Terms & Conditions
1. Agreement: These Terms and Conditions constitute a binding contract between 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 or product Lease 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 Product Lease and 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 period (date Statement is Work is signed, contract renewed or most recent PPX invoice etc.) 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, accessories 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, lease 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 the Customer and are the 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 are delivered to, unless Customer provides documentary evidence that they are exempt from State sales taxes.
Gas Monitoring System
5. Payment: For purchase or Lease of goods and/or services from ChemDAQ, Customer agrees to pay the balance within 30 days of the later of the receipt of invoice from ChemDAQ or the receipt of goods and/or services from ChemDAQ; unless a different payment schedule is agreed to in writing.
6. Delivery of System: Customer and ChemDAQ will agree on the delivery and commissioning dates, if required. ChemDAQ will arrange for delivery through a carrier chosen by ChemDAQ, the costs and terms of which shall be F.O.B. ChemDAQ Inc.
7. Risk of Loss: The risk of loss from any casualty to the system during shipment to the Customer, regardless of the cause, will be the responsibility of the Customer except for the period when ChemDAQ has actual physical control of the system during the commissioning process.
8. Installation of Fixed Systems: For orders including fixed gas monitoring systems that require commissioning by ChemDAQ personnel, Customer and ChemDAQ will agree on an installation plan for the system comprising location of system components, electrical connections between system components at Customer’s facilities and location of power outlets.
a. Customer agrees to install wall boxes, run wiring, and provide power outlets and other components as agreed in the installation plan; Customer further agrees to follow all recommendations provided in the current product manual and installation guide and to inform ChemDAQ if installation of the system differs from ChemDAQ’s recommendations and / or product requirements and to assume responsibility in the event that the ChemDAQ product fails to perform as expected.
b. ChemDAQ will perform final commissioning and verification of the hardware and software at the Customer’s site at a mutually agreed date and time.
c. If the site isn't ready for commissioning as described in section a) or if the Customer fails to meet installation requirements as specified in the ChemDAQ equipment manual and installation instructions when the ChemDAQ technician arrives, he or she will leave without completing the commissioning and the Customer will forfeit the commissioning payment and the Customer will have to purchase another commissioning and schedule a time and date to have ChemDAQ come back.
d. Customers who install their own equipment without ChemDAQ commissioning the system are responsible for any immediate or subsequent problems arising from the installation and any such problems are outside of ChemDAQ’s warranty.
9. Customer Installation Responsibilities:
For monitors not designed for use in wet environments, the Customer must ensure that the monitor is mounted in a location where the monitor is not exposed to constant sprays or mists. If the location is subject to wash-down, the monitor must be covered prior to wash-down sufficiently well to prevent the monitor and sensor from getting wet.
For installations in potentially wet environments, the Customer is responsible for ensuring that the ChemDAQ products chosen are suitable for wet environments and that they are installed according to ChemDAQ’s installation instructions and all applicable electrical codes and standards.
For monitors that are designed for wet environments, if the location is subject to wash-down, the sensor must be covered prior to wash-down sufficiently well to prevent the sensor from getting wet. Some products include a door cover or plug, as applicable, which must be installed prior to wash-down, as described in the product manual.
THE DOOR COVER OR THE PLUG (as applicable) MUST BE REMOVED AFTER WASH-DOWN, OTHERWISE THE MONITOR WILL NOT DETECT THE TARGET GAS. IF THE SENSOR GETS WET, IT MAY NOT LONGER FUNCTION PROPERLY AND SHOULD BE REPLACED, as described in section 22.
10. Limitation of Liability: EXCEPT AS PROVIDED IN THIS AGREEMENT, CHEMDAQ MAKES NO OTHER WARRANTIES, 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 TO THE CUSTOMER OR CUSTOMER’S STAFF OR EMPLOYEES FOR ANY OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFIT OR LOSS OF USE, ARISING OUT OF THE SALE, MANUFACTURE, LEASE OR USE OF ANY PRODUCTS SOLD OR SERVICES RENDERED HEREUNDER WHETHER SUCH CLAIM IS PLEADED IN CONTRACT OR IN TORT, INCLUDING STRICT LIABILITY IN TORT OR BASED ON ANY OTHER LEGAL THEORY.
ChemDAQ will be responsible for the repair, re-calibration or replacement (at ChemDAQ’s option) of any Products rendered unserviceable to the Customer solely as the result of negligent acts or misjudgment of ChemDAQ’s personnel while servicing the Products. Correction of non-conformities, whether patent or latent, in the manner and within the time provided above shall constitute the entire liability of ChemDAQ with respect to such Products whether in contract, warranty, tort, strict liability, or otherwise. In no event will ChemDAQ be responsible for, or liable to, the Customer or Customer’s staff, contractors or employees in excess of its obligation to repair, recalibrate or replace the Products covered under this contract.
No one is authorized to make any warranty or representation other than as set forth in the standard product warranty in this agreement. The customer may not rely on any other warranty or representation of any other person or legal entity other than ChemDAQ.
11. Intended Purpose: Except as expressly agreed by the parties in writing, Customer acknowledges that it alone has determined the intended purpose and suitability of the goods and/or services leased or purchased. It is expressly agreed by the parties that any technical, consultative, advisory or other advice given by ChemDAQ with respect to the use of the goods or services is implemented at Customer’s risk; therefore, ChemDAQ assumes no obligations or liability for the advice given or results obtained.
12. Exclusive Remedies: SHOULD THE PRODUCT FAIL TO CONFORM TO THE WARRANTY DESCRIBED BELOW, CUSTOMER’S ONLY REMEDY AND CHEMDAQ’S ONLY OBLIGATION SHALL BE, AT CHEMDAQ’S SOLE OPTION, REPLACEMENT OR REPAIR OF SUCH NON-CONFORMING GOODS OR REFUND OF THE PRICE PAID ON THE INVOICE.
13. Pricing Information and Availability Disclaimer: ChemDAQ reserves the right to make adjustments to pricing, Products and Services offerings for reasons including, but not limited to, changing market conditions, Product discontinuation, Product unavailability, manufacturer price changes, Product configurations changes, supplier price changes and errors in advertisements. All orders are subject to Product availability and the availability of Personnel to perform the Services. Therefore, ChemDAQ cannot guarantee that it will be able to fulfill Customer’s orders. If Services are being performed on a time and materials basis, any estimates provided by ChemDAQ are for planning purposes only.
14. Technical Support: ChemDAQ will provide technical assistance when necessary via phone at 1-412-787-0202, Ext. 310, or via ChemDAQ’s toll free (US and Canada only) Customer Care Line (1-800-245-3310 Ext. 310) Monday through Friday between the hours of 8:30am-5:00pm (ET). ChemDAQ will also provide technical assistance via email through techsupport@chemdaq.com.
15. New Product Returns: Unless otherwise agreed in writing, all sales are final, and products that are correctly furnished by ChemDAQ per the purchase order may not be returned except under the following conditions.
a. The Customer has contacted ChemDAQ, and the return has been approved, and a Return Material Authorization (RMA) number has been provided. Issuance of the RMA is at ChemDAQ's discretion.
b. Authorization will not be provided for products that were received by Customer more than 30 days prior to Customer requesting the return.
c. The product is shipped to ChemDAQ at Customer's expense and at Customer's risk of loss until received by ChemDAQ.
d. The product is received by ChemDAQ within 30 days of issuance of the RMA.
e. The RMA number is clearly written on the outside of the shipping package and shipping label.
f. After receipt of the product by ChemDAQ, the product is determined by inspection to be unused and in new saleable condition.
g. Custom and specially manufactured products may not be returned.
h. For international customers, the Customer will be responsible for paying any import duties or taxes.
For all-non-warranty returns, there is a restocking fee of the greater of 20% of the value of the returned product or $250, to cover the cost of inspection and test. Products returned without an RMA, outside the above time limits or returned in unsalable condition will not be refunded, and the Customer will have 60 days to either arrange for the product to be returned back to the Customer at Customer's expense, otherwise the Customer agrees that the Customer no longer wants the product and ChemDAQ may dispose of the product at its discretion. All refunds will be US dollars. This return section does not apply to products returned under warranty.
Warranty
16. Limited Warranty: ChemDAQ products are warranted to be free from defects in material and workmanship for a period of one year from the date of shipment, except where otherwise stated in writing by ChemDAQ. The limited warranty corresponds to the Warranty Service Plan described below.
17. Warranty Service Plan: The following terms will apply to the ChemDAQ warranty:
a. The product warranty will cover all repairs of Products supplied by ChemDAQ including parts and labor. The warranty period will start from the date of shipment and will last for a period of one year.. The warranty does not cover on-site repairs at Customer sites or in-service training, and ChemDAQ reserves the right to charge a reasonable fee for such services and/or repairs.
b. 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 or damage caused by chemicals that are not in normal operations, or repairs or attempted repairs performed by personnel other than those authorized by ChemDAQ.
c. The Customer must receive authorization from ChemDAQ prior to returning any malfunctioning Products for repair, and Customers receiving authorization will be given a Returned Material Authorization (RMA) number. 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 an RMA, the RMA number must be prominently visible on the outside of the package returned to ChemDAQ.
d. 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 15 business days if the Customer is located within the US and 20 business days if the customer is located outside the US. If some or all of the loaner equipment is not returned to ChemDAQ within this period, the Customer agrees to pay the current list price for any such loaner equipment not returned.
e. Refurbished equipment may be provided to replace instead of repair the malfunctioning equipment to minimize down time. Following the Customer’s receipt of the refurbished equipment, the malfunctioning equipment must be returned to ChemDAQ within 15 business days if the Customer is located within the US and 20 business days if the customer is located outside the US. If some or all of the malfunctioning equipment is not returned to ChemDAQ within this period, the Customer agrees to pay the current list price for any such equipment not returned.
f. Accessories and expendables such as printer paper, ink cartridges, computer flash drives, air filters and filter media are not covered under the warranty.
In the event that ChemDAQ Products malfunction, the Warranty Service includes telephone support and loaner replacement (where applicable as determined by ChemDAQ’s Technical Service team), and the cost of parts and labor for factory repair of the Products. The Warranty service does NOT include on-site support. On-site support may be available for an additional fee. Contact ChemDAQ for further information.
All Customers receive the Warranty Service Plan for their first year after purchasing ChemDAQ equipment for no additional charge.
18. 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 Plan. The cost of the Extended 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. Customers purchasing the Extended Warranty agree to pay the Extended Warranty fee; payment to be made in advance of the start of the term of the agreement.
19. Leased Products
ChemDAQ offers certain Products on a Lease Basis. The period of the Lease is as stated in the Lease Agreement.
a. Any ChemDAQ Products provided under a Lease agreement are subject to the limited warranty described in section 16.
b. Any ChemDAQ Products provided under a Lease agreement are subject to the liability limitations and remedies specified in sections 10 to 12.
c. The Customer is responsible for ensuring that the Lease product is returned to ChemDAQ within 10 business days (Monday through Friday excluding US Federal holidays) after the end of the Lease agreement. The Customer agrees to pay the current list price for all products not returned with ChemDAQ within this time.
d. The Customer is responsible for ensuring that the ChemDAQ Products are returned to ChemDAQ in working order and in an appropriate condition suitable for a subsequent lease. If the Products are found to be damaged upon receipt at ChemDAQ, the Customer agrees to pay the current list price for the Product.
Sensor Usage Agreement (also known as the SXP Agreement)
20. 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.
21. Sensor Exchange: It is the Customer’s responsibility to exchange the expired sensor(s) for the freshly calibrated sensor(s) and return the expired sensor(s) to ChemDAQ within 15 business days for customers within the United States and 20 business days for customers located outside the United States. ChemDAQ will provide Customers within the United States with a pre-paid return shipping label. ChemDAQ reserves the right to charge additional shipping for Customers located outside of the United States. Unless agreed to otherwise, customs fees and import duties (where applicable), are the responsibility of the customer and will be billed separately.
22. 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.
23. Lost, Wet, Soiled, and Damaged Sensors: If the sensors are not returned to ChemDAQ within 15 business days of the Sensor Exchange for Customers within the United States and 20 business days for Customers located outside the United States, the Customer agrees to pay a ‘lost sensor’ fee of $1,500 per sensor.
a. If the sensor module is damaged by exposure to water or other fluids, then the customer will be responsible for the repair or replacement of the sensor module, up to the cost of a lost sensor. If the sensors are damaged beyond reasonable repair Customers agree to pay the lost sensor fee for sensors. Damaged beyond reasonably repair indicates damage to two or more of the following: the gas sensor component, internal circuit board(s), the power switch, the USB connector and the sensor module enclosure, and/or permanent labels. Whether a sensor is damaged beyond reasonable repair will be determined solely by ChemDAQ.
b. The Customer agrees to pay a cleaning charge of $250 per returned sensor if, at ChemDAQ’s sole determination, the sensor(s) is/are returned to ChemDAQ severely soiled or contaminated beyond the contamination expected from normal usage. Such abnormal contamination requires additional cleaning steps beyond ChemDAQ’s normal cleaning and sanitizing procedures. If the sensor is so severely contaminated that it cannot be adequately cleaned as determined by ChemDAQ, then the sensor will be considered damaged and the ‘lost sensor’ fee will apply.
c. The customer is responsible for ensuring 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. If a replacement sensor is needed, contact ChemDAQ immediately. Sensors replaced due to water contact that are required in addition to those replacement sensors through the Sensor Usage program (see section 19), will incur an additional fee of $600 per sensor, provided the sensors are not otherwise damaged. If the sensor is damaged by water contact, the terms of part a) of this section apply.
Note: If water does get inside a sensor module, then the sensor should be dried as much as possible, otherwise corrosion may occur resulting in permanent damage.
24. Sensor Usage Agreement Term: Under the Sensor Usage Agreement, also known as the SXP Contract, 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 or Invoice. In addition, the following conditions apply to the Fixed Term sensor usage agreements.
b. 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.
c. Restoral Fee: Customers who do not renew their Sensor Usage agreement on time agree to pay a restoral fee. This restoral fee is calculated as ten percent of the next Sensor Usage Agreement fee.
d. 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 15 business days of the termination of the Sensor Usage Agreement if Customer site is located within the United States and 20 business days if the Customer site is located outside the United States, otherwise the Customer agrees to pay the ‘lost sensor’ fee for each sensor under the Sensor Usage Agreement.
e. Renewal of PPX Customers: 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 the sensor type but is most commonly four months.
ChemDAQ will periodically supply factory calibrated sensors to the customer at a frequency determined by ChemDAQ based on the types of sensors 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.
25. 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.
26. Sensor Condition: The sensors are designed to be operational almost immediately upon installation in, or connection to, 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.
27. 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 expired sensor(s).
28. 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.
Software License Agreement
29. Software Use License: For the purposes of this agreement, the term “Software” includes both the software running on a computer and embedded code within a device (also called firmware). Purchase of ChemDAQ Products with Software installed or with embedded code does not constitute purchase of the Software but only provides a limited license to use the Software as is disclosed herein.
a. Single-User: By using ChemDAQ Products that contain Software, the Customer agrees to be bound by the terms of this license agreement. If a Customer does not agree to all of the terms, the ChemDAQ Products must be returned promptly; together with any accompanying printed materials in an unopened condition to ChemDAQ, for a full refund, less the restocking fee described in Section 15.
b. Grant of Single License: By this License Agreement the Customer is permitted to use the ChemDAQ Software, which may include electronic documentation, for use with up to the number of gas monitors and other equipment stated in the purchase agreement. The Customer agrees not to copy or use the Software on any other computer, over a network or any other device or system unless agreed to in writing by ChemDAQ.
c. Transfer of Software License: The Customer agrees not to sublicense, assign, or otherwise transfer a license in any portion of the Software, but the Customer may transfer his/her/its rights under this License Agreement on a permanent basis, provided that the ChemDAQ products employing such Software are also transferred, no copies of the Software are retained, and the recipient agrees to the terms of this License Agreement and informs ChemDAQ of the transfer.
30. Software Upgrades: On occasion, ChemDAQ may at its discretion release software updates to address known issues and/or bug fixes or add improvements and functionality to current software. It is the customer’s responsibility to upgrade software promptly upon notification of update availability from ChemDAQ. Upgrades are necessary to enable Products to operate effectively. Software updates are subject to the same software warranties and conditions herein.
The Customer agrees that Software updates are covered by the same terms and conditions as the Software was first delivered to the Customer, whether as separate software or as software incorporated into a product or device.
31. Intellectual Property: All intellectual property rights in the Software (including any and all graphics, algorithms, audio, images, video, applets and text incorporated in the Software) are owned by ChemDAQ, its suppliers and licensors, and are protected by United States and international law, including applicable intellectual property law such as copyright law. ChemDAQ, its suppliers and licensors, retain all rights not expressly granted in this License Agreement.
a. Copyright: ChemDAQ Software is copyrighted, and the Customer agrees not to share, lend, rent, lease or otherwise distribute the Software, and further agrees not to deface, modify or alter the Software or create works derived from it. Customer agrees not to distribute printed copies of any documentation provided in electronic format outside of Customer’s organization without the express written permission of ChemDAQ.
b. No Reverse Engineering: Customer agrees not to reverse engineer, decompile or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding such restrictions.
32. Limited Software Warranties: ChemDAQ provides only a limited warranty for the ChemDAQ Software. ChemDAQ warrants that the Software will perform substantially in accordance with the accompanying materials for a period of one year from the date of receipt. THE CUSTOMER EXPLICITLY DISCLAIMS ANY IMPLIED WARRANTIES OR WARRANTIES FOR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. CHEMDAQ CANNOT AND DOES NOT WARRANT THAT THE PERFORMANCE OR RESULTS THE CUSTOMER MAY OBTAIN BY USING THE SOFTWARE WILL MEET THE CUSTOMER’S NEEDS OR THAT THE CUSTOMER’S USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR FREE OF ERROR. ChemDAQ’s obligations under this limited warranty are void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use or a virus or other intentionally harmful software.
33. Limitation on Remedies: Your exclusive remedy for any breach of this Limited Warranty is as set forth below. If the Software does not meet ChemDAQ’s Limited Software Warranty, THE CUSTOMER IS NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO INCIDENTAL, CONSEQUENTIAL AND ANY SPECIAL DAMAGES, (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss), except for the Exclusive Remedy below, even if any remedy fails of its essential purpose.
34. Exclusive Remedy: ChemDAQ’s entire liability and the Customer’s exclusive remedy for any breach of this Limited Warranty or for any other breach of this agreement shall be, at ChemDAQ's option in consultation with Customer:
a. return of the amount paid for the Software in accordance with ChemDAQ's return policies, or
b. repair or replacement of the Software that does not meet this Limited Warranty. Any replacement Software will be warranted for the remainder of the original warranty period.
c. No further remedy is available except to the minimum required by applicable law.
General Terms
35. Force Majeure: Neither ChemDAQ nor the Customer (together the Parties) 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 cancel this agreement or any part thereof without any resulting liability to the other Party.
36. Statute of Limitations: No action arising out of any claimed breach of this agreement or transactions under this agreement may be brought by either Party more than two years after the cause or action has accrued, without regard to the date the breach is discovered.
37. Assignments: Neither party may delegate any duties, nor assign any rights or claims hereunder, without prior written consent of the other Party.
38. 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.
39. 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 provided such modification does not change the essential purpose of this agreement. The invalidity or unenforceability of one provision shall not affect any other provision of this Agreement.
40. 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.
41. 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.
42. Language: In case of disagreement between the translations of this contract into other languages, this English language version shall control.
43. 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.
44. 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.
45. 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.
46. 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 neither seeks nor desires 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.