Dimplex Thermal Solutions, Inc.
Terms and Conditions of Sale
1. OFFER AND ACCEPTANCE
Dimplex Thermal Solutions, Inc. (Seller) offers to sell the equipment, materials or services indicated in strict accordance with the terms and conditions stated herein. Submittal of a Purchase Order or execution of this offer by Buyer, or allowing Seller to commence work, shall be deemed an acceptance of this offer, through which offer and acceptance shall constitute a legally enforceable contract between Buyer and Seller. Any additional or differing terms and conditions contained on Buyer’s 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 unless expressly consented to in writing by Seller.
2. PRICE
The prices contained in this offer to sell are firm upon acceptance by Buyer, provided: (1) that such acceptance occurs within thirty (30) days of the submission of this offer and (2) that 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 such ninety (90) day period, prices are subject to increases equal to the percentage increase in Seller’s prices during such period of delay.
3. TERMS OF PAYMENT
Upon normal 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 (1-1/2%) of the principal amount due at the end of each thirty (30) day period. Unless other terms are specifically negotiated between Buyer and Seller, 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 terms, terms of payment will 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 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 include but are not limited to engineering time, parts to be ordered, manufacturing time and materials used as a result of the requested changes.
4. PERFORMANCE
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 circumstance beyond the control of the Seller. Upon occurrence of any of the before-mentioned events, Seller may cancel this order without any liability on the part of the Seller. Receipt of the equipment by Buyer upon its delivery shall constitute a waiver of all claims for delay.
5. PRODUCT DESIGN
Seller does not assume responsibility for nor warrants the performance or accuracy of Buyer’s furnished design, design criteria, or specifications.
6. TAXES
All prices in Seller’s offer to sell are exclusive of taxes. 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 the Buyer, with respect to any orders for machinery or services, shall be in addition to the billing prices paid by the Buyer.
7. WARRANTY OF WORKMANSHIP AND MATERIALS
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE AND, EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 7, ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESSED OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED BY THIS AGREEMENT. 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 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 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 outside of North America will be warranted for parts only, standard delivery shipment. The Seller 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 will make any needed repairs at no charge to Buyer if the damage is determined not to be the fault of the Buyer. Seller will then return the equipment to Buyer freight prepaid; in other words, Seller will 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 Section 7 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.
8. 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 part as set forth in Section 7. 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 in any way, or which has been subject to negligence, misuse, or to pressure and temperature outside of stated limits. 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 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.
9. DELIVERY
Shipping dates are approximate only. No shipping date requested or specified by Buyer will be binding on Seller unless an authorized officer of Seller agrees to the request or specification in writing. Failure by the 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. Shipment shall be F.O.B. factory with title transferring to Buyer upon delivery to the carrier by Seller.
10. CANCELLATION
Buyer and Seller agree that Seller would incur damages from a change order or termination by Buyer and Buyer agrees to liquidate Seller’s damages as follows: (1) if, after Seller’s acceptance, Buyer makes, requests or demands changes to the design of the Work, Buyer must 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, Buyer must 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; and (3) if the termination by Buyer occurs after Seller has substantially completed the Work, the Buyer must 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.
Buyer acknowledges 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 are not to be construed as a penalty. Any payments pursuant to this Paragraph 10 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.
11. FREIGHT CHARGES
Shipment shall be F.O.B. point of manufacture. 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 the 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.
12. DISPUTES 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, disputes and controversies arising out of or relating to this contract, or the breach thereof, shall, in lieu of court action, be submitted to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and any judgment upon the award rendered by the arbitrator(s) may be entered in an court having jurisdiction thereof. The site of the arbitration shall be Kalamazoo, Michigan, unless another site is mutually agreed between the parties. The parties agree that any party to the arbitration shall be entitled to discovery of the other party as provided by the Federal Rules of Civil Procedure; provided, however, that any such discovery shall be completed within four (4) months from the date of Demand by Arbitration is filed by the American Arbitration Association.
13. 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).
14. 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 authorized representative of Seller.