Standard Terms and Conditions of Sale
Sales Contract
1. Sale of any equipment, parts, or services described or referred to in any quotation, proposal, bid or similar communication at the quoted prices is expressly condition upon the terms and conditions set forth below. Any order for or any statement of intent to purchase any such equipment, parts, or service, or any direction to proceed with engineering, procurement, manufacture or shipment, shall constitute assent to said terms and conditions and a representation that the Customer is solvent. Any additional or different terms or conditions set forth in any such communication from the Customer are hereby objected to by ProTherm Industries and shall not be effective or binding unless assented to in writing by authorized representative of ProTherm Industries.
Terms
2. Customer will be invoiced for the full purchase price of equipment, parts, and services upon delivery of same. All cable shipments within ±10% will be considered complete.
3. Unless otherwise specifically agreed to in a writing signed by ProTherm Industries, full payment is due immediately from date of invoice.
4. ProTherm Industries reserves the right to invoice for partial shipments unless specifically stated that no partials are allowed by the Customer.
5. ProTherm Industries reserves the right to assess a monthly service charge of one and one-half percent (1½%) of the amount of any past due invoice.
Prices
6. Prices quoted will remain in effect 60 days from date of quotation unless otherwise specifically provided.
7. Upon receipt of invoices and in accordance with the terms set forth in paragraph 3, Customer will pay ProTherm Industries, in addition to the purchase price, amounts equal to any and all freight charges, pallet charges, and any and all taxes, however designated, including state and local privilege, excise, sales and franchise taxes.
8. Unless specifically stated, the prices quoted by ProTherm Industries shall not include delivery charges.
Delivery
9. All shipping dates are subject to confirmation at the time the Customer’s purchase order is received by ProTherm Industries and will be based on ProTherm Industries’s shipping commitments at that time.
Time for Dispatch of Goods
10. Shipping dates are quoted in good faith. If, after receipt of the Customer’s purchase order, ProTherm Industries shall have quoted a time which goods will be dispatched or work completed, that time shall begin to run from the date upon which ProTherm Industries receives all information, drawings or other material which, in its opinion, are necessary to enable it to proceed with the work. All such quoted times, shall be extended by as long as ProTherm Industries considers reasonably necessary if any delay in dispatching the goods or completing the work shall be due, in whole or in part, to instructions or lack of instructions from the Customer; non-delivery of material by other parties; or fire, strike, civil or military authority, war, hostilities, governmental action, foreign or domestic embargoes, seizure, act of God, insurrection, failure of suppliers to make delivery as scheduled, or any other causes whatsoever beyond the reasonable control of ProTherm Industries, whether affecting transportation or production of said equipment, parts or services, or any one or more components used in or connected with production of equipment, parts, or service. ProTherm Industries shall not be liable for any loss or damage due to any such delay in or failure to make delivery.
11. In the event that Customer in writing requests a delay in the shipping date or requests in writing deferred delivery after ProTherm Industries has placed Customer’s order with ProTherm Industries’s suppliers, ProTherm Industries shall, upon completion of such equipment, place it in storage for a reasonable length of time. After storage for a period of three (3) months, Customer’s order will be shipped. In such event, the storage date shall be deemed to be the date of delivery. In the event of delayed shipping date or deferred delivery, ProTherm Industries reserves the right to revise the prices charged the Customer as ProTherm Industries, in its sole discretion, deems reasonable necessary. Orders may not be canceled except upon ProTherm Industries’s written approval which shall be subject to the Purchaser’s payment of ProTherm Industries’s reasonable cancellation charges. Such charges shall include all reasonable costs incurred by ProTherm Industries in preparing to meet the Purchaser’s anticipated delivery schedule. These include, without limitation, commitments by ProTherm Industries to its suppliers, and the cost of inventory (raw materials, work in progress, and finished goods) allocated to the Purchaser’s order together with a reasonable allowance for prorated expenses and anticipated profits.
12. Unless otherwise specified, all transportation charges will be prepaid by ProTherm Industries and billed to the Customer. Shipment will normally be made via the most economical means and routing consistent with the handling requirements for the type of equipment involved. ProTherm Industries reserves the right to select the means of transportation and the routing.
Warranty
13. Warranty. The ProTherm Industries Corporation (hereinafter referred as (“ProTherm Industries”) warrants to the original purchaser for the period of eighteen (18) months from date of shipment or twelve (12) months from date of installation, whichever comes first, that the products manufactured by ProTherm Industries: (A) conform to the description and specifications as set forth in ProTherm Industries’s current catalogue or in the quotation and drawings submitted by ProTherm Industries: and (B) are free from defects in materials and workmanship under prescribed use and service. Remedy. ProTherm Industries’s obligation and the exclusive remedy under this warranty shall be limited to the repair or replacement, at ProTherm Industries’s option, of any parts of the product which may prove defective under prescribed use and service within eighteen (18) months from date of shipment or twelve (12) months from date of installation, whichever comes first, and which, following ProTherm Industries’s examination, is determined by ProTherm Industries to be defective under conditions described herein: provided, ProTherm Industries has, at its option, a representative of ProTherm Industries present at start-up. ProTherm Industries shall not be liable for any incidental, consequential or special damages arising from any breach of warranty, breach of contract, negligence, or any other legal theory, including but not limited to, loss of use of parts or equipment or any associated equipment, cost of capital, cost of any substitute equipment, facilities or services, overhead, downtime costs, or claims of customer of purchaser for such damages. This remedy does not include labor costs for installation or removal of the equipment or parts covered by this warranty, and ProTherm Industries shall not be responsible for such labor costs. Limitation. This warranty shall not apply to any product or part thereof which has been subject to accident, negligence, alteration, damage during shipment, improper service, abuse, or misuse, including but not limited to use beyond rated capacity. ProTherm Industries makes no warranty whatsoever with respect to accessories or parts not supplied or manufactured by ProTherm Industries. ProTherm Industries’s obligation under this warranty shall be conditioned upon ProTherm Industries’s receiving written notice of any defect within fifteen (15) days after its discovery, and, at ProTherm Industries’s option, return of such equipment or parts prepaid to its factory at 3522 Central Pk., Building 203, Hermitage, TN 37076. Disclaimer. ProTherm Industries MAKES NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, EXCEPT AS IS EXPRESSLY SET FORTH ABOVE. NO AGENT, EMPLOYEE OR REPRESENTATIVE OF ProTherm Industries HAS ANY AUTHORITY TO BIND ProTherm Industries TO ANY AFFIRMATION, REPRESENTATION OR WARRANTY COVERING THE SALE OF ANY PRODUCT, AND UNLESS SUCH AFFIRMATION, REPRESENTATION OR WARRANTY MADE BY AN AGENT, EMPLOYEE OR REPRESENTATIVE IS SPECIFICALLY ENDORSED IN WRITING BY ProTherm Industries, IT SHALL NOT BE ENFORCEABLE BY ANY BUYER. ProTherm Industries MAKES NO EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY AND NO EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR PARTICULAR PURPOSE, EXCEPT AS IS EXPRESSLY SET FORTH ABOVE. ProTherm Industries SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES. This warranty allocates risk between the purchaser and ProTherm Industries as authorized by the Uniform Commercial Code and other applicable law.
Returning Of Product
14. Authorization and shipping instructions for the return of any product must be obtained by the Purchaser from ProTherm Industries before returning the product. Product must be returned with complete identification in accordance with our return goods authorization instructions or it will be refused and returned at Purchaser’s expense. If a Purchaser requests authorization to return product for reasons of his/her own, a 25% restocking charge will apply. Returns must arrive to seller in “New” condition within 60 days from the invoice date. Returns during this 60-day time period will be subject to a 25% restocking fee. No returned goods will be restocked for credit if not a stock item.
Cancellation
15. Following ProTherm Industries’s receipt of the Customer’s purchase order, such order may not be cancelled without the written consent of ProTherm Industries. ProTherm Industries shall have the absolute right to cancel and refuse to complete the order: (1) if, at any time, all terms and conditions governing this order are not strictly complied with by the Customer. (2) if, the Customer shall make or offer to make any arrangement or composition with creditors or commit any act of bankruptcy, or if, being a limited company, the Customer shall go into liquidation, whether compulsory or voluntary, not being a voluntary liquidation for the purpose of amalgamation or reconstruction, or suffer the appointment of a receiver if its undertaking, property or assets of any part thereof, (3) if, at any time, the Customer becomes bankrupt, or insolvent, or, if legal process shall be levied upon any of Customer’s property, or, (4) if the Customer fails to post security within twenty-one (21) days after ProTherm Industries has requested same based on a good faith-doubt of the Customer’s ability to make prompt payment. In the event of such a cancellation, and without prejudice to ProTherm Industries’s other remedies, ProTherm Industries shall have the right to indemnification for any or all cost incurred to the date of cancellation in performing the order (including the cost of any engineering studies and/or special patterns) and for the loss of profit resulting from such cancellation. ProTherm Industries shall have the right, at its option, to waive its rights to indemnification with regard to any item scheduled for completion within sixty (60) days following the date of cancellation and to complete such items and request full payment for same. ProTherm Industries shall have no responsibility or liability to the Customer except for the return of any excess of the Customer’s partial payments on the order less the foregoing costs and loss of profit.
Substitutes and Modification
16. ProTherm Industries may modify or substitute goods provided the modified or substituted goods comply with applicable specifications. Inspection and Acceptance
17. The goods covered by this contract shall be deemed finally inspected and accepted within two (2) weeks from the date of shipment unless written notice of rejection or any claim is delivered to ProTherm Industries within that period. Acceptance as aforesaid shall constitute acknowledgment of full performance by ProTherm Industries of all its obligations hereunder except as further stated under the paragraph entitled “Warranties,” “Remedies” and “Damages”.
Contract
18. In accordance with paragraph 1 above, these Standard terms and Conditions are intended by the parties as a final expression of their agreement and as complete and exclusive statement of the terms of any agreement. No agent, employee, or representative of ProTherm Industries has any authority to bind ProTherm Industries to any affirmation representation or warranty concerning the product sold other than as stated in these Standard Terms and Conditions.
19. Any agreement between ProTherm Industries and Customer can be modified or rescinded only by a writing signed by both of the parties or their duly authorized agents.
20. Remedies of Customer provided herein are the exclusive and sole remedies of Customer.
Correction of Errors
21. ProTherm Industries reserves the right to correct any obvious errors in specifications or prices.