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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.

  1. USER SAFETY

Buyer acknowledges that if improperly installed or serviced the Product may cause serious injury or death. Buyer further acknowledges that it has access to a copy of the Product Manual, that access is provided in electronic form, and that such form is adequate. Buyer warrants that it will use the Product only as set forth in the Product Manual and that should it ever lose access to the Product manual, it shall promptly inform Seller and request a replacement. Buyer further warrants that any person who operates, installs, services, or otherwise uses or manipulates the Product shall (a) be trained in the proper installation, operation, servicing or other use of the Product, as applicable, (b) be provided access to the Product manual and adequate opportunity to review, (c) be knowledgeable by virtue of training, experience, or profession about the Product’s properties and any potential hazards or adverse effects, and (d) comply with all applicable laws and industry standards relating to workplace safety.

PURCHASE ORDER TERMS & CONDITIONS

Dimplex Thermal Solutions | 2625 Emerald Drive | Kalamazoo, MI 49001 | USA


The following PO Terms and Conditions are the standard that will apply to all purchase orders submitted by DTS. If there is a specific written agreement with the supplier that states Purchase Order Terms & Conditions that document will govern for the period of time the written agreement is in force.

 

•             GENERAL TERMS: The purchase order, together with these terms & conditions, and any attachment and exhibit, specifications, drawings, notes, instructions, and other information, whether physically attached or incorporated by reference constitutes the entire and exclusive agreement between DTS and the Supplier identified in the PO with respect to every sale of products and/or services by the supplier to DTS. DTS submission of the PO is conditioned on the Supplier’s agreement that any terms different from or in addition to the terms of the PO, whether communicated orally or contained in any purchase order confirmation, invoice, acknowledgement, release, acceptance or other written correspondence, irrespective of the timing, shall not form a part of the PO, even if the Supplier purports to condition its acceptance of the PO on DTS agreement to such different terms, unless specifically agreed to in writing by DTS. The Supplier’s acknowledgement of this PO by any means, including the Supplier’s commencement of performance, constitutes the Supplier’s acceptance of these terms and conditions. DTS shall have the unrestricted right to resell, distribute, or otherwise transfer any platform, product, or service purchased under this PO to any customer or third party, in any territory, without restriction or requirement for further approval from the Supplier. Supplier acknowledges and agrees that no limitation on resale, distribution, or customer selection shall apply to any products or platforms supplied to DTS under this agreement. The PO does not constitute a firm offer within the meaning of Section 2205 of the Michigan Uniform Commercial Code and may be revoked at any time prior to acceptance.

 

•             PRICES: Unless otherwise specified in the PO, the price for the product or service will be for the product or service only and will exclude all taxes, shipping and delivery charges, duties, tariffs, imports, and government-imposed surcharges. The Supplier will denote the charges separately on their invoices. The Supplier shall use its best efforts to assist DTS in all legal efforts to minimize the taxes resulting from the performance of the PO. The price charged by the Supplier to DTS for the product or service shall be the lowest of (i) the price last quoted to DTS by the Supplier or last paid by DTS to the Supplier or (ii) the Supplier’s lowest price charged a customer for the product or service, regardless of any special terms or conditions.

 

•             TERMS AND CONDITIONS OF PAYMENT: Terms of payment are net 60 days, unless otherwise specified on the PO or other written agreement that the Supplier and DTS enters into, from the date of DTS receipt of a properly prepared invoice. A properly prepared invoice must be issued on or after the date the product was delivered to DTS or service performed for DTS and must include the HTS code, COO, PO number, DTS item number, quantity, item pricing, and delivery date.

 

•             DELIVERY: Unless DTS expressly instructs otherwise, the Supplier will deliver the product or perform the service at DTS facility at the address set forth in the PO, FOB supplier’s location. If delivery location is not DTS, the Supplier shall not include any pricing, discount, or confidential information. The Supplier will preserve, pack, package and handle products so as to protect the product from loss or damage and in accordance with best commercial practices in the absence of any specifications DTS may provide. Without limiting the foregoing, the Supplier shall observe the requirements of any local laws and regulations relating to hazardous work, including, without limitation, with respect to its accompanying information, packing, labeling, reporting, carriage and disposal. Supplier will include with each delivery of product an itemized packing list identifying the PO number, a description, the quantity of each of the products, lot or serial numbers, if applicable, and the date of shipment. The package containing the packing list must be clearly marked as such. Products shipped in excess of DTS PO, or not in accordance with the contract, may be returned at the Supplier’s expense. If the supplier delivers product to a location other than as directed by DTS or if it is delivered after the delivery date specified in the PO, DTS may reject such product and return it at the supplier’s expense. DTS will not be responsible for any product furnished without a written PO.

 

•             INSPECTION AND ACCEPTANCE: All products shall be received subject to DTS right of inspection and rejection. DTS may reject any or all of the products which does not conform to the applicable requirements communicated by DTS within 10 business days of DTS receipt of the product. DTS shall have an additional reasonable period of inspection for such defects as not immediately apparent. At DTS option, DTS may (i) return the non-conforming product to the Supplier for a refund or credit (ii) require the Supplier to replace the non-conforming product, or (iii) repair at Supplier’s cost the non-conforming product so that it meets DTS requirements, including all shipment and delivery expense of returning non-conforming product and replacement product. In the alternative to its options described above, DTS may accept the non-conforming product conditioned on the Supplier providing a refund or credit in an amount DTS reasonably determines to represent the diminished value of the non-conforming product. DTS payment to the Supplier for the product prior to DTS timely rejection of such product will not be deemed as acceptance by DTS, nor does it constitute a waiver of any breach of warranty and it without prejudice to any claim(s) by DTS. The supplier shall inspect all products prior to shipment to ensure conformance with all requirements of the PO.

 

•             WARRANTY ASSIGNMENT. Any warranty provided by Supplier with respect to the Product may be assigned by DTS. Supplier warrants that all Products (i) shall be of good quality and workmanship and free from defects, latent or patent, in material or workmanship, (ii) shall conform in all respects to all specifications, performance standards, drawings, samples or descriptions from Supplier and/or DTS, and (iii) shall be free of any claim of any third party.  These warranties are in addition to all other express warranties and legal rights and shall benefit DTS. No remedy available to DTS for the breach of any warranties hereunder shall be limited except to the extent and in the manner expressly agreed upon by DTS in an executed document which specifies such limitation. DTS approval of any sample or acceptance of any Product shall not relieve Supplier from responsibility to deliver goods and to perform services confirming, in all respects, to the approved sample. These warranties shall not be deemed waived either by reason of DTS acceptance of, or payment for, the Product and shall survive delivery. In the event of a breach of warranty, DTS may return such Product, at Supplier’s expense, for correction, replacement or credit as DTS may direct and shall otherwise have available to it all remedies at law and in equity and Supplier shall be liable to DTS for any and all attorney and other fees incurred thereby related to a warranty matter.  This warranty shall apply to replacement Product and labor.  Supplier shall effectuate all such corrections or replacements within 10 days of receipt of returned Product.

 

•             INDEMNIFICATION.  Supplier agrees to defend, indemnify, and hold harmless DTS, its officers, employees, agents, representatives, customers and affiliates (“DTS affiliates”) from and against all claims, liability, loss, damage or expense, including reasonable attorney’s fees, with respect to any third party claims against DTS resulting from, or related to: (i) Supplier’s performance in regard to the PO; (ii) omissions of Supplier or its officers, employees, agents, representatives, affiliates, including Supplier’s or its agent’s or contractor’s manufacturing thereof; (iii) the Product itself, except to the extent the claim is the direct result of DTS negligence or misrepresentation, and/or (ii) Supplier’s alleged infringement of any third party’s intellectual property rights or any other rights.  

 

•             INSURANCE.  Supplier will secure and maintain insurance providing coverage for liabilities to third parties for bodily injury (personal injury) and damage to property related to the Products in amounts sufficient to protect DTS in the event of such injury or damage, and will be in compliance with any and all laws, regulations or orders addressing the liabilities of an employer to its employees for injuries suffered in connection with employment.  Supplier further will maintain such additional types and limits of insurance, including workers’ compensation insurance covering all employees performing work with respect to the PO, as is customary for a company of similar size and similar operations in the jurisdiction or jurisdictions in which Supplier’s operations take place. See Page 21 for Insurance minimum coverage. This provision shall survive expiration or termination of the PO.

 

•             MISCELLANEOUS.   These terms and conditions can be modified or rescinded only by writing signed by both DTS and Supplier. No right or interest herein may be assigned by Supplier without DTS written consent and no delegation of any obligation owed by Supplier to DTS shall be made without DTS written consent. Any attempt at assignment or delegation not made in conformity with this paragraph shall be void for all purposes. If, on any occasion, DTS waives any term or condition, such waiver, which must be in writing, is not to be construed as a continuing waiver. In the event any of the provisions of these terms and conditions shall be held to be invalid by any court of competent jurisdiction, the same shall be deemed severable, and as never having been contained herein, and these terms and conditions shall then be construed and enforced in accordance with the remaining provisions hereof.

 

•             CONFIDENTIAL INFORMATION:  Supplier agrees to keep secret and confidential all confidential, proprietary or non-public information of DTS and the existence, terms and conditions of this order (the “confidential information”). In addition, Supplier agrees to (i) disclose the confidential information only to its employees who need to know for purposes of fulfilling this order and (ii) use the confidential information only for the purpose of fulfilling this order. It is understood that no license, either expressed or implied, is hereby granted by DTS under any confidential information.

 

•             NOTIFICATION REQUIREMENT: If, for any reason, at any time, Supplier shall refuse or be unable, or should reasonably anticipate being unable to deliver any part or all of the Product’s in accordance with the terms thereof, Supplier shall notify DTS of such refusal or inability at the earliest possible time and by the most practical means under the circumstances. Such notification shall not be deemed to operate as a release of Supplier from its obligations under this order. DTS shall have the right to replace, modify, and/or cancel any delayed open orders without any liability to Supplier. In the event of such a replacement or modification, Supplier shall pay to DTS (or at DTS option, it may offset such amount from any amount owed to Supplier) promptly upon demand therefore, an amount equal to the cost of such replacement or modification, less the amount which would have been payable to Supplier for an equal quantity and quality of Product(s), plus any amount incurred by DTS to effectuate such replacement or modification. Such amount is agreed to be damages for Supplier’s non-performance and shall not, in any event, be construed to be a penalty. Price increases or extensions of delivery time shall not be binding upon DTS unless set forth in a change order issued by an authorized representative of DTS.

 

•             INTELLECTUAL PROPERTY: Supplier hereby grants a perpetual corporate license relating to any Software or other embodiment of intellectual property embedded in the Product(s), as necessary for DTS purchase, use, maintenance and/or sale of Product(s). Supplier shall hold DTS and DTS affiliates harmless from any claim, suit, loss, cost, damage or expense  (including, without limitation, the costs and expense incurred in the defense of suits or actions alleging such liability) of whatsoever nature or kind arising out of, as a result of or in connection with a claim for infringement of rights in, to or under patents, trademarks, copyrights or other intellectual property rights by the manufacture, design, use, maintenance, support or sale of any Product(s). This provision shall survive termination or expiration of any order.

 

•             TERMINATION: Dimplex shall have the right, without liability to Supplier, to cancel any unshipped portion of an order (i) a portion of which is not in strict conformance with this order or DTS or Supplier’s description or specifications, (ii) in the event Supplier has breached this order, any warranty or its obligations to DTS, (iii) in the event that DTS business is interrupted because of strikes, labor disturbances, riot, fire or acts of God or any other cause beyond the control of DTS or (iv) if Supplier makes an assignment for the benefit of creditors, a receiver or trustee is appointed with respect to Supplier’s business, the Supplier is adjudicated insolvent or if the  Supplier files or there is filed against Supplier a petition for bankruptcy or other relief under the Bankruptcy code or any successor statute. DTS shall have the right to cancel any unshipped portion of an order, in whole or in part, at any time, for a reason other than set forth above, in which event DTS shall be liable to Supplier for the actual amount of Supplier’s costs reasonably incurred in contemplation of performance of the cancelled portion, less any amount saved by Supplier as a result of such cancellation and less any amounts which could have reasonably been mitigated by Supplier.

 

•             COMPLIANCE WITH LAW: Supplier warrants and represents that the Product(s), including all packaging thereof, shipped pursuant to this order shall have been produced in compliance with and meet the minimum standards of all applicable federal, state and local laws, regulations, rules, guides, ordinances and/or standards in effect as of the date on which such Product(s) is accepted by DTS and that the sale by Supplier or purchase by DTS of such Product(s) does not violate any such laws, regulations, rules, guides, ordinances and/or standards, including, without limitation, Material Safety Data Sheets (MSDS). Supplier shall appropriately label containers of all goods which are known to constitute health, poison, fire, environmental, safety or explosion hazard and shall provide DTS any and all material required for DTS to comply.

 

•             EQUAL OPPORTUNITY: The Equal Opportunity clause in Section 202 of Executive Order (E.O.) 11246, as amended, Section 503 of the Rehabilitation Act of 1973 (Handicap) and the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 U.S.C. 2012), and the implementing rules and regulations in Title 41, GFR, Part 60 are incorporated herein by reference unless this order is exempted by rules, regulations, or orders of the U.S. Secretary of Labor issued pursuant to Section 204 of E.O. 11246 or provisions of any superseding E.O. As used in said clause, "Contractor" means Supplier. Supplier agrees to provide DTS with an executed Equal Employment Opportunity Certificate indicating Supplier's compliance or exempt status, upon request of DTS.

 

•             ASSIGNMENT: Supplier agrees that Supplier will neither assign its rights nor delegate it under this order without the prior written consent of DTS. Any attempted assignment violates this paragraph shall be VOID AB INITIO.

 

•             INTERPRETATION OF ORDER: Irrespective of the place of performance of this order, this order shall be interpreted in accordance with the laws of the State of Michigan without reference to its choice of law provisions. Each party hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts located in Kalamazoo County, Michigan, in any action arising out of or relating to this Agreement and waives any other venue to which it may be entitled by domicile or otherwise.

 

•             AMENDMENT, MODIFICATION, WAIVER, AND REMEDIES: Performance of this order must be strictly in accordance with its stated terms and conditions and no change, modification, revision, alteration or waiver shall be binding unless executed by DTS. No waiver of and/or failure to perform any or all of the terms or conditions hereof shall constitute a waiver of or an excuse for nonperformance as to any other part of this or any other order. No remedy herein provided shall be deemed exclusive of any other remedy allowed by law or in equity. Under no circumstances shall DTS be obligated for consequential damages, loss of revenue or profit, or any amount in excess of the total amount stated on the face of this order. Supplier shall bear all expenses, including reasonable attorneys' fees, DTS incurs to enforce its rights under this order.

 

•             DIMPLEX PROPERTY: All tooling, dies, parts, schedules, and specifications and all reproductions thereof, any other property furnished to Supplier by DTS or paid for by DTS, shall be (i) the property of DTS, (ii) clearly identified as DTS property by Supplier, (iii) subject to removal at any time upon DTS demand, and (iv) used only in filling orders from DTS or its nominee. Supplier assumes all liability for loss of, and damage to, such property and Supplier shall, unless otherwise directed in writing by DTS, insure at Supplier's expense such property in an amount equal to the replacement cost thereof with loss payable to DTS.

 

•             APPLICABLE LAW.  These terms and conditions and any matter between DTS and Supplier concerning the Product shall be governed by the laws of the State of Michigan, notwithstanding its conflicts of law’s provisions.  The exclusive jurisdiction and venue for any legal action relating to the Product or these terms and conditions shall be the State or Federal Courts sitting in, or with jurisdiction over, Kalamazoo, Michigan; DTS and Supplier submit to the personal jurisdiction of said courts.

 

Dimplex Thermal Solutions | 2625 Emerald Drive | Kalamazoo, MI 49001 | USA

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