(updated 2011-09)

DimOnOff Terms and Conditions

Acceptance of Orders/Terms

DimOnOff reserves the right to reject any order. Possession of a price list does not constitute an offer to sell. Orders shall be initiated by the Buyer issuing a Purchase Order or otherwise placing an order by electronic means acceptable to DimOnOff. Orders shall identify the Products, unit quantities, part numbers, descriptions, applicable prices and requested delivery dates. Acceptance of any order by DimOnOff is expressly conditioned on the Customer’s assent to the terms and conditions set forth herein (“Terms”) and the waiver by the Customer of any terms and conditions contained in any order form, confirmation, or any other communication of the Customer, whether previously or hereafter delivered to DimOnOff, which either add to, differ from, modify, conflict with, or are otherwise inconsistent with any term or condition herein. DimOnOff hereby gives notice of its objection to any additional or different terms or conditions in any such order form, confirmation, or communication. The Customer’s failure to object in writing to these terms prior to the earlier of the Customer’s acceptance of the products ordered or fifteen (15) days after delivery thereof to the Customer will constitute agreement by the Customer to these Terms. DimOnOff hereby gives notice of its objection to any additional or different terms or conditions in any such order form, confirmation or communication.

Hold for Release Orders

An order may be placed on a hold-for-release status. Prices are firm for 3 months from date of order acceptance. The price of all hold-for-release orders not released by the Customer for immediate shipment within 3 months from the date of order acceptance will be increased up to 10% over initial order price to cover increased cost of labour and material. All hold-for release orders not released for immediate shipment within 6 months from the date of order acceptance may be cancelled by DimOnOff and subject to a 25% cancellation charge based on the price of the order.

Product Changes

DimOnOff reserves the right to discontinue the manufacture or sale of any product (“DimOnOff Product”) at any time or to alter, modify, change part number designation or redesign the DimOnOff Products.

Prices

Prices are subject to change without notice. All prices are in Canadian or United States Dollars as specified on invoices. International payment terms are cash in advance or irrevocable, confirmed letter of credit, due at site. In the event of a price increase, all accepted orders on hand will be filled at lower prices provided such orders are released for shipping prior to the effective date of the price increase. If the orders are not released for shipment prior to the price increase, the orders will be billed at prices in effect at the time of shipment. (Special quoted orders that cannot be released for shipping prior to the price increase may be subject to an increase in price.) In the event any governmental action or request should prevent DimOnOff from implementing any price or continuing any price already in effect, DimOnOff may at its option cancel the Customer’s order or any part thereof.

Taxes/Duties

All prices are exclusive of federal, state, provincial or local sales, use or other taxes, as well as all duties, import fees or other assessments all of which are the responsibility of the Customer.

Payment Terms/Credit Approval

Payment terms are Payment in Advance unless alternative payment terms have been arranged. If the Customer is requesting terms, credit approval is required prior to any shipment. To qualify, the buyer must complete an application and be approved by DimOnOff’s finance department. Please allow 2-3 weeks for processing. All invoices, whether partial or in full, shall be due and payable in full by the Customer pursuant to the terms set forth thereon. Invoices not timely paid are subject to a late payment charge of 1.5% per month – 18% per year, or the maximum rate allowed by law, which interest charges shall accrue beginning on the invoice due date. If the Customer becomes insolvent, files or has filed against it a petition in bankruptcy, makes any assignment for the benefit of creditors, or has a receiver or trustee appointed for it or its property; or takes action to liquidate or otherwise cease doing business as a going concern; or undergoes a change in ownership; or fails to provide adequate assurance or security for credit extended; or takes any other action that DimOnOff determines in its sole discretion adversely impacts the conditions under which credit was extended, then all amounts outstanding from the Customer hereunder shall at DimOnOff’s option become immediately due and payable.

ALL PAYMENTS, WHETHER UNDER THE STANDARD PAYMENT TERMS OR OTHERWISE, SHALL BE CONSIDERED RECEIVED BY DimOnOff AS FOLLOWS: (1) FOR PAYMENTS BY CHECK, WHEN THE CHECK IS RECEIVED AT DimOnOff’s DESIGNATED PAYMENT LOCATION, AND (2) FOR PAYMENTS BY ELECTRONIC FUNDS TRANSFER, THE BUSINESS DAY ON WHICH THE FUNDS ARE IMMEDIATELY AVAILABLE TO DimOnOff.

Customer shall pay all undisputed invoices regardless of any dispute that may exist as to other delivered or undelivered goods. With respect to any disputed invoice, the Customer shall pay all amounts not in dispute. The Customer expressly waives the right to assert any offset or counterclaim with respect to amounts due under any invoice issued by DimOnOff hereunder.

Cancellation/Change Orders

Orders may only be revised or cancelled by the Customer, prior to the date of shipment and only with DimOnOff’s prior consent. All cancelled orders shall be subject to a cancellation charge of 25% of the order price. If not cancelled as provided herein, the Customer shall be liable for the full order price. If any amount due DimOnOff is collected by, or attempted to be collected by, a third party collection agent, DimOnOff shall be entitled to recover all collection expenses, including attorney’s fees.

Packaging/Shipping/Risk of Loss

Unless otherwise agreed by DimOnOff in writing, DimOnOff shall select the method of shipment and carrier, and costs for shipping shall be billed to the Customer in accordance with the carrier’s then current price list. Costs for special packaging and/or handling requested by the Customer shall be the responsibility of the Customer. The risk of loss, damage or shortage of DimOnOff products shall pass to the Customer upon delivery to the carrier regardless of notice to the Customer. DimOnOff assumes no responsibility for insuring shipment unless specifically agreed to in writing by DimOnOff, in which case the cost of insurance shall be added to the Customer’s account.

All Shipments

All items shipped are invoiced, including items shipped as part of warranty exchange. Exchanged items will have a credit memo issued, to be applied to the invoiced replacement parts, upon receipt of the defective items. Unless otherwise agreed, all shipments are F.O.B. DimOnOff located in Quebec, Qc, Canada. Title and “Risk of Loss” passes to purchaser upon delivery by DimOnOff to the carrier. The purchaser has legal responsibility to file transportation claims for damage/shortage with the carrier. See TRANSPORTATION CLAIMS below. Customers ordering DimOnOff products with a combined distributor price of $5000 or more for one consignee and one release qualify for ground freight allowance. All DimOnOff orders having a distributor price lower than these levels will be assessed freight and handling charges. A $10 adder will be applied on all drop shipment orders.

Freight Allowance

For orders that qualify for freight allowance, DimOnOff reserves the right to select the carrier and to route shipments at its discretion. DimOnOff will ship in the manner selected by the Customer provided the Customer assumes any additional transportation costs. For shipments outside the contiguous United States and provinces of Canada, contact DimOnOff for applicable terms & conditions.

Transportation Claims

Any claims for damage, loss, or shortage should be filed by the Customer with the respective transportation carrier in writing immediately upon receipt of the DimOnOff Products. In no event shall DimOnOff be liable for damage or loss to a shipment caused by a carrier. If shortage exists with respect to any shipment and it is not concealed, the Customer shall secure a notation of such shortage from the carrier on the freight bill or delivery receipt. If shortage is concealed, the Customer must notify the carrier and DimOnOff within 15 days. No claims for damage, loss, or shortage will be allowed unless they are accompanied by an inspection report or signed delivery receipt noting such damage, loss, or shortage signed by a representative of the carrier and forwarded to DimOnOff within 30 days of the invoice date.

Return of DimOnOff Product

The Customer may return new and unopened DimOnOff Products only with prior authorization by DimOnOff on a Returned Merchandise Authorization, with the exception of custom products which are not returnable. Non-stocking Customer will be charged a minimum restocking charge of 25% of the cost of the returned goods and shall be responsible for freight and duties to return the DimOnOff Product. Restocking charge may be waived for stocking Customer assuming product is returned within 1 year from date of purchase.

Force Majeure

DimOnOff shall not be liable for failure to fulfill its obligations herein or for delays in delivery due to causes beyond its reasonable control, including, but not limited to, acts of God, natural disasters, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in the law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, riots, war, acts of terrorism, delays in transportation or inability to obtain labour or materials through its regular sources. DimOnOff’s time for performance of any such obligation shall be extended for the time period of such delay or DimOnOff may, at its option, cancel any order or remaining part thereof without liability by giving notice of such cancellation to the Buyer.

Limited Warranty

Products manufactured by DimOnOff are warranted against defects in materials and manufacturing under normal use in accordance with instructions and specifications published by DimOnOff, for a period of five(5) years from the date of purchase from the End User. In the event of a product failure due to materials or workmanship, DimOnOff will repair or replace the defective product. For warranty service, return the defective product to DimOnOff, shipping prepaid, for prompt repair or replacement. Products not manufactured by DimOnOff are subject to the terms and conditions of the manufacturer’s warranty. The foregoing sets forth the full extent of DimOnOff’s warranties regarding the Products. Repair or replacement at DimOnOff’s option is the exclusive remedy.

THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND SELLER SPECIFICALLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL SELLER, ITS REPRESENTATIVE OR LICENSORS BE LIABLE FOR DAMAGES IN EXCESS OF THE PURCHASE PRICE OF THE PRODUCT, FOR ANY LOSS OF USE, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS, LOST PROFITS OR SAVINGS, OR OTHER INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE ANY PRODUCT, TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW. SOME STATES AND PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. THEREFORE, THE FOREGOING EXCLUSIONS MAY NOT APPLY IN ALL CASES.

This warranty provides specific legal rights. Other rights, which vary from state to state or province to province, may also apply.

The Limited Warranty does not cover damage caused by power problems such as spikes, surges, under or over voltages or ripples, if they are to beyond the specified limits of the products as well as those defined by the CSA CAN3-C235-83 standard.

Limitation of Liabilities

The foregoing limited warranty provides the purchaser’s sole and exclusive remedy relating to DimOnOff products. The total liability of DimOnOff on any and all claims of any kind, whether in contract, warranty, tort (including negligence), strict liability or otherwise, arising out of or in connection with, or resulting from, DimOnOff product’s performance or breach of the foregoing limited warranty or from DimOnOff sale, delivery, repair, or replacement of any products, or the furnishing of any services, shall in no event exceed the purchase price allocable to the specific product which gives rise to the claim and any and all such liability shall terminate upon the expiration of the limited warranty set forth above.

IN NO EVENT SHALL DimOnOff BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES WHETHER AS THE RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY).

Export Control

The sale, resale or other disposition or Products and any related technology or documentation are subject to the export control laws, regulations and orders of Canada and the United States and may be subject to the export and/or import control laws and regulations or other countries. The Buyer agrees to comply with such laws, regulations and orders and agrees that it shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited. The Buyer acknowledges its responsibility to obtain any license to export, re-export or import as may be required.

Entire Agreement

The terms and conditions contained herein constitute the entire agreement between DimOnOff and the Customer and supersede any and all prior agreements, whether oral, written, or implied. No modification of these terms and conditions shall be effective unless made in writing and executed by DimOnOff.

General

This agreement shall not be assigned by the Customer without the prior written consent of DimOnOff, and any assignment made without such consent shall be null and void. This agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. This agreement shall be governed by and construed in accordance with the laws of Quebec, Canada, without giving effect to its conflicts of law provisions. The Customer hereby expressly consents to the exclusive jurisdiction of the Quebec courts to settle any disputes arising from these terms or the sale of DimOnOff Product to the Customer.

Related Patents:

Some DimOnOff products make use of parts of the following patents under license.