Dayton Superior Corporation ("Dayton")
Terms and Conditions of Rental/Sale
These terms and conditions apply to all sales and rentals of products ("Products") by Dayton. If Dayton issues a quotation or proposal ("Quotation") to its customer ("Customer") which the Customer accepts by issuance of a written purchase order against the Quotation (or by other means acceptable to Dayton) within the period specified in the Quotation (or, if no period is specified in the Quotation, within 30 days after the Quotation is issued), the Quotation, together with these terms and conditions, will constitute the entire contract between Dayton and Customer with respect to the Products (collectively, the " Contract"). If Dayton does not issue a Quotation with respect to Products, the entire Contract shall consist solely of Dayton’s order acknowledgement with respect to the Products and these t erms and conditions of rental/sale.
All rentals and sales of Products by Dayton are subject to and conditioned on these terms and conditions. Customer’s issuance of a purchase order against a Quotation or with respect to which Dayton issues an order acknowledgement shall serve as Customer’s assent to and acceptance of all pro visions of the Quotation or order acknowledgement and these terms and conditions. Dayton hereby expressly rejects any additional, inconsistent or conflicting terms or conditions proposed by Customer (including any such terms or conditions set forth in Customer’s purchase order). Clerical errors are subject to correction in all cases. If Products are being sold by Dayton pursuant to the Contract, the Products being sold sometimes are referred to herein as "purchased Products," and if Products are being rented pursuant to the Contract, the Products being rented sometimes are referred to herein as "rental Products."
1. Purchase Price or Rental Charge; Payment. Except as otherwise expressly provided in the Quotation, the unit prices or monthly rental charges listed in the Quotation are firm only for orders placed against the Quotation within 30 days after the Quotation is issued and, thereafter, such prices or rental charges are subject to adjustment to the prevailing prices or rental charges in affect at the time of invoicing. Rental charges commence immediately upon the date Dayton ships rental Products and cease on the date the Products are returned to Dayton’s warehouse, as shown on shipping documents. While Customer may return any rental Product at any time, in all events Customer will be charged for a minimum of one month’s rental, with any partial months over the minimum one month period being pro-rated. For purposes of calculating rental charges, each week is assumed to have 7 days and each month is assumed to have 28 days, and pro-rations will be made accordingly. Quoted prices or rental charges are valid only if all items, quantities and sizes listed in the Quotation or order acknowledgement are purchased or rented and only if the Products are to be shipped within Dayton’s normal production and shipping schedule. Quoted prices and rental charges do not include any taxes or other governmental charges which may now or hereafter be applicable to or imposed upon the Products, including sales, use and similar taxes, and Customer shall pay or reimburse Dayton for any such taxes paid by Dayton. Unless otherwise expressly provided in the Quotation or order acknowledgment, Customer shall pay the full price for purchased Products, together with any transportation charges, taxes and other changes, within 30 days after the date of invoice, and all rental charges for rental Products will be invoiced monthly and shall be paid by Customer in full, together with any transportation charges, taxes and other charges, within 30 days after the date of invoice. Invoices not paid in full by the due date shall be subject to a late charge of 1 and 1/2% per month on the unpaid balance from the due date until payment is made in full or, if less, the maximum amount allowable by applicable law. All payments shall be made without set-off, deduction or counterclaim.
2. Delivery; Risk of Loss. Customer shall pay all transportation charges from Dayton’s shipping point to destination. Title and risk of loss shall pass to Customer upon delivery to the carrier at Dayton’s shipping point. Unless otherwise expressly stated in the Contract, Dayton does not guarantee, or assume any liability for, failure to meet any delivery date proposed by Customer or Dayton.
3. Inspection and Claims. Customer shall inspect Products received against shipping documents upon receipt of the shipment at destination and shall notify Dayton in writing of any shortages or readily ascertainable damaged or defective Products within 72 hours after delivery. Failure of Customer to so notify Dayton shall relieve Dayton of any responsibility for such matters. All claims for loss or damage in transit must be made by Customer against the carrier.
4. Ownership of Rental Products. Title to all rental Products shall remain at all times in Dayton. Customer shall not deface, remove or cover any markings showing Dayton’s ownership of the rental Products. Dayton and its agent shall have the right to enter Customer’s premises, or other location of the rental Products, at reasonable times and with reasonable advance notice to Customer, to inspect the rental Products. Customer shall advise Dayton upon request as to the exact location of all rental Products. Customer shall not move rental Products without the prior written consent of Dayton. Customer shall keep all rental Products free and clear of all liens, levies and encumbrances (other than those arising through or by reason of any action of Dayton) and shall timely pay all fees, assessments and taxes that now or hereafter may be imposed upon the ownership, possession, use or rental of rental Products. Customer hereby irrevocably authorizes Dayton to execute and/or file a financing statement or other notice in any jurisdiction with respect to the lease created by the Contract and Dayton’s owners hip of rental Products.
5. Use of Rental Products. Unless otherwise expressly provided in the Quotation or order acknowledgement, rental Products do not include wood of any kind (except as part of a prefabricated panel or other prefabricated rental Product), and Customer shall be responsible for unloading, cleaning, assembling and erection of the rental Products after delivery. Without the prior written consent of Dayton, Customer shall not make any alterations, additions or improvements to any rental Products. Customer shall cause rental Products to be used only by competent trained operators in a careful, safe and proper manner in compliance with all applicable laws, rules, regulations, the manufacturer’s guidelines and requirements (including maintenance guidelines) and sole ly for the purposes for which they are intended.
6. Limited Warranty. Dayton warrants, for a period of 60 days from the date of shipment (3 years from the date of shipment in the case of formwork, excluding any consumable Products included with such formwork), that all Products and any associated application drawings and engineering services provided by Dayton ("Ancillary Services") will be free from defects in material and workmanship and, in the case of custom designed formwork, that the formwork will meet the specifications set forth in the design drawings approved by Dayton and Customer. Any claim under this warranty must be made to Dayton in writing within such warranty period. If any Products and/or Ancillary Services covered by a timely claim are found by Dayton to be defective, Dayton will, within a reasonable time, make any necessary repairs or corrections, or at the option of Dayton, replace the defective Products. Unless pre-authorized by Dayton in writing, Dayton will not accept any charges for correcting defects or accept the return of any Products. This warranty will not apply to any Products which have been subjected to misuse, neglect, storage damage, misapplication, accident or any other damage caused by any person other than Dayton, or which have not been maintained in accordance with Dayton’s published maintenance specifications. THE LIMITED WARRANTY SET FORTH IN THIS SECTION IS IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS AND ANCILLARY SERVICES. DAYTON MAKES NO OTHER WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OF OTHERWISE. THE REMEDIES SET FORTH IN THIS SECTION ARE CUSTOMER’S EXCLUSIVE REMEDY FOR BREACH OF WARRANTY.
7. Limitation of Liability. In all events, Dayton’s liability to Customer under the Contract or with respect to the Products and the Ancillary Services shall be limited to the purchase price of purchased Products or the rental charges paid by Customer under the Contract for rental Products. Dayton shall have no other liability to or through Customer whatsoever, whether based on breach of contract, negligence, gross negligence, strict liability or otherwise. IN NO EVENT SHALL DAYTON BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES) ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT, THE PRODUCTS OR THE ANCILLARY SERVICES.
8. Contingencies. Dayton shall not be responsible for delays in performance caused, directly or indirectly, by any act of God, accident, war, force of arms, fire, elements, riot, labor dispute, strike, sabotage, civil commotion, act of terrorism, government action, transportation interruption, inability to obtain materials or labor, Customer’s failure or delay in approving any design or other drawings or any other contingencies beyond the reasonable control of Dayton.
9. Risk of Loss and Insurance. From the date rental Products are shipped until the Products are returned to Dayton, Customer shall bear the entire risk of loss and damage to the Products, whether or not insured. Customer shall, at Customer’s expense, maintain rental Products in good repair, condition and working order, normal wear and tear excepted. In the event of any loss or damage to rental Products, Customer shall place the same in good repair, condition and working order, normal wear and tear excepted, or, if Customer fails to do so, shall, at Dayton’s election, pay to Dayton, at Customer’s expe nse, the full, un-depreciated replacement cost of the rental Products plus the full amount of any unpaid rent through the date of such payment. Customer shall keep rental Products insured against all risk of loss or damage covered by customary property and casualty insurance for the full un-depreciated replacement value (new) and shall carry public liability insurance, both personal injury and property damage, covering the rental Products and their use. All such insurance shall name Dayton as an additional insured/loss payee, shall provide not less than 30 days’ written notice of cancellation to Dayton and shall be of a type form, in amounts and with companies, and with terms and conditions, reasonably satisfactory to Dayton.
10. Indemnification by Customer. Customer shall be responsible for all damages for personal injury or death and for all damage to property arising out of the use by Customer of the Products or any other act, or omission by Customer or any subcontractor, agent, sublessee, employee of, or purchaser from, Customer with respect to the Products, and Customer shall indemnify, defend and hold Dayton harmless from and against all liabilities, judgments, costs, damages and expenses (including reasonable attorneys’ fees) which Dayton may incur on account of any such personal injury, death or property damage, unless resulting from the gross negligence or willful misconduct of Dayton. If Customer subleases or resells (in the case of purchased Products) any of the Products, Customer shall include language in an enforceable agreement with its purchaser that makes the limitations set forth in these lease terms and conditions (including the limitations set forth in paragraph 7), binding on its lessee or its purchaser and any subsequent purchasers of the Products.
11. Documentation; Product Data. Any specifications, plans, drawings or application recommendations furnished by Dayton to Customer ("Documentation") are provided only as a service to Customer to conceptually illustrate the assembly and use of Products. Such Documentation is not intended to be fully directive nor to cover all engineering details on Products, on products or materials not furnished by Dayton, or on their interconnection. Inasmuch as Dayton does not control jobsite assembly or procedures, grade or quality of materials, or equipment supplied by others, it is the responsibility of Customer to integrate Documentation into composite drawings and information suitably complete for construction purposes. In the case of custom designed formwork, design drawings will be furnished by Dayton for Customer’s approval prior to any fabrication by Dayton. Dayton shall not be responsible for any deviations, changes or alter ations to the recommended assembly details described in forming layout drawings unless such deviations, changes or alterations are illustrated in a revised design drawing provided by Dayton or are approved in writing by Dayton. Dayton shall at all times retain ownership of all Documentation and other technical data ("Pr oduct Data") with respect to the Products and the Ancillary Services, and unless duly authorized by Dayton, Customer shall not disclose any such Product Data to any other person. Upon Dayton’s request, Customer promptly shall return to Dayton all copies of Product Data.
12. Default; Termination. If Customer fails to pay when due any rental charge or other amount due under the Contract with respect to rental Products or fails to perform any other obligation of Customer under the Contract, or if Dayton deems itself insecure or determines that any rental Products are at risk of being damaged, lost or removed from Customer’s control, Customer shall pay immediately upon notice from Dayton an amount equal to the sum of : (i) the full amount of the unpaid rental charges through the date of payment , plus (ii) Dayton’s most recently published list price of the Products covered by the Contract, and Dayton shall have the right, without notice or demand on legal process, to take possession of the rental Products, wherever located, at the expense of Customer, and all rights of Customer in the rental Products shall terminate absolutely; however, Customer shall not be released from its obligations under the Contract until the full amount of the unpaid rental charges and other amounts have been paid in full. Upon termination of Customer’s rights under the Contract with respect to rental Products (whether by reason expiration of the rental period specified in the Quotation or Dayton’s order acknowledgement, failure by Customer to perform any obligation under the Contract or otherwise), Customer promptly shall return the rental Products to Dayton, at Customer’s expense, in accordance with Dayton’s instructions. Customer shall pay for any damage to the rental Products, ordinary wear and tear excepted.
13. Costs of Collection. Customer shall reimburse Dayton for all costs incurred by Dayton in collecting any amounts owed by Customer under the Contract (including, court costs, permissible interest and reasonable attorneys’ fees) and all amounts incurred b y Dayton in protecting its rights under the Contract and/or recovering and/or repairing any rental Products.
14. Purchase Option. Customer shall have the option to purchase all or any rental Products covered by the Contract to the extent provided in the Contract. Unless otherwise provided in the Contract, the terms and conditions of any such purchase option shall be Dayton’s then prevailing st andard purchase option terms.
15. Compliance with Governmental Requirements. If Customer requires that the Products comply with particular standards or requirements of law or governmental regulations, those standards or requirements must be expressly specified in writing in the Contract. In the absence of such an express specification, Dayton shall have no liability or obligation to Customer with respect to the failure of the Products to comply with any such standards or requirements.
16. Miscellaneous. The Contract contains the full and entire agreement between Customer and Dayton. The Contract may not be amended or altered in any manner unless such alteration or amendment is in writing and signed by an authorized representative of Dayton. Customer may not cancel orders under this Contract for customized Products without the written consent of Dayton. Without the prior written consent of Dayton and the full release of Dayton from any obligations with respect to the Products, Customer shall not assign the Contract or rent or sublease any rental Products covered by the Contract. Any provision of the Contract that is invalid under applicable law or court order shall not in any way invalidate or affect the remaining provisions of the Contract. The Contract shall be construed in accordance with the laws of the State of Ohio and shall be binding upon the successors and assignees of the parties hereto.
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