General Terms & Conditions

DYCEM TERMS AND CONDITIONS OF SALE (“Terms”)

These Terms shall be incorporated into any Order.

Any Order by a person or company for Products, Deliverables, and/or Services, if accepted, and any quote by Dycem to a person or company for the sale of Products, Deliverables, and/or Services (a “Quote”), if accepted, are accepted subject to these Dycem Terms and Conditions of Sale (“Terms”), which are incorporated into any acceptance, acknowledgement, invoice, and/or other document issued by Dycem in response to such Order (each a “Response”) or as part of a Quote by Dycem, and any reference thereto shall include these Terms.

No waiver, alteration, or modification of these Terms shall be valid unless expressly agreed to in writing by Dycem. The Terms constitute the entire agreement between the parties, and any different, additional, or conflicting terms or conditions set forth in Buyer’s purchase order or any other document issued by Buyer are expressly objected to by Dycem. The terms hereof, including those contained in the applicable Response or Quote from Dycem, shall exclusively govern the purchase and sale of the goods covered by the Response or Quote unless there is another signed agreement between the parties, which shall control to the extent there is a conflict between the terms of such agreement and these Terms.

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1. Definitions

In these Terms, the following definitions apply:

– Buyer: The person or company to whom Dycem sells the Products, Deliverables, and/or Services and its employees, agents, and permitted subcontractors as Dycem may consider applicable.

– Contract: The contract between Dycem and the Buyer for the sale of the Products, Deliverables, and/or Services in accordance with these Terms.

– Deliverables: All documents, products, and materials developed by Dycem or its agents, subcontractors, and personnel as part of or in relation to the Services in any form.

– Delivery: Has the meaning set out in clause 6.1.

– Delivery Date(s): The date(s) specified in the Order for supply of the Products, Deliverables, and/or Services.

– Delivery Location: Dycem’s facility at 33 Appian Way, Smithfield, RI 02917, or such other location as is set out in the Order, or as instructed by Dycem prior to Delivery.

– Delivery Time: The delivery time slot as instructed by Dycem prior to Delivery.

– Dycem: Dycem Corporation, a Delaware corporation.

– Force Majeure Event: An event beyond the reasonable control of a party, including, without limitation, acts of God, governmental action, labor disputes, accidents, war, floods, fire, earthquakes, catastrophic weather events, and inability to obtain materials, equipment, or transportation.

– IPR: All patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in confidential information (including know-how and trade secrets), and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.

– Products: The goods or products (or any part of them including raw materials) identified in the Order and any other goods or products, including packaging, from time to time supplied or agreed to be supplied to Buyer by Dycem.

– Order: Buyer’s order for the Products, Deliverables, and/or Services as set out in Dycem’s Quote or as set out in Dycem’s Response to Buyer’s purchase order.

– Services: The services to be provided by Dycem as set out in the Order together with any other agreed services.

– Specification: The specification for the Products, Deliverables, and/or Services as set out in the Order or agreed in writing by Dycem.

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2. Basis of Contract and Exclusivity

2.1. These Terms apply to the exclusion of any other terms.

2.2. Dycem’s Quote or its Response to Buyer’s purchase order is an offer by Dycem to contract on these Terms.

2.3. The Contract shall come into existence on the earlier of the Buyer issuing a written acceptance of the Quote or Dycem doing any act consistent with fulfilling the Order.

2.4. Where the Products have been developed or commissioned by Dycem for Dycem’s use or distribution, Dycem shall own all IPR in such Products (including in any Specification) and the Buyer agrees to purchase such Products exclusively from Dycem.

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3. Forecasts

3.1. Buyer shall give or confirm any forecasts in writing and shall act in good faith when forecasting its requirements.

3.2. Forecasts shall not constitute Orders.

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4. Quality, Specifications, and Warranties

4.1. Buyer shall be solely responsible for ensuring that all Specifications, drawings, information, recommendations, and/or requests provided to Dycem by Buyer or any of its agents are accurate and suitable. Dycem’s examination or consideration of any such Specifications, drawings, information, recommendations, and/or requests shall not result in any liability on the part of Dycem.

4.2. Dycem warrants that all Products it manufactures will be free from defects in material and workmanship for a period of one (1) year from the date of Delivery when used according to the manufacturer’s recommended usage and in an ordinary manner. This warranty shall be limited to the repair or replacement, at Dycem’s expense, of Products or parts which the Buyer proves to Dycem’s satisfaction to be defective. All expenses related to shipping of any replacement Products or parts shall be paid by Dycem if there is a breach of this warranty, but Buyer shall pay for all installation costs. This warranty does not cover any damage due to accident, misuse, negligence, or abnormal use, or any damage after shipment to Buyer. Use of Dycem’s Products in a system that includes components not manufactured by Dycem is not covered by this warranty. Dycem shall not be liable under this warranty if Products or parts have been exposed to any maintenance, repair, or other use that is improper for their ordinary use or otherwise not in compliance with Dycem’s instruction. Any alteration to Dycem’s Products or Deliverables shall void this warranty. Buyer must provide prompt written notice to Dycem of any breach of this warranty to obtain its benefits.

4.3. DISCLAIMER OF ALL OTHER SELLER WARRANTIES. DYCEM’S WARRANTY EXPRESSED IN SECTION 4.2 ABOVE IS IN LIEU OF AND EXCLUSIVE OF ALL OTHER WARRANTIES. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF AND EXCEPT AS STATED HEREIN. DYCEM DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OF THE GOODS AND OF THE FITNESS OF THE GOODS FOR ANY PARTICULAR PURPOSE, AND BUYER AGREES THAT THE GOODS ARE SOLD “AS IS” AND “WITH ALL FAULTS.” DYCEM’S LIABILITY FOR BREACH OF WARRANTY IS AS HEREIN STATED AND IS THE EXCLUSIVE REMEDY, AND IN NO EVENT SHALL DYCEM BE LIABLE FOR LOST PROFITS OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ANY SELLER WARRANTY DEEMED TO BE EXPRESSLY STATED HEREIN IS SOLELY FOR THE BENEFIT OF BUYER AND NO THIRD PARTY.

4.4. Buyer shall provide a no defect in materials or workmanship warranty with respect to each Product sold to an end customer for a period of not less than the then remaining warranty period related to such Product and afforded to Buyer pursuant to Dycem’s warranty in Section 4.2 above. Any warranties, representations, or remedies provided by Buyer to its end customers shall be the sole responsibility of Buyer, and Seller shall not be bound thereby.

4.5. Buyer shall ensure that at all times it has and maintains all the licenses, permissions, authorizations, accreditations, consents, and permits needed to purchase or use the Products, Deliverables, and/or Services supplied by Dycem in accordance with these Terms.

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5. Variations to Orders

5.1. Orders cannot be cancelled or amended by the Buyer except with Dycem’s written consent. Cancellation charges may be applied at Dycem’s discretion.

5.2. Dycem may, in its sole discretion and without liability, alter the Specifications for any Products, Deliverables, and/or Services. Dycem may, prior to Delivery of the Products and/or Deliverables or commencement of the Services, give written notice that it is amending or cancelling an Order.

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6. Delivery of Products and/or Deliverables

6.1. Dycem will deliver the Products and/or Deliverables to the Delivery Location at the Delivery Time on the agreed Delivery Date(s) (“Delivery”). Dates for Delivery are estimates, not guarantees.

6.2. Dycem’s obligation to deliver the Products and/or Deliverables shall be fulfilled when it has delivered the Products and/or Deliverables to a carrier at the Delivery Location.

6.3. Unless otherwise specified and agreed to by Dycem in writing, Buyer shall pay or reimburse Dycem for all costs of transportation, freight, duty, insurance, loading, packaging, and handling, and all taxes, duties, fees, storage, and other charges applicable to the Products and/or Deliverables, except that Buyer shall not be responsible for any taxes based on Dycem’s income.

6.4. Overtime and other expenses incurred to hasten delivery at Buyer’s request shall be added to the quoted prices and paid by Buyer. Shipment of Products and/or Deliverables ready for Delivery can be deferred beyond the Delivery Date(s) only with Dycem’s written consent.

6.5. Each Delivery will be accompanied by a Delivery note showing the date of the Order to which the Delivery relates, the Order number, the Product and/or Deliverable type and quantity, and any special storage instructions.

6.6. Dycem may deliver the Products and/or Deliverables in installments. Where the Products and/or Deliverables are delivered in installments, they may be invoiced and paid for separately, at the agreed price set out in the Order.

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7. Supply of Services

7.1. Dycem will supply the Services by the Delivery Date and/or Delivery Time in accordance with this Contract.

7.2. In supplying the Services, Dycem will cooperate with the Buyer in all matters relating to the Services.

7.3. The Buyer shall cooperate with Dycem in relation to the Services and provide such information as Dycem may reasonably request to carry out the Services in a timely manner.

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8. Acceptance, Returns, and Remedies

8.1. Buyer shall conduct any inspections and/or tests on the Products and/or Deliverables within 10 days after Delivery. In the event of any shortage, damage, defect, or discrepancy in or to a shipment of Products and/or Deliverables or any pricing discrepancies, Buyer shall promptly give written notice thereof, no later than within 30 days of Delivery, to Dycem and shall furnish such written evidence or other documentation as Dycem may deem appropriate. If such evidence indicates, in Dycem’s judgment, that such shortage, damage, defect, or discrepancy existed at the time of Delivery of the Products and/or Deliverables to the carrier, Dycem will deliver additional or substitute Products and/or Deliverables to Buyer; provided, however, that Dycem may, in its sole discretion, require Buyer to return all damaged Products and/or Deliverables prior to Delivery of substitute Products and/or Deliverables. If Buyer shall fail to timely give Dycem such written notice as required by this paragraph, the Products and/or Deliverables shall be deemed to conform to the Order and the Specifications, and Buyer shall be deemed to have accepted the Products and/or Deliverables and shall pay for them in accordance with these Terms.

8.2. No Products and/or Deliverables shall be returned to Dycem without Dycem’s prior written authorization to Buyer to make such returns, and Products and/or Deliverables authorized for return must be returned within 30 days of such authorization at Buyer’s cost. If Buyer returns Products and/or Deliverables in the manner required under the previous sentence, and if the returned Products and/or Deliverables are (a) in new, unused, unopened, and undamaged condition; and (b) returned not more than 12 months after the original invoice date; the returned Products and/or Deliverables will, subject to the applicable handling charge, be accepted by Dycem for return. Used or discontinued Products and/or Deliverables or parts or Products and/or Deliverables specially manufactured will not be accepted for credit unless specifically agreed to by Dycem in its sole discretion. Buyer’s sole remedy for returns of Products and/or Deliverables shall be a credit for the purchase price less any handling charges. Returned Products and/or Deliverables are subject to a minimum 20% handling charge.

8.3. If the Buyer fails to comply with any of these Terms, then, without limiting any other rights or remedies available to Dycem, whether in law or in equity, Dycem shall have the right to any one or more of the following remedies:

– (a) To terminate the Contract with immediate effect;

– (b) To cancel all or any part of Buyer’s Order;

– (c) To sell the Products and/or Deliverables (in whole or in part) to another;

– (d) To refuse any further Orders or requests from the Buyer;

– (e) To, where applicable, retake the Products and/or Deliverables (in whole or in part) in line with its security interest in the Products and/or Deliverables created by Section 11 of these Terms; and

– (f) To claim damages for any other costs, loss, or expenses incurred by Dycem which are in any way attributable to the Buyer’s failure to carry out its obligations under the Contract, including all costs incurred by Dycem as a result of improper rejection of Products and/or Deliverables.

8.4. These Terms shall apply to any replacement Products, Deliverables, and/or Services supplied by Dycem to the Buyer.

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9. Buyer’s Indemnity

9.1. Buyer shall indemnify, defend, and hold harmless Dycem against all liabilities, costs, expenses, damages, and losses (including any direct, indirect, or consequential losses, loss of profit, loss of goodwill, loss of reputation, and all interest, fines, penalties, costs of litigation, attorneys’ fees, and legal and other professional costs and expenses) suffered or incurred by Dycem arising out of or in connection with any threatened or actual claims, actions, demands, investigations, or suits, including but not limited to claims or suits by third parties, related to or arising out of any of the following:

– (a) Buyer’s negligent or willful acts, or those of its employees and/or agents;

– (b) Products and/or Deliverables that were produced by Dycem according to Buyer’s Specifications;

– (c) Any of the Products and/or Deliverables being repaired or altered by persons other than Dycem (unless expressly authorized in writing by Dycem);

– (d) In the event that Buyer modifies or combines with any non-Dycem goods any of the Products and/or Deliverables purchased from Dycem, and such modification or combination results in the actual or alleged infringement of any IPR of any third party;

– (e) Any actual or alleged infringement of a third party’s IPR arising out of, or in connection with, the supply or use of the Products, Deliverables, and/or Services, to the extent that the claim is attributable to the acts or omissions of the Buyer;

– (f) The breach, negligent performance, or failure or delay in performance of the Contract by the Buyer;

– (g) Any death, personal injury, or damage to property arising out of, or in connection with, defects in the Products and/or Deliverables or supply of the Services, to the extent attributable to the acts or omissions of the Buyer;

– (h) Any violations of export control laws by the Buyer;

– (i) Buyer’s breach of any provision of these Terms; and

– (j) Any formal or informal product recall carried out by Dycem as a result of any defect in the Products and/or Deliverables to the extent that the defect is attributable to the acts or omissions of the Buyer.

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10. Title and Risk

Title and risk in the Products and/or Deliverables shall pass to Buyer on completion of Delivery; provided, however, that Dycem shall retain in the Products and/or Deliverables a vendor’s lien to the extent of any unpaid purchase price, which is in addition to Dycem’s security interest in the Products and/or Deliverables created by Section 11 of these Terms.

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11. Price and Payment

11.1. The price of the Products, Deliverables, and/or Services shall be set out in the Order and shall exclude VAT where specified.

11.2. Dycem may invoice the Buyer on or at any time after Services completion or Delivery (as applicable).

11.3. The Buyer shall pay invoices within 30 days after the date of Dycem’s invoice or as otherwise agreed between the parties in writing.

11.4. Dycem, where it extends credit to the Buyer, shall take a security interest in all Products and/or Deliverables it supplies to the Buyer, including all after-acquired Products and/or Deliverables. Such security interest shall extend to future advances. This document shall serve as the security agreement between the parties, and Dycem, upon the Buyer’s failure to pay any invoice for 60 days after the payment due date, can retake the Products and/or Deliverables.

11.5. If Buyer fails to make any payment under this Contract by its due date, Buyer shall pay interest on the overdue amount at the rate of 1.5% per month or such lesser rate that is the maximum rate of interest allowed by law. Buyer shall pay any and all reasonable costs, including attorneys’ fees, incurred by Dycem while collecting any delinquent balance.

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12. Insurance

12.1. The Buyer shall, at all times, carry adequate insurance coverage with a reputable insurance company, including (as relevant) professional indemnity, product liability, and public liability insurances, to cover any such liability as may arise under or in connection with the Contract.

12.2. The Buyer shall insure each shipment of Products and/or Deliverables with a reputable insurer for 110% of the full invoice value of such shipment and shall name Dycem as an additional insured.

12.3. The Buyer shall, on Dycem’s request, supply a copy of the relevant insurance policy and premium receipt to Dycem.

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13. Confidential Information

13.1. Each party undertakes not to disclose (at any time) any confidential information concerning the business, affairs, customers, clients, or suppliers of the other party save as permitted herein.

13.2. Each party may disclose the other party’s confidential information to:

– (a) Its employees, officers, representatives, or advisers who need to know such information under or in connection with this Contract provided each party ensures that such individuals comply with this clause 13; and

– (b) As may be required by law, a court of competent jurisdiction, or any governmental or regulatory authority.

13.3. No party shall use any other party’s confidential information for any purpose other than as may be required in this Contract.

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14. Termination

14.1. Dycem shall have the right to terminate the Contract or cancel Buyer’s Order in whole or in part at any time due to Buyer’s default hereunder. This right of cancellation is in addition to and not in lieu of any other remedies which Dycem may have in law or in equity.

14.2. Dycem may terminate the Contract in whole or in part at any time before Delivery with immediate effect by giving the Buyer written notice, whereupon Dycem will discontinue all work on the Contract.

14.3. Either party may terminate this Contract immediately by serving written notice to that effect on the other party if at any time any one or more of the following events occurs:

– (a) The other party makes any voluntary arrangement with its creditors or becomes insolvent or enters bankruptcy or administration or goes into liquidation (otherwise than for the purposes of solvent amalgamation or reconstruction); or

– (b) A security holder takes possession, or a receiver or administrative receiver is appointed, over all or any material part of the property or assets of the other party; or

– (c) Anything analogous to any of the foregoing occurs to the other party under the law of any jurisdiction; or

– (d) The other party ceases to carry on business; or

– (e) The other party commits a material breach of any of the provisions of this Contract and in the case of a breach capable of remedy, fails to remedy that breach within 30 days after being served with a written notice specifying the breach and requiring it to be remedied.

14.4. Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

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15. Force Majeure

15.1. A party affected by any Force Majeure Event shall immediately give notice to the other party and take reasonable and prompt action to mitigate the effects of any such occurrence as quickly as possible.

15.2. If a Force Majeure Event continues for more than three (3) months, the other party shall be entitled to terminate the Contract immediately by serving a written notice on the other party to that effect. Buyer shall pay Dycem’s reasonable costs and expenses incurred or committed prior to such termination in relation to the Contract.

15.3. Neither party shall be liable for, or be deemed to be in breach of these Terms as a result of, any delay or failure to perform its obligations where caused by any Force Majeure Event.

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16. Limitation of Liability

16.1. OTHER THAN AS SET FORTH IN SECTION 8.3, SECTION 9, AND SECTION 13 OF THESE TERMS RELATED TO BUYER’S BREACH, BUYER’S INDEMNIFICATION OBLIGATIONS, AND CONFIDENTIAL INFORMATION, EACH PARTY’S CUMULATIVE LIABILITY FOR DAMAGES TO THE OTHER PARTY FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL BE LIMITED TO THE TOTAL CONTRACT PRICE OF THE PRODUCTS, DELIVERABLES, AND/OR SERVICES SOLD HEREUNDER, PLUS OR MINUS, AS APPLICABLE, THE AMOUNTS OF ALL UNPAID ACCOUNTS PAYABLE AND RECEIVABLE BETWEEN THE PARTIES, IF ANY.

16.2. IN NO EVENT SHALL DYCEM BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL LOSS OR DAMAGES OF ANY KIND, EVEN IF DYCEM SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

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17. Miscellaneous

17.1. Dycem may at any time assign, transfer, charge, or subcontract any or all of its rights or obligations under the Contract, but Buyer may only do so with Dycem’s prior written consent.

17.2. The parties shall comply with their respective obligations under all applicable laws when handling personal data, which to avoid doubt shall include end-customer names, addresses, and telephone numbers.

17.3. Buyer represents and covenants that it has complied and will comply with all laws and regulations related to the Products, Deliverables, and/or Services, including but not limited to export control laws.

17.4. Buyer represents and warrants that it is not designated on, or associated with any party designated on, any of the U.S. government restricted parties lists, including without limitation the U.S. Commerce Department Bureau of Industry and Security (“BIS”) Denied Persons List, Entity List, or Unverified List; the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”) Specially Designated Nationals and Blocked Persons List; or the U.S. State Department Directorate of Defense Trade Controls (“DDTC”) Debarred Parties List. Buyer shall comply with all applicable U.S. economic sanctions and export control laws and regulations, including without limitation the regulations administered by OFAC, the Export Administration Regulations administered by BIS, and the International Traffic in Arms Regulations administered by DDTC. Upon becoming aware that Buyer is named on any restricted party list, Dycem may terminate the Order and this Contract and discontinue any ongoing supply to or business with Buyer immediately, without notice and without liability.

17.5. Any notice or other communication required by these Terms shall be in writing (excluding email) and shall be hand-delivered or sent by prepaid first-class mail, by certified mail with a return receipt requested, or by courier to the receiving party’s registered office or principal place of business (as applicable) and shall be deemed to have been duly received when left at the address referred to above or, if sent by pre-paid first-class mail or certified mail, at 9 am Central Time (U.S.) on the second business day after posting, or, where relevant, at the time the courier’s delivery receipt is signed.

17.6. If any court or competent authority finds that any provision of the Contract is invalid, illegal, or unenforceable, that provision or part-provision shall be deemed to be deleted, and the enforceability of the other provisions of the Contract shall not be affected.

17.7. A person who is not a party to the Contract shall not have any rights under or in connection with the Contract.

17.8. Any variation to these Terms must be agreed in writing and signed by Dycem.

17.9. Buyer represents and warrants that it has read and understands the Contract and these Terms and freely and voluntarily entered into the Contract and agreed to these Terms. Buyer represents and warrants that in entering into the Contract and agreeing to these Terms, no promise or representation of any kind has been made by Dycem or anyone acting for Dycem except those expressly stated in the Contract and these Terms, and Buyer is not relying on any statement or representation of Dycem or anyone acting for Dycem except those representations expressly stated in the Contract and these Terms. Buyer is relying solely upon its own judgment in entering into the Contract and agreeing to these Terms.

17.10. The United Nations Convention on the International Sale of Goods shall not be applicable to the Contract or these Terms.

17.11. The Contract, and any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the laws of the State of Texas, excluding any choice of law rules or conflicts of law principles that would refer the matter to the substantive laws of another jurisdiction. Any legal action commenced by any of the parties or any dispute or claim arising out of or related in any way to the Contract, including but not limited to any action to obtain implementation, interpretation, or enforcement of the Contract and any action challenging the existence, validity, or enforceability of the Contract, shall be brought in the courts in Houston, Harris County, Texas. The parties hereby waive any objection on the grounds of jurisdiction, venue, forum non conveniens, or any similar grounds and consent to the exclusive jurisdiction of the courts located in Houston, Harris County, Texas.

17.12. Buyer must commence any suit for a cause of action arising hereunder within two years from the date on which the facts that gave rise to the cause of action first occurred.

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18. Buyer Agrees to be Bound by these Terms

By placing an Order with Dycem, the Buyer acknowledges and agrees to be bound by these Terms and Conditions of Sale.