General Terms & Conditions

These Terms shall be incorporated into any Dycem quotation or order acknowledgement.

32376328.5

DYCEM TERMS AND CONDITIONS OF SUPPLY (“Terms”)

1. Definitions
1.1 In these Terms, the following definitions apply:
AFG Report means the report or confirmation issued by Dycem following successful completion of the AFG Services;
AFG Services means the services that Dycem may carry out in respect of Products installed by Dycem to check performance (as determined by Dycem at its absolute discretion);
Branded Products means Products supplied by Dycem and branded by way of the Branding Services;
Branding Services means the branding services supplied by Dycem (or its subcontractors as applicable) in relation to the Products so that Customer specific branding or artwork is applied to such Products to create Branded Products;
Contract means the contract between Dycem and the Customer for the sale and purchase of the Products and Services on, and in accordance with, these Terms and the Order; provided, that any standard, preprinted terms and conditions in the Order are expressly rejected by Dycem and shall not become part of the Contract.
Customer means the person or company to whom Dycem sells and who purchases from Dycem the Products and/or Services;
Dycem means Dycem Corporation, 33 Apian Way, Smithfield, Rhode Island 02917;
Force Majeure Event means an event beyond the reasonable control of Dycem, including without limitation, acts of God, fires, war, civil commotion, acts of a public enemy, acts of terror, accidents, labor disputes, transportation shortages, the unavailability or shortage(s) of labor, energy, materials, production facilities, transportation, or shipping, cyber-attacks, or any other cause, casualty, or excusable delay beyond Dycem’s reasonable control, whether similar or dissimilar to any of the foregoing;
Order means the Customer’s written order for the Products in whatever form confirming agreement to the commercial terms contained in Dycem’s quotation and where such order does not set forth the commercial terms, the terms shall be deemed to be as specified in the quotation supplied by Dycem in respect of Products/Services;
Products means the products identified in the Order supplied in accordance with any Specification and any other products from time to time agreed to be supplied;
Relevant Laws means any statute, regulation, ordinance, rule, order, decree or governmental requirement enacted, promulgated or imposed by any governmental authority at any level including in any jurisdiction from which the Products/Services are provided or in which any Products/Services are received which relate to the performance of the Contract;
Sanctions means any Relevant Laws relating to economic or financial, trade, immigration, aircraft, shipping or other sanctions, export controls, trade embargoes or restrictive measures from time to time imposed, administered or enforced by a relevant authority.
Services means the services to be provided by Dycem to the Customer, as set forth in the Order including site survey/measurement and installation, Branding Services and AFG Services together with any other agreed services (as applicable);
Specification means the specification for the Products and/or Services as set forth in the Order or agreed in writing and including any measurements provided by the Customer or taken by Dycem, its employees, representatives or authorized subcontractors or any proofs supplied by Dycem and agreed by the Customer; and
Standard Products means non-slip products and (where applicable) anti- contamination mats sold to Customers.

2. Basis of Contract
2.1 THE ORDER IS ACCEPTED ONLY ON THE TERMS AND CONDITIONS CONTAINED HEREIN AND THE PROVISIONS OF ANY ORDER OR OTHER WRITING WHICH ARE INCONSISTENT HEREWITH SHALL NOT CONSTITUTE PART OF THESE TERMS AND SHALL BE DEEMED A MATERIAL ALTERATION HEREOF. DYCEM’S ACCEPTANCE OF AN ORDER IS SUBJECT TO AND CONDITIONED ON CUSTOMER’S ASSENT TO THESE TERMS. ANY CONDUCT OR ACTION BY CUSTOMER RECOGNIZING OR EVIDENCING THE EXISTENCE OF AN AGREEMENT SHALL BE DEEMED TO BE AN ACCEPTANCE BY CUSTOMER WITHOUT EXCEPTION OF THESE TERMS.
2.2 Dycem’s quotation, these Terms and the Order are intended by the parties to be the complete and exclusive agreement of the parties with respect to Dycem’s sale of Products and Services and supersede all prior understandings, representations, warranties or agreements between the parties, whether written or oral. Without limiting the generality of the foregoing, no course of prior dealings, course of performance, course of conduct, community standards, industry standards, customary practices or interpretation, or usage of trade shall be relevant to supplement or explain any terms in these Terms.
2.3 The Order shall only be deemed accepted by Dycem, and the Contract shall come into existence on the earlier of Dycem issuing a written acceptance of the Order or on delivery of the Order.
2.4 Any samples, drawings, descriptive matter or advertising issued by Dycem and any descriptions of the Products or illustrations or descriptions of the Services contained in Dycem’s catalogues or brochures or on its website are issued or published for the sole purpose of giving an approximate idea of the Products and Services described in them. They shall not form part of the Contract nor have any contractual force.
2.5 All of these Terms shall apply to the supply of both Products and Services except where application to one or the other is specified.

3. Limited Warranties
3.1 Dycem warrants that Products shall be free from material defects in material and workmanship, and conform with the Specifications, from and including the delivery date and for a period of:
(a) 12 months in respect of Products installed by Dycem or by a Dycem approved installer; or
(b) 6 months in respect of Products installed by any party other than a Dycem approved installer.
3.2 Where AFG Services are carried out by Dycem, Dycem may, in its sole discretion, extend the warranty period in writing following its issuance of an AFG Report. If a party other than Dycem carries out services similar to the AFG Services, no warranty extension shall be granted or extended.
3.3 The warranties set forth in clause 3.1 do not apply in the event:
(a) the Customer makes further use of the Products after giving notice of a defect;
(b) the Customer failed to follow Dycem’s (written or oral) instructions for storage, installation, use and maintenance of the Products and this directly or indirectly causes the defect;
These Terms shall be incorporated into any Dycem quotation or order acknowledgement.
(c) the defect arises as a result of any drawing, design, measurement or Specification the Customer supplied to Dycem;
(d) the Customer alters or repairs the Products without written consent of Dycem;
(e) the defect arises as a result of normal wear and tear, willful damage, negligence, or abnormal storage or working conditions; and/or
(f) the Products differ from the Specification as a result of changes made to ensure they comply with Relevant Laws.
3.4 Dycem warrants that any Services will be performed in a workmanlike and professional manner in accordance with generally recognized industry standards.
3.5 EXCEPT FOR THE WARRANTIES SET FORTH IN THIS CLAUSE 3, DYCEM MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

4. Remedies
4.1 If, during the applicable warranty period described in clause 3.1, any Products are defective or nonconforming with the limited warranties described in clause 3.1, as determined by Dycem after examination of such Products, Dycem will, at Dycem’s option, repair or replace the defective or nonconforming Products or refund the price paid for such Products. The Customer’s exclusive remedy and Dycem’s sole obligation under such warranties is limited to such repair or replacement, or refund, and will be conditioned upon Dycem’s receipt of written notice of defect and/or non-conformance within the warranty period described in clause 3.1.
4.2 If any Services are nonconforming with the warranty described in clause 3.4, Dycem will reperform such nonconforming services.
4.3 THE REMEDIES SET FORTH IN THIS CLAUSE 4 ARE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND DYCEM’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN CLAUSE 3.

5. Delivery, Acceptance, Risk and Title
5.1 Dycem shall deliver the Products in accordance with the applicable shipping term.
5.2 Unless otherwise agreed in writing by the parties, all shipments are FOB Destination, freight prepaid & added.
5.3 Time for delivery of Products will not be of the essence. Dycem will use commercially reasonable efforts to meet agreed delivery dates for Products, but it will not be liable to the Customer for any delay or other failure to meet such dates, including without limitation, any delay or failure caused by a Force Majeure Event or failure of the Customer to provide adequate delivery instructions.
5.4 Delay in delivery shall not entitle the Customer to refuse to take delivery of the Products, claim damages or terminate this Contract.
5.5 If Dycem fails to deliver the Products its liability shall be limited to refunding the Customer any amount it paid for the Products.
5.6 Where Products are agreed to be delivered in installments, each delivery will constitute a separate contractual obligation, such that failure by Dycem to deliver any one or more of the installments in accordance with these Terms will not give the Customer the right to treat the whole Contract as repudiated.
5.7 Upon receipt of the Products, it is the Customer’s responsibility to fully inspect the Products for damage or other defects. The Customer shall, within 7 working days after its receipt of the Products, inspect the Products and immediately report in writing to Dycem any shortages, damages or defects reasonably observable by proper inspection. If the Customer fails to inspect or report any shortages, damages or defects as required herein, the Customer shall be deemed to have accepted such Products.
5.8 Risk in the Products shall pass to the Customer in accordance with the applicable shipping term. Regardless of the applicable shipping term, title to the Products shall pass to the Customer when Dycem provides the Products to the carrier.
5.9 In the event title to the Products does not pass in accordance with clause 5.8, until title has passed to the Customer, the Customer shall:
(a) store the Products separately from all other goods held by the Customer so that they remain readily identifiable as Dycem’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
(c) maintain the Products in satisfactory condition and keep them insured against all risks for their full price on Dycem’s behalf;
(d) notify Dycem immediately if it becomes subject to any of the events listed in clauses 10.1(a) to 10.1(d) (inclusive); and
(e) give Dycem such information and documentation as Dycem may reasonably require from time to time relating to the Products.
5.10 At any time before title to the Products passes to the Customer, Dycem may require the Customer to promptly deliver up all Products in its possession that have not been irrevocably incorporated into another product, and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.

6. Supply of Services
6.1 Time for performance of the Services will not be of the essence. Dycem will use commercially reasonable efforts to meet agreed delivery dates for Services but it will not be liable to the Customer for any delay or other failure to meet such dates, including without limitation any delay or failure caused by a Force Majeure Event or where its performance is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation.
6.2 The Customer 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.
6.3 The Customer shall provide Dycem, its employees, agents, consultants and subcontractors, with access to its premises and other facilities as reasonably required by Dycem to provide the Services including for any site survey or installation of Products and the Customer shall ensure such premises are suitably prepared, level and cleared of furniture, dust and debris prior to any such installation.
6.4 Upon completion of the Services, it is the Customer’s responsibility to fully inspect the Services for defects.
These Terms shall be incorporated into any Dycem quotation or order acknowledgement.
The Customer shall, within 7 working days after completion of the Services, inspect the Services and immediately report in writing to Dycem any defects. If the Customer fails to inspect or report any defects as required herein, the Customer shall be deemed to have accepted such Services.

7. Branding Services
7.1 Where the Customer requires Branding Services:
(a) the parties shall work together to agree on the branding or artwork;
(b) prior to printing Dycem shall submit to the Customer a proof of the design for the Branded Products, for Customer approval (such approval not to be unreasonably withheld, conditioned or delayed). Once approved in writing by the Customer this proof shall form the Specification for the Order;
(c) in instances where the Customer reasonably rejects the proof, the parties shall work together to create a proof acceptable to the Customer (such acceptance not to be unreasonably withheld, conditioned or delayed) and the Customer shall not be charged for the production of a proof provided it does not conform to the Order; and
(d) the parties shall agree on an appropriate delivery date in respect of Branded Products once the Specification has been agreed (such agreement not to be unreasonably withheld, conditioned or delayed).
7.2 The Customer grants to Dycem for the duration of the Contract, a non-exclusive, paid-up, royalty free license to use and apply the Customer’s branding or artwork, including any intellectual property (collectively, the “Customer IP”) on the relevant Products. In doing so the Customer warrants that:
(a) it is entitled to license, and shall remain entitled to license during the term of the Contract, Dycem and its subcontractors with the use of the relevant Customer IP for this purpose;
(b) there are no disputes or proceedings, settled, pending or threatened, which relate to the Customer IP which could affect the use envisaged by the Contract; and
(c) the use of the Customer IP in connection with the Branded Products and as authorized in the Contract does not and will not infringe, dilute, misappropriate or otherwise violate the intellectual property of any third party.
7.3 Dycem retains the right to refuse to incorporate any content it deems inappropriate as part of the Branding Services.
7.4 The license granted to Dycem as set forth in clause 7.2 carries the right to grant sub-licenses to its subcontractors who may carry out the Branding Services on Dycem’s behalf. Such sub-licenses shall be on the same terms as set forth in these Terms.
7.5 Branded Products may also feature Dycem intellectual property. All Dycem intellectual property shall remain owned by Dycem or its licensors at all times and the Customer shall have no right, title or interest in them.
7.6 The Customer shall indemnify, defend and hold Dycem, its affiliates, and its and their respective officers, directors, agents and employees, harmless from and against (a) all claims of infringement, misappropriation or other violation of intellectual property including all liabilities, costs, expenses, damages and direct losses (including but not limited to any direct losses, and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Dycem arising out of/in connection with any claim made against Dycem, and/or (b) any breach, failure or delay by the Customer to comply with any Relevant Laws or Sanctions.

8. Limitation of Liability
8.1 IN NO EVENT WILL DYCEM BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT DYCEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
8.2 IN NO EVENT WILL DYCEM’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE PRODUCTS/SERVICES.

9. Price and Payment
9.1 The price of the Products or Services shall be set forth in the Order and shall exclude all sales, use or value-added taxes, other taxes, charges or duties, and delivery and shipping charges.
9.2 Dycem reserves the right to charge a surcharge where Products are required at short notice.
9.3 Terms of payment for pre-approved Customers are net 30 days following the date of invoice.
9.4 Payment shall be made in US dollars unless otherwise specified in the Order or confirmed in writing by Dycem.
9.5 Dycem may charge a late payment penalty of 1% per month on undisputed amounts, or the maximum rate permitted by law, whichever is less. If the Customer fails to make any payment when due, Dycem may also suspend all further deliveries of Products/Services until payment is received in full.
9.6 The Customer shall pay all amounts due under the Contract in full without set-off, counterclaim deduction or withholding.
9.7 Dycem may at any time set off any amount owed to it against any amount payable by Dycem to the Customer.

10. Termination
10.1 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 an assignment for the benefit of creditors; or
(b) proceedings in bankruptcy or insolvency are instituted by or against the other party; or
(c) the other party becomes a debtor in a bankruptcy, insolvency, receivership, or similar proceeding commenced by a third party that is not dismissed within 30 days after commencement; or
(d) the other party ceases to carry on business, or the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to fully perform the terms of the Contract is in jeopardy; or
(e) the other party commits a material breach of any of the provisions of this Contract (other than a breach of a payment obligation) and in the case of a breach
These Terms shall be incorporated into any Dycem quotation or order acknowledgement.
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.
10.2 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as of termination.
10.3 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

11. General
11.1 Dycem shall be excused from performing under the Contract to the extent that performance is rendered unfeasible by a Force Majeure Event.
11.2 Dycem may in its sole discretion accept or reject amendments or cancellation of Orders.
11.3 In instances where Dycem has approved the return of Standard Products (to which Branding Services have not been applied), or the Customer requests a color change to a Standard Product after an order has been confirmed, Dycem shall charge a re-stocking fee of 25% of the returned Standard Product’s value.
11.4 The Customer may not assign its rights or obligations under the Contract without Dycem’s prior written consent. The Customer acknowledges and agrees that Dycem reserves the right to use subcontractors to perform and fulfill its obligations under the Contract.
11.5 The parties shall comply with their respective obligations under all applicable privacy related Relevant Laws when handling personal data, which for the avoidance of doubt shall include Customer names, addresses and telephone numbers.
11.6 Any notice relating to the Contract must be in writing and sent to (a) the Customer at the address set forth in an Order or otherwise provided in writing by the Customer, or (b) Dycem at the address set forth in clause 1.1. Notices will be considered given when deposited in the United States mail, certified or registered mail, postage prepaid, return receipt requested.
11.7 If any court or competent authority finds that any provision of the Contract is invalid, illegal, void 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.
11.8 A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy.
11.9 These Terms do not and are not intended to confer any rights or remedies upon any person or entity other than the Customer and Dycem.
11.10 Any amendment or variation of these Terms must be agreed in writing by the parties.
11.11 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to the Products and Services. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty that is not set forth in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
11.12 At all times during the term of the Contract, the Customer shall (a) not contravene any Sanctions, (b) not do, or omit to do, any act that will cause or lead Dycem to contravene any Sanctions, and (c) implement adequate policies and procedures to ensure compliance with Sanctions.
11.13 All matters arising out of or relating to the Contract are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of New York. All claims and disputes relating to or arising from the Contract, including, without limitation, claims and disputes relating to the interpretation, breach, or enforceability of the Contract, shall be litigated exclusively in the state or federal courts located in Providence County, Rhode Island, and the Customer irrevocably consents to, and waives any challenge to, the exclusive jurisdiction of, and venue in, such courts.