Terms and Conditions of Sale

1.ACCEPTANCE.  The following are the Terms and Conditions upon which Drift Handpans, LLC (“DRIFT”) agrees to sell and/or deliver product(s) (“Product”) to Buyer/Purchaser (“Buyer”).  Provisions and conditions of Buyer’s purchase which are in any way inconsistent with or in addition to the provisions of these Terms and Conditions shall be inapplicable and not be binding upon DRIFT unless specifically agreed to by DRIFT in writing signed on behalf of DRIFT by its authorized representative.  No contract shall be formed until DRIFT issues an Order Confirmation. Once an Order Confirmation is issued, Buyer may not cancel an order or return a Product unless in accordance with Section 4 (Cancellation) or Section 7 (Limited Warranty) below.

2. DELIVERY, TRANSFER OF TITLE AND RISK OF LOSS.  DRIFT will make available for pick-up all Products for the chosen carrier at DRIFT’ office where at such time all title, liability and risk of loss to the Products shall pass to Buyer upon receipt by carrier.  Unless otherwise agreed in writing, Buyer will be responsible for all shipping charges, premiums for freight insurance, and other transportation costs.  Claims against a carrier for damage caused during shipment must be made by Buyer.


3. PAYMENT.  DRIFT requires an up-front payment prior to any processing or shipping of the Product.


4. CANCELLATIONS.  In the event Buyer cancels Buyer’s order in whole or in part, or such contract is cancelled by DRIFT because of default by Buyer, Buyer shall pay DRIFT by reason of such cancellation or default for all damages sustained, including shipping, at the current price applicable at time of cancellation or default. DRIFT may charge Buyer a restocking fee of up to 10% of the original order price for cancellations. DRIFT will not cancel orders for custom manufactured Products after the Order Confirmation is sent to Buyer.


5. RETURNS. Buyer may only return the Product with written approval from DRIFT obtained two weeks from receipt of the Product. If DRIFT approves the return in writing, Buyer shall immediately (but in no case more than 2 days) ship the Product to DRIFT at 2436 Pennslyvania Ave, Madison, Wisconsin 53704 (“Return Facility”) with a tracking number and the applicable insurance. All title, liability and risk of loss to the Products shall belong to Buyer and will only pass to DRIFT upon acceptance byDRIFT from the carrier at the Return Facility.  Unless otherwise agreed in writing, Buyer will be responsible for all shipping charges, premiums for freight insurance, and other transportation costs.  Claims against a carrier for damage caused during shipment must be made by Buyer. DRIFTv will charge Buyer a restocking fee of 10% of the original order price, which Buyer authorizes DRIFT to specifically deduct from any original payment for the Product. 


6. RESCHEDULING; CHANGES.  Buyer may not reschedule delivery unless DRIFT agrees in writing. Buyer agrees that rescheduled deliveries may incur storage and carrying charges for which Buyer is responsible. No changes may be made to the order without DRIFTs’ written consent. 


7. LIMITED WARRANTY.  

  1. North America. Provided Buyer is located in North America, DRIFT warrants the Product will be free from Defect in material and workmanship for one year from the date of the Order Confirmation. This warranty shall not apply to any Product or part thereof that is defective, or unworkable due to abuse, mishandling, misuse, accident, alteration, negligence or improper installation, thus NO WARRANTY IS PROVIDED AND ALL STATUTORY AND NON-STATUTORY WARRANTIES ARE SPECIFICALLY DISCLAIMED. Buyer’s sole remedy for breach of warranty shall be limited to the replacement or repair of a Product part, at the discretion of DRIFT, of any Product found by DRIFT to be defective and covered by the warranty set forth in this Section 7(a) and not to exceed the purchase price for the order. DRIFT will also pay for standard shipping costs for shipping within the contiguous United States of America to ship a replacement Product or pieces.

  2. Outside of North America. Provided Buyer is located outside of North America, DRIFT warrants that the Product hardware will be free from Defect in material and workmanship for one year from the date of the Order Confirmation. This limited warranty shall not apply to any Product or part thereof that is defective, or unworkable due to abuse, mishandling, misuse, accident, alteration, negligence or improper installation, thus NO WARRANTY IS PROVIDED AND ALL STATUTORY AND NON-STATUTORY WARRANTIES ARE SPECIFICALLY DISCLAIMED. Buyer’s sole remedy for breach of warranty shall be limited to the replacement or repair of a Product part, at the discretion of DRIFT, of any Product found by DRIFT to be defective and covered by the warranty set forth in this Section 7(b) and not to exceed the purchase price for the order. This warranty does not include the cost of labor to repair any defective Product. Buyer will pay for standard shipping costs for shipping outside of the contiguous United States of America to ship a replacement Product or pieces.

  3.  “Defect” shall mean any characteristic of the Product which hinders its usability for the purpose for which it was designed and manufactured, except Defect does not include surface marks due to the manufacturing process, obsolescence and normal wear and tear.

  4. THE WARRANTY SET FORTH IN THIS SECTION 7 IS EXCLUSIVE AND IN SUBSTITUTION FOR, AND DRIFT HEREBY DISCLAIMS, ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  NO OTHER PERSON, FIRM OR CORPORATION IS AUTHORIZED TO ASSUME FOR DRIFT ANY OTHER LIABILITY IN CONNECTION WITH THIS SALE.


8. TAXES.  In the event any sales tax, manufacturer’s tax, or other tax is applicable to any shipment made on Buyer’s order, such tax shall be added to the selling price and shall be paid by Buyer.


9. LIMITATION OF LIABILITY.  In no event shall DRIFT be liable for indirect, incidental, consequential, special, or punitive damages of any kind or nature arising out of or relating to these Terms and Conditions or connected with or resulting from the manufacture, sale, delivery, resale, repair, replacement, or use of any Products or the furnishing of any service or part thereof, whether such liability is based on contract, tort, negligence, strict liability or otherwise, even if such party had been warned of the possibility of such damages.

The cumulative liability, if any, of DRIFT for direct damages arising under any provision of these Terms and Conditions or any contract formed pursuant hereto and under any theory of liability with respect to the Product is limited to an amount not to exceed the price paid by Buyer for the particular Product giving rise to the liability.  The right to recover damages within the limitations specified in this Section 9 is Buyer’s exclusive alternative remedy in the event any other contractual remedy fails in its essential purpose.


10. FORCE MAJEURE.  DRIFT will not be in default with respect to these Terms and Conditions or any contract formed pursuant hereto because of any failure or delay if the failure or delay is due to any occurrence beyond its reasonable control, including acts of God, acts of government, fires, floods, epidemics, pandemics, quarantine restrictions, strikes, freight embargoes, shipping delays, supply chain delays, civil commotion, war or war-like operation, acts of terrorism, invasion, military or usurped power, sabotage, severe weather conditions, or orders, rules, or regulations by a governing authority.


11. INDEMNIFICATION.  Buyer hereby specifically agrees to hold DRIFT harmless and indemnify DRIFT against any and all claims for damages or profits, and for all costs and reasonable attorney’s fees incurred by DRIFT resulting from any suit or suits arising from any Product claims or alleged infringement of patents, designs, copyrights or trade-names made as a result of Buyer’s alteration of the Product with respect to all goods manufactured either in whole or part to Buyer’s specifications.


12. ASSIGNMENT.  Buyer shall not assign in whole or in part any of its rights and obligations with respect to these Terms and Conditions or any contract formed pursuant hereto without the express written consent of DRIFT


13. ATTORNEYS’ FEES.  If either DRIFT or Buyer retains legal counsel to enforce any of these Terms and Conditions, or to recover damages from the other, arising from the other’s alleged breach of these Terms and Conditions, or the other commences a suit against DRIFT or Buyer for any alleged breach of contract that is not successful, then the other party shall pay the reasonable attorneys’ fees together with cost of suit at both trial and appellate levels of either DRIFT or Buyer, as the case may be.


14. APPLICABLE LAW; JURISDICTION. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Wisconsin, without regard to its conflict of laws principles or rules of construction concerning the draftsman hereof. Any controversy, claim or dispute arising out of or relating to this Agreement or the relationship, either during the existence of the relationship or afterward, between the parties hereto, their assignees, affiliates, attorneys, or agents, shall be litigated solely in state court in Dane County, Wisconsin or the United States District Court for the Western District of Wisconsin each in the United States of America. Each Party (1) submits to the jurisdiction of such court, and (2) waives the defense of an inconvenient forum. The application of the U.N. Convention on Contracts for the International Sale of Goods (CISG) is hereby expressly excluded.