SXP & Extended Warranty
Terms & Conditions
1. Agreement: These Terms and Conditions constitute a binding contract between the Customer and ChemDAQ Inc. (ChemDAQ) and are referred to herein as either the "Terms and Conditions" or this "Agreement". Customer expressly accepts these Terms and Conditions by making a purchase from or placing an order with ChemDAQ or its authorized agents, otherwise requesting products (the "Products") or engaging ChemDAQ or its authorized agents to perform or procure any Services.
2. Scope: These Terms and Conditions posted on the ChemDAQ website (www.chemdaq.com) at the time Customer places an order, signs a Statement of Work or renews a contract will constitute the terms and conditions for the term of that agreement, unless otherwise agreed to in writing by ChemDAQ and the Customer. For Pay Per Exchange (PPX) agreements, the Terms and Conditions in effect on the date of the most recent invoice shall apply. ChemDAQ reserves the right to change these terms and conditions at any time; however, the terms and conditions in effect at the beginning of the contract will apply for the full term of the contract.
3. Subject Matter: For purposes of this agreement, the Products include the components of a gas monitoring system and any other product that ChemDAQ may offer for sale or lease. In addition, Services may be provided including those related to the commissioning, calibration, maintenance, and repair of the Products, as well as user training and consulting services. Note: ChemDAQ gas sensors are not included in the purchase of gas monitoring Products and remain the property of ChemDAQ. For the purposes of this agreement, the term ‘sensor’ applies to a ChemDAQ sensor module.
4. Taxes: All applicable taxes, tariffs, and other governmental charges shall be paid by Customer and are Customer's responsibility, except as limited by law. For US Customers, sales taxes will be invoiced by ChemDAQ for payment to the state where ChemDAQ Products and Services are delivered to, unless Customer provides documentary evidence that they are exempt from state sales taxes.
5. Sensor Usage Agreement under the SXP Program
6. Sensor Usage: In order for the Customer’s gas monitors to function correctly, the monitors must have sensors installed, and the sensors must be within their calibration period. ChemDAQ will provide sensors for the term of the Sensor Usage Agreement for use with Customer’s monitors. In order to ensure that calibrated sensors are installed, ChemDAQ will:
a) Track when factory calibrated sensors are required;
b) Ship factory calibrated sensors to the Customer at an interval determined by ChemDAQ;
c) Notify the customer of the shipping details; and
d) Provide telephone support for Sensor usage.
The Customer will install these factory calibrated sensors in the gas monitors and promptly return the expired sensors back to ChemDAQ. ChemDAQ reserves the right to change the interval between shipment of sensors and the number of sensors shipped per monitor over the term of the Sensor Usage Agreement.
ChemDAQ gas and vapor sensors are designed to keep workers safe. ChemDAQ makes no warranty for the performance of sensors used beyond their calibration expiration date. Continued use of the sensor beyond their calibration expiration date is potentially dangerous and ChemDAQ reserves the right to disable sensors used beyond their calibration expiration date.
7. Sensor Exchange: It is the Customer’s responsibility to exchange the old sensor(s) for the new pre-calibrated sensor(s) and return the old sensor(s) to ChemDAQ within 10 business days for customers within the United States and 15 business days for customers located outside the United States. ChemDAQ will provide Customers within the United States with a pre-paid return shipping label. Unless agreed to otherwise, customs fees and import duties (where applicable), are the responsibility of the customer and will be billed separately.
8. Sensors out of Calibration: ChemDAQ gas and vapor sensors are designed to keep workers safe. ChemDAQ makes no warranty that sensors used outside their calibration period will perform within the sensor specifications. Continued use of the sensor beyond their calibration expiration date is potentially dangerous and ChemDAQ reserves the right to disable sensors used beyond their calibration expiration date.
9. Lost Sensors: If the sensors are not returned to ChemDAQ within 10 business days of the Sensor Exchange for Customers within the United States and 15 business days for Customers located outside the United States, the Customer agrees to pay a ‘lost sensor’ fee of $1,500 per sensor.
10. Ownership of Sensors: Sensors will remain the property of ChemDAQ, and must be returned to ChemDAQ at the termination of the Sensor Usage Agreement, if the Agreement is not renewed or if the customer ceases to use the monitor. NOTE: THE GAS MONITOR(S) WILL NOT DETECT GAS WITHOUT A SENSOR.
11. Sensor Usage Agreement Term: Customers may have Fixed Term sensor usage agreements (typically one year), or PPX sensor usage agreements.
a) For customers with Fixed Term sensor usage agreements, the Sensor Usage Agreement term is as stated on the Quote, Invoice or Sensor Usage and Extended Warranty Form. In addition, the following conditions apply to the Fixed Term sensor usage agreements.
12. Sensor Usage Payment: Customer agrees to pay the Sensor Usage Agreement fee for the entire term of the Sensor Usage Agreement, payment to be made within 30 days of receipt of an undisputed invoice.
13. Restoral Fee: Customers who do not renew their Sensor Usage agreement on time agree to pay restoral fee. This restoral fee is calculated as a ten percent (10%) of the next sensor Usage Agreement fee.
14. Non-Renewal of the Sensor Usage Agreement: If the Customer notifies ChemDAQ of the Customer’s intent not to renew the Sensor Usage Agreement, the Customer shall return the sensors to ChemDAQ within 10 business days of the termination of the Sensor Usage Agreement if Customer site is located within the United States and 15 business days if the Customer site is located outside the United States, otherwise the Customer agrees to pay the ‘lost sensor’ fee.
15. For customers with ‘PPX sensor usage agreements ChemDAQ will provide a quote for the PPX service and then ChemDAQ will ship sensors upon receipt of a purchase order. The time interval will depend on sensor type but is most commonly four months. ChemDAQ will periodically supply factory calibrated sensors to the customer at a frequency determined by
a) ChemDAQ based on the types of sensor employed and information about the Customer’s location. The customer may terminate the sensor usage agreement upon 90 days notice, and the termination becomes effective upon the return of the sensors to ChemDAQ, or notification to ChemDAQ that the sensors, and the appropriate lost sensor fees have been paid.
16. Sensor Condition: The sensors are designed to be operational almost immediately upon installation in the gas monitor; however, there is a small risk that sensors may be damaged during shipment. It is the Customer’s responsibility to determine the condition of the sensor(s) upon receipt of any sensors and report any deficiencies to ChemDAQ promptly.
17. Wet Environments: The customer is responsible to ensure that the sensor does not get wet. IF THE SENSOR DOES GET WET, ITS PERFORMANCE MAY BE COMPROMISED AND IT MAY NO LONGER DETECT GAS PROPERLY OR AT ALL, AND SO THE SENSOR SHOULD BE REPLACED. The sensor includes an indicator that shows if the sensor was contacted by liquid water. If a replacement sensor is needed, contact ChemDAQ immediately. Replacement sensors due to water damage that are required in addition to those replacement sensors through the Sensor Usage program (see section 18), will incur an additional fee of $600 per sensor.
18. Sensor Shipment: Scheduled shipments of sensor(s) will be made to the Responsible Person at the Customer’s facility. The Responsible Person is designated by the Customer and is usually the person who will be performing the sensor exchange and returning the old sensor(s).
19. Sensor Warranty: Sensors are subject to the following limited warranty for the term of the Sensor Usage Program. If ChemDAQ is notified that a sensor failure has occurred, a pre-calibrated replacement sensor will be provided, if in ChemDAQ’s judgment sending a new sensor is likely to resolve the issue. CHEMDAQ MAKES NO OTHER WARRANTIES FOR THE SENSOR, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. IN NO EVENT WILL CHEMDAQ, ITS REPRESENTATIVES, DISTRIBUTORS, SUBCONTRACTORS OR ITS VENDORS BE LIABLE FOR ANY OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFIT OR LOSS OF USE, ARISING OUT OF THE USE OF THE SENSORS WHETHER SUCH CLAIM IS PLEADED IN CONTRACT OR IN TORT, INCLUDING STRICT LIABILITY IN TORT.
20. Extended Warranty (if applicable)
21. Limited Warranty: ChemDAQ products are warranted to be free from defects in material and workmanship for a period of one year from the earlier of the date of installation, or 120 days after the date of shipment, except where otherwise stated in writing by ChemDAQ. The limited warranty corresponds to the Warranty Service Plan described below.
22. Warranty Terms: The following terms will apply to the ChemDAQ Warranty Service Plan:
23. The product warranty will cover all repairs of Products supplied by ChemDAQ. This agreement includes all parts and labor from the date of installation of the Products by a ChemDAQ authorized technician if installed within 120 days of shipment; otherwise from the date of shipment of the Products, if the Products does not require installation by ChemDAQ or if the Products are not installed by a ChemDAQ authorized technician within 120 days of shipment. The warranty does not cover customer on-site repairs or in-service training.
24. All repair work must be performed by authorized ChemDAQ service technicians. The warranty does not apply to service made necessary by accident, fire, theft, neglect, abuse, misuse, water damage, deterioration caused by chemicals that are not in normal operations or repairs made necessary by personnel other than those authorized by ChemDAQ.
25. The Customer must receive authorization from ChemDAQ prior to returning any malfunctioning Products for repair. The Customer will be responsible for requesting the required shipping documents from a carrier that ChemDAQ specifies. Should the Customer fail to fulfill the return shipping requirements, the Customer will be responsible for any damage that occurs to the Products during shipping. For Products returned under a Returned Material Authorization (RMA) number, the RMA number must be prominently visible on the outside of the package returned to ChemDAQ.
26. Loaner equipment may be provided when necessary to minimize down time due to repairs. Following the Customer’s receipt of the repaired equipment, the loaner equipment must be returned to ChemDAQ within ten business days if the Customer is located within the US and fifteen business days if the customer is located outside the US. If some or all of the equipment is not returned to ChemDAQ within this period, the Customer agrees to pay the current list price for any equipment not returned.
27. Accessories and expendables such as printer paper, ink cartridges, computer disks, air filters and filter media are not covered under the warranty.
28. Warranty Service Plan:
a) The Warranty Service includes telephone support, and loaner replacement (where applicable) in the event that ChemDAQ Products malfunction and the cost of parts and labor for factory repair of the Products. On-site support is available for an additional fee.
b) All Customers receive the Warranty Service Plan for their first year after purchasing ChemDAQ equipment for no additional charge.
c) Extended Warranty: The warranty period may be extended through the purchase of an Extended Warranty Service plan. The conditions of the Warranty described above also apply to the Extended Warranty Service Plans.
d) The Customer agrees to pay the fee; payment to be made in advance of the start of the term of the agreement. The cost of the Warranty Service Plan after the first year is calculated as a percentage of the current list price of the equipment owned by the Customer and the duration of the term.
29. General Terms
30. Force Majeure: Neither Party shall be liable for any loss or damage resulting from delay in prosecution or completion of the work caused by labor disputes, floods, fires, riots, thefts, accidents, inability to obtain necessary labor, materials, components, or fuel, acts of Government, or any other cause which is beyond the reasonable control of that Party. The Parties shall have the right in the event of the happening of any of the above contingencies, to delay obligations under this agreement or cancel this agreement or any part thereof without any resulting liability to the other Party.
31. Statute of Limitations: No action arising out of any claimed breach of this agreement or transactions under this agreement may be brought by the Customer more than two years after the cause or action has accrued, without regard to the date the breach is discovered.
32. Assignments: Neither party may delegate any duties, nor assign any rights or claims hereunder, without prior written consent of the other Party.
33. Waiver: Waiver by either Party of any of these Terms and Conditions shall not constitute a waiver of any other of these Terms and Conditions.
34. Ineffective Provisions: The provisions of this Agreement shall be severable, and if any one of them is held to be invalid or unenforceable for any reason, such provision shall be modified to the extent necessary to cure such invalidity. The invalidity or unenforceability of one provision shall not affect any other provision of this Agreement.
35. Different Terms: Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order or other document will be null and void and this agreement is expressly conditioned on Customer’s assent to any different or additional terms contained herein. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions or any purchase order or invoice.
36. Clause headings: Headings within this Contract are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer.
37. No Federal Exclusion: ChemDAQ warrants that neither it nor its employees, directors, officers, equity owners, and agents under this Agreement are excluded from participation or are otherwise ineligible to participate in a "federal health care program" (as defined in 42 U.S.C. §1320a-7b(f)) or in any other government payment program. If ChemDAQ discovers that any of its employees, directors, officers, equity owners, and agents under this Agreement are excluded from participation or are otherwise ineligible to participate in a "federal health care program" then ChemDAQ shall notify Customer within 30 days of such discovery and Customer may terminate this agreement at Customer’s discretion.
38. Insurance: ChemDAQ shall maintain general liability insurance coverage during the term of this Agreement, with coverage including at least one million dollars ($1,000,000) per occurrence and five million dollars ($5,000,000) aggregate.
39. HIPAA ChemDAQ’s gas monitoring systems do not use Protected Health Information (PHI) as defined under the Health Insurance Portability and Accountability Act of 1996, as amended (HIPAA) and ChemDAQ does not expect or desire to have any access to PHI. However, if ChemDAQ receives any PHI it will notify Customer immediately and delete the PHI unless instructed otherwise by Customer.
40. Clause headings: Headings within this Contract are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer.
41. Language: In case of disagreement between the translations of this contract into other languages, this English language version shall control.
42. Controlling Law: This contract, sale of the Products, provision of services, software license and any other matter arising out of the transaction contemplated hereunder shall be governed by the substantive law of the Commonwealth of Pennsylvania, excluding the Commonwealth’s choice of law provisions. The parties agree to submit to the personal jurisdiction of the state and federal courts in Allegheny County, Pennsylvania.