Terms and Conditions of Sale
1. ACCEPTANCE, GOVERNING PROVISIONS AND CANCELLATION
No orders for equipment, machinery, parts, or other products (collectively “Products”) or Services shall be binding upon THERMAL PRODUCT SOLUTIONS, a division of SPX CORPPORATION (“Seller”) d/b/a Blue M Electric, Gruenberg, Lunaire or Tenney until accepted in writing by an authorized official of Seller at its home office in New Columbia, Pennsylvania or at its plant handling and processing such orders, and in all events any sale by Seller to Purchaser is expressly conditioned upon Purchaser’s acceptance of the terms and conditions set forth herein. They supersede and reject any conflicting terms and conditions of Purchaser, any statement therein to the contrary notwithstanding. Exceptions to or modifications of any of Seller’s terms and conditions, at any time, must be contained in a written statement from Purchaser. Seller shall not be deemed to have waived any of its terms and conditions or to have assented to any exception to or modification of such terms and conditions unless such waiver or assent is in writing and signed by Seller’s authorized officer.
No representation of any kind is made by Seller except as set forth herein. The Agreement formed upon these terms conclusively supersedes all prior writings and negotiations with respect to the Products or Services to be furnished hereunder and Seller shall furnish only the quantities and Products or Services specifically listed on the face hereof or the pages attached hereto; Seller assumes no responsibility for furnishing other equipment or material shown in any plans or specifications for a project to which the Products or Services ordered herein pertain. Seller’s published or quoted prices, terms and conditions are subject to change without notice. All quotations are subject to correction for clerical errors.
Unless otherwise noted in the quotation, published or quoted prices are net EXW Loaded (Incoterms 2000) Seller’s factory (location of factory determined by Products ordered). Unless otherwise noted in the quotation, service time of factory-trained service personnel is not included and may be charged extra.
3. DELIVERY AND DELAY
Unless otherwise agreed to in writing signed by Seller: (i) goods shall be delivered EXW Loaded (Incoterms 2000) Seller’s factory (location of factory determined by Products ordered), with delivery to the initial carrier constituting delivery to Purchaser; (ii) title to the Products and risk of damage or loss shall pass to Purchaser upon delivery to the initial carrier; (iii) transportation costs shall be paid by Purchaser; and (iv) Purchaser shall have sole responsibility for filing any claims with any carrier for delay, loss or damage.
Dates of delivery or other performance are estimates and are based on timely receipt from Purchaser of (i) accurate and complete approved drawings and technical data and (ii) all applicable payments and/or the posting of any applicable letters of credit. Seller shall not be liable for any delay beyond its reasonable control or caused by accident, bad weather, embargo, act of Purchaser or third parties, labor disputes, national emergency, riots, non-delivery of suppliers, delays of carriers or delivery agents, inability to obtain labor, materials or manufacturing facilities, acts of God, or government restrictions, prohibitions or requirements. In the event of any such delay, Seller’s time period for delivery or performance shall be extended accordingly. During any period of shortage due to the stated or similar causes, Seller may prorate its supply of material among its internal demand and its customers in whatever manner it chooses. REGARDLESS OF THE CAUSE, SELLER SHALL HAVE NO LIABILITY FOR PENALTIES OF ANY NATURE AS A RESULT OF A DELAY NOR SHALL PURCHASER BE RELIEVED OF PERFORMANCE UNDER THE CONTRACT/ORDER BECAUSE OF FAILURE TO MEET THEM. Seller reserves the right to make delivery in installments, and all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Claims for shortages or other errors in delivery must be made in writing to Seller within ten (10) days after receipt of shipment and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Purchaser. If shipping or progress of the work is delayed or interrupted by the Purchaser, directly or indirectly, the Purchaser shall pay Seller for all additional charges resulting therefrom.
All supervision and labor for Services provided by Seller shall be on the basis of eight (8) hours per day, Monday through Friday, inclusive. If it is mutually agreed that other working periods are required, Purchaser shall pay the additional charges, allowances and any other costs resulting therefrom.
4. CHANGES, SUBSTITUTES AND CANCELLATION
Any changes requested by Purchaser are not effective unless accepted in writing by an officer of Seller at Seller’s corporate offices or factory. Any changes accepted by Seller which affect the specifications or scope of work of an order shall entitle Seller, as appropriate, to an adjustment to the price, delivery schedule, or other terms affected by such change.
Seller may, at its option, furnish suitable substitutes for materials unobtainable because of priorities or regulations established by government authority or unavailability of materials from suppliers. Details of design and construction as stated in the quotation are approximate and are therefore subject to revision by Seller. If any changes in the layout or arrangement for Product are desired or required by conditions of which Seller was unaware or which were unforeseen at the time the quotation was submitted, the price is subject to revision.
Purchaser may cancel an order only with the written consent of Seller and upon payment of cancellation charges. In the event Seller accepts such cancellation of all or any part of the Products or services, Purchaser shall be liable for the higher of: (i) 25% of the purchase price; or (ii) any costs or loss incurred by Seller, including, without limitation, costs of engineering, reconditioning, labor, materials, and Seller’s profit margin.
If the Products are not shipped within five (5) days after notification has been made to the Purchaser that they are ready for shipping, for any reason beyond Seller's reasonable control, including without limitation the Purchaser's failure to give shipping instructions, Seller may store the Products at the Purchaser's risk and expense in a warehouse or upon Seller's premises, and the Purchaser shall pay all handling, transportation and storage costs at the prevailing commercial rates upon submission of invoices for such charges.
Prior to full payment of the purchase price, Purchaser shall keep insured, Products shipped to Purchaser by Seller under policies naming Seller as coinsured party with such provisions, for such amounts and with such insurers as shall be satisfactory to Seller and, upon Seller’s request, Purchaser shall furnish evidence of such insurance satisfactory to Seller.
When specified in Seller’s quotation, the Services of a competent service technician to supervise the starting and/or installation or erection of the equipment and to instruct the Purchaser's representative in its operation are included. These Services will be supplied for the specified number of days. If such Services are required for a period in excess of that time, the Purchaser will pay for such additional Services at the specified rate per day plus additional living expenses and travel expenses as may be incurred by reason of the extension of the period of service.
Supervision of installation shall run concurrently with dryout time, start up time and instruction of the Purchaser's personnel.
When installation, assembly or erection is specified in the quotation, Purchaser shall deliver all of Seller's material to erection site, obtain all necessary licenses and permits and pay all inspection fees. Also Purchaser shall provide, at its expense, the following: erection site; all building modifications, pits, covers, grates, stairs, ladders, rails, foundations, floor reinforcements and bolts, footings, shims, grouting; cleared floor space maintained free of water, debris and obstructions on ground and overhead; safe and convenient storage area adjacent to the installation site for Seller's equipment and material; crane with operator, and all electric current, compressed air, fuel, clean water, drains, sewers, ventilation, hoods, stacks, terminal circuit breakers, cut-off valves, etc. as required for erection or installation, and operation at the site of erection. Purchaser shall also supply oil for quench tanks and hydraulic systems, salt for salt baths and quench tanks, fuses for all electrical components, and replaceable filters and gas, where required. The current, and kind of electricity, and the pressure and quality of fuel, air, water, etc. shall be maintained within the specifications set forth in the quotation. If work is required in freezing or severe weather, Purchaser will furnish heat and covering as required by Seller for suitable installation progress. Seller may delay such installation or erection until work conditions at installation site have been prepared so as to permit work to proceed without interruption due to elements or other causes.
Surplus materials supplied by Seller remain Seller's property and will be disposed of by it.
Seller will not be responsible for work done or material furnished by the Purchaser for Seller's benefit without written orders signed by authorized representatives of both parties at agreed-upon total rates. Back charges will not be recognized without Seller's prior written acceptance of such charges and approval of amounts.
Payment shall be due, subject to credit approval, as follows:
A. Orders for standard unit(s) of $50,000 or less
B. Customer orders or orders for standard
|=Net 30 days after shipment, with approved credit.
=35% advance payment due with order
55% prior to shipment
10% net 30 days after shipment
All orders for Products or Services to be shipped to any destination outside the U.S., shall be paid either in cash in advance or by a clean, irrevocable letter of credit confirmed to Seller by a U.S. bank acceptable to Seller which letter of credit shall be in form and substance reasonably satisfactory to Seller. All banking charges shall be paid by Purchaser.
A service charge of 1.5% per month (18% per annum) or the maximum permitted by applicable law, whichever is less, shall be added to past due balances. If at any time the financial condition of the Purchaser does not justify the terms of payment specified, Seller may demand full or partial payment and other assurances in advance before proceeding with the work, or at its option without prejudice to other remedies, Seller may defer delivery or cancel this contract. If delivery is deferred, the Products may be stored as provided in Paragraph 5 above and Seller may submit a new estimate and cost for completion based upon prevailing conditions.
9. INSPECTION, TEST, ACCEPTANCE AND USE OF EQUIPMENT
Inspection of goods at Seller’s plant by Purchaser, or Purchaser’s representatives, will be permitted insofar as such inspection does not interfere with Seller’s production and provided that complete written details of such inspection are submitted to Seller ten (10) days in advance. Further, if the quotation sets forth performance specifications of any kind, testing to prove compliance shall be based on a process approved by Seller that indicates the procedure to be followed, the responsibility of each party, and the place at which the test will be performed. If tests are performed in the Purchaser's plant, Purchaser shall assume all responsibility for fire or explosion or damage of any kind in the starting, testing, and subsequent operation of the equipment. When such tests have been successfully completed, Seller shall have no further liability or obligation under the contract except under Paragraph 13 (Warranty) and Paragraph 16 (Patents) hereof.
In the absence of performance testing, the Products and Services shall be deemed accepted, and any attempt to reject such Products or services shall be waived and not enforceable, unless: (i) Purchaser has promptly inspected the goods and services, and written notice from Purchaser of any defect has been received by Seller within forty-eight (48) hours of rejection of any equipment inspected at Seller’s factory or, if no factory inspection has taken place, within thirty (30) days following any delivery or goods or performance of services; and (ii) Seller has been given by Purchaser reasonable advance notice and authorization to attend any tests designed to demonstrate that goods or services are defective, and the test conditions are mutually agreed to by Purchaser and Seller.
Any use or operation of the equipment by the Purchaser shall constitute acceptance thereof and payment in full shall be required.
10. TAXES AND OTHER CHARGES
Any manufacturer's tax, retailer's occupational tax, use tax, excise tax, duty, custom inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between Seller and the Purchaser shall be paid by the Purchaser in addition to the prices quoted or invoiced. In the event Seller is required to pay any such tax, fee or charge, the Purchaser shall reimburse Seller therefor or, in lieu of such payment, the Purchaser shall provide Seller at the time the order is submitted with an exemption certificate or other document acceptable to the authority imposing same.
11. OSHA, SAFETY DEVICES, F.M., F.I.A., ETC.
Products are not required to conform to any standards, except OSHA, unless the same are set forth in the quotation. Where conformance is part of the installation, Seller will furnish any required equipment or appurtenances, beyond those specifically indicated in the quotation only when mutually agreed upon in a written agreement signed by Seller.
12. RETURN OF MATERIAL
Products must not be returned without obtaining return material authorization and shipping instructions from Seller. Any Products returned shall be subject to restocking and reconditioning charges and must be returned with all shipping charges prepaid by Purchaser.
13. LIMITED WARRANTY
Seller warrants that the Products manufactured by it and supplied hereunder to be free from defects in materials and workmanship for a period of twelve (12) months after shipment (or installation, if by Seller), unless an extended warranty for specific equipment and parts is expressly stated in Seller’s quotation or in an authorized warranty policy document issued to Purchaser by Seller for specific Products. Seller warrants, for a period of ninety (90) days from the date of service performance, that any Service performed for the Purchaser hereunder to be free from defects in workmanship. If within such period any such Products or Services shall be proved to Seller's satisfaction to be defective, such Products shall be repaired or replaced at Seller's option, and defective Services shall be corrected; provided, however, that if the ultimate destination of the Products is outside the United States, the foregoing warranty shall only cover the provision of replacement parts and not labor for removing defective parts or installing replacement parts etc. All removal and installation of Products shall be at Purchaser's expense. Seller's obligation regarding Products hereunder shall be limited to such repair and replacement, F.O.B. its factory, and shall be conditioned upon Seller receiving written notice of any alleged defect within ten (10) days after its discovery and at Seller's option, return of such equipment or parts prepaid to its factory, and shall not be enforceable until Purchaser has paid Seller in full for all Products and Services. Seller may in its sole discretion elect to perform warranty work at the site of the Products, and if so elected, Purchaser shall provide reasonable access and facilities for Seller to perform such warranty work. The foregoing warranties shall not apply to Products (or equipment or parts thereof) or Services, as applicable: (i) not manufactured by Seller; (ii) which were repaired or altered by a party other than Seller; (iii) which were subject to negligence, accident, damage or circumstances beyond Seller's control; (iv) were improperly operated, maintained or stored or used in any manner other than normal use or service; or (v) to consumable parts whose normal span of life might be shorter than the overall warranty period. With respect to equipment and parts not manufactured by Seller, the warranty obligations of Seller shall in all respects conform and be limited to the warranty extended to Seller by the supplier.
Seller's obligation and liability with respect to such warranties shall be limited to the amount received by Seller from the Purchaser on account of such specific Products or Services.
Purchaser agrees that if Products sold hereunder are resold by Purchaser, Purchaser will include in the contract for resale provisions, which limit recoveries against Seller in accordance with this contract. In case of Purchaser's failure to include in any such contract for resale the terms providing for such limitations, Purchaser shall indemnify and hold Seller harmless against any liability, loss, cost, damage, or expense (including reasonable attorney's fees) arising out of or resulting from such failure. No employee or agent of Seller is authorized to make any warranty other than that which is specifically set forth herein. The provisions in any specification, brochure or chart issued by Seller attached hereto are descriptive only and are not warranties.
THE FOREGOING WARRANTIES STATE SELLER’S ENTIRE WARRANTY (EXCEPT TITLE) AND PURCHASER’S SOLE AND EXCLUSIVE REMEDY RELATED TO SUCH PRODUCTS AND SERVICES. EXCEPT AS EXPRESSLY SET FORTH ABOVE, SELLER MAKES NO WARRANTY OF ANY KIND WHATSOEVER, AND SELLER EXPRESSLY DISCLAIMS ANY WARRANTIES IMPLIED BY LAW, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE FOREGOING WARRANTIES SHALL NOT APPLY TO ANY LOSS OR DAMAGE RESULTING FROM: (i) NORMAL WEAR AND TEAR; (ii) ALTERATION, MISUSE, ABUSE, OR IMPROPER INSTALLATION, OPERATION OR MAINTENANCE BY PURCHASER OR A THIRD PARTY; (iii) ACCIDENT, FIRE, FLOOD, OR ACTS OF GOD; OR (iv) INACCURATE OR INCOMPLETE INFORMATION OR DATA SUPPLIED OR APPROVED BY PURCHASER. PURCHASER SHALL DEFEND AND INDEMNIFY SELLER FOR ANY LOSS OR DAMAGE OF SELLER ARISING OUT OF (I) THROUGH (IV) ABOVE.
14 HAZARDOUS MATERIALS TESTING
IF PURCHASER INTENDS TO USE THE PRODUCT(S) PURCHASED FROM SELLER FOR ANY UNSPECIFIED TESTING OR USE IN CONNECTION WITH HAZARDOUS, COMBUSTIBLE, FLAMABLE OR CAUSTIC MATERIALS, INCLUDING, WITHOUT LIMITATION, BATTERIES, PURCHASER MUST NOTIFY SELLER OF SUCH INTENDED USE PRIOR TO PURCHASING SUCH PRODUCT(S) AND SUPPLY SELLER WITH ALL PROPRIETARY MSDS, PROCESS, OR SPECIFIC MATERIAL OF CONSTRUCTION INFORMATION REASONABLY REQUESTED BY SELLER. WITHOUT SUCH INFORMATION, SELLER CANNOT DETERMINE IF THE PRODUCT(S) IS SUITABLE FOR SUCH TESTING OR USE. AS SUCH, IF PURCHASER USES THE PRODUCT(S) FOR SUCH TESTING OR USE AND FAILS TO NOTIFY SELLER OF ITS INTENTION TO DO SO AND/OR FAILS TO PROVIDE SELLER WITH SUCH INFORMATION: (I) SELLER SHALL NOT HAVE ANY LIABILITY, DIRECT, INDIRECT, CONSEQUENTIAL OR OTHERWISE TO PURCHASER, ITS AFFILIATES, EMPLOYEES, REPRESENTATIVES OR CUSTOMERS WITH RESPECT TO THE ULTIMATE SAFETY OF THE PRODUCT; (II) SELLER SHALL NOT HAVE ANY LIABILITY FOR ANY DAMAGES TO PURCHASER, ITS AFFILIATES, EMPLOYEES, REPRESENTATIVES OR CUSTOMERS FOR CLAIMS OF BODILY INJURY, DEATH, OR DESTRUCTION OF PERSONAL PROPERTY RESULTING FROM THE CONSTRUCTION OR OPERATION OF THE PRODUCT; (III) ALL WARRANTIES MADE BY SELLER HEREUNDER SHALL BE VOID AND OF NO FORCE OR EFFECT; AND (IV) ANY WARRANTY AS TO THE PERFORMANCE OF THE PRODUCT AND ALL OTHER WARRANTIES, WHETHER EXPLICIT OR IMPLIED AT LAW, INCLUDING THE WARRANTY OF FITNESS FOR A SPECIFIC PURPOSE AND MERCHANTABILITY, ARE HEREBY DISCLAIMED IN THEIR ENTIRETY.
15. LIMITATION OF LIABILITY
Except as specifically provided in Article 16 below, Seller shall in no event be liable for any direct, indirect, special or consequential damages whatsoever, whether grounded in tort (including negligence), strict liability or contract, and under no circumstances will Seller’s liability exceed the contract price for Products and Services upon which liability is claimed. Any action by Purchaser against Seller must be commenced within one year after the cause of action has accrued.
16. GAS HAZARD
Certain equipment quoted herein may be of a special gaseous atmosphere type. Also, certain materials may generate explosive gas while being processed in the equipment. It is generally known that gas may be a hazard to health and/or explosive under certain conditions. Seller shall not be responsible for personnel hazard and/or explosion damage when gas is used or present.
17. PATENTS, COPYRIGHTS AND MASK WORKS
If Purchaser receives a claim that any Product or part thereof manufactured by Seller infringes a U. S. Patent or Trademark, Purchaser shall promptly notify Seller in writing and give Seller information, assistance and exclusive authority to evaluate, defend, and settle such claim. Seller shall then at its own expense and option (1) settle such claim; (2) procure for Purchaser the right to use such Product; (3) replace or modify it to avoid infringement; (4) remove it and refund the purchase price, less accrued depreciation; or (5) defend against such claim. Provided such timely notice, information, assistance and authority has been given by Purchaser to Seller, should any court of competent jurisdiction hold such product to constitute infringement, Seller shall pay any costs and damages finally awarded on account of such infringement and, if the use of such Product is enjoined, Seller shall take at its option one or more of the actions under (2), (3), or (4) above. With respect to any product not manufactured by Seller, the patent indemnity, if any, given by the manufacturer thereof shall apply in place of the foregoing indemnity.
The foregoing indemnity shall not apply to any claim that arises out of (i) Seller's compliance with the specification or design of Purchaser; (ii) any Products that have been altered or modified by any part other than Seller; and (iii) the use of Product in combination with other equipment and materials not furnished by Seller. Purchaser shall hold Seller harmless and indemnified against all claims described in this paragraph. The sale of Products hereunder does not carry with it any license to use such Products in combination with other Products not purchased from Seller and which combination is the subject of any patent owned or controlled by Seller.
The rights and obligations of the parties with respect to Patents and Trademarks are solely and exclusively as stated herein.
18. DRAWINGS, SELLER’S INTELLECTUAL PROPERTY ETC
All specifications, drawings, production prints, design, data, information, ideas, methods, patterns and/or inventions, made, conceived, developed, or acquired by Seller incident to procuring and/or carrying out this contract will vest in and inure to Seller's sole benefit. Purchaser agrees to hold in confidence and not to give, loan, disclose, exhibit or sell to any other party or interest, outside of its own company, any drawing, photograph, specification or other technical information furnished by Seller or any reproduction thereof. Such charges as may be made for patterns, etc., cover use only. All such equipment shall remain the property of and in Seller's possession. Drawings are not subject to Purchaser’s prior approval. Tracings and reproducible drawings are not provided by Seller, unless expressly stated in the quotation.
Further, Seller retains title to all intellectual property, patents, trademarks, know-how, copyrights, software, engineering and designs, models, technical data, and other information and documents that relate to the Products and Services sold to Buyer. Unless advised by Seller in writing to the contrary, all such intellectual property, information and documents disclosed or delivered by Seller to Buyer are to be deemed proprietary to Seller and shall be used by Buyer solely for inspecting, installing, operating and maintaining the Products and Services sold to Buyer and not used by Buyer for any other purpose.
Seller may take photographs of its installed equipment for record purpose but agrees not to use them for sales or advertising without the written consent of the Purchaser.
19. APPLICABLE LAW, VENUE
The rights and duties of the parties to any contract resulting herefrom shall be governed by the laws of the State of Pennsylvania, without reference to principles of conflicts of law and excluding any application of the United Nations Convention on Contracts for the International Sale of Products. Each party shall submit to the exclusive jurisdiction of the state and federal courts with jurisdiction where Seller’s principal place of business is located for any legal or equitable action or proceeding with respect to this Agreement and/or any Order.
Purchaser's rights and obligations hereunder may not be assigned without Seller’s prior written consent.
Seller’s failure at any time to require strict performance by Purchaser of any of the provisions herein shall not waive or diminish its right thereafter to demand strict compliance therewith or with any other provision. Waiver of any default shall not waive any other default.