) defects arising out of materials provided by or on behalf of the Purchaser, or from a design stipulated or specified by or on behalf of the Purchaser
(iii) defects caused by circumstances arising after the risk of the Material has passed to the Purchaser;
(iv) defects arising from improper use of the Material, including but not limited to, negligent handling, and failure to observe the instructions for use accompanying the Material;
(v) defects arising from the Purchaser’s improper assembling, inadequate maintenance, and faulty repairs; and normal wear and tear, and
(vi) normal deterioration.
25. DM's sole liability under the Limited warranty shall be, at DM’s own expense, to replace, repair, redeliver or by jointly agreed price reduction, remedy any defects in accordance with the Limited warranty of the Material.
26. In order to exercise its rights under the Limited warranty, the Purchaser must notify DM in writing of any defect in accordance with the following: (a) within seven (7) days from the date of the delivery, if the defect should have been discovered during the Purchaser’s inspection of the Material, (b) in other cases, without undue delay after the discovery of the defect and under no circumstances later than two (2) weeks after the expiry of the Limited warranty period stipulated in Section 23. The notice shall contain a description of the defect.
27. If Purchaser requests to exercise its rights under the Limited warranty, and DM determines that there is no defect covered by the Limited warranty, Purchaser shall pay or reimburse DM for all costs DM has incurred by investigating and responding to Purchaser’s request.
28. After DM has received written notification of a defect in accordance with Section 26 and confirmed such defect pursuant to Section 27, DM shall remedy the defect within a reasonable period of time.
29. DM shall not be held responsible for damage caused by the Materials on any property or the consequences of such damage, if the damage occurred while the Materials were in the possession of the Purchaser.
30. SECTIONS 22–29 ARE THE SOLE AND EXCLUSIVE LIMITED WARRANTY GIVEN BY DM TO THE PURCHASER WITH RESPECT TO THE MATERIALS. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND THE PURCHASER WAIVES ALL RIGHTS TO ANY SUCH CLAIMS AGAINST DM.
31. “Intellectual Property” means all right, title and interest in and to any intellectual property, including, without limitation, ownership and other rights to copyright, patent, concept, layout, rights relating to design, trade names, trademarks, methods, ideas, processes, tools and know-how, trade secrets, as well as the right to apply for formal protection or otherwise enhanced protection for any such right.
32. All Intellectual Property relating to the Materials (whether registered or not) or other property and information provided by DM or on behalf of DM are and shall remain the property of DM. All Intellectual Property and goodwill relating to DM’s trademarks, logotypes and other distinctive marks (if any) arising from the use thereof by Purchaser shall inure solely to the benefit of DM. Nothing in these General Conditions shall be construed as a grant, assignment or transfer of any Intellectual Property with respect to the Materials or any of the Intellectual Property therein or relating thereto. Purchaser expressly undertakes not to decompile, reverse-engineer, modify, disassemble, recreate or generate any of the Materials or part thereof.
33. Purchaser has no right to use or register (or assist anyone to use or register) any trademark, product name or trade name (including domain names) which is identical or confusingly similar to DM’s trademarks, product names or trade names (including domain names) without DM’s prior written consent on a case-by-case basis.
34. THE AGGREGATE LIABILITY OF DM, HOWSOEVER ARISING, SHALL – EXCEPT FOR DM’S LIABILITY UNDER THE LIMITED WARRANTY WHICH IS LIMITED AS SET FORTH ABOVE IN SECTIONS 22-30 – BE LIMITED TO SEVENTY-FIVE (75) PERCENT OF THE PURCHASE PRICE UNDER THE SPECIFIC CONTRACT FOR THE MATERIALS GIVING RISE TO SUCH CLAIM. DM SHALL NOT BE LIABLE FOR ANY INDIRECT DAMAGE, SUCH AS LOSS OF PRODUCTION, LOST PROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS BY THE PURCHASER AND/OR ITS CUSTOMERS, LOSS OF INFORMATION AND DATA, BUSINESS INTERRUPTION, COST OF CAPITAL OR OTHER ECONOMIC CONSEQUENTIAL LOSS REGARDLESS OF TYPE, WHETHER FORESEEABLE OR NOT AND WHETHER DM HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. PURCHASER UNDERSTANDS AND AGREES MATERIAL(S) ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HIGH-RISK OR HAZARDOUS CONTEXT WHERE THE FAILURE OR MALFUNCTION OF ANY MATERIAL CAN REASONABLY BE EXPECTED TO RESULT IN DEATH, PERSONAL INJURY, OR ENVIRONMENTAL HARM (A “HIGH RISK CONTEXT” OR “HRC”). ACCORDINGLY: (I) PURCHASER SHOULD NOT USE ANY MATERIAL IN AN HRC, (II) ANY USE OF ANY MATERIAL IN AN HRC IS AT PURCHASER’S OWN RISK, (III) DM MAKES NO WARRANTIES OR ASSURANCES, EXPRESS OR IMPLIED, REGARDING USE OF THE MATERIALS IN ANY HRC, AND (IV) PURCHASER SHALL INDEMNIFY AND HOLD DM HARMLESS FROM ANY PURCHASER OR THIRD PARTY CLAIM AGAINST DM RESULTING FROM PURCHASER’S USE OF ANY MATERIAL IN ANY HRC.
35. DM shall not be liable for any delay or failure in carrying out its obligations under the contract, which is caused wholly or partly by circumstances outside of DM’s reasonable control, such as delay in transportation, fire, labor disputes, accidents, delay in customs procedure, change of law or regulation, government actions, or other similar events, or defects or delays in deliveries by sub-suppliers.
36. CONTRACTS COVERED BY THESE GENERAL CONDITIONS WITH RESPECT TO DMINC AND PURCHASER SHALL BE EXCLUSIVELY GOVERNED BY AND CONSTRUED UNDER THE SUBSTANTIVE LAWS OF THE STATE OF DELAWARE, WITHOUT ANY REFERENCE TO ITS CONFLICT OF LAW PRINCIPLES. CONTRACTS COVERED BY THESE GENERAL CONDITIONS WITH RESPECT TO DMAB AND PURCHASER SHALL BE EXCLUSIVELY GOVERNED BY AND CONSTRUED UNDER THE SUBSTANTIVE LAWS OF SWEDEN, WITHOUT ANY REFERENCE TO ITS CONFLICT OF LAW PRINCIPLES. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (CISG) SHALL NOT APPLY TO ANY OF THE ORDERS PLACED. EACH PARTY WAIVES ANY RIGHT TO A JURY TRIAL.
37. Any dispute, controversy or claim arising out of or in connection with a contract, or the breach, termination, or invalidity thereof, shall be finally settled by arbitration administered by the American Arbitration Association in Wilmington, Delaware with respect to any contract with DMINC, and the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”) in Stockholm, Sweden with respect to any contract with DMAB.
38. The language to be used in the arbitral proceedings shall be English.
39. Any information appearing during the arbitration, as well as a decision or arbitration award announced in connection with the arbitration, shall constitute confidential information. Confidential information may not be disclosed to a third party without DM’s prior written approval, unless required for the enforcement of the award or otherwise required by law.
40. Notwithstanding the above, DM reserves the right to, free of its own choice, initiate court proceedings in a competent court in the country of which the Purchaser has its place of business. Purchaser consents to this Section 40.
41. These General Conditions supersede all prior negotiations, discussions, and dealings concerning the subject matter hereof, and constitute the entire agreement between DM and Purchaser concerning the subject matter hereof. There are no understandings, inducements, commitments, conditions, representations, or warranties of any kind, from either party to the other, other than as contained in these General Conditions. Neither party will claim any amendment, modification or release of any provisions hereof unless the same is in writing and signed by both parties. No waiver of any breach of any terms, conditions or obligations will be deemed a waiver of any continuing or subsequent breach of the same or any other terms, conditions or obligations hereunder. The invalidity or unenforceability of any provision of these General Conditions will not affect the validity or enforceability of its other provisions and the remaining provisions will remain in full force and effect. Further, in the event any provision of these General Conditions is severed from the General Conditions by operation of law, such severed provision shall be replaced with another provision, to the extent legally enforceable, most closely reflecting the commercial and legal intention of the severed provision. The contract between the parties based upon these General Conditions may be digitally entered into, copied, and stored—and if introduced as evidence in any judicial, arbitration, mediation or administrative proceedings, will be admissible as between the parties to the same extent and under the same conditions as other business records originated and maintained in documentary form and neither party will object on the basis that such business records were not originated or maintained in documentary form under any rule of evidence. Nothing in these General Conditions shall be construed as creating a partnership, employment or joint venture between the parties and neither party shall have the authority to bind the other party in any manner.
42. For information regarding DM’s handling of personal data, please review DM’s privacy policy at https://disruptivematerials.com/privacy-policy/. Purchaser hereby permits DM to use, process, and store personal data pursuant to such Privacy Policy.