1. Acceptance. The following terms and conditions of sale are applicable to all sales of Products or Services, and all quotations, order acknowledgements, and invoices from Thermal Support, LLC. (“Seller”) and to all Purchase Orders from Seller’s customers (“Purchasers”) and are the only terms and conditions applicable to the sale of Seller’s Products or Services, except those relating solely to prices, quantities, delivery schedules, terms of payment, invoicing, shipping instructions, or descriptions of the products set forth in Purchaser’s Purchase Orders (collectively, “Purchase Order Terms”). Purchase Orders, if accepted by Seller, are accepted subject to the terms and conditions set forth herein. SELLER HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY PURCHASER, WHETHER OR NOT CONTAINED IN ANY OF PURCHASER’S BUSINESS FORMS OR IN PURCHASER’S WEBSITE, AND SUCH ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS SHALL BE VOID AND OF NO EFFECT UNLESS SPECIFICALLY AGREED TO BY SELLER IN WRITING. Purchaser’s acceptance of Products or Services (“Products or Services”) called for in said Purchase Order shall constitute its acceptance of the following terms and conditions of sale (this “Agreement”). Any changes to these terms and conditions must be in writing and signed by Seller.
2. Prices. Prices are in U.S. Dollars and are subject to change without notice. Time of payment is of the essence. All orders are accepted subject to Seller’s price in effect at time of shipment.
3. Terms of Payment. The inspection rights granted to Purchaser will not affect or alter the payment terms or the timing of Purchaser’s payment obligations. Under no circumstances will Purchaser have a right of set-off. Unless otherwise expressly agreed to by Seller in writing, terms of payment are 30 days net from the date of Seller’s invoice. Purchaser agrees to pay interest on overdue invoices at the rate of 1 ½ % per month, but not higher than the highest rate permitted by law. If Purchaser fails to make any payment as required, Purchaser agrees to indemnify Seller for all costs and expenses, including reasonable attorney fees, court costs, and associated expenses incurred by Seller.
4. Credit Approval. All shipments to be made hereunder shall at all times be subject to the approval of Seller’s credit department. Seller may invoice Purchaser and recover for each shipment made pursuant to this Agreement as a separate transaction without regard to any other order or agreement with Seller, or if, in Seller’s sole judgment, the financial responsibility of Purchaser is or becomes unsatisfactory, then Seller may, at its option and without prejudice to any of its other remedies, (a) defer or decline to make any shipments hereunder except upon receipt of satisfactory security or cash payments in advance, and / or (b) terminate all Purchase Orders of Purchaser.
5. Cancellation. Once Seller has either accepted a Purchase Order or has begun taking actions with respect to such Purchase Order, such Purchase Order cannot be canceled, terminated or modified by Purchaser in whole or in part except with Seller’s consent in writing and then only upon terms and conditions to be agreed upon which shall include protection of Seller against all losses. Purchaser shall indemnify Seller for any costs incurred, including material and labor costs, in connection with any Purchase Order that Purchaser desires to cancel, terminate or modify.
6. Inspection / Non – Conforming Shipments. Seller grants Purchaser the right to inspect Products for a period of fifteen (15) business days immediately following delivery (“Inspection Period”). Purchaser must notify Seller of any Products that do not conform to the terms applicable to their sale within the inspection period, and afford Seller a reasonable opportunity to inspect such Products and cure any nonconformity. If Purchaser fails to provide Seller with notice of nonconformity within the Inspection Period, Purchaser shall be deemed to have accepted the Products. Purchaser will have no right to return any Product without Seller’s prior written authorization. Any return authorized by Seller must be made in accordance with Seller’s return policies then in effect and must be accompanied by a Returned Goods Authorization (“RGA”) from Seller. Purchaser will be responsible for all costs and expenses associated with any returns of Products and will bear the risk of loss or damage of such Products, unless Seller agrees otherwise in writing or determines that the Products do not conform to the applicable terms of sale. Seller, in its sole discretion may reject any return of Product not approved by Seller in accordance with this paragraph or otherwise not returned in accordance with Seller’s then current-return policies.
7. Title / Risk of Loss / Delivery. Unless other arrangements are made in writing, Seller anticipates use of common carriers for transport of Products. Unless specifically otherwise provided in Seller’s invoice, the carrier, and not Seller, will bill for freight rates and other transportation charges. Such payments are solely the responsibility of the Purchaser, to be paid directly by the Purchaser to the carrier. All Products shall be shipped ex-works Seller’s plant and shall become the property of Purchaser upon delivery to the carrier. Purchaser shall assume all risk and liability for loss, damage, or destruction, as well as the results of any use or misuse by third parties who may acquire or use the Products illicitly after the delivery to the carrier. Unless mutually agreed upon, shipping dates are approximate and are based upon prompt receipt of all necessary information. Seller reserves the right to ship items in a single or multiple shipments.
8. Damage. Purchaser shall notify Seller and the delivering carrier within fifteen (15) business days from date of receipt of Products, of any damage or shortage, and afford Seller a reasonable opportunity to inspect the Products. Any loss occasioned by damage or shrinkage in transit will be for Purchaser’s account and claims for such loss shall be made solely against the carrier.
New Product Purchase – For all Products with the specific exception of product manuals, Sample Holders, Furnaces and Thermocouples, for a period of 3 months from the date of shipment, Seller warrants products furnished hereunder to conform to specifications under normal use and service. Parts which are replaced under warranty will be warranted for the remaining period of the original warranty.
Customer Material Returned for Repair – For a period of 3 months from the date of shipment, Seller warrants products furnished hereunder to conform to specifications under normal use and service.
Any claim on account of defective products or for any other cause whatsoever shall conclusively be deemed waived by Buyer unless written notice thereof is given to Seller promptly after discovery but no later than sixty (60) days from date of shipment. Seller shall have the right either to replace or repair any defective products. Seller’s liability and Buyer’s exclusive remedy for defective products shall be limited solely to replacement or repair, as Seller may elect. Seller may request return of defective product for evaluation. Upon this request, the Seller will issue a return authorization number. The Buyer will ship the defective component prepaid to the Seller within (60) days following this request. Product not returned within 60 days will be declared “not warrantable” and invoiced to the Buyer.
10. Disclaimer of Further Warranties. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCT MANUALS, SAMPLE HOLDERS, FURNACES, OR THERMOCOUPLES. EXCEPT AS SET FORTH ABOVE, SELLER MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE) WITH RESPECT TO ITS PRODUCTS OR SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OR THE PROVISIONS OS SECTION 12 HEREOF, SELLER SHALL NOT BE RESPONSIBLE, UNDER ANY CIRCUMSTANCES, FOR DAMAGE CAUSED TO ANY PRODUCT BY FIRE, WATER, STORMS OR ELECTRICAL SURGE, AND SHALL HAVE NO OBLIGATION TO REPLACE OR REPAIR ANY PRODUCT DAMAGED UNDER SUCH CIRCUMSTANCES.
11. Limitation of Liability and Remedies. SELLER SHALL NOT BE LIABLE, AND PURCHASER WAIVES ALL CLAIMS AGAINST SELLER, FOR INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR COMMERCIAL LOSSES, WHETHER OR NOT BASED UPON SELLER’S NEGLIGENCE OR BREACH OF WARRANTY OR STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION. SELLER WILL NOT BE LIABLE TO PURCHASER FOR ANY LOSS, DAMAGE, OR INJURY TO PERSONS OR PROPERTY RESULTING FROM THE HANDLING, STORAGE, TRANSPORTATION, RESALE, OR USE OF ITS PRODUCTS IN MANUFACTURING PROCESSES, OR IN COMBINATION WITH OTHER SUBSTANCES, OR OTHERWISE. IN NO EVENT WILL SELLER’S LIABILITY UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SALE OF PRODUCTS BY SELLER EXCEED THE PURCHASE PRICE OF THE SPECIFIC PRODUCTS OR SERVICES AS TO WHICH THE CLAIM IS MADE.
12. Technical Data. All statements and recommendations are either based on the tests or experience that Seller believes to be reliable, but they are not guaranteed.
13. Product Use. Purchaser is solely responsible for determining whether any Product is fit for a particular purpose and suitable for Purchaser’s method of application. Accordingly, and due to the nature and manner of use of Seller’s Products, Seller is not responsible for the results or consequences of use, misuse or application of its Products by anyone.
14. Taxes. Purchaser shall pay to Seller, in addition to the purchase price, the amount of all fees, duties, licenses, tariffs, and all sales, use, privilege, occupation, excise, or other taxes, federal, state, local or foreign, which Seller is required to pay or collect in connection with the Products or Services sold to Purchaser. Failure by the Seller to collect any such fees or taxes shall not affect Purchaser’s obligations hereunder and Purchaser shall fully defend, indemnify and hold harmless Seller with respect to such tax obligations.
15. Ownership of Intellectual Property. All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights and other information or Intellectual Property disclosed or otherwise provided to Purchaser by Seller and all rights therein (collectively, “Intellectual Property”) will remain the property of Seller and will be kept confidential by Purchaser in accordance with these terms and conditions. Purchaser shall have no claim to, nor ownership interest in, any Intellectual Property and such information, in whatever form and any copies thereof, shall be promptly returned to Seller upon written request from Seller. Purchaser acknowledges that no license or rights of any sort are granted to Purchaser hereunder in respect of any Intellectual Property.
16. Force Majeure. Seller shall not be liable for failure to perform or delay in performance or delivery of any Products or Services due to (a) fires, floods, strikes, or other labor disputes, accidents, sabotage, terrorism, war, riots, acts of precedence or priorities granted at the request or for the benefit, directly or indirectly, of any federal, state or local government or any subdivision or agency thereof, delays in transportation or lack of transportation facilities, restrictions imposed by federal, state or local laws, rules or regulations; or (b) any other cause beyond the control of Seller. In the event of the occurrence of any of the foregoing, the time for performance shall be extended for such time as may be reasonably necessary to enable Seller to perform. Seller may, during any period of shortage due to any of the above circumstances, allocate its available supply of Products or Services among itself and its Purchasers in such manner as Seller, in its judgment, deems fair and equitable.
17. Assignment and Delegation. No assignment of any rights or interest or delegation of any obligation or duty of Purchaser under these terms and conditions, Seller’s quotation, order acknowledgement, or invoice, or Purchaser’s Purchase Order may be made without the prior written consent of Seller. Any attempted assignment or delegation will be wholly void and totally ineffective for all purposes.
18. Integration Clause. These terms and conditions, together with Seller’s quotation, order acknowledgement and invoice to a Purchase Order accepted by Seller, constitute the entire contract of sale and purchase between Seller and Purchaser with respect to the Products covered by this Agreement, and supersedes any prior agreements, understandings, representations and quotations with respect thereto. No modification hereof shall be of any force or effect unless in writing and signed by the party claiming to be bound thereby.
19. Waiver. No failure of Seller to insist upon strict compliance by Purchaser with these terms and conditions or to exercise any right accruing from any default of Purchaser shall impair Seller’s rights in case Purchaser’s default continues or in case of any subsequent default by Purchaser. Waiver by Seller of any breach by Purchaser of these terms and conditions shall not be construed as a waiver of any other existing or future breach.
20. Limitation of Actions. Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of these terms and conditions by Seller shall be barred unless commenced by Purchaser within one (1) year from the accrual of such cause or action.
21. Choice of Laws. Any dispute arising out of or related to this Agreement, shall be governed by and construed according to the laws of the State of North Carolina and litigated exclusively in a state or federal court located in Clay County, North Carolina. The parties hereby agree to the exclusive jurisdiction and venue of such courts.
22. Jury Waiver. The parties hereto expressly release and waive any and all rights to a jury trial and consent to have any dispute heard solely by a Court of competent jurisdiction.
23. Severability. If any provision herein shall be held to be unlawful or unenforceable, the remaining provisions herein shall remain in full force and effect.