Dickson Terms of Sale

1.DEFINITIONS

1.1 “Terms” means these Dickson / Unigage Terms of Sale.

1.2 “Seller” means Dickson / Unigage, Inc.

1.3 “Buyer” means a purchaser from Seller of environmental control equipment if (i) these Terms accompany such equipment, (ii) these Terms accompany, are attached to or are referenced in any documents provided to such purchaser in connection with or otherwise relating to its purchase of such equipment, such as any quotation, acknowledgement, credit application or agreement relating to such purchase, (iii) these Terms are displayed, or a link to a page containing these Terms is included, in any web page visited by such purchaser in connection with or in the course of its purchase of such equipment, or (iv) such purchaser otherwise agrees or acknowledges that its purchase of such equipment will be governed by these Terms.

1.4 “Order” means an order for Product (i.e., a purchase order that has been submitted by Buyer and accepted by Seller).  Each Order shall be deemed to constitute a separate agreement of sale between Buyer and Seller, which agreement of sale shall be comprised solely of (i) these Terms and (ii) the designation or identification of the Product(s) (by Dickson product number or other means acceptable to Dickson), the quantity thereof ordered, the price thereof and the target delivery date.

1.5 “Products” means the environmental control equipment purchased by Buyer.

2. TERMS

These Terms govern the sale of all Products purchased by Buyer from Seller.  

3. DELIVERY

Seller shall use commercially reasonable efforts to have Products ready for delivery to Buyer on or before any applicable shipment date to which Seller and Buyer mutually agree, as indicated in the applicable Order, or, if the Order does not state the mutually agreed to shipment date, then within five (5) business days after Buyer orders such Products; provided that Seller does not guarantee when Products will be shipped and will under no circumstances be liable hereunder for any late shipment.  Products shall be shipped FOB Seller’s warehouse. Buyer shall pay all costs of shipping and shall bear all risk of loss or damage in transit. Without limiting Buyer’s rights under the Product Warranty (as hereinafter defined), all Products shall be deemed to be accepted by Buyer upon receipt.

4. PAYMENT

4.1 Invoice.  Seller shall invoice Buyer for the purchase price of any Products and for any other amounts that Buyer is required to pay hereunder.  Such purchase price shall be the price to which Seller and Buyer mutually agree, as indicated in the applicable Order, or, if the Order does not state the mutually agreed to price, then Seller’s standard published price.  Buyer shall pay each invoice within fifteen (15) days after the date thereof.

4.2 Taxes.  Buyer shall pay any sales, use, value added, excise or other taxes or assessments arising out of or in connection with the sale of Products to Buyer or otherwise relating to these Terms, other than taxes based on Seller’s net income.

4.3 Late Payment.  Late fees shall accrue on any amounts invoiced hereunder that are not paid when due at the rate of one percent (1%) per month or the highest rate permitted under applicable law, whichever is lower.

5. WARRANTY

5.1 Scope of Warranty.

5.1.1. Subject to the Warranty Conditions (as hereinafter defined), Seller warrants that each Product will be free of defects in materials and workmanship (the “Product Warranty”) during the period commencing when the Product is first shipped to Buyer and ending one (1) year thereafter (the “Warranty Period”).  Seller makes no other warranties. Without limiting the foregoing, Seller disclaims, on its behalf and on behalf of its vendors, suppliers, service providers, and contractors, all implied warranties, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title and non-infringement.

5.1.2. The warranty provided in Section 5.1.1 will be void and of no force or effect unless all of the following conditions are fully satisfied (the “Warranty Conditions”): (i) the Product has not been damaged as a result of any accident, abuse, misuse or for any other reason while outside of Seller’s control, (ii) Buyer uses and maintains the Product in all respects in full compliance with Seller’s recommendations and requirements, and (iii) the Product is solely used in an environment and under conditions that comply in all respects with Seller’s recommendations and requirements.

5.1.3. Buyer acknowledges and understands that Buyer is solely responsible for all settings and information relating to alarms or alerts issued by the Products, including, without limitation, (i) setting the environmental thresholds that trigger alarms or alerts and (ii) for Products that include remote alert capabilities, ensuring that all telephone numbers, email addresses and other information used to transmit remote alerts are at all times current.

5.2 Exclusive Remedy for Breach of Warranty.

5.2.1. If during the applicable Warranty Period, Buyer believes that any Product violates the Product Warranty, Buyer shall report such violation to Seller.  If Buyer and Seller are not reasonably able to resolve the problem within a reasonable time, Seller shall issue to Buyer a return material authorization (“RMA”) relating to such Product, and Buyer shall promptly ship such Product to Seller, at Buyer’s expense and risk, in accordance with such RMA.  Provided that Buyer reported the violation during the applicable Warranty Period and shipped the Product to Seller promptly thereafter, Seller shall inspect the Product to determine whether or not the Product, in fact, violates the Product Warranty, and, if so, whether all of the Warranty Conditions are satisfied.  

5.2.2. If Seller determines that the Product violated the Product Warranty, that all of the Warranty Conditions were satisfied, that the warranty violation was reported during the Warranty Period and the Product was shipped to Seller promptly thereafter, Seller shall (i) make commercially reasonable efforts to repair or replace the Product and to ship the repaired Product or replacement Product to Buyer at Seller’s expense and risk or (ii) if Seller determines (in the exercise of its sole discretion) that repair or replacement is not commercially practicable, refund the purchase price for such Product.  

5.2.3. If Seller determines that the Product does not violate the Product Warranty, that not all of the Warranty Conditions are satisfied, that Buyer did not report the violation during the Warranty Period, or that Buyer failed to ship the Product to Seller promptly thereafter, Seller shall so notify Buyer and will offer to, at Buyer’s option: (i) repair or replace the Product at Buyer’s cost, based on Seller’s then current time and materials rates, and ship the repaired or replaced Product to Buyer, at Buyer’s expense and risk, (ii) ship the Product back to Buyer, at Buyer’s expense and risk, without repair, or (iii) dispose of the Product at Buyer’s expense.  If Buyer does not notify Seller of its election within fifteen (15) business days, Seller may return or dispose of the Product as provided in this Section 5.2.3.

5.2.4. If Seller repairs or replaces any Product pursuant to Section 5.2.2 or clause (i) of Section 5.2.3, then the Warranty Period applicable to such repaired or replaced Product shall commence upon Buyer’s receipt thereof and shall end ninety (90) days thereafter or, if later, upon expiration of the original Warranty Period.

5.2.5 Sections 5.2.1 and 5.2.2 state Seller’s sole obligations and Buyer’s sole and exclusive remedies for any breach of the Product Warranty.

6. LIMITATIONS OF LIABILITY

6.1 Exclusion of Damages.  Seller will under no circumstances be liable for any special, incidental, consequential, indirect or exemplary damages, including, but not limited to, damages for lost profits, harm or damage to, or loss or compromise of, Inventory (as hereinafter defined), or loss of business or other opportunity of any kind, arising out of or in connection with the Product, Buyer’s purchase thereof, any Order, or these Terms, including, without limitation, any breach of the Product Warranty.

6.2. Liability Cap.  In no event will Seller’s liability under any Order or otherwise relating to the Products, Buyer’s purchase thereof, or these Terms exceed, in the aggregate for all claims, the amounts actually paid by Buyer and received by Seller for the specific Products to which such liability relates.

6.3.Monitoring Systems.  Buyer acknowledges and agrees that Products may fail from time to time, both during and after the applicable Warranty Period, and that Buyer uses the Products at Buyer’s sole risk.  Accordingly, Seller strongly recommends that Buyer obtain and implement robust environmental monitoring systems of which the Products are merely a part and which are designed to ensure that no materials or inventory of any type stored by or for Buyer or any other person or entity that uses the Product (including, without limitation, any person or entity to whom or which Buyer may sell or otherwise transfer any Products) (collectively, “Inventory”) are lost, damaged or otherwise harmed or compromised in any way as a result of any failure of the Product.  Seller shall have no liability or obligation whatsoever for any loss or compromise of or damage or harm to, or that otherwise relates in any way to, any Inventory.

7. INDEMNIFICATION

7.1 .By Seller.  Seller shall defend Buyer against any claim by any third party that alleges that a Product infringes any patent or other intellectual property right (other than any claim of infringement based on (i) the combination, operation or use of the Product with any other product, system, equipment, software or device or (ii) the use of the Product for any purpose or in any manner not specifically recommended by Seller) and shall pay any settlement of such claim or any damages awarded in any final judgment entered with respect to such claim, provided that Buyer complies with the requirements of Section 7.3 that relate to such claim.

7.2. By Buyer.  Buyer shall defend Seller against any claim by any third party (including, without limitation, any purchaser or user of any Inventory and any regulator or other governmental agency) (i) that relates in any way to any Inventory or any damage or harm thereto or loss or compromise thereof, including, without limitation, any claim based on harm, damage or loss suffered by any person or entity as a result of any loss or compromise of or damage or harm to Inventory, (ii) any claim that use of any Product violated any law or regulation and (iii) any claim based on allegations that, if established, would indicate that Buyer breached these Terms.  Buyer shall pay any settlement of such claim or any damages awarded in any final judgment entered with respect to such claim, provided that Seller complies with the requirements of Section 7.3 that relate to such claim.

7.3. Process.  If a party hereto (the “Indemnified Party”) receives a third-party claim that the other party hereto (the “Indemnifying Party”) is obligated under Section 7.1 or Section 7.2 to defend, the Indemnified Party shall promptly notify the Indemnifying Party of such claim in writing (provided that such notice shall be deemed to be timely provided so long as any delay thereof does not prejudice the Indemnifying Party) and shall tender sole control of the defense and settlement of such claim to the Indemnifying Party.  The Indemnifying Party shall promptly assume such defense, at its sole expense, using counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall reasonably cooperate with the Indemnifying Party, at the Indemnifying Party’s sole expense, in such defense. The Indemnifying Party shall not settle any claim without the Indemnified Party’s written consent, not to be unreasonably withheld, delayed or conditioned. The Indemnified Party may, but shall have no obligation to, participate in the defense of any claim at its expense; provided that the Indemnifying Party shall promptly reimburse the Indemnified Party for any defense costs or expenses incurred if the Indemnifying Party fails to vigorously defend the claim at all times until such claim is fully resolved.

8. CANCELLATIONS AND RETURNS.

8.1. Definitions.  

“Large Order” means an Order of Ten Thousand Dollars ($10,000) or more.

“Small Order” means an Order of less than Ten Thousand Dollars ($10,000).  

8.2. Large Orders.  Large Orders may under no circumstances be canceled, and no Products that are part of a Large Order may be returned (except as expressly provided in Section 5 in connection with a violation of the Product Warranty).

8.3. Small Orders. Buyer may cancel any Small Order upon written notice provided to Seller at any time before any Products ordered thereunder are shipped.  Additionally, Buyer may return any Products that are part of a Small Order within thirty (30) days after Seller’s shipment thereof, provided that (i) Buyer notifies Seller that it desires to return such Products and Seller issues an RMA therefor, (iii) Buyer ships such Product, at its expense and risk, to Seller in compliance with such RMA, (iii) all Warranty Conditions are fully satisfied with respect to such Products, and (iv) the returned Product is received by Seller during such thirty (30) day period.  

8.3.1. Seller shall inspect any Products returned pursuant to this Section 8.3 to determine whether or not all of the Warranty Conditions are satisfied.  If Seller determines that all of the Warranty Conditions are satisfied and the returned Products are timely received by Seller, Seller shall issue a refund to Buyer of the amount paid by Buyer for such Products (excluding shipping), if Buyer shall have theretofore paid for such Products, or, if Buyer’s payment for such Products shall then remain pending, shall issue a credit to Buyer in the amount owed by Buyer to Seller for such Products (excluding shipping).  

8.3.2. If Seller determines that not all of the Warranty Conditions are satisfied, or if the returned Products are not timely received by Seller, Seller shall so notify Buyer and (i) Seller shall not issue any refund or credit (and Buyer shall remain obligated to pay for such returned Products) and (ii) Seller will offer to, at Buyer’s option: (x) repair or replace any damaged Product at Buyer’s cost, based on Seller’s then current time and materials rates, and ship the repaired or replaced Product to Buyer, at Buyer’s expense and risk, (y) ship the Product to Buyer, at Buyer’s expense and risk, without repair, or (z) dispose of the Product at Buyer’s expense.  If Buyer does not notify Seller of its election within fifteen (15) business days, Seller may, at its option, return the Product to Buyer or dispose of the Product as provided in this Section 8.3.3.

9. CONSUMABLES

Buyer may, concurrently with its purchase of any environmental control equipment and from time to time thereafter, purchase charts, pens, and other consumable items for use with such equipment (“Consumables”).  All purchases of Consumables by Buyer shall be governed by these Terms. For purposes such purchases, Consumables shall be deemed to be Products, except that (i) Consumables shall not be deemed to be Products for purposes of Section 7.1, (ii) notwithstanding Section 5, Seller provides the Consumables AS IS, without any warranty (provided that Seller shall make commercially reasonable efforts to pass through any warranties that are reasonably available from the manufacturer of the applicable Consumables), and (iii) notwithstanding Section 8, no order of Consumables may be cancelled at any time.

10. MISCELLANEOUS

10.1. Entire Agreement.  These Terms, together with the designation or identification of the Product(s) (by Dickson product number or other means acceptable to Dickson), the quantity thereof ordered, the price thereof and any target delivery date that are specified in the applicable Order, constitute all of the terms governing Buyer’s purchase of the Products. There being no expectations to the contrary between the parties hereto, no usage of trade or other regular practice or method of dealing between the parties hereto shall be used to modify, interpret, supplement or alter in any manner any express terms of any Order or these Terms.  Without limiting the generality of the foregoing, except as otherwise specified in these Terms, no terms attached to or set forth in any purchase order or other form or document relating to the Products or the purchase thereof provided by Buyer to Seller at any time (including, without limitation, after the date hereof) shall be of any force or effect or bind Seller in any manner or to any extent whatsoever.

10.2. Amendment and Waiver.  Neither these Terms nor any Order shall be amended except by a writing executed by both parties. No waiver of any provision of these Terms or Order any rights or obligations of either party hereunder or thereunder shall be effective, except pursuant to a written instrument signed by the party or parties waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing.

10.3. Governing Law; Venue.  These Terms shall be construed and enforced in accordance with the internal laws of the state of Illinois applicable to contracts entered into and fully performed in Illinois by residents thereof.  Any action or proceeding brought by Buyer or Seller against the other related to these Terms or any Order shall be brought in a court located in the state of Illinois, and Buyer irrevocably submits to the personal jurisdiction of and irrevocably consents to venue in such courts for purposes of any such action or proceeding.  Notwithstanding the foregoing, Seller may seek injunctive or other relief in any state, federal, or foreign court or agency of competent jurisdiction for any actual or alleged infringement of Seller’s, its affiliates’, or any third party’s intellectual property or other proprietary rights.

10.4. Severability.  If all or part of any provision of these Terms shall be deemed invalid or unenforceable under applicable law, such provision, or the invalid or unenforceable part thereof, shall be deemed stricken from these Terms, and the remainder of these Terms shall continue in full force and effect.

10.5. No Assignment.  Buyer not assign, hypothecate or otherwise transfer these Terms or any Order any rights under or relating to these Terms or any Order or Buyer’s purchase of the Products, and any purported assignment, hypothecation or other transfer in violation of this Section 10.5 shall be null and void ab initio and of no force or effect.

10.6. Failure of Essential Purpose.  The parties acknowledge and agree that the provisions hereof that limit liability, disclaim warranties, or exclude consequential damages or other damages or remedies are essential provisions of these Terms that are fundamental to the parties’ understanding regarding the allocation of risk.  Accordingly, such provisions shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach or other occurrences hereunder or otherwise relating to Buyer’s purchase of the Products. Without limiting the generality of the foregoing, Buyer agrees that all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause any exclusive remedy under these Terms to fail of its essential purpose.