Terms & Conditions

TERMS AND CONDITIONS OF PURCHASE 

1. APPLICABILITY. (a) These Terms and Conditions of Purchase (these “Terms”) are the only terms which govern the purchase of the goods (“Goods”) and services (“Services”) by Heat Transfer Technology, Inc. d/b/a Applied Heat Recovery (“Buyer”) from the seller named on the Purchase Order (“Seller”). (b) Buyer’s purchase order (the “Purchase Order”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Seller’s general terms and conditions regardless of whether or when Seller has submitted its sales confirmation or such terms. This Agreement expressly limits Seller’s acceptance to the terms of this Agreement. Fulfillment of or other performance under this Purchase Order constitutes acceptance of these Terms. Any reference to such offer to sell, quotation or proposal of Seller is solely for the purpose of incorporating the description and specifications of the Goods and/or Services contained therein to the extent that such description and specifications do not conflict with the description and specifications on the face of this Purchase Order. These Terms may only be superseded, amended or modified by a master agreement or contract for Goods and/or Services stating specifically that it amends these Terms and is signed by an authorized representative of each party.
2. DELIVERY OF GOODS, TITLE AND RISK OF LOSS, AND PERFORMANCE OF SERVICES. (a) Seller shall deliver the Goods in the quantities and on the date(s) (the “Delivery Date”) specified in the Purchase Order or as otherwise agreed in writing by the parties. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may return the Goods and/or terminate this Agreement immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods in full on the Delivery Date. (b) Seller shall deliver all Goods to the address specified in the Purchase Order (the “Delivery Point”) during Buyer’s normal business hours or as otherwise instructed by Buyer. Seller shall pack all Goods for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. (c) Seller shall provide the Services to Buyer as described and in accordance with the dates or schedule set forth on the Purchase Order and in accordance with the terms and conditions set forth in these Terms. (d) Seller acknowledges that time is of the essence with respect to Seller’s obligations hereunder and the timely delivery of the Goods and Services, including all performance dates, timetables, project milestones and other requirements in this Agreement.
3. INSPECTION AND REJECTION OF NONCONFORMING GOODS. (a) Buyer reserves the right to access Seller’s facilities at any reasonable time during Seller’s performance of this order. Should the Seller fail to take actions necessary to meet the Delivery Date specified on this Purchase Order, Buyer shall have the option to place personnel on Seller’s site for the purposes of expediting fulfillment of the Purchase Order. The costs for this expediter shall be to the Seller’s account. Any acceptance of work done by Buyer’s expediter does not relieve the Seller of any responsibility to comply with any and all specifications and requirements of the Purchase Order. (b) Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (i) rescind this Agreement in its entirety; (ii) accept the Goods at a reasonably reduced price; or (iii) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly [within [5] business days] replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Agreement. (c) Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller’s obligations under the Agreement, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
4. PRICE; PAYMENT TERMS. (a) The price of the Goods and Services is the price stated in the Purchase Order (the “Price”). If no price is included in the Purchase Order, the Price shall be the price set out in Seller’s published price list in force as of the date of the Purchase Order. Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to the Delivery Point, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer. (b) Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with these Terms. Buyer shall pay all properly invoiced amounts due to Seller within 60 days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller under this Agreement. The parties shall seek to resolve all payment disputes expeditiously and in good faith. Seller shall continue performing its obligations under this Agreement notwithstanding any such dispute.
5. SUBCONTRACTORS. (a) Seller shall not enter into any agreement or otherwise engage any person or entity, including all subcontractors and affiliates of Seller, other than Seller’s employees, to provide any Services to Buyer without Buyer’s prior written consent, which may be given or withheld in Buyer’s sole discretion (each such approved subcontractor or other third party, a “Permitted Subcontractor”). Buyer’s approval of a Permitted Subcontractor shall not relieve Seller of its obligations under the Agreement, and Seller shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Seller’s own employees. Nothing contained in this Agreement shall create any contractual relationship between Buyer and any Seller subcontractor or supplier.
6. BUYER CUSTOMERS. Seller acknowledges that Buyer may be acquiring Goods and/or Services for Buyer’s customers (“Customers”), and Seller agrees that Seller may not under any circumstances communicate directly with Buyer’s Customers regarding any Goods and/or Services provided by Seller without Buyer’s prior written consent, which may be given or withheld in Buyer’s sole discretion.
7. CHANGE ORDERS. Buyer may at any time, by written instructions and/or drawings issued to Seller (each a “Change Order”), order changes to the Goods and/or Services. Seller shall within [10] days of receipt of a Change Order submit to Buyer a firm cost proposal for the Change Order. If Buyer accepts such cost proposal, Seller shall proceed with the changed Goods and/or Services subject to the cost proposal and the terms and conditions of this Agreement. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in the Seller’s compensation or the performance deadlines under this Agreement.
8. SELLER OBLIGATIONS. Seller shall, in connection with any Goods and Services or workmanship provided by Seller hereunder, (i) comply with all (x) applicable federal, state and local laws, (y) Buyer rules, regulations and policies, and (z) general health and safety practices and procedures, (ii) ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Seller, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified, and (iii) maintain complete and accurate records relating to the provision of Goods and Services and allow Buyer to inspect and make copies of such records and interview Seller personnel in connection with the provision of Goods and Services.
9. INDEMNITY AND INSURANCE. (a) Seller shall defend, indemnify and hold harmless Buyer and its officers, owners, managers and employees (collectively, “lndemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with (i) the Goods and Services purchased from Seller, including any claim that Buyer’s or lndemnitee’s use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party, (ii) Seller’s negligence or willful misconduct, and/or (iii) Seller’s breach of this Agreement. Seller shall not enter into any settlement without Buyer’s prior written consent. (b) During the term of this Agreement and for a period of two (2) years thereafter, Seller shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $2 million with financially sound and reputable insurers. Upon Buyer’s request, Seller shall provide Buyer with a certificate of insurance from Seller’s insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name Buyer as an additional insured. Seller shall provide Buyer with 30 days’ advance written notice in the event of a cancellation or material change in Seller’s insurance policy. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Buyer’s insurers and Buyer.
10. CONFIDENTIAL INFORMATION. All non-public, confidential or proprietary information of Buyer, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential property of Buyer solely provided to Seller for the sole purpose of performing this Agreement and may not be used, disclosed or copied by Seller unless authorized in advance by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section.
11. WARRANTIES. Seller expressly warrants to Buyer that for a period of 18 months from the Delivery Date, all Goods and/or Services to be supplied hereunder shall: (a} conform to the specifications, drawings, samples or other requirements specified by Buyer, (b} be fit for their intended purpose and operate as intended, (c} be merchantable, (d} be free from defects in workmanship, material and design, (e} be free and clear of all liens, security interests or other encumbrances, and (f} not infringe or misappropriate any third party’s patent or other intellectual property rights. Inspection, test, acceptance and use of the Goods furnished hereunder shall not affect Seller’s obligations under this warranty, and such warranty shall survive inspection, test, acceptance and use. This warranty shall enure to Buyer’s successors and assigns, and be transferrable to Buyer’s Customers and end users. Seller agrees to replace or correct defects (including labor and transportation} in any Goods or Services not conforming to the foregoing warranties promptly (but in any event within 15 days}, without expense to Buyer, when notified of such non-conformity by Buyer. In the event of failure by Seller to correct defects in or replace non-conforming Goods or Services within a timely manner, Buyer, after reasonable notice to Seller, may make such corrections or replace such Goods and Services and charge Seller for the costs incurred by Buyer thereby. The warranties set forth in this Section are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods or Services with the foregoing warranties.
12. TERMINATION. Buyer may at any time terminate this Purchase Order in whole or in part for its convenience upon written notice to Seller in which event Seller’s sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by Buyer prior to the termination. IN NO EVENT SHALL SELLER BE ENTITLED TO LOST OPPORTUNITY COSTS, UNABSORBED OVERHEAD OR ANTICIPATED PROFITS AS A RESULT OF SUCH TERMINATION AND IN NO EVENT SHALL SAID TERMINATION COSTS EXCEED THE AMOUNT OF THIS PURCHASE ORDER.
13. INDEPENDENT CONTRACTOR. Seller shall be an independent contractor with respect to any Goods or Services provided by Seller hereunder. Neither Seller nor its sub-contractors, nor the employees of either, shall be deemed to be servants, employees, or agents of Buyer. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
14. GOVERNING LAW. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas. Seller hereby irrevocably and unconditionally submits for itself and its property in any legal action or proceeding relating to the purchase order or the performance thereof or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the State of Texas, and any state or federal court located in the State of Texas and consents and agrees to suit being brought in such courts.
15. MISCELLANEOUS. (a)AII notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or electronic mail. (b) If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. (c) No waiver by Buyer of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. (d) Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Notwithstanding, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.