Terms & Conditions
THERMASYS (Thermal Transfer Products)
STANDARD TERMS AND CONDITIONS OF SALE
- SELLER'S TERMS TO GOVERN. Only the terms and conditions stated herein shall be binding upon Seller, and no modification whether in Buyer's purchase order, shipping release forms or otherwise shall obligate Seller unless signed by Seller's authorized representative.
- PRICES. Seller reserves the right to change the price or prices of the products and/or material (the "Goods") to be delivered to the price or prices Seller establishes as effective at time of shipment as specified in Seller's invoice thereafter.
- TAXES. All prices are subject to the addition of any Federal, state or local taxes that may be applicable to the sale, purchase, delivery, storage, use and processing of the Goods sold hereunder. Any such tax shall be for the account of Buyer, or in lieu thereof, the buyer may provide Seller with a tax exemption certificate acceptable to the taxing authority.
- DELIVERY. Shipments shall be made via common carrier or by Seller's trucks, or rail, or other mode of transportation provided by Seller, F.O.B. Factory to the freight station nearest Buyer's location in the continental U.S.A. excluding Alaska unless otherwise provided on the face hereof. Goods, even though shipped to Sellers order, are at the sole risk of Buyer from and after delivery to the carrier, and Buyer assumes all responsibility for shortage, loss, delay or damage in transit after issuance to Seller by carrier of clean bill of lading. All other handling charges to be paid by Buyer. IF BUYER FAILS TO NOTIFY SELLER IN WRITING OF ANY NON-CONFORMING GOODS WITHIN THIRTY DAYS AFTER DELIVERY, BUYER SHALL HAVE NO REMEDY IN LAW OR IN EQUITY AGAINST THE SELLER.
- FORCE MAJEURE. Neither party shall be liable for any delay or default in the performance of this Agreement if such delay is due to acts of God or public enemy, insurrection, riot, fire, explosion, governmental order or regulation, delay in transport or other causes reasonably beyond the control of the party; provided the delayed/defaulting party delivers notice of the delay/default as soon as possible so that the non-defaulting party can mitigate its damages.
- WARRANTY. Seller warrants the Goods against defective workmanship and material for 12 months from the date of shipment. In the fulfillment of its warranty, the sole obligation of Seller shall be to repair or replace, at its option, F.O.B. its factory, the Goods or any part or parts thereof which are returned F.O.B. its factory, shipping charges prepaid, and which after inspection by Seller are found to be defective. Under no circumstances are Goods to be returned unless Buyer has written permission of Seller to do so. Notwithstanding the foregoing, Seller's warranty obligations with respect to any items not manufactured by Seller shall not exceed the obligations undertaken by the manufacturer thereof under express warranty to the Seller. THIS EXPRESS WARRANTY IS IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED. THERE ARE NO OTHER REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY OR FITNESS OF THE GOODS FOR ANYPARTICULAR PURPOSE.
SELLER WILL NOT BE RESPONSIBLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND RESULTING FROM THE PURCHASE OR USE OF ITS PRODUCTS, COMPONENTS OR ACCESSORIES. - BUYER'S REMEDIES. Seller will fulfill its warranty obligations set forth in paragraph 6 above; or in lieu thereof and at its option, Seller may refund the purchase price applicable to nonconforming Goods. Buyer's remedies for any cause of action arising out of this sale (whether in contract or for negligence) shall be limited as above stated and in no event shall Seller be liable for further loss, damage, or expense (whether direct, foreseeable, consequential or special).
- FINANCIAL STATEMENTS; SOLVENCY. Buyer shall, upon Seller's request, provide Seller with copies of Buyer's most recent financial statements, including its balance sheet, income statement and statement of cash flows. Buyer agrees that its failure or refusal to promptly provide the financial statements requested by Seller will permit Seller to presume that Buyer is insolvent under the Uniform Commercial Code in effect in the governing law state as provided in paragraph 13 below ("UCC"). Buyer acknowledges that each order that it submits to Seller constitutes Buyer's representation that it is solvent as defined by the UCC.
- TERMS OF PAYMENT. Unless otherwise agreed, terms of payment are net cash 30 days from date of invoice payable in U.S. dollars. Interest will accrue on unpaid invoices outstanding more than thirty days at the rate of one and one half percent (1 ˝%) per month or at an annual rate of eighteen percent (18%). Whenever in Sellers' judgment the financial condition of Buyer does not justify shipping Goods to Buyer on the terms specified, Seller may do any or all of the following: adjust Buyer's credit limit; adjust Buyers' payment term set forth in this paragraph 9; stop shipment of goods and reclaim goods in transit. Seller may also reclaim goods delivered to Buyer for which Buyer has not paid as agreed.
- CANCELLATION. The cancellation of orders in whole or in part cannot be accepted if the manufacture of the Goods has commenced. In the event of cancellation, Buyer shall be liable for any loss caused Seller thereby including, but not by way of limitation, engineering costs, cost of special tooling purchased or prepared, and/or cost of special materials purchased, but in no event less than fifteen percent of the purchase price.
- PATENTS AND TRADEMARKS. Products sold under this Agreement are built to Buyer specifications. Seller shall not be liable to Buyer for any liability or expense arising out of the infringement of third party domestic or foreign patents or trademarks. If the Product design or specifications are provided by Buyer, Buyer will indemnify and hold harmless Seller from any and all loss, liability, costs and expenses (including attorneys’ fees) resulting from or arising out of claims that the Product infringes on any third-party patent or trademark.
- LIABILITY. Seller shall not be liable for, and Buyer assumes responsibility for, and shall indemnify and hold Seller harmless for, all personal injury and property damage resulting from the handling, possession or use of the Goods by Buyer or others who obtain the Goods through Buyer.
- GOVERNING LAW, DISPUTE RESOLUTION. All transactions hereunder shall be governed by the laws of the state of the location of the Seller's plant from which the Goods are to be shipped. Any disputes arising out of or relating to transactions hereunder shall be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association.
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