1. General. These terms, together with the order acknowledgement provided by Draeger Safety, Inc. (“Draeger”), apply to the purchase of Draeger products (“Products”) by any customer (“Customer”) identified on any invoice, order acknowledgement, purchase order, packing slip or otherwise issued by Draeger for the sale of such Products by Draeger to Customer (these terms together with the foregoing may hereinafter be referred to as the “Agreement”). Draeger shall not be bound by and objects to any terms, conditions or other provisions which are different from or in addition to the provisions of this Agreement that may be set forth in any communication of or by Customer. Products may contain used, reworked or refurbished parts and components that comply with performance and reliability specifications. Customer acknowledges that this is a commercial and not a consumer transaction.
2. Delivery and Acceptance. Delivery schedules are approximate only and based on conditions at the time of acceptance of Customer’s order by Draeger. Draeger shall make reasonable efforts to meet the delivery date(s) quoted or acknowledged, but shall not be liable for any failure to meet such date(s). Delivery shall be F.O.B. shipping point, freight allowed (ground transport of Draeger’s choice) to a single shipping location for any standard orders exceeding $15,000. Orders of specialty products (including fire training systems, mine response systems and other engineered solutions) and all other non-standard orders or special shipping methods (including air shipments, next day air or second day deliveries) shall be at Customer’s expense. Risk of loss and title shall pass to Customer at F.O.B. shipping point. Orders for in-stock items ship same day via standard parcel if ordered by 11:00 AM (EST) Mon.-Fri. pending credit approval and subject to stock availability. A $250.00 “After Hours” fee applies to orders that must ship after 5:30 PM (EST) Mon.-Fri., weekends and holidays. Should the agreed delivery date be postponed by Customer, Draeger shall have the right to deliver to storage at Customer’s risk and expense, and payments due upon delivery shall become due when Draeger is ready to deliver. All Products
delivered by Draeger to Customer hereunder shall be deemed to have been accepted by Customer the earlier of (i) the date Customer first uses the Products; or (ii) thirty (30) days after delivery of the Products to Customer. Draeger shall not be liable for any loss or damage for delay in delivery, inability to install or any other failure to perform due to causes beyond Draeger’s reasonable control, including force majeure events.
3. Pricing. Unless otherwise agreed in writing by Draeger, all prices quoted are based on U.S. dollars, F.O.B. shipping point. Unless otherwise stated, the quotation shall only be valid for thirty (30) days from the date of the quotation. Any sales, use, manufacturer’s, property and/or similar taxes/fees imposed on the Products are in addition to the quoted prices and shall be paid by Customer. Draeger reserves the right, by giving notice to Customer anytime before delivery, to adjust the pricing on any confirmed Product orders whose delivery is delayed by Customer 90 days or more. All list prices are subject to change without notice.
4. Payment Terms. The purchase price for the Products and all other amounts due hereunder are due net thirty (30) days from the date of invoice. All amounts payable hereunder are payable in U.S. dollars. Partial shipments of Product(s) shall be billed as shipped and installation/implementation shall be billed when completed in accordance with any mutually agreed upon installation/implementation schedule. A service charge of 1.5% per month, not to exceed the maximum rate allowed by law, shall be made on any portion of Customer’s outstanding balance which is not paid within thirty (30) days after invoice date. Payment of such service charge shall not excuse or cure Customer’s breach for late payment. In the event Customer fails to make any payment to Draeger when due, then Draeger shall have no obligation to continue performance under any agreement with Customer. Draeger may accept any check or payment in any amount without prejudice to Draeger’s right to recover the balance of the amount due or to pursue any other right or remedy. From the F.O.B. shipping point, Draeger shall have a purchase money security interest in the Products (and all proceeds thereof) until payment in full by Customer. This Agreement (including any attachments) constitutes a security agreement. Upon Customer’s failure to pay when due any amount owing hereunder, Draeger shall be entitled to pursue any and all rights and remedies available hereunder and at law or equity. Further, Customer shall pay all costs and expenses incurred by Draeger in connection with enforcing the terms of this Agreement against Customer (including, without limitation, reasonable attorneys’ fees, court costs and other legal expenses).
5. Returns. Repairs. Orders accepted by Draeger are not subject to change except upon written agreement of the parties. Products delivered by Draeger are not returnable by Customer except as follows:
A. Repair Orders: A Service Return Authorization (SRA #) is required to process all repair and maintenance actions, including warranty service. To obtain a SRA #, call 1-800-858-1737 or 1-800-922-5518. Repair items covered by Draeger’s warranty will be return shipped to Customer at Draeger’s expense using ground transport carrier of Draeger’s choice. All other shipping costs and methods will be at Customer’s expense.
B. Returns: A Return Material Authorization (RMA #) is required before any Products may be returned to Draeger. To start a Return Material Authorization (RMA #), call 1-800-858-1737 or 1-800-922-5518. For product returns, a request must be made to Draeger for an RMA within 60 calendar days from the invoice date. The RMA # is valid for 30 days and the Product may only be returned during that period. The following are the only accepted reasons for return of Products: (1) Draeger shipping errors – Discrepancies must be reported within 10 business days after receipt of Product and clearly marked with a RMA#; Draeger will pay freight using Draeger’s carrier, and (2) Distributor ordering errors (must
exceed $100.00 net before return is honored).
A restocking charge of 15% (minimum) of invoice will be assessed on all returns except sensors, detector tubes, CMS Chips, calibration gas, SCBA cylinders, instruments with sensors installed, and other consumable and shelf life items, which carry a 25% restocking charge due to established shelf life. Returned goods are subject to RMA inspection and must be in their original or new
packaging, and in restockable / resaleable condition. Goods returned without an RMA # will not be received and will be returned at the shipper’s expense. Orders for special, non-stock items/models and/or special quantities, including build deviations, may not be cancelled or returned. Customer is responsible for shipping costs on all returned or repair items unless otherwise noted.
6. Warranty. Unless otherwise provided in a written warranty statement delivered by Draeger with the Products or on its website, or in a binding contract signed by an authorized representative of Draeger, the following warranty (“Warranty”) shall apply to purchases of Products hereunder: Draeger warrants to the original end user only that the Product shall, for a period of one year from the date of original purchase (the “Warranted Period”), be free from defects in workmanship and material under normal recommended use and service, as outlined in Draeger’s instruction manual and maintenance requirements, including those prescribed by applicable approval and regulatory agencies (the “Use and Maintenance Requirements”). During the Warranted Period, Draeger shall repair or replace, at its option, any Product or part thereof found to fail to meet this Warranty. The Warranty shall not apply to any damage or failure resulting from non-compliance with the Use and Maintenance Requirements, misuse, abuse, misapplication, improper installation, improper operation, negligence, accidental damage, mechanical, electrical or environmental circumstances, normal wear and tear of parts, or other defects not related to workmanship or material. Any unauthorized repair, modification or adjustment of the Product completely voids this Warranty. Expendable, disposable and consumable parts are warranted at delivery only. Draeger extends no other warranty. Draeger makes no warranty for any third party products or components (those manufactured by any party other than Draeger and its affiliates). Customer’s sole remedy for any third party product claims is the original manufacturer’s warranty, which Draeger agrees to pass on to the Customer upon request. No Product removal, installation, or transportation charges are covered under this Warranty. Repairs or replacements shall not interrupt or extend the Warranted Period. DRAEGER MAKES NO WARRANTY OTHER THAN THE ONE SET FORTH HEREIN, ON ITS WRITTEN WARRANTY STATEMENT FOR THE APPLICABLE PRODUCT, OR AS PROVIDED IN A SEPARATE BINDING CONTRACT SIGNED BY THE PARTIES. SUCH WARRANTY(S) ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
7. Limitation of Liability. Draeger’s liability hereunder shall not exceed the actual loss or damage sustained by Customer, up to the purchase price of the Products. DRAEGER SHALL NOT BE LIABLE FOR ANY LOSS OF USE, REVENUE OR ANTICIPATED PROFITS, LOSS OF STORED, TRANSMITTED OR RECORDED DATA, OR FOR ANY INCIDENTIAL, UNFORESEEN, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SALE OR USE OF THE PRODUCTS. THE FOREGOING IS A SEPARATE, ESSENTIAL TERM OF THIS AGREEMENT AND SHALL BE EFFECTIVE UPON THE FAILURE OF ANY REMEDY, EXCLUSIVE OR NOT.
8. Software License. Any software programs or other proprietary information (collectively, the “Product Software”) supplied by Draeger to Customer in connection with the sale of the Products are not included in the sale of the Products to Customer, shall remain Draeger’s property and be licensed hereunder, and shall at all times be held in confidence by Customer. Customer will not translate, modify, reverse engineer, disassemble, decompile, or create derivative works based on any of the Product Software or permit any third party to do so. Product Software may not be copied or transferred to another party or made commercially available in any other device, without Draeger’s prior written consent.
9. Compliance with Laws. Customer shall comply with all laws, rules, regulations, licensing requirements and other obligations applicable to Customer, including without limitation any law, regulation or treaty relating the export or reexport of any Product or associated technical data to which the U.S. adheres or with which the U.S. complies.
10. Miscellaneous. Customer may not assign any rights or obligations under this Agreement without the prior written consent of Draeger. This Agreement shall be binding on the parties and their respective successors and permitted assigns. This Agreement may not be changed, modified or amended except in writing signed by authorized representatives of the parties. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania. This Agreement and any attachments or agreements incorporated by reference, constitute the entire agreement between the parties with respect to the Products, except as follows. If Customer and Draeger have entered into a separate written agreement with respect to Customer’s purchase of the Products signed by authorized representatives of both parties, then such agreement shall govern Customer’s purchase of the Products; in the event of any inconsistencies between the terms of that agreement and the terms of this Agreement, the terms of that agreement shall prevail. No provision of this Agreement which may be deemed unenforceable will in any way invalidate any other portion or provision of this Agreement. No failure or delay in exercising any right under this Agreement will operate as a waiver thereof. Any notices hereunder shall be deemed properly given if in writing and delivered in person or mailed, properly addressed and stamped with the required postage, to the intended recipient at its address specified on the face of the invoice or confirmation or purchase order to which these terms are attached.