AND CONDITIONS OF SALE
Thermohauser of America, Inc.
135 Schofield Avenue.
Dudley, MA 01571
|1. SCOPE AND
1.1.These General Terms and Conditions, as the same may be amended (these “Terms”), shall apply to all current and future business transactions conducted with any purchaser (“Customer”) of goods offered by us (“Goods”), irrespective of whether manufacture or are the reseller of such Goods. Unless otherwise agreed upon in writing, these Terms are expressly incorporated in, and are a part of, each quotation, purchase order, invoice, release, requisition, work order, shipping instruction, specification and any other document, whether expressed verbally, in written form or electronic commerce, relating to the sale of Goods by us to our Customer (such documents are collectively referred to as the “Contract”). Customer acknowledges and agrees that the Contract comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
1.2. Any document submitted to us by Customer confirming its intention to purchase Goods described in the Contract (purchase orders or releases) will be deemed to constitute a confirmation and acceptance of the Contract, including these Terms, even if such document states terms in addition to or different from those in the Contract. All agreements between us and Customer will be solely under the terms and conditions of the Contract, including these Terms, and we object to any and all such additional or different terms contained in any document submitted to us by Customer. Any execution by us of any other document submitted by Customer in connection with the purchase of Goods does not constitute acceptance of or agreement to any terms and conditions in addition to or different from those contained in the Contract, including these Terms, but will constitute only acknowledgment of receipt of such document. In addition, notwithstanding any terms contained in any documents submitted by Customer in connection with the purchase of Goods described under the Contract, the acceptance of delivery by Customer of Goods described in the Contract will constitute a course of conduct constituting Customer’s agreement to the terms and conditions of the Contract, including these Terms, to the exclusion of any additional or different terms and conditions.
1.3. These Terms may be found at www.thermo-us.com (the “Website”). Customer acknowledges receipt of these Terms and agrees that these Terms include all amendments, changes and modifications thereto as may be subsequently posted on the Website, all of which are deemed to be incorporated herein and binding on Customer. We shall have the right to further amend, change or modify these Terms from time to time, by posting any such amendments, changes or modifications on the Website. It is Customer’s responsibility to regularly and continually review the Website for amendments, changes or modifications to these Terms and Customer shall be deemed to have been duly notified of, and shall be bound by, any such amendment, change or modification once posted on the Website.
2. CONTRACT FORMATION
2.1. Our offers or quotations shall be non-binding unless we indicate otherwise. We will have the right to withdraw any offer or quote which has not been accepted by Customer within 30 days of receipt of same by Customer.3. RETENTION OF TITLE
2.2. We reserve the right to make amendments or changes as to technical design, form, coloring and weight of the Goods, to the extent such amendments do not impair the functionality of the Goods.
2.3. Customer’s issuance of a purchase order shall be deemed as a binding contract offer. Unless otherwise provided for by such purchase order or release, we shall be entitled to accept it within two weeks from our receipt. Such acceptance shall be made in writing, by delivering the Goods or through the issuance of an invoice. Any oral quote or order issued by either party shall not be binding, unless it has been confirmed by us in writing.
3.1. We shall retain title to the Goods until all claims against Customer under the Contract have been fully settled
3.2. Customer shall in any case be required to handle the Goods with care and adequately insure the Goods at its own expense against damage, destruction or theft in an amount sufficient to cover the replacement value of such Goods, until Customer fully obtains title to the Goods by means of full payment to us.
4. RETURN OF GOODS
If we should agree in writing to the return of any Goods, Customer shall return the Goods to us in their original condition and packaging and shall pay to us 25% of the net purchase amount. Returns must ship freight prepaid, have the proper written authorization and be in a sellable as new condition. Returned items will be credited to Customer´s account, no refunds will be issued. Returns must be effected within a three (3) month time period following receipt of product at Customer´s designated ship to address. We reserve the right to reject any merchandise, which we feel has been irreparably damaged.
Notwithstanding the foregoing, there shall be no entitlement to such return and, with respect to custom-made products (i.e. goods which have been adjusted or individually manufactured or thermohauser of America, Inc. non-stock items), no return of such Goods shall be permitted.
5. PRICES / TERMS OF PAYMENT
5.1. Unless otherwise agreed upon, our prices are ex works (EXW, Incoterms 2010) Southbridge, Massachusetts. Prices quoted do not include (and Customer shall pay) all packaging costs and all taxes and fees of any kind which may be levied or imposed on either party by federal, state, municipal, or other governmental authorities in connection with the sale or delivery of the Goods by us with the exception of our income tax obligations arising out of the sale of the Goods.
5.2. We reserve the right to amend our pricing from time to time during the term of the Contract upon written notice to Customer.
5.3. The total price for Goods purchased is due and payable to us, without setoff or other deductions or charges, within 30 days from receipt of such Goods by Customer. Cash discounts shall only be permitted to the extent we have agreed to such discounts in writing.
5.4. When any payment is not paid on or before its due date, Customer agrees to pay a late charge on the sum outstanding, from the due date for receipt of payment to the actual date of receipt of payment, at a rate equal to the lesser of 1.5% per month or the highest rate permitted by law on the unpaid balance, and any costs of collection incurred by us, including, without limitation, attorneys’ fees. Further, Customer agrees that we may also cease performance under the Contract. Whenever, in our discretion, the financial condition of Customer no longer justifies the continuation of production or shipment on the specified terms of payment, we may require full or partial payment in advance.
5.5. As security for payment of all accounts due to us, Customer grants to us a security interest in all Goods sold to Customer, and we will have all rights of a secured party under the Uniform Commercial Code with respect to such Goods. Customer agrees and appoints us as its attorney-in-fact to do, at our option, all acts and things we may require to perfect the above security interest in any one or more jurisdictions, and Customer agrees to pay all applicable filing fees.
6. TRANSFER OF RISK, DELIVERY AND PACKAGING
6.1. Delivery of Goods shall be made ex works (EXW, Incoterms 2010) Dudley, Massachusetts, which is also the place of performance of the delivery. Unless otherwise agreed upon in writing, we shall be entitled to determine the type of delivery (in particular, the carrier, route and packaging). The Goods will be loaded and shipped at Customer’s risk. We shall take reasonable efforts to take into account Customer’s requests and interests with regard to the shipping method and route, provided that any additional costs arising therefrom shall be at Customer’s expense.
6.2. We shall not be obligated to insure the Goods during shipment, unless such insurance is requested and paid for by Customer in advance of any shipment.
6.3. Unless otherwise agreed upon, packaging of the Goods shall be charged to Customer at cost.
6.4. The risk of loss and deterioration of the Goods shall be transferred to the Customer in accordance with the delivery terms set forth above. In no event shall we be liable for any damages caused during transport. Customer agrees that any such damages shall be the responsibility of the designated carrier.
6.5. If delivery of the Goods is delayed upon Customer’s request or due to Customer’s fault, we shall store the Goods at Customer’s cost and risk. In such case, notification to Customer of our readiness to deliver shall be equivalent to shipment of the Goods. To the extent of any delay in shipment pursuant to this Section, and in addition to all other rights and remedies available to us, Customer shall be charged on a monthly basis, 1.5% of the invoice amount for the duration of such delay. We shall also be entitled, after a reasonable deadline has been set and expired without result, to dispose of the Goods at Customer’s cost and expense.
7. DELIVERY PERIOD AND DELAY IN DELIVERY
7.1. Shipping dates are estimates based on our present engineering and manufacturing capacity and scheduling, and may be revised by us upon receipt or scheduling of Customer’s order. All shipping dates are approximate and shall be computed from the date of entry of the order on our books. All shipping dates are further subject our prompt receipt from Customer of a written purchase order or acceptance, letter of credit, down payment, and other conditions as specified in the Contract, and of all drawings, information and approvals necessary to provide the Goods and to grant any credit proposed in the Contract.
7.2. We shall not be in default, and we shall not be liable to Customer, because of our delay or failure to deliver or perform resulting, in whole or in part, from: (i) any embargoes, seizures, acts of God, insurrections, war, or the adoption or enactment of any law, ordinance, regulation, ruling or order, or (ii) the lack of usual means or transportation, fires, floods, explosions, strikes or any other accidents, contingencies, or events, at our or our supplier’s plant or elsewhere (whether or not beyond our control) which interfere with, or render substantially more burdensome, our production, delivery, or performance.
8.1. For a period of 6 months following delivery of the Goods to Customer, we warrant to Customer that the Goods will be free from defects in workmanship and materials, and that we will transfer to Customer ownership and good title to the Goods delivered, free of all liens, encumbrances, and rights of third parties.
8.2. Customer shall be required to examine all Goods upon delivery. If a defect becomes apparent upon delivery, during the examination or at any later date, we must immediately be informed about such defect in writing. In any case, obvious defects must be communicated no later than 5 business days from delivery and defects not visible during examination within the same period from their discovery in writing. Customer’s failure to examine and/or give notice of a defect as set forth above will result in an exclusion of our liability for any such defect. Customer shall have the burden of proof for all eligibility requirements, i.e. for the defect per se, the time of detection of the defect and the timeliness of the notice of defect.
8.3. If any Goods should be found to be defective, we, in our sole discretion, may either repair or replace the defective Goods.
8.4. We shall be entitled to make any repair or replacement of defective Goods contingent upon Customer’s payment of the due purchase price.
8.5. Defective Goods shall be promptly returned to us by Customer. Customer shall grant to us the time and opportunity required for examination and repair of any defective Goods. If we elect, we may, upon return of such Goods and making a determination of non-conformity or defect, keep the Goods and refund the purchase price. In no event shall we be responsible for re-installation of any Goods if we had not been responsible for any initial installation.
8.6. The expenses required for examination and repair or replacement of any defective Goods, including, without limitation, transport, infrastructure, labor and material costs, shall be borne by us only to the extent of an actual defect. Otherwise we may demand from Customer reimbursement of all such costs to the extent the Goods are found not to be defective.
8.7. In urgent cases, such as risk to operational safety or for the aversion of disproportionate damage, Customer shall be entitled to repair the defective Goods and to demand from us, reimbursement of the direct and verifiable expenses associated therewith. Such self-performance must be communicated to us immediately.
8.8. Customer’s remedies for defective or non-conforming Goods shall be limited exclusively to those provided in this Section. Customer waives any causes of action or theories of liability including, but not limited to, those arising under contract, tort, strict liability, product liability, statutes, or otherwise, except as specifically provided by the Uniform Commercial Code as modified and limited herein. The replacement or repair of Goods by us does not give rise to any new warranty, except the warranty period provided for herein shall be extended by the length of any period from the date the defective or non-conforming Goods are received by us until the date repaired or replacement Goods are delivered to Customer.
8.9. The above warranties shall apply only if the Goods: (i) have been installed, maintained, and used in conformity with instructions and recommendations furnished by us from time to time, if any; (ii) have not been subjected to misuse, physical abuse, installation error, negligence or accident; and, (iii) have not been altered or repaired by persons other us or our authorized representatives in a manner, which, in our judgement, adversely affects the condition of the Goods. It is Customer’s responsibility to determine suitability of the Goods for Customer’s use and Customer assumes all risk and liability associated therewith.
8.10. THE FOREGOING WARRANTIES ARE THE SOLE WARRANTIES WE PROVIDE AND ALL OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED.
9. LOW-QUANTITY SURCHARGE
In case of orders below an order volume of USD 100.00 net, we shall charge a low-quantity surcharge of USD 10.00 net.
10. EXCESS AND SHORT DELIVERIES
We shall be entitled to render excess or short deliveries with regard to each order and to correspondingly adjust the sales price to the delivered quantity. An excess or short delivery of 10% of the ordered volume shall be deemed on time.11. INDEMNIFICATION; LIMITATION OF LIABILITY
11.1. We will defend, indemnify and hold harmless Customer from and against third-party claims or demands for injury or death to persons, property damage, economic loss, and any resulting damages, losses, costs, and expenses (including reasonable legal fees), regardless of whether the claim or demand arises under tort, contract, strict liability, or other legal theories, if and to the extent caused by:
a. damages resulting from an injury to life, limb or health;
b. our gross negligence or willful misconduct in our performance under the Contract; and
c. our violation of a material contractual obligation of the Contract.
11.2. Notwithstanding anything to the contrary set forth elsewhere herein, we shall not be liable to Customer for any (i) loss of profit, loss of production, loss of use, loss of revenues, loss of use of assets, loss of contracts and pure economic losses, or (ii) any indirect, incidental, punitive, special or consequential loss of any kind that is not included in item (i).12. CANCELLATION OR TERMINATION
11.3. Customer specifically agrees that our total liability to Customer for damages under the Contract will not exceed the fees paid to us during the twelve (12) month period immediately preceding the occurrence date of the event giving rise to such liability.
12.1. In the event of cancellation of the Contract by Customer, or in the event of default under the Contract by Customer which is not cured within 30 days after notice by us, Customer will pay to us on demand all direct and indirect costs (including without limitation all applicable restocking or cancellation charges) incurred directly or indirectly by us in connection with the Contract, all as reasonably determined by us, plus any profit to be negotiated with Customer. In no event, however, will any amount payable by Customer under the Contract exceed the total price payable by Customer for the Goods.
13.1. The period for bringing claims arising from the Contract shall be one year from delivery of the Goods.
14. COMPLIANCE WITH LAWS
14.1. Customer will be responsible for compliance with any and all federal, state or local laws or regulations respecting safety or respecting use of the Goods, and shall indemnify and hold us harmless from and against any and all claims of violations of such laws or regulations or other claims of personal injury or property damage directly or indirectly related to the installation, maintenance or operation of the Goods.
15. RELATIONSHIP OF THE PARTIES
15.1. The relationship between the parties is that of independent contractors. Nothing contained in the Contract 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.
16. PROPRIETARY INFORMATION
16.1. Customer acknowledges that any information disclosed to us has not and will not be confidential or a trade secret unless clearly and conspicuously noted on the disclosure, or in some other writing delivered to us at or prior to the time of the disclosure. Otherwise, we shall be under no obligation to refrain from using in its business any information, manufacturing processes or unpatented disclosures which may pass to it from Customer in the performance of the Contract.
16.2. All proposals, plans and other information furnished by us in bidding, negotiating and performing the Contract, are confidential and the property of us and shall not be shown or disclosed to any other bidder, and shall not be shown or disclosed to any third party or used by Customer except as may be necessary for the selection or use of the Goods.
16.3. We reserve our ownership rights, copyrights and other intellectual property rights incorporated into the Goods as well as all catalogues, technical documentations (such as illustrations, drawings, plans, calculations and estimates) as well as other product descriptions or documents – including those in electronic form.
16.4. Customer shall not use our name, tradename, trademarks, service marks or logos (“Trademarks”) in any publicity releases, news releases, annual reports, product packaging, signage, stationery, print literature, advertising, register or attempt to register any trademarks, trade names, logos, domain names, metatags, meta descriptors, or electronic mail (e-mail) addresses, server names, searchengine markers, that are identical to, or confusingly similar to the Trademarks or any other trademarks, trade names or domain names of ours or any of our subsidiaries or affiliated companies, websites or any other external communications without our prior written consent.
16.5. Customer agrees that the Goods contain valuable proprietary information and agrees not to modify, reverse engineer, decompile, create other works from, or otherwise disassemble Goods.
16.6. Any invention or other information developed by us in the performance of the Contract shall remain our property.
17.1. No waiver by either us of any of the provisions of the Contract is effective unless explicitly set forth in writing and signed by us. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from the Contract operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18. GOVERNING LAW; VENUE
18.1. The Contract shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to any conflict of laws or choice of law provisions. The parties exclude in its entirety the application to the Contract of the United Nations Convention on Contracts for the International Sale of Goods.
18.2. The parties hereby agree that any legal or equitable action or proceeding with respect to the Contract shall be brought only in the state and federal courts sitting in the Commonwealth of Massachusetts, and each party hereby submits to and accepts generally and unconditionally the jurisdiction of those courts with respect to it and its property and irrevocably consents to the service of process in connection with any such action or proceeding.
19.1. Customer shall not assign its right or delegate its duties hereunder or any interest herein without our prior written consent, and any such assignment, delegation, without such consent, shall be void.
20. SEVERABILITY CLAUSE
If an individual provision of the Contract with Customer including these Terms should be or become ineffective or unenforceable in whole or in part, the effectiveness of each of the provisions of the Contract shall remain unaffected thereby. The partially or completely ineffective or unenforceable provisions shall be replaced by an effective and enforceable provision which most closely approximates the purpose and intent of the ineffective or unenforceable provision.