Thermcraft Holding Co., LLC
TERMS AND CONDITIONS OF SALE
1. Contract. The party (“Buyer”) identified as the buyer of certain equipment, components and/or other products and related services (the “Equipment”) from Thermcraft Holding Co., LLC (“Thermcraft”) hereby agrees to these Terms and Conditions of Sale. These Terms and Conditions of Sale and Thermcraft acknowledgment of acceptance of Buyer’s order, as well as all drawings, specifications, descriptions and other documents attached hereto, constitute the entire agreement between Thermcraft and Buyer with respect to the sale of the Equipment. Thermcraft’s acceptance of Buyer’s order shall be in writing and is conditioned upon Buyer’s agreement to these Terms and Conditions of Sale.
In the event of any conflict between documents between the parties, the following order of precedence shall apply: (a) Thermcraft’s written acknowledgment of Buyer’s order, (b) these Terms and Conditions of Sale, and (c) any Thermcraft Quotation. Each of the documents in items 1(a)-1(c) shall control over any conflicting or different terms in Buyer’s order and Thermcraft hereby rejects such terms in Buyer’s order. No performance or conduct by Thermcraft shall constitute acceptance of any of Buyer’s terms and conditions of purchase.
2. Suitability of the Equipment. Buyer is solely responsible for determining the suitability of the Equipment for its intended application and use. Buyer shall provide complete and accurate information regarding operating conditions and its desired specifications and intended use. Thermcraft shall not be liable for any loss or damage arising from incomplete or inaccurate information supplied by Buyer.
3. Purchase Price. The purchase price for the Equipment is set forth in Thermcraft’s written acknowledgment of Buyer’s order or Thermcraft’s written quotation, as applicable. If such purchase price is not contained therein, all prices for Equipment shall be at Thermcraft’s standard prices then in effect on the date of shipment. Unless otherwise indicated by Thermcraft, price quotations are valid for thirty (30) days from the date of such quotation and may be withdrawn at any time by Thermcraft prior to acceptance. Prices quoted by Thermcraft are based on the cost of materials, freight and labor prevailing on the date of quotation. Any increase in such costs thereafter may be invoiced to Buyer at the additional costs incurred by Thermcraft. If Buyer requests expedited delivery or other changes, Thermcraft shall be permitted to charge additional amounts for its increased labor, fulfillment, administrative and overhead expenses.
4. Taxes, Duties and Other Charges. Prices are exclusive of all excise, sales, use or other taxes. Unless agreed by Thermcraft in writing, Buyer shall be responsible for all import/export duties, levies and impositions and all other governmental charges, assessments, fees associated with the sale or use of the Equipment, as well as any interest or penalties thereon. Further, Buyer shall be responsible for obtaining and paying for any permits, licenses or other governmental authorization(s) necessary for the exportation or importation of the Equipment to its designated country and Buyer shall comply with all laws and regulations relating thereto.
5. Payment Terms. Payment terms are as specified in Thermcraft’s written acknowledgment of acceptance. If not, payment terms may be determined by Thermcraft depending on the time and/or capital investment by Thermcraft in the manufacture and sale of the Equipment. Accordingly, based on Buyer creditworthiness and the time and/or capital investment of Thermcraft, Thermcraft may require a portion of the purchase price for the Equipment to be due upon Thermcraft’s acceptance of Buyer’s order, upon achievement of certain milestones and upon delivery of the Equipment. The performance by Thermcraft of its obligations under this contract shall be conditioned upon Buyer’s continuing good credit, as determined in the sole discretion of Thermcraft. If Thermcraft determines that Buyer’s creditworthiness, financial condition or payment history is unsatisfactory, it may modify its payments terms, including, without limitation, requiring advance payment or collateral or cancelling credit terms.
Notwithstanding the foregoing, Buyer agrees to pay all invoices within thirty (30) days of the date of invoice. If Buyer fails to make payment when due, whether by invoice or otherwise, all overdue amounts shall earn interest at the rate of 1.5% per month or the maximum rate permitted by law, whichever is less. If Buyer seeks to make payment in an amount less than the full amount owed and intends such payment to be in full satisfaction thereof (i.e. a payment is marked “Paid in Full”), Buyer must send such payment in writing to Thermcraft at 844 Thacker Street, Berea, Ohio 44017, Attention: Chief Financial Officer. All accounts are payable in U.S. Dollars, free of exchange, collection or other charges and without any deduction, setoff or counterclaim whatsoever.
Thermcraft may withhold work, suspend performance, delay shipment or require advance payment if Buyer fails to meet payment terms, if Buyer’s financial condition becomes unsatisfactory in Thermcraft’s reasonable judgment or Buyer fails to perform under this contract.
6. Delivery and Acceptance. Delivery shall be EXW (Incoterms® 2020) Thermcraft’s facility, unless otherwise agreed in a writing signed by Thermcraft. Any delivery dates shall be estimates and are not guaranteed. Thermcraft reserves the right to ship in advance of a delivery date, unless otherwise accepted as “not before” by Thermcraft in writing. Buyer shall immediately inspect all Equipment delivered hereunder and shall notify Thermcraft of any non-conformance issues within five (5) days from the delivery to Buyer. Buyer shall be deemed to have accepted the Equipment upon the earlier of: (a) its acknowledgment of acceptance, or (b) its failure to reject the Equipment within five (5) days after delivery of the Equipment.
7. Title. Title to the Equipment and risk of loss for the Equipment shall pass to Buyer upon delivery by Thermcraft to the carrier at Thermcraft’s facility. Upon such delivery, Buyer’s sole recourse for any losses or damage to the Equipment in shipment shall be solely with the carrier. In the event Thermcraft pays for any transportation and insurance costs, all such costs should be billed to Buyer and immediately due and payable. If Buyer fails to accept delivery when Thermcraft is ready to deliver, Thermcraft may store the Equipment at Buyer’s sole risk and expense.
Buyer hereby grants to Thermcraft a purchase money security interest in the Equipment and the proceeds thereof until payment in full of the purchase price. Buyer agrees to execute financing statements or other documents as Thermcraft requests to perfect its security interest.
8. Warranty. Thermcraft warrants that Equipment manufactured and sold by it hereunder shall materially conform, at the time of delivery, to agreed specifications agreed upon by Thermcraft in writing. In addition, and except as otherwise provided by Thermcraft in writing or as stated herein, Thermcraft warrants that Equipment manufactured and sold by it will be free from defects in material and workmanship under normal use, maintenance and service for a period of twelve (12) months from the date of delivery or nine (9) months from startup, whichever occurs first. No express or implied warranty whatsoever is provided for any samples of Equipment. Any warranty claim must be brought by Buyer to Thermcraft within the applicable 12 month or 9 month period. This warranty does not apply to consumable components, including, but not limited to, heating elements, insulation, thermocouples and similar items. Any components not manufactured by Thermcraft, including electrical components, are warranted only to the extent of the original manufacturer’s warranty and then only under such manufacturer’s guidelines. The warranty provided by Thermcraft shall not extend to Equipment that has been subject to misuse, misapplication, neglect, accident, improper installation or startup, or not used, maintained or serviced in accordance with recommended operating practices and specifications, or has been modified or repaired without Thermcraft’s prior written authorization. Further, at any time after Thermcraft’s acknowledgment of acceptance, Thermcraft reserves the right to make substitutions and modifications in the specifications to the Equipment, provided that such substitutions and modifications will not materially and adversely affect performance of the Equipment.
THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Thermcraft’s obligation under any warranty claim shall be, at Thermcraft’s sole option, to: (i) repair or replace the Equipment or defective part(s), as applicable, or (ii) refund of the purchase price of the Equipment or defective component, as applicable.
9. Limitations. THERMCRAFT’S TOTAL LIABILITY TO BUYER FOR ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF OR RELATED TO THE SALE OF THE EQUIPMENT, WHETHER BASED IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE (A “CLAIM”) SHALL NOT EXCEED THE PURCHASE PRICE OF THE EQUIPMENT GIVING RISE TO THE CLAIM.
NOTWITHSTANDING THE FOREGOING, THERMCRAFT SHALL NEVER BE LIABLE FOR ANY DAMAGES FROM LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS OR LOST OPPORTUNITY OR ANY SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES.
BUYER ACKNOWLEDGES THAT BUYER HAS INDEPENDENTLY DETERMINED THE SUITABILITY OR COMPATIBILITY OF THE EQUIPMENT FOR ITS INTENDED USE AND PURPOSE. ANY STATEMENTS, TECHNICAL INFORMATION OR RECOMMENDATIONS CONCERNING THE EQUIPMENT PROVIDED BY THERMCRAFT OR ITS SUPPLIERS DO NOT CONSTITUTE A GUARANTEE OR WARRANTY OF ANY KIND OR NATURE.
THIS LIMITATION OF LIABILITY SHALL SURVIVE THE FULFILLMENT, TERMINATION OR CANCELLATION OF THIS CONTRACT.
10. Force Majeure Events. Thermcraft shall not be liable for any delay or failure in its performance due to causes beyond its reasonable control, including but not limited to acts of God, labor disputes, supply chain disruptions, pandemics, epidemics, quarantines, acts of war or terrorism, fires, floods or other weather issues, governmental actions, embargos or other import/export restrictions, a material increase in the price of raw materials or failures of suppliers.
11. Site Conditions. Unless otherwise agreed by Thermcraft, Buyer shall be responsible, at its sole cost, for all site preparation, utilities and environmental conditions for the installation and operation of the Equipment at Buyer’s facility. Further, Buyer shall be responsible, at its sole cost, to install and use the Equipment at its facility in strict compliance with Thermcraft’s specifications.
12. Cancellations or Change Orders. Any order by Buyer may not be canceled or changed without Thermcraft’s prior written consent. In the event of any cancellation or change by Buyer, Buyer shall be responsible for all costs incurred by Thermcraft, including but not limited to engineering, materials, labor and subcontractor costs, as well as reasonable overhead and administrative expenses. Failure by Buyer to make any payments or perform any obligations as required shall give Thermcraft the right to suspend work or delivery for a reasonable period of time after such payment or performance is rendered. Any failure to make payment at the time required by Buyer shall be a bar to any claim by Buyer against Thermcraft for a delay in completion of any work or delivery of the Equipment.
13. Intellectual Rights. All intellectual property rights in the work performed by Thermcraft and in the Equipment, including designs, engineering, data, drawings and specifications, shall remain the sole property of Thermcraft. Buyer shall not reproduce, disclose or use any documents or materials containing such intellectual property for any purpose other than the intended use of the Equipment.
14. Confidentiality. Buyer agrees not to disclose, make available or otherwise use any confidential or proprietary information of Thermcraft, except in its lawful and proper use of the Equipment in accordance with Thermcraft’s restrictions.
15. Governing Law. This contract is governed by and shall be construed under the laws of the State of Ohio. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to this contract. The parties agree that any legal suit, action or proceeding hereunder shall be brought and resolved exclusively by the federal, state and local courts in Cuyahoga County, Ohio. The parties consent to the jurisdiction of such courts and waive all defenses to the jurisdiction and venue of such courts.
16. Attorney Fees and Costs. In the event of any dispute, claim or cause of action arising out of this contract where Thermcraft is the prevailing party, Buyer agrees to pay all of Thermcraft’s costs and expenses associated with such dispute, claim or action, including reasonable attorneys’ fees and court costs incurred by Thermcraft.
17. General. A valid contract binding upon Thermcraft will only arise upon Thermcraft’s formal written acceptance of Buyer’s order as delivered by a duly authorized employee or agent of Thermcraft. This contract constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all prior proposals, understandings or agreements. No amendment or modification of these Terms and Conditions of Sale shall be binding unless signed in writing by Thermcraft. This contract is not assignable by Buyer without the prior written consent of Thermcraft and any attempt by Buyer to assign any rights or obligations under this contract will be void. In the event that any provision hereof shall be illegal, invalid or unenforceable, it shall not affect the legality, validity or enforceability of any other provision hereof and such illegal, invalid, or unenforceable provision shall be so modified as to be enforceable and to preserve the intent of the parties. All rights and remedies provided to Thermcraft hereunder shall be cumulative and may be exercised singularly or concurrently. The failure of Thermcraft to enforce any provision hereof shall not be a waiver of the enforcement of such provision or any other provision anytime in the future.