Dimplex Thermal Solutions, Inc.
Terms and Conditions of Sale
Dimplex Thermal Solutions, Inc. (“Seller”) offers to sell the goods or services in
accordance with the terms and conditions stated herein. Acceptance of this Offer is expressly limited to acceptance of all the terms and conditions stated herein. This
Offer may be accepted by any written confirmation sent from Buyer by e-mail, facsimile, mail, or other modes of correspondence. The sending of a purchase order or
other written confirmation, allowing Seller to commence work, or the acceptance of any shipment of goods made pursuant to this Offer shall also be deemed an
acceptance of this Offer, through which offer and acceptance shall constitute a legally
enforceable contract between Buyer and Seller. The earliest of the methods of acceptance named above shall be the date on which this contract is formed. Any proposed additional or differing terms and conditions contained on Buyer’s documents, including its purchase order, whether or not such terms materially alter this Offer, are hereby rejected by Seller and shall not become part of the contract between Buyer and Seller.
The prices contained in this Offer are firm upon acceptance by Buyer, provided the
following: (1) such acceptance occurs within thirty (30) days of Seller’s submission of this Offer, and (2) within ninety (90) days of Buyer’s acceptance, Buyer authorizes Seller to release for fabrication, in accordance with approved submittal data, and shipment immediately upon completion of fabrication. In the event that Buyer’s release for fabrication is not received by Seller at Kalamazoo, Michigan, within said ninety (90) day period, prices are subject to increases equal to the percentage increase in Seller’s prices during such period of delay.
In order to insure prompt payment of goods ordered pursuant to this contract, Seller
shall reserve the right to cancel or amend the contract subject to approval of Buyer’s credit. Upon credit approval by Seller’s Credit Department, terms of payment for goods shipped hereunder shall be net thirty (30) days immediately following shipment of any portion of the goods. Seller reserves the right to add to any account
outstanding more than thirty (30) days a charge of one and one-half percent (1.5%) of the principal amount due at the end of each thirty (30) day period. Unless other terms
are specifically negotiated between Buyer and Seller, purchase orders over $50,000.00
shall require a thirty percent (30%) deposit by Buyer at the time the purchase order is issued by Buyer to Seller. Irrevocable sight letters of credit or wire transferred
prepayment in full for the purchase amount shall be required for a Buyer outside the
United States. In the event of disapproval by the Seller’s Credit Department or if
Buyer does not agree to Seller’s terms, terms of payment shall be established through
mutual agreement of Buyer and Seller. If Buyer submits or requests design or specification changes after the date on which Seller acknowledges the purchase order, Seller is entitled to charge Buyer, and Buyer is obligated to pay, a change order fee as determined and set by Seller for all costs and expenses incurred by Seller as a result of the requested changes. Such additional costs and expenses shall include but are not limited to engineering time, parts to be ordered, manufacturing time and materials
used as a result of the requested changes. In the event Buyer decides not to proceed
with the contract or otherwise breaches the contract, Seller shall be entitled to recover its costs incurred to date of breach or cancellation, along with its expected profit on the entire purchase order, from Buyer. These costs/profit may be taken from the deposit, if any. This remedy shall be in addition to any
remedy afforded Seller at law or in equity. SECURITY AGREEMENT
As security for payment, the Buyer grants to the Seller a lien and a purchase-money
security interest in the goods sold pursuant to this contract. Buyer hereby grants to
Seller a limited power of attorney solely for the purpose of executing a financing statement or other certificate or instrument and filing same with the appropriate Local,
State or Federal agency in order to perfect said security interest. The purchase money
security interest granted pursuant to this contract secures payment of the full contract price including accrued interest until such time as Seller is paid in full.
1. TIME AND PERFORMANCE
Unless an express date of delivery is specified on this Offer, Seller agrees to deliver goods within a reasonable time as determined by industry customs and standards. Any time of delivery agreed to by the parties shall be subject to allowances for changes in design or material, material or labor shortages, or unforeseeable difficulty in securing transportation for shipment. Seller shall use all reasonable efforts to comply with Buyer’s request as to transportation methods and dates of shipment. Failure by Seller to meet the quoted delivery date shall not give Buyer the right to cancel the order or to hold Seller responsible for any damages resulting from the inability to deliver within the stated time.
Seller shall not be held liable for failure or delays in delivery hereunder where such failure or delay is due to the disapproval of the Seller’s Credit Department, or due to
force majeure, fires, accidents, national emergency, failure to secure materials from the usual sources of supply, or any other circumstances beyond the control of the
Seller and waives any claims for non-performance or breach that result from same. Upon occurrence of any of the before-mentioned events, Seller may terminate or discontinue the contract without any liability on the part of the Seller. Acceptance of
goods by Buyer upon its delivery shall constitute a waiver of all claims for delay as to those goods.
Seller does not assume responsibility for nor warrants the performance or accuracy of
Buyer’s or Buyer’s agents’ furnished design, design criteria, or specifications.
All prices in Seller’s offer to sell are exclusive of tax or other governmental charges.
The amount of any present or future occupation, sales, use, service, excise or other tax which Seller shall be liable for, either on its own behalf or on behalf of the Buyer,
with respect to any orders for goods or services, shall be in addition to the billing prices and paid by the Buyer.
Seller guarantees all North American installed equipment and materials of its manufacture or start-up services performed by Seller against defects in
workmanship and material—under normal and intended use, service, maintenance and proper installation—for the following time period calculated from date of shipment:
twelve (12) months as to Schreiber Brand Chillers; eighteen (18) months for Koolant Koolers Brand Chillers; number (12) months for RIEDEL brand;
number (12) months for Eko-Kool brand;
number (12) months for Dimplex Thermal Solutions brand.
Equipment installed outside of North America shall be warranted for parts only, standard delivery shipment. The Seller’s obligation under this agreement is limited solely to repair or replacement at Seller’s option, in Seller’s factory or in the field, with Seller approval, within said warranty period. If the equipment is returned to Seller’s factory, the unit must be returned freight prepaid, with prior approval from Seller, with Buyer having obtained a returned goods authorization (RGA) number from Seller. Seller shall make any needed repairs at no charge to Buyer if the damage is determined not to be the fault of the Buyer. Seller shall then return the equipment to Buyer freight prepaid; in other words, Seller shall be responsible for one leg of the transportation costs. The above warranty shall not apply to any equipment, or components thereof, which have been subject to abnormal or improper use, negligence (including failure to maintain the equipment as recommended in writing
by Seller) or accident or which have been altered or repaired by other than Seller or Seller’s authorized representative. Nothing shall be construed as an additional warranty unless specifically designated as such in writing and signed by Seller (“Additional Warranty”). The Additional Warranty shall be subject to the provision
of this Section as to duration and limitation of remedy, unless the Additional Warranty expressly amends such provisions. The above warranty shall not apply to any parts
sold independently of the unit sold. All parts sales are subject to ninety (90) day
Seller shall not assume or authorize any person to assume on Seller’s behalf any
liability or obligations in connection with the sale of goods, except for repair or replacement of the defective part as set forth in Section 8 herein. Seller’s liability
shall not include any labor charges for replacement of parts, adjustments, repairs, or
any other work done outside Seller’s factory without Seller’s express prior
approval. Seller’s liability shall not include any damages of any kind or nature related to installation of the goods, including but not limited to, transportation to and from location, selection of location for installation, location, and any consequential or resulting damage to persons or property as a result of the installation. Seller’s liability shall not include any consequential or resulting damage to persons, property, equipment, goods, merchandise, profits, good will or reputation arising out of any defect in or failure of Seller’s goods. Seller’s obligation to repair or replace shall not apply to any equipment or component of such goods which has been repaired or
altered outside of Seller’s factory in any way, or which has been subject to negligence, misuse, or to pressure and temperature outside of the stated limits. Nothing in these warranty provisions shall impose any liability or obligation of any type, nature or description upon Seller if Seller has not received payment in full for the equipment in question. All stated warranty policies are limited to sales and ultimate shipment of equipment within the continental U.S. only. Shipments to other states or countries must be handled on an individual basis.
Shipping dates are approximate only. No shipping date requested or specified by
Buyer shall be binding on Seller unless an authorized officer of Seller agrees to the request or specification in writing. Shipment shall be F.O.B. factory with title
transferring to Buyer upon delivery to the carrier by Seller.
The parties agree that this contract concerns the sale of goods and/or services
specially designed and manufactured by Seller at the request of Buyer and that Seller is dedicating labor and materials towards the project in anticipation of selling all of
the goods ordered hereunder exclusively to Buyer. The goods sold under this contract are not fungible and there is no expectation by the parties that they might be resold to
a third party in an effort to mitigate Seller's damages in the event Buyer seeks to cancel this Contract. In the event Buyer notifies Seller of its intention to cancel this Contract anytime after work commences (to include design and preparation), Buyer
agrees to liquidate Seller’s damages as follows: (1) if, after Seller’s acceptance, Buyer
makes, requests or demands changes to the design, Buyer shall pay all increased costs and expenses incurred by Seller as a result of such changes, in an amount set in
Seller’s good faith discretion;
(2) if Buyer terminates this agreement, by breach or otherwise, Buyer shall pay Seller an amount calculated in the discretion of Seller, which is to approximate the costs incurred and committed to by Seller relative to the work, plus one of the following in the sole discretion of Seller: (a) the Buyer shall pay Seller a restocking fee of eighty percent (80%) of the purchase price for all non-stock equipment or a restocking fee of twenty-five percent (25%) of the purchase price for stock equipment, or (b) Seller shall be entitled to recover its expected profit
on the entire purchase order from Buyer.
Buyer acknowledges and agrees that any charges assessed above are reasonable in light of the difficulties in proof of actual losses caused by Buyer’s changes or
termination and shall not be construed as a penalty. Any payments pursuant to this Section are due and payable in full within ten (10) days of Seller sending Buyer a notice of said charges by registered mail, certified mail, or electronic mail.
Shipment shall be F.O.B. point of manufacture. Unless Buyer designates in writing a
specific mode of shipment of the goods ordered herein, shipment shall be made by
any reasonable means of transportation at the direction of the Seller for the account of
Buyer; and at Seller’s discretion, shipment made freight collect. Delivery of the goods to a carrier for transportation to Buyer shall constitute delivery to Buyer and said carrier shall be deemed Buyer’s agent for such purpose. Any claims Buyer shall have for damages to or loss of Order shall only be made directly to the carrier.
This contract shall be deemed to have entered into and shall be governed by the laws
of the State of Michigan. All claims arising out of the performance of this contract, whether at law or in equity, regardless of the legal theory under which they are filed,
shall be brought in the state or federal courts for the County of Kalamazoo, State of
Michigan. The parties further agree to be subject to the jurisdiction of these courts and agree that by entering into this contract that they are "conducting business" in the
County of Kalamazoo, State of Michigan. A breach of this contract or any claim arising out of the parties' relationship shall not be subject to arbitration unless agreed to in a separate writing signed by an officer of the Seller.
In the event it becomes necessary for Seller to incur any costs or expenses in the
collection of monies due Seller from Buyer, or to enforce any of its rights or privileges hereunder, Buyer, upon demand, shall reimburse Seller for all such costs and expenses (including, but not limited to, reasonable attorney’s fees).
If any provision of this contract is held invalid or unenforceable, its invalidity or
unenforceability shall not affect any other provisions of this contract, and this contract shall be construed and enforced as if such provision had not been included.
These terms and conditions, and the matter set forth on the face of Seller’s offer to
sell, constitute the entire agreement between Seller and Buyer. No prior understandings, agreements, or representations, written or verbal, express or implied, are a part of this contract, nor shall any subsequent modification, agreement or representation become part of this contract unless expressly agreed to in writing by an authorized representative of Seller.