THERMAL SOLUTION RESOURCES, LLC GENERAL TERMS AND CONDITIONS OF SALE
GENERAL. All sales and services by Thermal Solutions Resources, LLC (“Seller”) shall be subject to the following terms and conditions. By placing an order for parts or services, buyer (“Buyer”) accepts these terms and conditions in their entireties. No other or different terms or conditions shall be binding on Thermal Solution Resources, LLC unless set forth in a written agreement signed by the parties hereto. Thermal Solution Resources, LLC is not bound by any provisions, whether printed or otherwise, at variance with these terms and conditions, including without limitation, any terms that may appear in any purchase order or acknowledgement form used by Buyer, such terms being hereby expressly rejected. Seller’s failure to object to conflicting or additional terms will not change or add to the terms of this agreement. Buyer’s acceptance of the Products and/or Services from Seller shall be deemed to constitute acceptance of the terms and conditions contained herein. Their terms and conditions may only be waived or amended in a written agreement signed by an authorized representative of the Seller.
1.) Orders:
All orders placed by Buyer are subject to acceptance by Seller. Orders may not be canceled or rescheduled without Seller’s written consent. All orders must identify the products, unit quantities, part numbers, applicable prices and requested delivery dates of the Products being purchased. Seller may in its sole discretion allocate Product among its Customers. Seller may designate certain Products and Services as non-cancelable, non-returnable (NCNR) and the sale of such Products shall be subject to the special terms and conditions contained in Seller’s Customer Acknowledgment, which shall prevail and supersede any inconsistent terms and conditions contained herein or elsewhere. All orders and acceptances must be in writing, and can be by mail, fax or e-mail. Seller will make every reasonable effort to fill all orders promptly. Seller shall have the absolute right to refuse any orders, and/or to cancel any orders.
2.) Prices:
a.) The prices of the Products are those prices specified on the front of the invoice. Pricing for undelivered Products may be increased in the event of an increase in Seller’s cost, change in market conditions, or any other causes beyond the Seller’s reasonable control. Price quotations shall automatically expire in 30 days from the date issued, or as otherwise stated in the quotation and may be canceled or amended within that period upon notice to the Buyer.
b.) Unless otherwise agreed to in writing by Seller , all prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including federal, state, and local sales, excise and value added, goods and services taxes, and any other taxes. Buyer agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation and taxes shall appear as separate items on Seller’s invoice.
3.) Payment:
Payment may be made by check, money order, credit card, or wire transfer (all fees are borne by the Buyer). Thermal Solution Resources, LLC shall have the right to require prepayment of any orders or to require other payment arrangements as the case may be. Payment terms shall be stated on the Final Quotation. Where payment terms are not stated and where Seller has extended credit to Buyer, terms of payment shall be net thirty (30) days from date of invoice, without offset or deduction.
a.) For all other orders, full payment is due promptly after invoicing whereby seller has not extended credit.
b.) On any past due invoice, Seller may impose interest at the rate of one and a half percent (1.5%) per month.
c.) If Buyer fails to make each payment when it is due, Seller reserves the right to change or withdraw credit and thereby suspend or cancel performance under any or all purchase orders or agreements in which Seller has extended credit to Buyer. In the event of default by Buyer, Seller shall be entitled to costs, fees, and expenses, including but not limited to recovery of attorney fees, court costs and fees, and collections costs.
d.) Seller reserves the right to establish and/or change credit and payment terms extended to Buyer when, in Seller’s sole opinion, Buyer’s financial condition or previous payment record warrants such action. Further, on delinquent accounts, Seller shall not be obligated to continue performance under any agreement with Buyer.
e.) Any payment received from Buyer may be applied by Seller against any obligation owing from Buyer to Seller, regardless of any statement appearing on or referring to such payment, without discharging Buyer’s liability from any additional amounts owing from Buyer to Seller, and the acceptance by Seller of such payment shall not constitute a waiver of Seller’s right to pursue the collection of any remaining balance.
f.) No discount is allowed for early payment unless agreed to in a writing signed by an officer of Seller. Seller shall have the right to require an irrevocable letter of credit or other assurance of payment satisfactory to Seller as a condition precedent to acceptance of any order or shipment of any ordered product.
g.) Unless otherwise agreed to by Seller in writing, payment shall be by check to be drawn on Buyer’s corporate account, by wire transfer to Seller’s account at a commercial bank Seller shall designate, or by Seller’s draw upon a bank letter of credit satisfactory in form and substance to Seller. The requirement of a letter of credit is standard for shipments outside the U.S. and for special or custom products. Seller may require Buyer to pay a deposit of up to fifty percent (50%) of the price of ordered items for special or custom products. All payments by Buyer shall be made in United States Dollars and shall be paid in full, without set-off, deduction or counterclaim.
4.) Shipments:
All products are shipped FCA shipping point (Incoterms 2000). Title passes to the Buyer at the time and place of delivery to the carrier. Full delivery by Seller shall be completed when the products subject to a specific order are placed in the possession of Buyer or its carrier.
5.) Overshipment:
Thermal Solution Resources, LLC reserves the right to overship or undership by 10% on all orders. No shortage claim will be honored unless made within seven (7) business days after receipt of goods.
6.) Acceptance/Returns:
Shipments will be deemed to have been accepted by Buyer upon delivery of the said shipments to buyer unless rejected upon receipt. Buyer shall perform all inspections and tests Buyer deems necessary as promptly as possible but in no event later than 5 days after delivery of product, at which time Buyer will be deemed to have irrevocably accepted the Products. Any discrepancy in shipment quantity must be reported within 5 days after delivery. As all orders are customized, no products are returnable under any circumstances, unless specifications are not met or products are defective. Orders may be cancelled or deliveries delayed only upon the condition that Buyer makes payment to Seller for all work completed and materials in stream, on said order up to the time of cancellation. Buyer may not return Products without a return material authorization (RMA) number. RMA valid for 30 days from the date issued. Buyer may not return NCNR Products. Any product returned by Buyer due to Buyer’s error may be subject to a restocking charge equivalent to 100% of the value of such Product as specified in Seller’s invoice to Buyer.
7.) NRE Charges:
(Non Recurring Engineering Charges) are 50% due at the receipt of the purchase order, 50% due at FAI (First article approval) unless otherwise stated in writing.
8. Due to the proprietary nature of Seller’s process, designs, and products, all Tooling is proprietary and is generally not compatible with or transferable to other equipment. Notwithstanding any tooling or engineering charges imposed by Seller, all such Tooling shall be and remain the sole and exclusive property of Seller. However, Seller shall not use Custom Tooling in the production of goods for any other customer of Seller without the Buyer’s express permission. As used in this section, “Tooling” means tooling, molds, fixturing and software developed by Seller, and “Custom Tooling” means Tooling developed specifically for the Buyer and for which the Buyer is separately charged by Seller.
9.) Limited warranty:
Seller’s Standard Limited Warranty shall be the Warranty set forth below, except where TSR issues a special warranty, in writing to Buyer for a product sold by Seller. SELLER WARRANTS THAT PRODUCTS SHALL BE DELIVERED FREE FROM DEFECTS AND SHALL MEET APPLICABLE SPECIFICATIONS. THE COMPANY MAKES NO OTHER WARRANTY EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR INTENDED PURPOSES.
If Seller breaches this warranty, Buyer’s remedy is limited to (at Seller’s election) (1) refund of Buyer’s purchase price for such Products (without interest), (2) repair of such Products, or (3) replacement of such products; provided that the Products must be returned to Seller, along with acceptable evidence of purchase, within 90 days from date of delivery, transportation charges prepaid. No warranty will apply if the Product has been subject to misuse, static discharge, neglect, accident or modification, or has been soldered. SAVE AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS (WHETHER STATUTORY OR OTHERWISE) ARE EXCLUDED TO THE FULLESTEXTENT PERMITTED BY LAW. IN PARTICULAR, SELLER MAKES NO WARRANTY RESPECTING
THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS. It is agreed that Seller will not be liable for any damages resulting from non-delivery or late delivery of products.
10.) Limitation of Liabilities:
Buyer shall not be entitled to, and Seller shall not be liable for loss of profits or revenue, promotional or manufacturing expenses, overheads, business interruption cost, loss of data, removal or reinstallation costs, injury to reputation or loss of buyers, punitive damages, IPR infringement, loss of contracts or orders or any indirect, special, incidental, or consequential damages of any nature. Buyer’s recovery from Seller for any claim shall not exceed the purchase price paid for the affected products irrespective of the nature of the claim whether in contract, tort, warrant, or otherwise. Buyer will indemnify, defend, and hold Seller harmless from any claims based on (1) Seller’s compliance with Buyer’s designs, specifications, or instruction, (2) modification of any products by anyone other than seller, or (3) use in combination with other products.
11.) Export Control:
Buyer certifies that it will be the recipient of the Products to be delivered by Seller. Buyer acknowledges that the Products are subject to the export/import control laws and regulations of various countries, including the Export Administration Laws of the United states. Products sold by Seller cannot be transferred, sold, or re-exported to any part on the Entity List or Restricted Person List of the U.S. Department of Commerce Bureau of Industry and Security, any party designated by the U.S. Treasury Department’s Office of Foreign Assets Control, and any party debarred or sanctioned for proliferation or terrorism reasons by the U.S. State Department.
12.) Indemnification.
Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, agents, employees, affiliates, representatives, successors, and assigns from and against all losses, liabilities, costs and expenses (including,
without limitation, attorneys’ fees) arising out of or in connection with claims by any third parties for any loss, damage or injury (including death) to person, entity or property caused or alleged to be caused by (a) the acts or omissions of Buyer, (b) the negligent or unauthorized use, application, installation, modification, alteration, repair or implementation of a product purchased by Buyer from Seller, and (c) infringement of any intellectual property right based on the use, in any manner inconsistent with Seller written instructions and specifications, or modification of a product purchased by Buyer from Seller or the combination of a product purchased by Buyer from Seller and another product of any kind.
13.) Use of Products:
Products sold by Seller are not designed, intended, or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life, or catastrophic property damage. If Buyer uses or sells the Products for use in any such applications: (1) Buyer acknowledges that such use or sale is at Buyer’s sole risk; (2) Buyer agrees that Seller is not liable, in whole or in part, for any claim or damage arising from such use; and (3) Buyer agrees to indemnify, defend, and hold Seller harmless from and against any and all claims, damages, losses, costs, expenses, and liabilities arising out of or in connection with such use or sale.
14.) Copyright in files.
All intellectual property rights to text, illustrations, software files and other materials (“Materials”) provided by Seller to Buyer are retained by Seller. Buyer will not, without prior written approval of Seller (which may be withheld for any reason), remove any of Seller’s markings or change in any way the Materials.
15.) Limitation Period:
No action by Buyer may be brought at any time for any reason against Seller more than twelve (12) months after the facts occurred upon which the cause of action arose.
16.) Force Majeure:
Seller is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond Seller’s reasonable control including, but not limited to natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts of terrorism, delays in transportation, or inability to obtain labor, materials or Products through its regular sources, which shall be considered as an event of force majeure excusing Seller from performance and barring remedies for non-performance. In an event of force majeure condition, the Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to
Buyer.
17.) Technical Assistance or Advice:
If technical assistance or advice are offered or given to Buyer, such assistance or advice is given free of charge and only as an accommodation to Buyer. Seller shall not be held liable for the content or Buyer’s use of such technical assistance or advice nor shall any statement made by any of Seller’s representatives in connection with the Products or services constitute a representation or warranty, express or implied.
18.) General:
a.) The laws of the State of Rhode Island will exclusively govern any dispute between Seller and Buyer.
b.) Buyer may not assign this agreement without the prior written consent of Seller. Seller or its affiliates may perform the obligations under this Agreement. This Agreement is binding on successor and assigns.
c.) Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights, and/or user licenses.
19.) Evaluation Samples:
Unless agreed to in writing, all evaluation samples remain the property of Seller. Evaluation samples are provided for a period not to exceed 30 days. Any sample retained for more than 30 days from date of shipment shall be considered to have been purchased, and Buyer will be invoiced at full catalog price plus shipping, handling, and other relevant expenses.
20.) Patents:
The product or use of this product may be covered by US and/or Foreign patents and/or patents pending.