Process Technology (Company) is a seller of process heating and cooling equipment. These General Terms and Conditions of Sale of Company (Contract) shall apply to all sales of: (1) Goods, offered to purchase by Buyer (Buyer) or offered for sale by Company and (2) Services performed by Company on the Goods. All orders must be accepted at Company headquarters in Willoughby, Ohio, USA. [International sales terms are bracketed].
1. Entire Agreement. Notwithstanding any different or additional terms or conditions contained in Buyer’s purchase order or other communication, Company accepts Buyer’s order only on the condition that Buyer expressly accepts and assents to the terms and conditions contained in this Contract. In the absence of Buyer’s acceptance hereof, Company’s commencement of performance or Company’s acknowledgment of Buyer’s purchase order, shall be for Buyer’s convenience only and shall not be construed as Company’s acceptance of any of Buyer’s terms. Any Buyer terms of sale are rejected by Company and shall have no force or effect, unless expressly agreed to, in writing, by Company. In addition, Buyer’s acceptance of any Goods or delivery of any document indicating an order of Goods (subject to the provision below) shall be deemed to be acceptance of all of the terms and conditions stated in this Contract. Company hereby objects to any additional, contradictory or different terms contained in any initial or subsequent order or communication from Buyer pertaining to the Goods, including, but not limited to, any indemnification or warranty provisions. Any notice by Buyer objecting to these terms in this Contract must be in a writing separate from any form purchase order or other form document. Company’s failure to object specifically to provisions contained in any communication from Buyer shall not be deemed a waiver of the provisions contained in this Contract.
2. Price and Taxes. . Unless otherwise specified all prices are FOB point of shipment and provided in United States Dollars (US$). Written quotations are valid for 30 days from issuance. Prices are subject to change without notice. Prices in effect at the time of shipment will apply. Company may increase the price of any Goods ordered by Buyer but not yet shipped by Company if Company’s cost for such Goods has been increased by Company’s supplier. Company may increase its quoted price to pay such increased price in accordance with this Contract. Buyer agrees to pay directly any taxes relating to the sale of the Goods including, without limitation, federal, state, local, VAT, GST/HST or other sales, use or manufacturer’s taxes (unless Buyer provides Company with valid tax exemption certification), tariffs or import duties taxes and fees due in the state or country of delivery upon the Goods or upon any feature of the Contract.
3. Payment, Credit, Default and Progress Payments. Unless otherwise set forth in the Contract, payment shall be net thirty (30) days after the date of invoice. All payments shall be made in United States dollars (US$). Any unauthorized early payment discounts taken by Buyer will be billed to Buyer. Amounts past due are subject to a service charge of eighteen percent (18%) per annum or the maximum rate allowed by law, whichever is less. Unless otherwise set forth in the Contract, orders involving multiple shipments require progress payments. Progress payments shall be made on a pro rata basis and shall become due as shipments are made. If Buyer defaults on its obligations hereunder or the financial condition of Buyer at any time does not justify the commencement or continuance of production or shipment on the terms specified herein, Company may, in addition to all other remedies it may have at law or in equity, (1) make a written demand for full or partial payment in advance for the Goods, or any portion thereof, (2) suspend its performance until such payment is made or (3) cancel the Contract if such payment is not received by Company within thirty (30) days after telecopy, mailing or other dispatch of said demand by Company.
4. Shipment/Delivery. . Unless otherwise specified (1) Goods shipped within the United States shall be shipped FOB point of shipment and (2) Goods shipped internationally shall be shipped [FCA point of shipment (INCOTERMS® 2010)]. Shipping dates given by Company are approximate and are contingent on prompt receipt of all necessary information regarding the Contract. Company will use its commercially reasonable efforts to meet the scheduled date indicated by Company, but it does not guarantee that it will do so. Failure to make shipments as scheduled does not constitute cancellation and/or a cause for damages of any kind. In the event of any delay requested by Buyer or any delay caused by the lack of shipping instructions, Company will store the Goods at Buyer’s risk and expense, and Company will invoice Buyer for the full Contract price of the Goods as of the date on which the Goods are ready for shipment. Company is not responsible for any loss, damage or delay that may occur after the Goods have been accepted for shipment by the carrier. Risk of loss shall pass upon Company’s delivery of Goods to carrier. Buyer shall pay all freight, handling, delivery, special packing and insurance charges for shipments of Goods. Choice of carrier and shipping method and route shall be at Buyer’s election; provided that if Buyer fails to so elect, Company shall have the right to choose the carrier, shipping method and route at its sole discretion. Company shall have the right to deliver all Goods covered hereby at one time or in partial shipments from time to time, within the agreed time for delivery. Company shall not be liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of Company, including, but not limited to, force majeure, acts of God, acts or omission of Buyer, acts of civil or military authorities, acts of governmental authorities or agencies or instrumentalities (whether federal, state, provincial, municipal, or otherwise), fire, strikes, power surges or outages, epidemics, quarantine restrictions, flood, natural disasters, riot, war, acts of terror, acts of terrorism, delays in transportation or inability to obtain necessary labor, materials or supplies. In the event of any such delay, the set date of delivery, if any, shall be extended for a reasonable period, or, the delivery may be canceled at Company’s option, without liability to Company.
5. Title. Company shall retain legal and equitable title to the Goods and title will pass to Buyer only when the purchase order, taxes, shipping and all other related charges are paid in full to Company. Buyer agrees to complete and execute all documents required to perfect Company’s legal and equitable title rights in the Goods and allows Company to repossess the Goods in the event Buyer fails to pay all outstanding amounts upon written demand from Company or its representatives.
6. Acceptance. . Upon receipt of Goods Buyer agrees to inspect and/or test Goods. Inspection or testing shall be completed promptly and in no event later than 10 days after delivery of Goods. Goods shall be deemed accepted by Buyer unless Buyer provides Company, within 10 days after delivery of the Goods, a written notice specifying all defects or discrepancies in the quality or quantity of Goods.
7. Cancellation; Delay. Shipment of undelivered portions of the Goods may be cancelled by Buyer only with advance written approval by an authorized representative of Company at its main office in Willoughby, Ohio, USA or at such other principal office of Company with which the Buyer has transacted for sale of the Goods. In the event of any cancellation of any portion of this Contract by either party, Buyer shall pay to Company reasonable costs and expenses (including without limitation cancellation charges, engineering expenses and all commitments to Company’s suppliers and subcontractors) incurred by Company prior to Company’s approval of such cancellation plus Company’s usual rate of profit for similar work. If Buyer requests a delayed delivery date, the rescheduled delivery date may not be greater than 45 days later than the original delivery date. Any extra cost incurred by Company to meet Buyer’s request for rescheduling/cancellation will be Buyer’s responsibility.
8. Work Materials. Unless otherwise set forth in the Contract, all models, patterns, dies, molds, jigs, fixtures, tools, engineering data, design information, engineering and ship drawings and other materials used in the completion of the Contract are the property of Company.
9. Patent Infringement. Except in the case of articles, materials and designs furnished or specified by Buyer, unless Buyer receives notice otherwise, Company shall not, in its sole discretion, at its own expense, defend any suit brought against Buyer on the ground that use of the Goods furnished hereunder by Company infringes any United States Letters Patent (Claim). Buyer shall promptly deliver to Company all infringement notices and other papers received by or served upon Buyer. If Company does not notify Buyer in writing that Company agrees to defend Buyer against the Claim within 60 days after Buyer’s delivery of all such infringement notices and other papers to Company, then Company shall have no liability or obligation to Buyer or any third party in connection with such Claim or any related claims of infringement which may arise (notwithstanding Company’s receipt of such infringement notices and other papers). If Company notifies Buyer in writing, within such 60 day period referred to above, that Company has elected to defend Buyer against the Claim, then Company shall defend and hold Buyer harmless, at Company’s expense, and shall pay the amount of any final judgment that may be awarded against Buyer in any such suit by any court of competent jurisdiction, provided and upon condition that Buyer shall have (i) made all payments due to Company, (ii) promptly delivered to Company all infringement notices and other papers received by or served upon Buyer, (iii) permitted Company to take complete charge of the defense of such suit and to compromise the same, if deemed advisable, and (iv) assisted in every way in the conduct of such defense, including, without limitation, making available all personnel of Buyer at all times as deemed necessary by Company for the defense of the Claim. In the event that Company has notified Buyer that Company shall defend Buyer from the Claim and Buyer is enjoined by a court of competent jurisdiction from which no appeal can be taken from using the Goods for the intended purpose on the ground that use of the Goods infringes any such United States Patent, or if it is established to Company’s satisfaction, upon due investigation, that use of the Goods infringes any such United States Patent, Company at its option, may either (a) procure for Buyer a license to continue using the Goods, (b) modify the Goods so as to make them non-infringing, (c) replace the Goods with goods which are substantially the equivalent but non-infringing, or (d) remove the Goods from Buyer’s plant, in which event Company shall refund to Buyer the purchase price less depreciation at the rate of 20% per year. Notwithstanding the foregoing, Company shall have no obligation whatsoever arising out of any patent infringement claims directed to a process or a method, including a business method. The foregoing sets forth Company’s entire liability to Buyer for intellectual property infringement of any kind, including, without limitation, patent, copyright, trademark, trade secret or any other manner of intellectual property wither based on the possession, use and/or resale of the Goods by Buyer. Buyer shall indemnify and defend Company and hold Company harmless from all losses, damages, expenses (including attorneys' fees, expert fees, costs of investigation, defense and expenses) and any other costs or amounts which may be incurred by or which may be assessed against, Company in connection with or as the result of any loss, damage or injury caused by the infringement of any United States Patent, copyright, trademark, trade secret or any other manner of intellectually property arising from the manufacture of any of the Goods in accordance with specifications furnished by Buyer.
10. Limited Warranty; Warranty Disclaimer. Authentic Goods are warranted by Company to be free from defects in material and workmanship for one (1) year; (2) years for power supplies; (90) Days for power supplies repair work, from the date of shipment. If any of the Goods are found by Company to be so defective, the Buyer’s sole and exclusive remedy under this limited warranty shall be for Company to, at its sole option, repair or replace such Goods at Company’s factory (or elsewhere at Company’s discretion), or, in its sole and absolute discretion to refund the purchase price for the defective Good. Company’s limited warranty does not cover, and Company expressly disclaims any warranty with respect to, any defect, failure, deficiency or error which is: (a) not reported to Company within the applicable warranty period; or (b) due to misapplication, modification, disassembly, abuse, misuse, improper installation, unauthorized repair, improper maintenance or abnormal conditions of temperature, dirt or corrosive matter; or (c) due to operation, either intentional or otherwise, above the indicated rated capacities or in an otherwise improper manner, or (d) due to being used near, directly with or in connection with flammable gasses or liquids, or (e) due to being used in one of the other restricted uses as provided in Section 16 of this Contract. Evaluation fees may be charged for items returned for evaluation under warranty that are deemed non-warranty for the reasons (a-e) listed above. Company’s limited warranty is in lieu of all other warranties or conditions, express or implied. Company hereby DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING (A) THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, (B) THE IMPLIED WARRANTY OF THE FITNESS OF THE GOODS FOR A PARTICULAR PURPOSE OR USE OF THE BUYER AND (C) THE IMPLIED WARRANTY OR CONDITIONS THAT THE GOODS ARE NON-INFRINGING.
11. Disclaimer of Consequential Damages. Company SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGESarising out of or in connection with the Contract or the Goods, including the installation, maintenance or improper or proper use of the Goods. Consequential damages may include, but are not limited to (a) damages for loss of use, income or profit, (b) losses sustained as a result of injury (including death) to any person, (c) damages to property, other than the Goods themselves or (d) injury to reputation or loss of customers or data.
12. Limitation of Liability. . Company’s liability (whether under the theories of breach of warranty or contract, negligence, strict liability or statutory product liability) for its Goods, and Buyer’s sole and exclusive remedyremedy with respect to the Goods, shall be limited to, at Company’s option, repairing or replacing Goods found by Company to be defective, or, at Company’s sole discretion, to refund the purchase price of the Good (depending upon the age of the Good).In no event shall Company’s liability arising in connection with or under this Contract or in respect of the Goods or their use (whether under the theories of breach of contract, tort, misrepresentation, fraud, warranty, negligence, strict liability or any other theory of law) exceed the purchase price of Goods.
13. No Liability for Installation/Use. Company shall have no liability for damages of any kind arising from the installation and/or use of the Goods by anyone. By the acceptance of the Goods, Buyer shall assume all liability for any damages which may result from use or misuse by Buyer, its employees or by others. Buyer shall indemnify and defend Company and hold Company harmless from all losses, damages, expenses (including attorneys’ fees, expert fees, costs of investigation, defense and expenses) and any other costs or amounts which may be incurred by or which may be assessed against, Company in connection with or as the result of any loss, damage or injury caused by the installation and/or use of the Goods or by the misuse or use by Buyer, its employees or by others.
14. Returns for Non-Warranty Reasons; Returns for Warranty Service. Company will not accept return of the Goods or any portion thereof, whether for warranty reasons or otherwise, unless authorized in writing in advance. For non-warranty returns or non-latent defects, Buyer must request authority to return Goods before the forty-fifth (45th) day after the original shipment date of the Goods. Buyer will be liable for a minimum restocking charge of twenty-five percent (25%) of the list price of the Goods if the Goods are ordered at Buyer’s error. This charge can be assessed at the discretion of Company. Additionally, requests for return for credit of non-standard equipment ordered in error may be denied at the discretion of the Company. As to returns for purported warranty claims, Company may, at its option, inspect allegedly defective Goods by photographic evidence provided by Buyer via the Internet or otherwise. No authorization to return the Goods will signify validation of Buyer’s alleged claim of defect; authorization will only signify authority to physically return the Goods to Company so that they may be inspected and so that proper disposition of Buyer’s alleged claim may be made after such inspection. Upon any authorization to return the Goods to Company, for non-warranty claims or warranty claims, the Buyer shall ship the Goods freight prepaid FOB Company location [DAP (INCOTERMS® 2010) Company location]. In the event of a warranty claim, Buyer must request authority to return Goods before the three hundred sixty-fifth (365th) day after the original shipment date of the Goods to Buyer. If the alleged warranty claim is determined by Company, in the Company’s sole discretion, to be invalid, Company reserves the right to return the Goods to the Buyer after such inspection, at Buyer’s cost, with no credit to Buyer and shipped FOB Company location [FCA (INCOTERMS® 2010) Company Location]. If Buyer’s claims for warranted defect are found to be valid, Company will repair or replace the defective Good, in accordance with and subject to its warranty policy set forth in Section 11, will ship the repaired or replaced item to the Buyer to Buyer’s location, FOB Buyer location [DDP (INCOTERMS® 2010) Buyer location] at Company’s cost and will reimburse the Buyer for the Buyer’s reasonable standard non-express shipping costs in transporting the defective Goods to Company. Notwithstanding the foregoing, as provided in Section 11, Company may, in its sole and absolute discretion, refund the purchase price of the Goods to the Buyer as full satisfaction of Buyer’s warranty claim.
15. Company Restrictions as to Use of Goods. . Buyer acknowledges that absent express written authorization from Company, Goods are not designed for and are not permitted to be used in connection with life support systems, human implantation, medical devices, nuclear facilities, nuclear systems or weapons, aviation, mass transit, used with flammable gases or flammable liquids or used in any applications where failure or malfunction could lead to possible loss of life or catastrophic property damage. Buyer acknowledges notice of Company’s restrictions with regard to use of Goods. If Buyer or its direct or indirect customer uses Goods for any of these applications, Buyer agrees to indemnify and defend Company and hold Company harmless from all losses, damages, expenses (including attorneys’ fees, expert fees, costs of investigation, defense and expenses) and any other costs or amounts which may be incurred by or which may be assessed against, Company (including claims of third parties and property damages) as a result of, in connection with or arising out of the use of Company’s Goods in any such restricted manner provided in this Section.
16. Advice. . If technical advice is offered or provided in connection with the sale of any Goods, it is provided as an accommodation to Buyer, without charge, and Company does not warrant and has no responsibility or liability whatsoever for the content or use of such advice. The selection, application, suitability for corrosion resistance or use of the Goods for any purpose is Buyer’s sole responsibility.
17. Compliance with Antibribery Laws, U.S. Trade Laws, and Regulations..Buyer agrees and warrants that it is familiar and will comply with the U.S. Foreign Corrupt Practices Act, the OECD Antibribery Convention, the Act on the Prevention of Corruption and the Establishment and Management of the Anti-Corruption and Civil Rights Commission, and similar antibribery laws that may apply to Buyer or the sale of Goods from Company. Buyer agrees and warrants that its employees and agents will not offer, pay, promise to pay, give or promise to give any money or anything of value, directly or through third parties, to any government official, political party, political official, candidate for political office or to any other person, while knowing or having reason to know that all or a portion of such money or thing of value will be offered, paid, given or promised, directly or indirectly, for purposes or influencing any act or decision of any of such persons or entities or inducing any such persons or entities to use his, her or its influence with a government entity, agency, body or instrumentality to affect or influence any act or decision of such government entity, agency, body or instrumentality. Buyer further agrees and warrants that it will comply with all applicable U.S. trade laws, regulations, and executive orders including, but not limited to the Export Administration Regulations, the International Traffic in Arms Regulations, the antiboycott regulations, economic sanctions and embargo regulations including compliance with the Denied Persons List, the Entity List, the Unverified List, the Foreign Sanctions Evaders List, the Sectoral Sanctions Identifications List, and the Specially Designated Nationals List maintained by the Department of Commerce, Bureau of Industry and Security, and the Department of the Treasury, Office of Foreign Assets Control . Buyer specifically agrees not to, and agrees not to permit any of its customers to, sell, market, export, transfer, or re-export Goods (including software with encryption), services, technical data or technology to any restricted country or to any prohibited company, individual, or entity , whether or not designated on one of the above referenced lists. If Buyer exports, transfers, or re-exports any Goods, Buyer will be the exporter of record and will cooperate with Company to obtain any licenses or authorizations from the U.S. Department of Commerce and/or the U.S. Department of State required for Buyer’s export, transfer, or re-export of any Goods, services, technical data or technology. Buyer shall timely cooperate with providing information and documents to Company necessary for compliance with U.S. export laws, regulations, and executive orders. Buyer agrees to indemnify and defend Company and hold Company harmless from losses, damages, expenses (including attorney fees, expert fees, costs of investigation, defense and expenses) and any other costs or amounts which may be incurred by or which may be asserted against Company (including the claims of third parties and property damages) as a result of, in connection with or arising out of Buyer’s failure to comply with this Section or Section 18. Goods sold under a U.S. Government contract shall be governed by those FARS or DFARS which pertain to the sale of “commercial items” (as defined in the FARS or DFARS, as the case may be).
18. Limitation on Actions. . No action or other claim, regardless of form, arising out of or in any way connected with or related to Goods, may be brought by Buyer more than one (1) year after the cause of the action or claim has occurred.
19. Indemnification Provisions.. In any provision of this Contract where the Buyer indemnifies and holds Company harmless, the term “Company” shall include the officers, directors, employees, attorneys, and agents, and their respective present or future corporate parent companies, subsidiaries and affiliates and the successors and assigns of each of the foregoing.
20. General. . All agreements, covenants, conditions and provisions contained herein shall apply to and bind the assignees and successors in interest of Company and Buyer. Buyer agrees that its conduct and use or resale of Goods sold by Company shall be in compliance with all applicable laws and that the end-use and end-user of the Goods sold by Company shall be as represented. This Contract is not assignable by Buyer without Company’s prior written consent. The waiver by Company of any breach or default shall not be deemed to be a waiver of any later breach or default. The exercise or failure to exercise any remedy shall not preclude the exercise of that remedy at another time or of any other remedy at any time. If any provision or portion of this Contract is held to be invalid, illegal, unconscionable or unenforceable, the other provisions and portions shall not be affected. The headings are used for the convenience of the parties only and shall not affect the construction or interpretation of this Contract. Any clerical errors are subject to correction. [All shipping terms shall be interpreted in accordance with INCOTERMS® 2010 which, unless expressly stated in writing, shall supersede any inconsistent term set forth in this Contract].
21. Choice of Law and Forum; Limitation of Actions. This Contract shall be governed by and construed according to the laws of the State of Ohio, United States of America (without regard to the conflicts of laws principles of any such State or Nation). Notwithstanding such choice of law, this Contract shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods (“CISG”). With respect to a Buyer located in the U.S., all actions arising out of or in connection with the Contract or otherwise involving the Goods shall be brought in the Court of Common Pleas, Lake County, Ohio or in the Federal Court of the Northern District of Ohio, Eastern Division. A Buyer in the U.S. consents and agrees that such jurisdiction and venue for such proceedings shall lie exclusively with such courts. With respect to a Buyer located outside of the U.S. the following shall apply: in the event that a dispute shall arise concerning the validity, construction, performance or any other issue arising from or relating to this Contract, the parties shall first attempt to resolve such issues by engaging in good faith amicable discussions for a period of thirty (30) days. If any dispute remains unresolved after such period, the dispute shall be submitted to the International Centre for Dispute Resolution (ICDR) for final and binding arbitration under that body’s International Arbitration Rules before a single arbitrator who is a national and active member of the bar of the State of Ohio. Either party may request arbitration of the remaining disputes. Emergency interim relief may be granted according to the ICDR’s rules. Without regard to the State’s conflict of law rules and subject to the above exclusion of the CISG, the arbitrator shall apply the substantive laws of the State of Ohio, United States of America, including any applicable U.S. federal laws. All proceedings shall be conducted in English and the seat and venue of the arbitration shall be Cleveland, Ohio, United States of America. Buyer agrees to waive any sovereign immunity claims or defenses that otherwise may be available to it. All monetary awards shall be made in U.S. Dollars. The arbitrator may award costs, fees, and other expenses of the arbitration, including reasonable attorneys’ fees, to the prevailing party. Awards shall be made in writing and shall be final and binding on the parties. The parties may undertake to carry out any such award, without delay, under the terms of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). Judgment upon the award of the arbitrator may be entered in any court having jurisdiction thereof.
22. Amendment. This Contract may be amended at any time and from time to time by Company unilaterally by placing notice of such amendment on its website. Any such amendment shall become effective 15 days after notice of the amendment is posted on the website. Amendments shall not affect transactions where the order for purchase of Goods has been accepted by Company. Amendments shall only affect future or pending transactions. For more information regarding Process Technology, please contact our office (toll free within the United States or Canada), or visit our contact page.