Conditions of Sale
Effective Date: January 1, 2018
All orders shall be subject to these terms and conditions of sale; no terms and conditions may be added to, modified, superseded or otherwise altered except by a written instrument signed by n authorized executive of the West Chicago, Illinois office of Thermal-Tech Systems, Inc. (“Seller”). Failure of Seller to object to any terms or conditions that may be contained in any acknowledgment, invoice or other form from Buyer shall not be construed as a waiver of these conditions nor an acceptance of any such Buyer terms or conditions.
We reserve the right to modify these terms and conditions of sale from time to time. The effective date noted above indicates the date that Thermal-Tech Systems, Inc. last revised these terms and conditions of sale. You should come back to our website periodically to review any changes made.
All cylinders, 1-gallon, 5-gallon and 55-gallon bulk products are made-to-order, are non-returnable and non-refundable. A small quantity can be provided as a free trial sample before ordering. Once an order is placed and shipped the order is final.
The amount of the present or future sales, revenue, excise, occupation, use or other applicable taxes shall be added to the purchase price and shall be paid or reimbursed by Buyer.
Delivery terms are F.O.B., Seller’s factory or warehouse unless otherwise specifically provided in Seller’s acknowledgment. Buyer shall assume all risk of loss or damage upon delivery to the carrier at the point of shipment. Any reference by Seller to a date of delivery is an estimate of the approximate date of delivery, not a guaranty of a particular day of delivery. Seller shall not be liable for any delay in delivery. Without limiting the generality of the preceding sentence, Seller shall not be liable for failure to deliver the goods specified where such failure to deliver is due to contingencies beyond Seller’s control. When a shipment is deferred at Buyer’s request beyond the date of completion, the order will be subject to invoicing, payment and storage charges from date of completion.
Shipments, deliveries and performance of work shall at all times be subject to the requirements of the Credit Department of Seller, including the requirement that Buyer may be required to pay part or all of the purchase price in advance.
TERMS OF PAYMENT
Subject to the provisions of “Credit Approval” above, terms of payment shall be NET 30 days, and shall be effective from date of invoice. Seller reserves the right to charge a late payment fee on all amounts that are more than three days past due, and the late payment fee shall equal the lesser of 1.5% per month or the highest rate permitted by applicable law.
After Seller has accepted any orders, Buyer may only cancel that order with Seller’s consent. At Seller’s discretion, Seller’s consent to any such cancellation may be conditioned upon Buyer agreeing to pay Seller for all work and materials that have been committed and/or identified to the order plus reasonable cancellation charges, return freight costs and restocking fees.
Seller warrants that the products of Seller’s manufacture which are delivered by Seller hereunder shall be free from defects in material and packaging during the limited warranty period. Thermal-Tech Systems, warrants all packaging of its products under normal use and service for a period of 3 years (36 months) from the date of manufacture (i.e., aerosols should spray, other packaging should not leak). If during the limited warranty period any such products are proven to be defective upon Seller’s inspection, Seller’s sole obligation is to replace any such products upon receipt of the defective product at Seller’s factory. Seller shall not accept returns of allegedly defective products unless Seller is first notified and the return is authorized by Seller. Seller shall be released from all obligations under this limited warranty as to any products which have been subject to alteration, neglect, mishandling, improper storage, accident, misuse or improper operation or care. Seller shall not be liable for any advice, suggestions or instructions provided to Buyer. Buyer shall determine suitability of product for Buyer’s intended use and assumes all risk and liability in connection therewith.
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, SELLER EXPRESSLY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, GUARANTEES, INDEMNITIES AND REPRESENTATIONS WITH RESPECT TO THE PRODUCTS/GOODS PROVIDED BY SELLER, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR DEALINGS, PRIOR ORAL OR WRITTEN STATEMENTS BY SELLER OR OTHERWISE (INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS OR SUITABILITY FOR A SPECIFIED OR INTENDED PURPOSE).
LIMIT OF LIABILITY
In no event shall Seller be responsible or liable for penalty clauses of any description, or for indemnification of Buyer or others for costs, damages or expenses whether based in tort or contract, or for indirect or consequential damages under any circumstances. THE REMEDIES SET FORTH HEREIN ARE EXCLUSIVE. SELLER EXPRESSLY EXCLUDES, DENIES AND DISCLAIMS ANY LIABILITY FOR CLAIMS FOR BREACH OF CONTRACT, NEGLIGENCE OR FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH, OR RESULTING DIRECTLY OR INDIRECTLY FROM ANY CONTRACT OR OTHER TRANSACTION BETWEEN BUYER AND SELLER OR ITS SUBJECT MATTER.
BUYERS EXCLUSIVE REMEDY
Seller’s liability to Buyer or others is limited solely to the replacement of defective products or the return of Buyer’s purchase price paid to Seller, at Seller’s option. The remedy herein provided by Seller shall be the exclusive and sole remedy of Buyer.
TIME TO BRING SUIT
Any action against Seller arising out of, in connection with, or resulting directly or indirectly from this Agreement or the products sold pursuant hereto must be filed within two years after the date of delivery to Buyer’s F.O.B. point, regardless of Buyer’s knowledge or lack of knowledge of the alleged breach; failure to bring such action within said period shall be deemed to constitute a waiver by Buyer of any such claim.
Buyer hereby indemnifies, and agrees to hold harmless and defend Seller (including any of Seller’s divisions, subsidiaries, or affiliates) from and against any and all liabilities, claims (founded or unfounded), losses, damages, costs and expenses (including without limitation, consequential damages and reasonable professional fees) resulting from Buyer’s or User’s improper use, transfer, transportation or storage of the products; Buyer’s or User’s omission or neglect; Buyer’s or User’s infringement of another’s property rights; or Buyer’s or User’s misapplication of proprietary or other information furnished regarding manufacture or use of products sold by Seller. Seller shall have the right to defend itself and compromise any action against it without in any way affecting its right to indemnification hereunder.
RISK OF LOSS
After delivery to the carrier, Buyer assumes the risk of all loss or damage resulting from any cause. Seller will not consider claims for shortage or error unless made promptly upon receipt of products.
No goods will be accepted for return without Seller’s prior approval and shall be subject to inspection. Freight must be prepaid on all returned goods. A minimum 20% handling and restocking charge will be applied to all authorized returns. Special products or made-to-order products are not returnable.
The validity, interpretation and performance of this agreement shall be governed by the laws of the State of Illinois (including without limitation the Uniform Commercial Code). This agreement shall be deemed to have been made in the City of West Chicago, DuPage County, Illinois, and the parties shall submit to the jurisdiction of the DuPage County Circuit Court, DuPage County, Illinois, for the purpose of adjudication of all their respective rights and liabilities.
In the case of default or breach of Buyer in the performance of any or all of the provisions of any agreement Seller may cancel any outstanding order(s) from Buyer, and declare all obligations immediately due and payable, and Buyer shall, in addition, be liable for Seller’s expenses incurred in exercising any remedies available to it, including reasonable attorney’s fees and legal expenses. All unpaid obligations shall bear interest at the highest lawful rate from the date they become due and payable.
This agreement and these terms and conditions constitute the entire agreement and supersedes all previous communications, representations or agreements, either oral or written, between the parties. No modification of this agreement shall be effected by Buyer’s purchase order forms or other documents containing terms or conditions different from or in addition to, those contained herein nor by course of dealings by and between the parties. Any modification, amendment or change to this agreement, including the terms and conditions, must be agreed to in writing and signed by the parties hereto.
Seller shall not be responsible for strikes, lockouts, fires, floods, riots, acts of God, war, government interference, embargoes, labor difficulties, shortage of labor, fuel, power, materials, supplies, transportation delays, accidents, and other causes, natural or otherwise, beyond Seller’s control which delay and/or cancel the manufacture and/or delivery of the products or services which form the subject of this agreement and these terms and conditions.