Dimplex Thermal Solutions, Inc.

Terms and Conditions of Sale

  1. OFFER AND ACCEPTANCE

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 of the terms and conditions stated herein.  This offer may be accepted by any written confirmation sent from Buyer by e-mail, fax, mail, or other modes of correspondence.  The sending of a purchase order or other written confirmation, or the acceptance of any shipment of goods made pursuant to this offer, shall also constitute acceptance of this contract and these terms.  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.

  1. PRICE

The prices contained in this offer to sell are guaranteed to Buyer upon acceptance of the contract provided: (1) that such acceptance occurs within thirty (30) days of the submission of this offer. (2)If Buyer requests any design or specification changes or requests an accelerated date of delivery, those may be provided however Seller may in its discretion charge Buyer 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.  The prices called for under this offer are quoted and to be paid in U.S. Dollars unless agreed otherwise in a writing signed by Seller.

  1. TERMS OF PAYMENT

In order to insure prompt payment of goods ordered pursuant to this Agreement 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 shall be entitled to add to any past due account a charge of the lesser of the maximum interest rate allowable under applicable law  or one and one-half percent (1-1/2%) per month  (18% APR) of the principal amount due at the end of each thirty (30) day period.  Buyer shall pay an advance deposit of thirty (30%) percent of the purchase price on all orders. In the event the Buyer decides not to proceed with the contract or otherwise breaches the contract Seller shall be entitled to retain out of the deposit its costs incurred to date of breach, along with its expected profit on the entire project.  This remedy shall be in addition to any remedy afforded Seller at law or in equity.

  1. 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 materials, 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 will 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 responsible for any delays in the performance of this Contract resulting in whole or in part from unforeseen circumstances including but not limited to, weather delays, fires, labor disputes, substantial material shortages, wars, riots, transportation shortages, lockouts, or embargoes.  Buyer acknowledges that the described events are beyond the control of 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 Seller.  Acceptance of goods by Buyer shall constitute a waiver of all claims for delay as to those goods.

  1. PRODUCT DESIGN

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.

  1. TAXES

All prices in Seller’s offer to sell are exclusive of taxes or other governmental charges.  The amount of any present or any future occupation, sales, use, service, excise or other tax which Seller shall be liable for, either on its own behalf or on behalf of Buyer, with respect to any orders for goods or services, shall be in addition to the billing prices paid by Buyer.

  1. EXPRESS LIMITED WARRANTY

THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND, EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION, ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESSED OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED BY THIS CONTRACT.  THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION HEREOF.  SELLER’S WARRANTIES HEREIN APPLY ONLY TO THE ORIGINAL PURCHASER AND DO NOT EXTEND, EXPRESSLY OR BY IMPLICATION, TO ANY OTHER PERSON OR PERSONS.

 

Seller guarantees all Unites States 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 a period of twelve (12) months as to Schreiber Brand Chillers and eighteen (18) months for Koolant Kooler Brand Chillers from date of shipment.  Equipment installed or shipped outside of the United States will be warranted for parts only, standard delivery shipment.  Seller’s obligation under this Contract 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 equipment or materials are returned to Seller’s factory, the same must be returned freight prepaid, with prior approval from Seller, with Buyer having obtained a returned goods authorization (RGA) number from Seller. Seller will make any needed repairs at no charge to Buyer if the damage is determined not to be the fault of Buyer.  Seller will then return the equipment to Buyer freight prepaid; in other words, Seller will be responsible for only 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 by Seller and if not expressly recommended by Seller then by industry customs and standards) 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 provisions 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 warranty.

 

  1. LIMITATION OF LIABILITY

Seller does not assume or authorize any person to assume for Seller any liability or obligations in connection with sale of equipment, except said repair or replacement of the defective item as set forth in Seller’s Express Limited Warranty.  Seller’s liability does not include any labor charges for replacement of parts, adjustments, repairs, or any other work done outside Seller’s factory without Seller’s approval.  Seller’s liability does 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 equipment.  Seller’s obligation to repair or replace does not apply to any equipment or component of such equipment which has been repaired or altered outside of Seller’s factory, or which has been subject to negligence, misuse, or to pressure and temperature outside of Seller’s stated limits or if Seller has not stated limits then industry customs and standards.  Nothing in these warranty provisions will impose any liability or obligation of any type, nature or description upon Seller if Seller has not received payment in full for the equipment or material 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.

 

IN NO EVENT SHALL SELLER’S LIABILITY EXCEED THE PAYMENTS RECEIVED BY SELLER FROM BUYER UNDER THE PARTICULAR PURCHASE ORDER, NOR SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.  THE LIMITATIONS ON DAMAGES SHALL APPLY UNDER ALL THEORIES OF LIABILITY OR CAUSES OF ACTION, INCLUDING BUT NOT LIMITED TO CONTRACT WARRANTY, TORT OR STRICT LIABILITY.

 

  1. DELIVERY

No shipping requirement requested or specified by Buyer will be binding on Seller unless an authorized officer of Seller agrees to the request or specification in writing.  Shipment shall be F.O.B. Seller’s factory with title transferring to Buyer upon delivery to the carrier by Seller.

 

  1. CANCELLATION

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 shall be responsible for the entire contract price minus costs saved by Seller in not having to perform the remaining portions of the contract.  Determination of costs shall be in the sole discretion of Seller and shall include costs Seller incurs for materials, labor, transportation, storage, administrative and overhead costs.  Seller shall be entitled to recover its entire profit on all anticipated goods or services sold pursuant to this Contract and its actual costs incurred for goods manufactured and/or delivered.

 

  1. FREIGHT CHARGES

Unless Buyer designates in writing a specific mode of shipment of the equipment ordered herein (“Order”), shipment shall be made by any reasonable means of transportation at the direction of Seller for the account of Buyer; and at Seller’s discretion, shipment made freight collect.  Delivery of the Order to a carrier for transportation to Buyer (“Shipper”) shall constitute delivery to Buyer and Shipper shall be deemed Buyer’s agent for such purpose.  Any claims Buyer may have for damages to or loss of Order shall be made directly to Shipper.

 

  1. JURISDICTION AND CHOICE OF LAWS

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.

 

  1. ARBITRATION

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.

 

  1. COSTS TO 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, expert witness fees, filing fees or other litigation costs).

 

  1. ENTIRE AGREEMENT

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 officer  of  the Seller.