The Terms and Conditions of Sale outlined herein shall apply to the sale by International Temperature Control, Inc. (herein after referred to as Company) of products, equipment, parts, and services relating thereto (hereinafter referred to as Equipment). Unless prior written agreement is reached, it shall be understood that the Company’s proceeding with any work shall be in accordance with the terms and conditions outlined herein.The company will comply with applicable laws and regulations in effect on the date of the Company’s proposal as they may apply to the manufacturing of the Equipment. Compliance with any local government laws or regulations relating to the location, use or operation of the Equipment, or its use in conjunction with other equipment, shall be the sole responsibility of the Purchaser.
TITLE AND RISK OF LOSS
Title and risk of loss or damage to the Equipment shall pass to the Purchaser upon tender of delivery, F.O.B. manufacturing facility unless otherwise agreed upon by the parties, except that a security interest in the Equipment shall remain in the Company, regardless of mode of attachment to reality or other property, until full payment has been made therefore. Purchaser agrees upon request to do all things and acts necessary to perfect and maintain said security interest and shall protect Company’s interest by adequately insuring the Equipment against a loss or damage from any cause wherein the Company shall be named as an additional insured.
Neither party shall assign or transfer this contract without the prior consent of the other party. The Company however shall be permitted to assign or transfer, without prior consent of the Purchaser, the Company’s rights to receive all or any portion of the payment due from the Purchaser under the contract.
DELIVERY AND DELAY
Delivery dates shall be interpreted as estimated and in no event shall dates be construed as falling within the meaning of “time is of the essence”. The Company shall not be liable for any delay due to war, riots, fire, flood, strikes or other labor difficulty, acts of civil or military authority including governmental laws, orders, priorities or regulations, acts of the Purchaser, embargo, car shortage, damage or delay in transportation, inability to obtain necessary labor or material form usual sources, faulty forgings, castings, electrical apparatus, purchased materials, or other causes beyond the reasonable control of the Company. In the event of delay in performance due to any such cause, the date of delivery or time for completion will be adjusted to reflect the actual length of time lost by reason of such delay. The Purchaser’s receipt of Equipment shall constitute a waver of any claim for delay.
QUOTATION & PRICES
Written quotations are conditioned upon acceptance by Purchaser within thirty (30) days from date issued and shall be considered as offers by Company to sell during such thirty (30) day period unless sooner terminated by notice. Other Company publications & price lists are maintained as sources of general information and are not quotations or offers to sell.
Applicable terms of payment are stated in quotation for product involved.Company reserves the right at any time to demand full or partial payment before proceeding with a Contract of Sale if, in its judgment, the financial condition of the Purchaser shall not justify the terms of payment specified. If delivery is delayed or deferred by Purchaser beyond the scheduled date, payment shall be due in full when Company is prepared to ship and the Equipment may be stored at the risk and expense of Purchaser. If Purchaser defaults when any payment is due, then the whole contract price shall become due and payable upon demand, or company at its option, without prejudice to other lawful remedies, may defer delivery or cancel the Contract of Sale.Title to said Equipment shall remain with Company until purchase price thereof is paid in full. The above payment or payments shall be made to the office of the Company from which the Purchaser receives an invoice covering said Equipment. Upon full performance and observance by Purchaser of all terms and conditions thereof, at the time specified therefore, the title to said goods shall, without any further action on the part of Company, be transferred to the Purchaser.
The price does not include any present or future Federal, State, or Local property, licenses, privilege, sales, use, excise, gross receipts or other like taxes or assessments which may be applicable to, measured by, imposed upon or result from the transaction or any services performed in connection therewith. All such taxes shall be added to the price contained herein and be paid by Purchaser.
The Company assumes no responsibility, unless agreed upon in writing, for any claim for infringement on any patent.
The Company warrants to the Original Purchaser that the Equipment manufactured by it be free from defects in material and workmanship for a period of two (2) years from the date of shipment or 4000 hours of operation, whichever comes first, on any and all parts, designed and manufactured by the Company, excluding normal wear items. The Company agrees to remedy any defects or furnish replacements, F.O.B. point of shipment, provided inspection by the Company discloses defects in workmanship and materials and such defects develop under normal and proper maintenance and use.This warranty shall not apply to Equipment not manufactured by Company, or to Equipment which shall have been repaired or altered by others so as, in its judgment, to affect the same adversely, or to Equipment which shall have been subject to negligence, accident or damage by circumstances beyond Company’s control, or to improper operation, maintenance or storage, or to other than normal use or service. With respect to Equipment not manufactured by Company, the warranty obligation to the Company shall in all respects conform and be limited to the warranty actually extended to the Company by its supplier. The foregoing warranties do not cover reimbursement or labor, transportation, removal, installation, or other expenses which may be incurred in connection with repair or replacement.This warranty shall not apply to perishable tools or normal wear items such as fuses, contact points, triacs, filters, etc.No product shall be returned to the Company without its prior consent. Products which the Company consents to be returned shall be properly packaged and shipped prepaid F.O.B. the Company’s designated Service Center.Unauthorized or improper service, substitution, use or incorporation of any parts, components, or lubricants not specifically supplied and authorized by the Company shall render this warranty null and void.Company cannot and does not assume responsibility or accept invoices for unauthorized repairs to equipment. The Company’s limit of liability for repair or replacement shall be the value of the product as delivered F.O.B. the Company’s designated Service Center.IN NO EVENT SHALL COMPANY BE LIABLE FOR LOSS OF PROFITS, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES. The remedies provided herein shall constitute the sole recourse of the Purchaser against the Company. The Company shall not be liable for, and the Purchaser assumes responsibility for, all personal injury and property damages resulting from the handling, possession of use of said product.This warranty does not apply if failure is caused by any of the following: corrosion, improper handling, improper storage, improper installation, improper power air or water, abuse, unsuitable application of the equipment, lack of responsible and necessary maintenance, or repairs made or attempted by other than the Company.THIS WARRANTY IS A LIMITED WARRANTY AND SHALL BE IN LIEU OF ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO OTHER WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION OF THE FACE HEREOF.
LIMITATION OF LIABILITY
THE REMEDIES OF THE PURCHASER SET FORTH HEREIN ARE EXCLUSIVE, AND THE TOTAL LIABILITY OF THE COMPANY WITH RESPECT TO THIS CONTRACT OR THE EQUIPMENT AND CONJUNCTION WITH THE PERFORMANCE OR BREACH THEREOF, OR FROM THE MANUFACTURE, SALE, DELIVERY, INSTALLATION, REPAIR OR TECHNICAL DIRECTION COVERED BY OR FURNISHED UNDER THE CONTRACT, WHETHER BASED ON CONTRACT, WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHERWISE SHALL NOT EXCEED THE PURCHASE PRICE OF THE UNIT OF EQUIPMENT UPON WHICH SUCH LIABILITY IS BASED.THE COMPANY AND ITS SUPPLIERS SHALL IN NO EVENT BE LIABLE TO THE PURCHASER, ANY SUCCESSORS IN INTEREST ON ANY BENEFICIARY OR ASSIGNEE OF THIS CONTRACT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF THIS CONTRACT OR ANY BREACH THEREOF, OR ANY DEFECT IN, OR FAILURE OF, OR MALFUNCTION OF THE EQUIPMENT HERE-UNDER, WHETHER BASED UPON LOSS OF USE, LOSS PROFITS OR REVENUE INTEREST, LOSS OF GOODWILL, WORK STOPAGE, IMPAIRMENT OF OTHER GOODS, INCREASED EXPENSES OF OPERATION, COST OF PURCHASE OR REPLACEMENT POWER OR CLAIMS OF PURCHASER OR CUSTOMERS OF PURCHASER FOR SERVICE INTERRUPTION WHETHER OR NOT SUCH LOSS OR DAMAGE IS BASED ON CONTRACT, WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHERWISE.
The Company may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by government authority or un-availability of materials from suppliers, and assumes no liability for deviation from published dimensions and descriptive information not essential to proper performance of the product.
The Equipment is furnished F.O.B. factory and the price does not include any on site installation or set-up by Company personnel. Manuals and telephone assistance is available to assist Purchaser.On site technical assistance is available at a cost which is indicated on the face of the quotation. In those instances where on-site assistance is procured, it is the responsibility of the Purchaser to set Equipment in place, properly secure to the floor, provide proper electrical air & water service to the Equipment and furnish any and all necessary assistance to Company personnel.
In the event the Equipment sold is to be used in a nuclear facility, the Purchaser shall, prior to such use, arrange for insurance or government indemnity, protecting the Company against liability and hereby releases and agrees to indemnify the Company and its suppliers for any nuclear damage, including loss of use, in any manner arising out of a nuclear incident whether alleged to be due, in whole or in part to the negligence of otherwise of the Company or its suppliers.
Only such safety devices as specified in the proposal will be furnished by Company. All other safety devices required or desirable due to the nature of the equipment of Purchaser’s operation of the equipment, are the sole responsibility of and will be obtained by the Purchaser. Purchaser hereby releases Company from any and all liability arising out of Purchaser’s improper use or the Equipment of from the absence of proper safety devices.
The rights and obligations of the parties shall be governed by the laws of the State of Michigan.
Stenographic and clerical errors are subject to correction.