Terms and Conditions
The following General Terms and Conditions of Sale (“Terms and Conditions”) are a part of the sales contract (“Contract”) between Drimee Ltd. (“Drimee”) and the customer named on the face side of this form (“Customer”) for the sale of equipment and/or parts and the provision of any ancillary services (collectively “Equipment” and/or “Parts”) described on the face side of this form. This Contract consists solely of the terms and quotations on the face side of this form, Drimee’s invoices, these Terms and Conditions, and any other written documents expressly agreed upon by Drimee and Customer. The acceptance by Customer of delivery of the Equipment and/or Parts (whether or not Customer signs the acknowledgment on the face hereof) will be Customer’s agreement to this Contract and these Terms and Conditions, to the exclusion of any prior, additional or different terms or conditions.
1. PRICES AND TERMS OF PAYMENT.
(a) Unless otherwise stated in this Contract, Drimee’s price quotations are subject to Customer acceptance within thirty (30) days, and may be withdrawn or canceled by Drimee at any time after such date. Orders will be billed at prices in effect at time of shipment unless otherwise so stated in this Contract.
(b) This Contract is subject to final approval (including credit approval) and acceptance by Drimee’s home office and is not binding on Drimee until signed by an authorized officer of Drimee and such written acceptance is delivered to Customer.
(c) Prices do not include (and Customer shall pay when due) federal, state or local sales, use, excise, or other taxes, tariffs, or duties.
(d) Customer shall make all payments, without any setoff or deduction, on the terms stated in this Contract, including interest on any balance unpaid, within thirty (30) days after the due date thereof at a rate of the lesser of one and one-half percent (1.5%) for every thirty (30) day period of delinquency or the maximum rate permitted by law. Customer shall pay all attorneys’ fees, court costs, and all other costs incurred by Drimee in collecting past due accounts, including interest on such amounts at the rate provided above.
(e) If Customer cancels an order for Equipment and/or Parts, all amounts previously paid by Customer shall be retained by Drimee as liquidated damages.
(a) Shipping dates are estimates only. Drimee will use commercially reasonable efforts to ship by the date specified, but shall not be liable to Customer for any delay in delivering the Equipment and/or Parts (including any resulting incidental or consequential damages). Shipping dates shall in any event be extended for delays, such as but not limited to acts of God, fires, strikes, transportation delays, delays of Drimee’s vendors, or any other cause beyond Drimee’s reasonable control. If shipment or delivery of Equipment and/or Parts is delayed by or at the request of Customer, payment will become due in full thirty (30) days from the date such Equipment and/or Parts is ready for shipment. In such event, Customer shall pay on demand storage charges and other incidental expenses incurred by Drimee as a result of the delay in addition to any interest on late payment. Shipment from stock is subject to availability.
(b) Unless otherwise stated in this Contract, the Equipment and/or Parts will be delivered to Customer ex works Customer’s factory, and Customer shall make all arrangements (and shall pay all costs) for transportation, handling and installation of the Equipment and/or Parts after delivery.
(c) Instructions for any special shipping, packing, or handling services must be given by Customer in writing at the time of placing the order. Customer will pay all costs for such services.
Customer may cancel this Contract prior to delivery only upon written approval by Drimee and upon payment by Customer to Drimee of the following charges:
(a) For Equipment and/or Parts to be fabricated by Drimee or its subcontractors, Customer shall pay to Drimee on demand all direct and indirect costs (including without limitation engineering, product development, and allocable overhead and administrative costs) incurred by Drimee or such subcontractor in performing under the Contract, as determined by Drimee, prior to written notice of cancellation, plus profit in an amount equal to ten percent (10%) of all such direct and indirect costs; provided that the liability of Customer shall not exceed the purchase price for the Equipment and/or Parts provided in this Contract.
(b) For stock items, Drimee’s loss of profit as reasonably determined by Drimee.
(c) Any down payments or progress payments made by Customer on Equipment and/or Parts will be applied to such cancellation charges. Customer acknowledges that any cancellation charges payable by Customer hereunder are not a penalty, but rather a reasonable approximation of the economic loss to Drimee resulting from cancellation.
4. PROPRIETARY INFORMATION.
All specifications, drawings, designs, manufacturing data and all other data furnished by or belonging to Drimee, or pertaining to Equipment and Parts, and all terms of sale (“Information”) are trade secrets and proprietary information of Drimee. Customer will not use or disclose (and will take steps to prevent its employees and contractors from using or disclosing) the Information, except as specifically authorized by Drimee.
5.SECURITY INTEREST AND INSURANCE.
As security for payment of all amounts due Drimee under this Contract, Customer hereby grants to Drimee a security interest in the Equipment and/or Parts and all proceeds or products thereof and replacements or substitutions therefor, and Drimee shall have all rights of a secured party under the Uniform Commercial Code in effect from time to time in the State of Ohio or any other applicable jurisdiction or any successor law or laws of like effect. Customer shall sign, and/or hereby authorizes Drimee to prepare and file all financing statements and other documents which Drimee may deem necessary or desirable to perfect such security interest in any public office. Until full and irrevocable payment for the Equipment and/or Parts, Customer shall maintain replacement value insurance covering the Equipment and/or Parts against loss of damage from any cause with Drimee named as insured or co-insured to the extent of the unpaid purchase price.
GOVERNMENTAL REQUIREMENTS; INDUSTRY STANDARDS.
DRIMEE DOES NOT REPRESENT OR WARRANT THAT THE EQUIPMENT AND/OR PARTS COMPLY OR WILL COMPLY WITH ANY PARTICULAR FEDERAL, STATE, OR LOCAL STATUTES, REGULATIONS, OR REQUIREMENTS OF ANY TYPE, INCLUDING BUT NOT LIMITED TO OCCUPATION SAFETY (E.G., OSHA OR MSHA) REQUIREMENTS, ENVIRONMENTAL REQUIREMENTS, ANY ELECTRICAL CODES, OR ANY VOLUNTARY INDUSTRY STANDARDS. SINCE APPLICATIONS OF THE EQUIPMENT AND/OR PARTS VARY, CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL SUCH FEDERAL, STATE, AND LOCAL STATUTES, REGULATIONS, OR REQUIREMENTS OF ANY TYPE, AND WITH ANY VOLUNTARY INDUSTRY STANDARDS, AND CUSTOMER WILL INDEMNIFY AND HOLD DRIMEE HARMLESS FROM ANY CLAIMS BY THIRD PARTIES (INCLUDING EMPLOYEES OF CUSTOMER) RELATED TO SUCH COMPLIANCE OR TO OPERATION OR USE OF THE EQUIPMENT AND/OR PARTS, INCLUDING COURT COSTS AND ATTORNEYS’ FEES.
7. LIMITED WARRANTY/EXCLUSIVE REMEDY.
DRIMEE WARRANTS TO THE CUSTOMER THAT THE EQUIPMENT WILL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP UNDER NORMAL USE AND SERVICE FOR A PERIOD OF ONE (1) YEAR AFTER DELIVERY TO CUSTOMER. DRIMEE WARRANTS TO THE CUSTOMER THAT THE PARTS (EXCLUDING WEAR PARTS) WILL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP UNDER NORMAL USE AND SERVICE FOR A PERIOD OF NINETY (90) DAYS. ALL WARRANTY CLAIMS MUST BE SUBMITTED IN WRITING BY CUSTOMER TO DRIMEE WITHIN THE APPLICABLE WARRANTY PERIOD AND WITHIN THIRTY (30) DAYS OF DISCOVERY OF DEFECT, OR THE CLAIM WILL BE DEEMED WAIVED. THE OBLIGATION OF DRIMEE SHALL BE LIMITED TO THE REPAIR OR REPLACEMENT, AT DRIMEE’S SOLE AND ABSOLUTE DISCRETION, EX WORKS FACILITY DESIGNATED BY DRIMEE (EXCLUDING SHIPPING COSTS, TO BE PAID BY CUSTOMER), OF THE EQUIPMENT OR SUCH PARTS WHICH DRIMEE DETERMINES WERE DEFECTIVE IN MATERIAL OR WORKMANSHIP UNDER NORMAL STORAGE, USE AND SERVICE. THIS WARRANTY APPLIES ONLY TO NEW EQUIPMENT AND PARTS AND EXPRESSLY EXCLUDES WEAR PARTS. THIS WARRANTY SHALL ONLY APPLY TO ITEMS MANUFACTURED DRIMEE, AND CUSTOMER’S RECOURSE FOR DEFECTS IN EQUIPMENT AND/OR PARTS MANUFACTURED BY OTHERS SHALL BE EXCLUSIVELY AGAINST THE MANUFACTURER OF THE SUBJECT EQUIPMENT AND/OR PARTS. THIS LIMITED WARRANTY DOES NOT APPLY TO FAILURES OR DEFECTS OF THE EQUIPMENT COMPONENTS, AND/OR PARTS (INCLUDING WEAR PARTS) DUE TO ORDINARY WEAR AND TEAR, NEGLECT (INCLUDING BUT NOT LIMITED TO IMPROPER MAINTENANCE AND STORAGE), ACCIDENT, IMPROPER INSTALLATION OR OPERATION, OR MODIFICATION NOT AUTHORIZED IN WRITING BY DRIMEE (INCLUDING BUT NOT LIMITED TO USE OF UNAUTHORIZED PARTS OR ATTACHMENTS). ANY ALTERATION OR MODIFICATION OF THE EQUIPMENT, OR ATTACHING OF ANY PARTS OR EQUIPMENT NOT MANUFACTURED BY DRIMEE OR NOT INTENDED TO BE ATTACHED TO THE EQUIPMENT, OR MAINTENANCE, USE OR OPERATION OF THE EQUIPMENT CONTRARY TO THE DRIMEE’S INSTRUCTIONS, SHALL VOID THIS WARRANTY. THIS LIMITED WARRANTY SHALL EXTEND ONLY TO CUSTOMER AND IS NOT ASSIGNABLE. THE EXCLUSIVE REMEDY OF CUSTOMER UNDER THIS WARRANTY OR OTHERWISE IN CONNECTION WITH THE EQUIPMENT AND FOR PARTS, SHALL BE REPAIR OR REPLACEMENT OF THE EQUIPMENT AND/OR PARTS AT DRIMEE’S SOLE AND ABSOLUTE DISCRETION IN ACCORDANCE WITH THIS PARAGRAPH.
8. LIMITATION OF LIABILITY.
DRIMEE’S LIABILITY (AND THE EXCLUSIVE REMEDY OF CUSTOMER) UNDER THIS WARRANTY FOR ANY ALLEGED DEFECT OR FAILURE OF THE EQUIPMENT AND/OR PARTS (INCLUDING RESULTS OF OPERATION OF THE EQUIPMENT AND/OR PARTS, AND WHETHER RESULTING FROM DEFECTS, FAILURES, OR ERRORS IN DESIGN, MATERIALS OR WORKMANSHIP, OR OTHERWISE) IS LIMITED AS PROVIDED IN PARAGRAPH 7 ABOVE. DRIMEE SHALL NOT BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE EQUIPMENT AND/OR PARTS OR OTHERWISE IN CONNECTION WITH THIS CONTRACT, INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM DELAYS; LOSS OF USE OF PROPERTY; RESULTS OF USE OF THE EQUIPMENT AND/OR PARTS; LOSSES OF INCOME, PROFIT OR PRODUCTION; OR INCREASED COSTS OF OPERATION, OR DAMAGES TO OTHER PROPERTY ARISING IN CONNECTION WITH THE EQUIPMENT AND/OR PARTS.
9. EXCLUSION OF EXPRESSED/IMPLIED WARRANTIES.
EXCEPT AS PROVIDED IN PARAGRAPH 7 ABOVE, DRIMEE DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES IN ANY WAY RELATING TO THE EQUIPMENT AND/OR PARTS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. DISPUTE RESOLUTION/ARBITRATION PROCEDURE.
(a) Except as provided herein, all disputes relating to this Contract or to the Equipment and/or Parts in any way (“Dispute”) shall be resolved by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), and judgment upon the award rendered in the arbitration may be entered in any court having jurisdiction. The parties also agree that the AAA Optional Rules for Emergency Measures of Protection shall apply to the proceedings. The arbitration shall be conducted and the award made in Franklin County, Ohio, USA before a single arbitrator from a list of arbitrators provided by the AAA. If the AAA is unable to furnish a list of potential arbitrators satisfying such requirements, Drimee shall supply Customer a list of at least five (5) such persons from which the arbitrator shall be selected by Customer. Any award shall be final and binding on the parties. The arbitrator shall include in the award the costs and attorneys’ fees incurred by the prevailing party in the arbitration.
(b)Notwithstanding the above to the contrary, the arbitration provisions in Paragraph 10(a) above shall not apply, at Drimee’s sole option, including in circumstances in which Customer has already served a demand for arbitration upon Drimee, to any one or more claims or actions against Customer by Drimee in connection with (i) collection of any amounts due Drimee by Customer for the Equipment and/or Parts or otherwise under this Contract, including but not limited to interest on such amounts and attorneys’ fees as provided above, (ii) enforcement by Drimee of any security interest in the Equipment and/or Parts and/or the proceeds thereof under this Contract or otherwise under applicable law, or (iii) exercise by Drimee of any and all remedies available to it in law or in equity in connection with actions described in (i) and (ii) above, including without limitation foreclosure and replevin. Any actions described in this Paragraph 10(b) are referred to as “Excluded Actions.” Drimee may at Drimee’s option maintain any such Excluded Actions in any state or federal court in the State of Ohio described in Paragraph 12 or in any other court having jurisdiction over Customer, and the parties hereto irrevocably consent to the jurisdiction of such courts in connection with Excluded Actions and agree that any such courts are a proper venue for any such Excluded Actions.
The Contract is the entire agreement of the parties relating to the Equipment and/or Parts and supersedes all prior or contemporaneous discussions, correspondence or agreements (whether written or oral). Customer’s performance under this Contract shall be deemed to constitute Customer’s acceptance of all of the terms hereof, to the exclusion of any contrary terms in any writing provided by Customer. This Contract may not be amended nor any terms added, deleted, or changed except in writing signed by the parties and expressly stated to be an amendment. This Contract shall inure to the benefit of and be binding on the parties and their respective successors and assigns. Any execution by Drimee of a document submitted by Customer in connection with Equipment and/or Parts shall not constitute acceptance by Drimee of any such additional or conflicting terms, or any modification of this Contract, but only acknowledgment of receipt of such document.
12. GOVERNING LAW; JURISDICTION.
This Contract shall be interpreted in accordance with and its performance shall be governed by the laws of the State of Ohio, USA without regard to conflict of laws principles. The parties hereby agree that the courts located in Franklin County, Ohio, USA, shall have exclusive jurisdiction over any action or suit between the parties (including any action to compel arbitration or to enforce an arbitration award) in connection with this Contract or the Equipment and/or Parts, and the parties hereto irrevocably consent to the jurisdiction of such courts in connection with such action or suit, and agree that any such courts are a proper venue for any such action or suit. Notwithstanding the above, any Excluded Actions may be maintained by Drimee in any state or federal court having jurisdiction over Customer or such Excluded Actions.