Terms and Conditions
THERM PRODUCTS DIVISION OF CALDESSO LLC
TERMS and CONDITIONS of SALE
1.Offer and Acceptance
The sale of products and services (“Products”) by Therm Products, (“Seller”) a division of Caldesso LLC to the purchaser (“Buyer”),predicated by the receipt of an order from the Buyer, is subject to Buyer’s acceptance of the terms and conditions herein (collectively, the “Contract”). These are the only terms and conditions applicable to the sale and purchase of the Products, except for provisions relating to Product price, quantity, specifications, delivery schedules and locations as elsewhere agreed to in writing by the Seller and Buyer (collectively, the “Parties”). Issuance of a purchase order or acceptance of the Products by the Buyer constitutes acceptance of these terms and conditions. Any additional or different terms or modifications to these terms proposed by Buyer, whether in a purchase order or otherwise, are expressly rejected by Seller and are not part of the Contract.
Prices in a quotation are subject to change if the quotation is not accepted by the Buyer after thirty (30) days from the date of the quotation. Except where otherwise prohibited by law, all applicable sales, excise, use, or similar taxes or charges for the sale of Products will be in addition to the stated price and paid by Buyer. Seller reserves the right to increase any price in the event of increased costs beyond Seller’s reasonable control including, without limitation, (a) raw material costs, (b) modifications to specifications requested by Buyer, or (c) price of goods manufactured by others and re-sold by Seller.
All accounts are due thirty (30) days from date of Seller’s invoice and shall be paid in United States dollars. Overdue payments shall bear interest at the lesser rate of 18% per annum (1.5% per month) or the maximum rate permitted by law. Seller shall have the right, among other remedies, including the right of setoff, either to terminate the Contract or to suspend further deliveries under the Contract in the event Buyer fails to make any payments when due. Buyer shall be liable for all expenses related to collection of past due amounts, including attorneys’ fees. Seller may require full or partial payment in advance of shipment if, in Seller’s opinion, the credit or financial condition of Buyer is, or is about to become, impaired. If Buyer requests delayed shipment, Seller reserves the right to invoice for Products when they become ready for shipment and/or charge reasonable daily storage fees. Buyer shall not have any right of setoff.
4.Shipment and Delivery
Seller shall not be liable for delays or failure in performance when caused by circumstances beyond Seller’s reasonable control. If Buyer does not provide routing instructions, Seller shall be the sole judge of the best method of routing shipment. All sales of Products are F.O.B. Factory, Freight Prepaid and Charged Back. Specifically, Seller pays the freight charges and adds them to the invoice. Buyer accepts ownership of the goods in transit and is responsible for filing damage claims if necessary. All insurance expenses and risk of loss are assumed by Buyer. Seller reserves the right to ship, and Buyer agrees to accept, an under-run or over-run of any quantity up to and including 10% of the quantity ordered by Buyer.
Seller warrants to Buyer that: (a) the Products will be free from defects in workmanship and materials, and will conform to the specifications provided by Buyer and agreed to by Seller; and (b) Seller will transfer to Buyer ownership and good title to Products shipped, free of all liens, encumbrances, and rights of third Parties (except those created by Buyer). This warranty will be in effect for the following periods of time depending upon the specific Product as listed below:
• Standard Heater Elements and Heater Assemblies: One and one-half years (18 months) from date of manufacture. Insufficient water flow, corrosion due to water chemistry, physical abuse, and freeze damage are not covered.
• Titanium Heater Elements and Heater Assemblies: Two (2) years from date of manufacture. Insufficient water flow, corrosion due to water chemistry, physical abuse, and freeze damage are not covered.
• Air Blowers: Eighteen (18) months from date of manufacture. Physical abuse and freeze damage are not covered.
• Heat Exchangers:One and one-half years (18 months) from date of manufacture.Insufficient water flow, corrosion due to water chemistry, physical abuse, and freeze damage are not covered.
• UVC Ultraviolet Water Sanitizers:Two (2) years from date of manufacture. Insufficient water flow, corrosion due to water chemistry, physical abuse, and freeze damage are not covered.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, ARISING BY LAW OR CUSTOM, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; SAID IMPLIED WARRANTIES BEING HEREBY EXPRESSLY DISCLAIMED.
Any warranty claims by Buyer shall be provided to Seller in writing. Failure by Buyer to give written notice of claim within the warranty period shall be deemed an absolute and unconditional waiver of Buyer’s warranty claim. Buyer’s sole and exclusive remedy for a valid warranty claim is replacement of the Product. This remedy does not include the cost of installation, removal, dismantling, or reinstallation. Buyer will provide Seller with the claimed defective Product and all available field application and operation information. Buyer will also provide Seller with an opportunity to participate in root cause analysis performed by Buyer concerning the claimed defective Product. Seller shall have no liability to the extent the claimed defective Product has been: (a) modified by Buyer or a third party; (b) modified by Seller at Buyer’s request; (c) made to specifications not provided by Seller; (d) used or installed in a way not known to Seller or operated under conditions not known to Seller; or (e) subject to misuse, abuse or improper storage, installation or maintenance. Products replaced during the warranty period shall be under warranty for the remainder of the original warranty period or ninety (90) days, whichever is longer.
7. Rejections and Returns
Buyer will be deemed to have inspected and accepted all delivered Products unless written notice of rejection, specifying the basis therefore in reasonable detail, is provided to Seller within thirty (30) days after delivery. Buyer may not return Products without Seller’s prior written approval in the form of a ReturnedMaterial Authorization (RMA). Upon receipt of Buyer’s RGA request, Seller shall send Buyer an RMA form to be completed. Buyer shall return the completed RMA form to Seller. Upon receiving the completed RMA, Sellershall conduct a preliminary review and then inform Buyer to ship the Product to Seller if the review warrants it.
RMA shipments must be shipped F.O.B. Destination, Freight Prepaid and Allowed. All RMA shipments by Buyer must include the completed RMA form as well as the RMA number written on the shipping package(s). Shipments arriving without an RMA, or sent Freight Collect, will not be accepted by Seller. Any Products shipped to Seller and determined to not be covered under warranty shall be returned to Buyer at Buyer’s expense or scrapped thirty (30) days after notification date.
8.Limitation of Liability
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, EXCEPT FOR BREACH OF OBLIGATIONS OF CONFIDENTIALITY OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND ARISING FROM OR RELATING TO THE OBLIGATIONS UNDER THIS CONTRACT. THE TERM “CONSEQUENTIAL DAMAGES” SHALL INCLUDE, BUT NOT BE LIMITED TO, LOSS OF ANTICIPATED PROFITS, LOSS OF USE, LOSS OF REVENUE AND COST OF CAPITAL. NEITHER PARTY MAY BRING ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF TRANSACTIONS UNDER THE CONTRACT, MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION HAS ACCRUED. EXCEPT FOR PERSONAL INJURY OR DEATH DUE TO SELLER’S NEGLIGENCE OR INTENTIONAL MISCONDUCT, THE PARTIES AGREE THAT THE TOTAL DAMAGES THAT CAN BE AWARDED IN ANY CLAIM BY BUYER RELATING TO SELLER’S OBLIGATIONS UNDER THIS CONTRACT (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE), SHALL NOT EXCEED THE COMBINED TOTAL OF AMOUNTS PAID BY BUYER TO SELLER UNDER THE CONTRACT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THE PARTIES EXPRESSLY AGREE THAT THE ABOVE LIMITATIONS ON LIABILITY PROVISION SHALL REMAIN IN FULL FORCE AND EFFECT EVEN IF IT IS FOUND THAT BUYER’S EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Seller shall defend, at its sole expense, any third party claim (“Claim”), demand or suit against Buyer alleging that the use of Seller’s Product, as authorized by Seller, infringes upon a third party’s U.S. patent, and shall indemnify Buyer against any and all losses awarded or assessed against Buyer in connection with the Claim, or reached through a negotiated settlement of the Claim; provided, that (a) the alleged infringement does not arise from Seller’s compliance with specifications or designs furnished by Buyer; (b) Seller receives prompt written notice of such Claim and exclusive control over the defense and/or settlement of the Claim; and (c) Buyer provides Seller with all information available to Buyer for the defense and cooperates with Seller in the defense, and does not take a position adverse to Seller. Further, Seller will have no liability under this section if and to the extent that a claim of infringement is based on (1) a Product modification made by Buyer or a third party, or made by Seller at Buyer’s request, (2) use or interconnection by Buyer of the Product in combination with other products not made or sourced by Seller, or (3) Products made to design or specifications not provided by Seller.Except for third party claims above, and subject to the limitations above, Seller’s exclusive obligation to Buyer as to Products declared to infringe, and Seller’s right as to Products which Seller believes are likely to infringe, is the acquisition of a license, the replacement of Products with non-infringing goods, the modification of the Products so that they are non-infringing, or the return of the purchase price for the Products, as Seller may elect in its sole discretion. THIS SECTION STATES SELLER’S ENTIRE AND EXCLUSIVE OBLIGATION REGARDING PATENT INFRINGEMENT AND REMEDIES THEREFORE WITH RESPECT TO THE PRODUCTS, AND BUYER WAIVES ALL OTHER RIGHTS.
10.Proprietary Materials and Intellectual Property
Seller shall have and retain all intellectual property rights in all Products, tooling, and associated materials furnished by Seller in connection with or pursuant to the Contract, including, without limitation, patents, utility models, design rights (and any pending applications), trademarks, copyrights, technical, business, economic or know-how information, trade secrets, confidential proprietary information, inventions, data, formulae, material composition, drawings, specifications, and any right related thereto (whether or not patentable) that is not generally available to the public (“Proprietary Materials”). No Proprietary Materials created by Seller in connection with or pursuant to the Contract shall be considered “works made for hire” as that term is used in connection with the U.S. Copyright Act. To the extent that Buyer owns any rights in such Proprietary Materials, Buyer hereby irrevocably assigns to Seller all rights, title and interest, including all intellectual property rights, in and to such Proprietary Materials.
Tools purchased and fully paid for by Buyer (if any) shall be the property of Buyer with the exception of any of Seller’s Proprietary Materials contained in or part of such tooling. Tools partially paid for by Buyer (if any) shall remain the property of Seller.
Any technical advice furnished by Seller to Buyer before or after delivery of the Products is gratuitous and without charge on the basis that it represents Seller’s good faith judgment under the circumstances but that it is not a representation or warranty of Seller and is to be used at Buyer’s sole risk.
13.Compliance with Law
The Parties shall comply with all applicable federal, state, local and foreign laws, orders, rules, regulations and ordinances. Buyer agrees that it is solely responsible for required compliance with the import and export laws and regulations of any jurisdiction or country that may be applicable.
If the Parties have entered into a Confidentiality or Non-Disclosure Agreement (“NDA”), the terms and conditions of the NDA shall apply and control for confidentiality obligations between the Parties. In connection with the Contract, Buyer may have access to Seller’s confidential information, including, without limitation inventions, developments, know how, specifications, business plans, results of testing, systems, financial information, product information, methods of operation, customer information, supplier information and compilations of data (“Seller’s Confidential Information”). Buyer shall use Seller’s Confidential Information only for the purposes contemplated under this Contract and shall not disclose it to third parties. Buyer shall maintain the confidentiality of Seller’s Confidential Information in the same manner, but in no event less than the manner in which it protects its own confidential information. Buyer is permitted to disclose Seller’s Confidential Information to its employees and authorized subcontractors on a need to know basis only, provided that such employees and authorized subcontractors have written confidentiality obligations to Buyer no less stringent than the confidentiality obligations under this Section. Upon termination of the Contract, Buyer shall return Seller’s Confidential Information and shall not use Seller’s Confidential Information for its own, or any third party’s benefit. Buyer’s confidentiality obligations shall survive termination of the Contract for so long as Seller’s Confidential Information remains confidential. In order to assure that Seller is able to obtain the full benefit of the restrictions set forth in this Section, Seller shall be entitled to injunctive relief, including, but not limited to, emergency, preliminary, temporary and permanent injunctions, from any court of competent jurisdiction as may be necessary to enjoin any violation of the foregoing covenants, without the necessity of proving immediate irreparable harm or an inadequate remedy at law.
Buyer and Seller are independent contractors and nothing in the Contract makes either party the agent or legal representative of the other party for any purpose. Neither party has authority to assume or to create any obligation on behalf of the other party.
16.Termination by Seller
A. In addition to any other rights of Seller to terminate the Contract or suspend performance under the Contract, Seller may, upon written notice to Buyer, immediately terminate all or any part of the Contract or suspend performance under the Contract, without any liability to Buyer, (a) if Buyer (i) repudiates, breaches, or threatens to breach any of the terms of the Contract, (ii) fails to accept or threatens not to accept Products in accordance with the Contract, or (iii) fails to make timely payment, or (b) upon the occurrence or threat of insolvency or bankruptcy of Buyer.
B. Upon termination of the Contract by Seller:(a) Seller shall be relieved of any further obligation to Buyer; (b) Buyer shall be liable to Seller for the immediate payment of amounts then billed to date by Seller to Buyer; (c) Buyer shall purchase and pay Seller immediately for all unique raw materials, work in process and finished goods under the Contract; (d) Buyer shall reimburse Seller for any unreimbursed and unamortized research and development costs, capital equipment, and supplies that are unique to the Products; and (e) Buyer shall immediately reimburse Seller for all preparation and other expenses incurred by Seller or its subcontractors in connection with the Contract and for all other losses or costs arising from termination.
17.Termination by Buyer
If Seller fails to perform any obligation under the Contract and if the non-performance can be cured and Seller fails to cure the non-performance within thirty (30) business days after written notice from Buyer, Buyer may terminate the Contract upon giving written notice to Seller not less than ninety (90) days prior to shipment. In the event that Buyer cancels any purchase order or blanket order release under the Contract, (a) Seller shall be relieved of any further obligation to Buyer, (b) Buyer shall pay all amounts then due, (c) Buyer shall purchase and pay Seller immediately for all unique raw materials, work in process, and finished goods under the Contract, (d) Buyer shall reimburse Seller for any unreimbursed and unamortized research and development costs, capital equipment, and supplies that are unique to the Products.
Neither Party shall be liable if its performance is delayed or made impossible or commercially impracticable due to acts of God, war, riot, fire, labor trouble, unavailability of materials or components, explosion, breakdown or accident, delay in transportation, plant shutdown, compliance with governmental requests, laws, regulations, order or actions, unforeseen circumstances, or causes beyond such party’s reasonable control.
19.Governing Law, Jurisdiction and Venue
The Contract shall be governed by and construed in accordance with the laws of the State of California without reference to the choice of law principles thereof. The Convention on Contracts for the International Sale of Goods is expressly excluded. Subject to the provisions of Dispute Resolution below, each party irrevocably submits to the jurisdiction of the Courts of the State of California and the United States District Court for the Southern District of California and hereby waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding.
20. Dispute Resolution
In the event of any dispute or disagreement between Seller and Buyer arising out of or relating to the Contract (a “Dispute”), such Dispute, upon the written request of Seller or Buyer, shall be referred to the chief financial officers of each party or their respective designees. The chief financial officers or their respective designees shall promptly meet in good faith to resolve the Dispute and if they do not agree upon a resolution within thirty (30) calendar days after the reference of the Dispute to them, then such Dispute, upon written notice from one party to the other of its intent to arbitrate (an “Arbitration Notice”), shall be submitted to and settled exclusively by final and binding arbitration in lieu of any judicial proceeding; provided, however, that nothing contained in this Section shall preclude any party from seeking or obtaining from a court of competent jurisdiction (a) injunctive relief, or (b) equitable or other judicial relief to specifically enforce the provisions of the Contract or to preserve the status quo prior to the event(s) leading to the Dispute. Arbitration shall be conducted by the American Arbitration Association in Chicago, Illinois before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association existing at the date of submission of the Dispute to arbitration. Any arbitration award shall be binding and enforceable against Seller and Buyer, and judgment may be entered thereon in any court of competent jurisdiction. Notwithstanding the forgoing, any Dispute relating to, or arising out of, in whole or in part, any breach of Buyer’s obligations of confidentiality hereunder or for the misuse or infringement of Seller’s intellectual property rights by Buyer shall not be subject to binding arbitration under this Contract.
21.Assignment, Waiver, Entire Agreement, Severability
Buyer may not assign or delegate any of its rights or obligations under the Contract without prior written consent from Seller. Seller may terminate the Contract upon giving at least sixty (60) days written notice to Buyer, without any liability to Buyer, if there is a change of control of Buyer. Seller may assign its rights and obligations under the Contract at any time, without Buyer’s prior written consent. The failure of either Party to enforce any right or remedy provided in the Contract or by law on a particular occasion will not be deemed a waiver of that right or remedy on a subsequent occasion or a waiver of any other right or remedy. The Contract constitutes the entire agreement between the Parties with respect to its subject matter, and supersedes all prior oral or written representations or agreements by the Parties with respect to the subject matter of the Contract. This Contract may not be modified unless in writing and signed by authorized representatives of both Parties. Any provision found invalid or unenforceable will not affect the validity or enforceability of any other provision and the invalid provision may be judicially modified to the extent enforceable.