CO2METER, INC. TERMS AND CONDITIONS OF SALE
The following terms and conditions govern all sales of Products (as hereinafter defined) by CO2METER, INC., a Florida corporation having offices at 105 Runway Drive, Ormond Beach, FL 32174 (referred to herein sometimes as “CO2Meter,” “Us,” “Our,” or “We”), by Us to any distributors, customers and all end users (referred to herein sometimes as “Customer(s),” “You” or “Your”).
By purchasing any Products (as defined herein) from Us, You agree to all of the following terms and conditions, and such additional terms and conditions that may be incorporated herein by reference and located at www.co2meter.com and www.gaslab.com (collectively referred to herein sometimes as this “Agreement”):
- GENERAL
1.1 This Agreement is the only agreement that governs the sale of products and ancillary services, whether such products are manufactured, or such services are provided by Us, our distributors, contractors or agents (hereafter, the “Products”). You accept this Agreement by signing and returning Our Quote (as defined herein), by sending a purchase order in response to a Quote, or by Your instructions to Us to ship a Product. Any accompanying order confirmation from Us is incorporated into this Agreement. This Agreement comprises the entire agreement between the parties with regard to the subject matter and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations, warranties, and communications, both written and oral, with respect to the subject matter. This Agreement prevails over any of Your general terms and conditions of purchase, regardless of whether or when You submitted such terms or any other purchase order from You, unless You and We have entered into a separate, arms-length written agreement following good-faith negotiations. You are hereby notified of Our express rejection of any terms inconsistent with this Agreement or to any other terms You propose in accepting Our Quote or sending Us Your instructions to ship a Product. Our fulfillment of Your order does not constitute acceptance of any of Your terms and conditions and does not serve to modify or amend the terms of this Agreement. THIS IS A LEGAL AGREEMENT. BY PLACING AN ORDER FOR PRODUCTS, OR BY PURCHASING PRODUCTS, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL RIGHT AND AUTHORITY TO ENTER INTO THIS AGREEMENT, AND THAT YOU AGREE TO ALL TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.
1.2 We reserve the right to modify and update the terms of this Agreement at any time. The version of the Agreement in force at the time of a given sale of Product to You governs the terms and conditions of that sale.
- ORDERS AND ACCEPTANCE
2.1 Products will be described with particularity in any written estimate, sales order, or quotation (hereafter, a “Quote”) provided by Us to You. All Quotes are valid for 90 days from the date set forth in such Quote. It is your responsibility to confirm the Products, specifications, pricing, and delivery dates as contemplated by any Quote.
2.2 You may accept the terms of a Quote (which acceptance, as described above, constitutes an acceptance of the terms of this Agreement) by indicating your agreement to that Quote, including without limitation, by returning a signed Quote, providing a purchase order to Us, sending Your instructions to Us to ship a Product or transmitting your payment to Us. Notwithstanding the foregoing, We reserve the right to refuse service to any customer, or to reject any customer offer, for any reason whatsoever.
- PRICING; CHANGES
3.1 Pricing for Products shall be as set forth on the applicable CO2Meter.com webpage, Gaslab.com webpage (each a “Webpage”), or in the applicable Quote as provided by CO2Meter. Notwithstanding the foregoing, CO2Meter, in its sole discretion, may revise the pricing set forth in the Quote to accommodate Your reasonable requests to change the scope of the Products ordered in the Quote, in accordance with the terms of this Agreement.
3.2 Unless otherwise agreed in writing by You and Us, all prices are F.O.B. CO2Meter’s shipping point for the Products as set forth in the Quote (“Shipping Point”), and all costs of shipping, as set forth in the Quote, are Your responsibility. Expedited shipping may be available for an additional fee.
3.3 All prices set forth in the Quote are exclusive of any applicable duties, excise taxes, value added taxes, withholdings or other similar governmental charges and fees (the “Additional Charges”), all of which shall be payable by You.
3.4 Any change in Product specifications, quantities, destination, shipping schedules, or any other aspect of the scope of the Products must be agreed to in writing by CO2Meter and may result in a price or delivery adjustment, as set forth above.
- PAYMENT
4.1 Unless otherwise agreed to in writing, You shall pay all prices in the Quote in full prior to delivery. All amounts payable shall be in U.S. dollars. If You and We have agreed to payment terms (including any credit terms), those terms are net 30 from delivery. You shall make all payments hereunder by wire transfer, ACH, check, or through one of Our online credit card payment portals. You shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. You shall reimburse Us for all costs incurred in collecting any late payments, including without limitation, attorneys’ fees.
4.2 In addition to all other remedies available under this Agreement or applicable law, unless We waive such remedies explicitly in writing, We may suspend delivery of any Products if You fail to pay any amounts when due hereunder and such failure continues for a period of five days following written notice thereof. You may not withhold payment of any amounts due and payable by reason of set-off of any claim or dispute with Us, whether relating to Our alleged breach or otherwise.
4.3 Our payment processor is VersaPay Corp., an Ontario corporation. Payments you make to Us are subject to VersaPay’s then-current terms of use, which are located here: https://www.versapay.com/terms-of-use. If You make a payment through a Shopify storefront owned by Us, then that payment is subject to Shopify’s terms of service, which are located here: https://www.shopify.com/legal/terms.
- DELIVERY; TITLE AND RISK OF LOSS
5.1 CO2Meter shall deliver the Products to the common carrier F.O.B. at 105 Runway Drive, Ormond Beach, FL 32174 (the “Shipping Point”), using Our standard method for packaging. Any dates indicated by Us for delivery of the Products to Customer by the common carrier are estimates only.
5.2 We shall arrange for shipping of the Products from the Shipping Point using our standard methods for shipping; provided that, all responsibility and costs of shipping and delivery beyond the Shipping Point shall be borne by You. Title and risk of loss to the Products passes to You upon CO2Meter’s delivery of the Products at the F.O.B. Shipping Point. All issues and liability arising from failures by the common carrier to deliver or issues with delivery are between You and the carrier. CO2Meter accepts no responsibility and shall have no liability for delivery issues or failures with regard to a Product, once it has delivered the Product to the F.O.B. Shipping Point as provided herein.
- WARRANTY AND ACCEPTANCE
6.1 CO2Meter warrants the Products to be substantially free of defects in workmanship and materials for the period indicated on the applicable Product Webpage (generally either one (1) year or ninety (90) days from the date of shipment) only when used in accordance with the Product specifications and for their intended purposes as set forth on the applicable Product Webpage (the “Manufacturer’s Limited Warranty”). The Manufacturer’s Limited Warranty is the sole warranty made by Us with respect to any Product.
6.2 To take advantage of the Manufacturer’s Limited Warranty, the Product must be returned to us at Your expense. Along with the Product, you must include (a) proof of purchase and delivery; (b) a written summary of the defect You allege to be covered by the Manufacturer’s Limited Warranty; (c) a picture of the defect; and (d) a name, phone number, and return mailing address. You must also contact casesupport@co2meter.com before making any return based on a claim under the Manufacturer’s Limited Warranty.
6.3 If after examination, we determine that the Product is defective, CO2Meter at its election, will either repair or replace the defective Product. The foregoing in this Section 6.3 is Your sole and exclusive remedy in the event of a valid warranty claim under the Manufacturer’s Limited Warranty.
6.4 Notwithstanding anything contained herein, the Manufacturer’s Limited Warranty shall not apply to: (a) any Product that has been customized, altered, or repaired by any person not authorized to do so by CO2Meter; (b) any Product not used in accordance with the Product specifications or for its intended purposes as set forth on the applicable Product Webpage, (c) normal wear and tear; (d) acts of God, fire, or casualty; or (d) any Product that has been subject to misuse, neglect, theft, or accidental damage. For the avoidance of doubt, the Manufacturer’s Limited Warranty does not apply to the calibration of any Product performed by Us prior to shipment.
6.5 In the event of an alleged warranty claim under the Manufacturer’s Limited Warranty, You agree to contact Us to request a return authorization prior to returning any Products to Us. We will only honor valid warranty claims under the Manufacturer’s Limited Warranty of which we have been given notice prior to the expiration of the applicable limited warranty period. You agree to comply with all commercially reasonable rules and policies governing the processing of warranty claims under the Manufacturer’s Limited Warranty which we may institute from time to time. Such rules and policies may be located at www.co2meter.com/pages/faq#warranty.
6.6 If you return a Product to Us, and We determine in our reasonable discretion that it falls within an exception to the Manufacturer’s Limited Warranty as described herein, We will have no obligation to You other than to return the Product to You at Your sole cost and expense.
6.7 It is Your responsibility to share your application with the CO2Meter sales team prior to the closure of the sale so our team can help identify any potential issues your application may cause with the devices you’ve selected. Important information to share includes: expected CO2 concentration, temperature, humidity, and any other particles or gases in your application. Applications with interfering gases can damage sensors inside devices and their components. Applications with high humidity can damage the electronics and the any sensors beyond repair. No Products should be exposed to, or come in contact with, any liquids or be deployed in high-humidity environments.
6.8 You shall inspect the Products upon receipt (the “Inspection”). You will be deemed to have accepted the Products unless you notify Us in writing of the receipt of any Nonconforming Products (as defined herein) within five (5) days of the date of receipt and furnish such written evidence or other documentation required by Us. A “Nonconforming Product” means only any of the following: (a) the Product shipped is different than the Product identified in the Quote, including any changes made to the Quote in accordance with the procedures described herein; or (ii) the Product’s label or packaging incorrectly identifies its contents. If You timely notify Us of any Nonconforming Products, then We shall, in our sole discretion, (x) replace such Nonconforming Products with conforming Products; or (y) credit the price for such Nonconforming Products, together with any reasonable shipping and handling expenses You incurred in connection therewith. You shall ship, at Our expense and risk of loss, the Nonconforming Products to Our warehouse, in accordance with the instructions We provide you upon Our receipt of Your notice of Nonconforming Products. If We exercise Our option to replace the Nonconforming Products, then We shall, after receiving Your shipment of Nonconforming Products, ship to You, at Your expense and risk of loss, the replaced conforming Products to Your delivery address as set forth in the Quote. You acknowledge and agree that the remedies set forth in this Section 6.8 are Your exclusive remedies for the shipment of Nonconforming Products. Except as provided in Sections 6 and 7, all sales of Products to You are made on a one-way basis, and You have no other right to return to Us or reject Products purchased under this Agreement.
6.9 A Product’s Manufacturer’s Limited Warranty will be void if the Product (a) is not installed, used, or maintained in accordance with any instructions provided by Us to You; (b) is exposed to any liquids or is deployed in any high-humidity environments; or (c) is damaged through Your failure to share your application of the Product with the CO2Meter team as required by Section 6.7. Service for liquid damage to a Product is not covered by the Manufacturer’s Limited Warranty.
- PRODUCT RETURNS
7.1 If any Product fails under normal use in accordance with the Product specifications and its intended purposes as set forth on the applicable Product Webpage, You may return it to Us, by first obtaining from Us a Return Material Authorization number (or “RMA”). Policies and procedures for returns and refunds related to the same are located at www.co2meter.com/pages/faq and are incorporated by reference herein.
7.2 All returns undergo a rigorous evaluation process to determine if any damage has been done to the device and if the device is resalable. Any returned Products that are missing parts, packaged in torn, missing, or repackaged material, or have evidence of moisture intrusion or tampering will not be accepted for return.
7.3 All returns for a refund after thirty (30) days from shipment of the applicable Product (to the extent such returns are accepted by Us) will incur an automatic 25% re-stocking fee. No Product will be accepted for return or refund after 45 days from shipment without the express consent of CO2Meter management.
7.4 We shall issue a credit memo for Your account for any returned Products that We accept.to be applied against the purchase price of future purchases of Products by You
7.5 Calibration certificate charges in connection with Our calibration of any Product purchased by You are nonrefundable under any circumstances.
- LIMITATIONS OF LIABILITY
8.1 EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PRODUCTS ARE SOLD “AS IS”, “WHERE IS” WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE, OR INFRINGEMENT.
8.2 TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, CO2METER WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES, OR FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR DIMINUTION IN VALUE (WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE), ARISING OUT OF OR RELATING TO THE PRODUCTS, OR ANY LATE DELIVERY THEREOF, EVEN IF (A) CO2METER KNEW OR SHOULD HAVE KNOWN OF THE POTENTIAL FOR SUCH DAMAGES, OR THAT SUCH DAMAGES WERE FORESEEABLE, AND (B) SUCH DAMAGES WERE CAUSED BY OUR NEGLIGENCE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
8.3 NOTWITHSTANDING ANY PROVISION TO THE CONTRARY CONTAINED IN THIS AGREEMENT, CO2METER’S TOTAL LIABILITY ARISNG OUT OF OR RELATED TO THIS AGREEMENT, WITH RESPECT TO ANY PRODUCT PURCHASED BY YOU AND CLAIMS ARISING OUT OF OR PERTAINING THERETO, IF ANY, WHETHER SUCH CLAIMS ARE BASED ON THEORIES OF BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED, IN THE AGGREGATE, THE AMOUNT OF THE ORIGINAL PURCHASE PRICE PAID BY YOU TO CO2METER FOR SUCH PRODUCT.
- INTELLECTUAL PROPERTY; CONFIDENTIAL INFORMATION
9.1 All designs, drawings, specifications, and similar documents pertaining to the Products, together with all intellectual property rights inherent therein (the “IP Rights”), are and shall at all times remain, the sole and complete property of CO2Meter. Nothing contained herein constitutes any transfer or assignment of any IP Rights to Customer, or any license of any IP Rights to Customer except as strictly necessary to use the Products.
9.2 All non-public, confidential or proprietary information of CO2Meter, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by CO2Meter to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by CO2Meter in writing. Upon CO2Meter's request, Customer shall promptly return all documents and other materials received from CO2Meter. CO2Meter shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party who was not subject to an obligation of confidentiality to CO2Meter.
- INDEMNIFICATION
10.1 To the fullest extent permitted by law and at Your cost and expense, You agree to pay, discharge, defend, indemnify, and hold harmless CO2Meter and its subsidiaries, affiliates, successors, assigns, directors, officers, shareholders, representatives and employees (each an “Indemnified Party”), from and against any and all losses, injuries, deaths, damages, liabilities, claims, deficiencies, demands, liens, suits, actions, proceedings, judgments, interest, awards, penalties, fines, costs, fees (including import and export customs fees), and expenses (including related to investigation or reasonable attorneys’ fees) directly or indirectly arising out of or in connection with or relating to this Agreement or any Product provided under this Agreement (“Claims”), including without limitation Claims (a) by an individual or entity on account of bodily or personal injury, sickness, disease, or death sustained by any person or persons, or injury or damage to or destruction of any property, including, without limitation, loss of use thereof, and (b) of breach by You of any covenant or provision of this Agreement; but excluding Claims caused by (x) Our gross negligence or willful misconduct or (y) a material breach of the Manufacturer’s Limited Warranty. You shall and do hereby assume and agree to pay for the defense of all Claims, other than those excluded by (x) and (y). If any Claim not expressly excluded hereby is made or brought against any Indemnified Party, You, upon notice from such Indemnified Party, shall, at Your sole expense, resist or defend such suit, action, or proceeding by counsel reasonably acceptable to Us.
- GOVERNING LAW; DISPUTE RESOLUTION; AND STATUTE OF LIMITATIONS
11.1 This Agreement shall be governed by and construed in accordance with the laws of the United States of America and the State of Florida, without regard to conflicts of laws rules, and specifically excluding the UN Convention on Contracts for the International Sale of Goods. By purchasing Products, You agree that any dispute arising out of relating to this Agreement shall be brought exclusively in the courts of the State of Florida, or in the federal courts located within the State of Florida, in each case located in the City of Jacksonville and Duval County, and You hereby consent and submit to the jurisdiction of such courts.
11.2 The prevailing party in any litigation or arbitration arising out of or relating to this Agreement shall be entitled to recover from the non-prevailing party, its reasonable attorneys’ fees and costs incurred in connection with such litigation. If Customer is principally located in a jurisdiction outside of the United States, You agree that in the event of a dispute, We may but are not obligated to, at our election, commence arbitration proceedings outside of the United States in a neutral jurisdiction, in accordance with the rules of the International Chamber of Commerce (the “ICC”). Any such arbitration shall be in English and heard by a single arbitrator, mutually agreeable to the parties, or if the parties cannot agree, the arbitrator shall be selected by the ICC. The decision of the arbitrator shall be final and binding upon the parties.
11.3 No claim, action or cause of action arising out of or related to any claimed breach of this Agreement or related to the underlying purchase and sale transaction may be asserted or brought by either party in any forum whatsoever more than one year after the date on which the events giving rise to such cause of action or claim occurred.
- FORCE MAJEURE
12.1 We shall not be liable or responsible to You, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond Our reasonable control. Such acts include, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockout, strike or other labor dispute, restraints or delays affecting carriers, inability or delay in obtaining supplies or adequate or suitable materials, or telecommunications breakdowns. In such event, We may cancel or suspend the Agreement, and our performance hereunder, without incurring any liability whatsoever for any loss or damage resulting from such cancellation or suspension.
- COMPLIANCE WITH LAW
13.1 You shall comply with all applicable laws, regulations, and ordinances. You shall maintain in effect all licenses, permissions, authorizations, consents, and permits needed to carry out Your obligations under this Agreement and to effect safe and legal installation of any Products.
- EXPORT TERMS
You shall comply with all export and import laws of all countries (including the United States of America) involved in the sale of Products under this Agreement or any resale of Products by You. You assume all responsibility for shipments of Products requiring any government import clearance and compliance with any legislation or regulations governing the importation of the Products into the country of destination and for the payment of any duties thereon.
- CANCELLATION
15.1 No cancellation of an order of Products by You is permitted after You have indicated acceptance of a Quote, as set forth in Section 2.2, unless such cancellation is expressly agreed by Us in writing.
15.2 If We agree to permit a cancellation after You have accepted a quote, but before We have shipped the Product, then We shall credit back to You an amount equal to at least 70% of the total order cost.
15.3 After We have shipped a Product, any cancellation is deemed to be a product return. Product returns are governed by the provisions of Section 7 herein.
- TERMINATION
In addition to any remedies that may be provided to Us hereunder or available to Us as a matter of law or equity, We may terminate this Agreement with immediate effect upon written notice to You, if You: (i) fail to pay any amount when due under this Agreement; (ii) have not performed or complied with the material terms of this Agreement; or (iii) become insolvent, file a petition for bankruptcy, or commence or have commenced against You any proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
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SMS COMPLIANCE
17.1 SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS: In addition, you agree to our Messaging Terms (https://terms.pscr.pt/legal/shop/co2meter/terms_of_service) and Messaging Privacy Policy (https://terms.pscr.pt/legal/shop/co2meter/privacy_policy).
- MISCELLANEOUS
18.1 Customer may not assign this Agreement, or any rights of Customer hereunder, without the prior written consent of CO2Meter.
18.2 The failure by any party to insist on strict performance of these terms and conditions shall not constitute a waiver of the same unless such waiver is set forth in a writing signed by the party against whom such waiver is to be enforced.
18.3 If any provision set forth herein is deemed by a court of competent jurisdiction to be invalid or illegal, such invalidity or illegality shall not affect the other terms and conditions set forth herein, and the offending term shall be deemed severed from this Agreement and shall not affect the enforceability of the other terms and conditions set forth herein.
18.4 In the event of any conflict between this Agreement and any applicable Quote, the parties agree that this Agreement shall control. Any modification of the terms and conditions herein shall be set forth in an amendment or addendum in writing signed by CO2Meter.
18.5 All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each a “Notice”) shall be in writing and shall be addressed to the parties at the addresses set forth on the face of the Quote or to such other address that may be designated by the receiving party in writing in accordance with this Section 18.5. All Notices shall be delivered by (a) personal delivery, (b) nationally recognized overnight courier (with all fees prepaid), (c) facsimile or email transmission with confirmation of receipt, or (d) certified or registered mail (in each case, return receipt requested, postage prepaid). A Notice is effective (x) on the date of receipt (or, if received on a non-business day, on the first business day after the date of receipt) or refusal to accept delivery, or (y) in the case of e-mail or facsimile, as of the date of the e-mail or facsimile confirmation of receipt, provided that an original of such e-mail or facsimile is also sent to the intended addressee by means described in (a), (b) or (d) above. .
18.6 Provisions of this Agreement which, by their nature, should apply beyond their terms will remain in force after any termination or expiration of this Agreement, including without limitation, Sections 8–14 and 18.
18.7 The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
18.8 Except as provided in Section 10 (Indemnification), this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these terms.
Terms & Conditions revised November 2023.
