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ENVIRONMENTAL COMFORT, LLC
TERMS AND CONDITIONS OF SALE
1. Applicability. These terms and conditions of sale
(these “Terms”) are the only terms which govern the sale
of the goods (“Goods”) and services (“Services”) by
Environmental Comfort, LLC, an Ohio limited liability
company (“Seller”), to the buyer named on the reverse
side of these Terms (“Buyer”). The accompanying sales
order confirmation (the “Sales Confirmation”) 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 Buyer’s general terms and conditions
of purchase regardless of whether or when Buyer has
submitted its purchase order or such terms. Fulfillment of
Buyer’s order does not constitute acceptance of any of
Buyer’s terms and conditions and does not serve to
modify or amend these Terms.
2.) Delivery of Goods.
Delivery shall be FOB Factory unless otherwise
negotiated and stated in the purchase order.
(a) The Goods will be delivered within a reasonable
time after the receipt of Buyer’s acceptance of the Sales
Confirmation, subject to availability of finished Goods.
Seller shall not be liable for any delays in transit. Any time
quoted by Seller for delivery is an estimate only. Upon
Buyer’s reasonable request, Seller will use commercially
reasonable efforts to assist Buyer in obtaining delivery
information and estimates. Seller may, in its sole
discretion, without liability or penalty, make, or cause to
be made, partial shipments of Goods to Buyer. Each
shipment will constitute a separate sale, and Buyer (a)
shall pay for the units shipped whether such shipment is
in whole or partial fulfillment of Buyer’s purchase order
and (b) shall not be entitled to reject such partial
shipments by reason of any shortfall. Unless otherwise
agreed in writing by the parties, Seller shall deliver, or
instruct the manufacturer or its agents to deliver, the
Goods to the address listed in the Sales Confirmation (the
“Delivery Point”) using the applicable person’s standard
methods for packaging and shipping such Goods. [Buyer
shall be responsible for all unloading costs and provide
equipment and labor reasonably suited for receipt of the
Goods at the Delivery Point.]
3. Change Orders. Prior to completion of the
delivery of all of the Goods or performance of all of the
Services, as applicable, either party may request a
change in the quantity or types of Goods or Services
under this Agreement in writing to the other party,
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including a detailed explanation of the change and the
basis for such change (a “Change Order Proposal”).
Within a reasonable time after a party’s receipt of a
Change Order Proposal, the parties shall negotiate in
good faith with respect to the Change Order Proposal,
consent to which may be withheld in a party’s sole
discretion. In the event that the parties agree in writing to
any change arising out of a Change Order Proposal (a
“Change Order”), the parties shall take all reasonable
actions, or reasonably omit from taking an action, to the
extent necessary or desirable to effect changes
contemplated by the Change Order. In the event that the
parties do not so agree, neither the content of the Change
Order Proposal nor any negotiations in connection with
such Change Order Proposal shall be binding on the
parties.
5. Inspection and Rejection of Nonconforming
Goods. [Buyer shall inspect the Goods upon receipt (the
“Inspection Period”), at which time Buyer will be offered
a bill of lading by the carrier.]1 Buyer will be deemed to
have accepted the Goods (a) in the event that Buyer
executes such bill of lading or (b) unless Buyer notifies
Seller in writing of any Nonconforming Goods during the
Inspection Period and, promptly thereafter, furnishes
such written evidence or other documentation as
reasonably required by Seller. For purposes of this
Agreement, “Nonconforming Goods” means only the
following: (a) product shipped is different than identified in
Buyer’s purchase order or, if applicable, the Confirmation
Statement that supersedes the content of such purchase
order (but not including any partial shipments authorized
under this Agreement); or (b) [the carrier fails to materially
comply with delivery instructions identified in Buyer’s
purchase order]2 or, if applicable, the Confirmation
Statement that supersedes the content of such purchase
order. If Buyer timely notifies Seller of any Nonconforming
Goods, Seller shall, in its sole discretion, (a) replace, or
cause to be replaced, such Nonconforming Goods with
conforming Goods, or (b) credit or refund the Price for
such Nonconforming Goods, together with any
reasonable shipping and handling expenses incurred by
Buyer in connection therewith, provided that, in either
case, Buyer timely complies with instructions from Seller
related to the return of such Nonconforming Goods to
Seller or the manufacturer, [but Buyer shall not bear the
expense or risk of such return shipment.]3 If requested by
Seller, Buyer shall take reasonable steps to safeguard
such Nonconforming Goods. If Seller exercises its option
to replace Nonconforming Goods, Seller shall, after
receiving Buyer’s shipment of Nonconforming Goods, or
confirmation of such shipment if other than to Seller, ship,
or cause to be shipped, to Buyer the replaced Goods to
the Delivery Point, such shipment to be subject to the
general terms and conditions of this Agreement,
including, without limitation, provisions applicable to the
bearing of expenses and risk, and the passage of title.
Buyer acknowledges and agrees that the remedies set
forth in this Section 5 are Buyer’s exclusive remedies for
the delivery of Nonconforming Goods. Except as provided
under this Section 5, all sales of Goods to Buyer are made
on a one-way basis and Buyer has no right to return
Goods under this Agreement.
6. Limited Warranties.
(a) Seller warrants to Buyer that any freely
assignable manufacturer’s warranty then benefitting, and
freely assignable by, Seller with respect to any Goods
delivered pursuant to this Agreement will be automatically
assigned to Buyer upon the transfer of title of such Goods
to Buyer under the terms of this Agreement (the “Product
Warranty”). The provisions of this Section 6(a) shall be
enforceable by Buyer only against the applicable
manufacturer. Seller hereby agrees to provide reasonable
support to Buyer with respect to reasonable claims by
Buyer against any such manufacturer arising under the
terms of this Agreement.
(b) Seller warrants to Buyer that it shall perform the
Services using personnel of required skill, experience,
and qualifications and in a professional and workmanlike
manner in accordance with generally recognized industry
standards for similar services and shall devote adequate
resources to meet its obligations under this Agreement
(the “Service Warranty”).
(c) Seller shall not be liable for a breach of the
Service Warranty unless: (i) Buyer gives written notice of
the defective Services, reasonably described, to Seller
within three (3) days of the time when Buyer discovers or
ought to have discovered the defect; and (ii) Seller
reasonably verifies Buyer’s claim that the Services are
defective. Seller shall not be liable for a breach of the
Service Warranty if: (i) the defect arises because Buyer
failed to follow oral or written instructions from Seller, the
manufacturer, or the carrier as to the storage, installation,
commissioning, use, or maintenance of the Goods; or (ii)
Buyer alters or repairs Goods with respect to which
Service is provided without the prior written consent of
Seller.
(d) Provided that the conditions of Section 6(c) have
been satisfied, with respect to any Services subject to a
claim under the Service Warranty, Seller shall, in its sole
discretion, (i) repair or re-perform the applicable Services
or (ii) credit or refund the price of such Services at the pro
rata contract rate.
(e) EXCEPT FOR THE PRODUCT WARRANTY
AND THE SERVICE WARRANTY, SELLER MAKES NO
WARRANTY WHATSOEVER WITH RESPECT TO THE
GOODS OR SERVICES, INCLUDING ANY
(i) WARRANTY OF MERCHANTABILITY;
(ii) WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE; (iii) WARRANTY OF TITLE; OR
(iv) WARRANTY AGAINST INFRINGEMENT OF
INTELLECTUAL PROPERTY RIGHTS OF A THIRD
PARTY, WHETHER EXPRESS OR IMPLIED BY LAW,
COURSE OF DEALING, COURSE OF PERFORMANCE,
USAGE OF TRADE, OR OTHERWISE.
(f) THE REMEDIES SET FORTH IN SECTION 6(d)
SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY
AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH
OF THE PRODUCT WARRANTY AND THE SERVICE
WARRANTY.
7. Payment. Buyer shall pay all invoiced amounts
due to Seller as set forth in the Confirmation Statement.
In the event Seller is required to collect any sales, use, or
excise taxes, or any other similar taxes, duties, or
charges, of any kind imposed on any amounts payable by
Buyer, Buyer agrees that such charges, costs, and taxes
shall be payable by Buyer, and Buyer authorizes Seller to
add such charges, costs, and taxes to any invoice
submitted to Buyer by Seller, provided that Buyer shall not
be responsible for any taxes imposed on, or with respect
to, Seller’s income, revenues, gross receipts, personal or
real property, or other assets. Buyer shall reimburse
Seller for all costs incurred in collecting any late
payments, including, without limitation, attorneys’ fees. In
addition to all other remedies available under these Terms
or at law (which Seller does not waive by the exercise of
any rights hereunder), Seller shall be entitled to suspend
the delivery of any Goods or performance of any Services
if Buyer fails to pay any amounts when due hereunder and
such failure continues for [10 days] following written
notice thereof. Buyer shall not withhold payment of any
amounts due and payable by reason of any set-off of any
claim or dispute with Seller, whether relating to Seller’s
breach, bankruptcy, or otherwise.
8. Limitations of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO
BUYER OR ANY THIRD PARTY FOR ANY LOSS OF
USE, REVENUE, OR PROFIT, OR FOR ANY
CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL,
EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER
ARISING OUT OF BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), OR OTHERWISE,
REGARDLESS OF WHETHER SUCH DAMAGES WERE
FORESEEABLE AND WHETHER OR NOT SELLER
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, AND NOTWITHSTANDING THE FAILURE
OF ANY AGREED OR OTHER REMEDY OF ITS
ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE
LIABILITY ARISING OUT OF OR RELATED TO THIS
AGREEMENT, WHETHER ARISING OUT OF OR
RELATED TO BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), OR OTHERWISE,
EXCEED THE LESSER OF (i) 50% OF THE TOTAL OF
THE AMOUNTS PAID TO SELLER FOR THE GOODS
AND SERVICES SOLD HEREUNDER OR (ii) THE
APPLICABLE INSURANCE COVERAGE SET FORTH
UNDER SECTION 9.
(c) The limitation of liability set forth in Section 8(b)
shall not apply to (i) liability resulting from Seller’s gross
negligence or willful misconduct and (ii) death or bodily
injury resulting from Seller’s acts or omissions.
(d) If Seller’s performance of its obligations under
this Agreement is prevented or delayed by (i) any act or
omission of Buyer or its agents, subcontractors,
consultants, or employees or (ii) a good faith
determination by Seller or its employees or agents that
the location of performance is unsafe or could be
reasonably be expected to become unsafe upon the
occurrence of reasonably foreseeable events, Seller shall
not be deemed in breach of its obligations under this
Agreement or otherwise liable for any costs, charges, or
losses sustained or incurred by Buyer, in each case, to
the extent arising directly or indirectly from such
prevention or delay. Seller shall be entitled to suspend the
delivery of any Goods or performance of any Services in
the event that this Section 8(d) applies until Buyer cures
such act, omission, or unsafe condition.
9. Seller’s Insurance. During the term of this
Agreement, 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 in a sum no
less than $1,000,000 per occurrence and $2,000,000 in
the aggregate] 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. Unless otherwise set forth on the Confirmation
Statement, Seller shall have no obligation to obtain or
maintain any performance or other bond in connection
with this Agreement.
10. Termination. In addition to any remedies that
may be provided under these Terms, a party may
terminate this Agreement with immediate effect upon
written notice to the other party, if: (a) the other party fails
to pay any amount when due under this Agreement and
such failure continues for 30 days after the other party’s
receipt of written notice of nonpayment; (b) the other party
has not otherwise materially performed or complied with
any of these Terms and such failure results in more than
an insubstantial adverse effect with respect to the
terminating party that is not reasonably cured within 30
days of prior notice of such failure; or (c) the other party
becomes insolvent, files a petition for bankruptcy or
commences or has commenced against it proceedings
relating to bankruptcy, receivership, reorganization, or
assignment for the benefit of creditors. Upon any such
termination, all amounts arising under this Agreement
shall become immediately due and payable and
termination of this Agreement shall not constitute a
termination of a party’s obligation to pay any such
amounts.
11. Waiver. No waiver by a party of any of the
provisions of this Agreement is effective unless explicitly
set forth in writing and signed by such party. 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. No single or partial
exercise of any right, remedy, power, or privilege
hereunder precludes any other or further exercise thereof
or the exercise of any other right, remedy, power, or
privilege.
12. Force Majeure. Seller shall not be liable or
responsible to Buyer, nor be deemed to have defaulted or
breached this Agreement, for any failure or delay in
fulfilling or performing any term of this Agreement when
and to the extent such failure or delay is caused by or
results from acts or circumstances beyond the reasonable
control of Seller including, without limitation, acts of God,
flood, fire, earthquake, explosion, governmental actions,
war, invasion, or hostilities (whether war is declared or
not), terrorist threats or acts, riot, or other civil unrest,
national emergency, revolution, insurrection, epidemic,
lockouts, strikes or other labor disputes (whether or not
relating to either party’s workforce), or restraints or delays
affecting carriers or inability or delay in obtaining supplies
of adequate or suitable materials, materials or
telecommunication breakdown or power outage, provided
that, if the event in question continues for a continuous
period in excess of 60 days, Buyer shall be entitled to give
notice in writing to Seller to terminate this Agreement.
13. Assignment. Buyer shall not assign any of its
rights or delegate any of its obligations under this
Agreement without the prior written consent of Seller. Any
purported assignment or delegation in violation of this
Section 13 is null and void. No assignment or delegation
relieves Buyer of any of its obligations under this
Agreement. [Seller reserves the right to subcontract any
portion of the Services provided for under this Agreement
without the prior consent of Buyer.]
14. Relationship of the Parties. The relationship
between the parties is that of independent contractors.
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.
15. No Third-Party Beneficiaries. This Agreement is
for the sole benefit of the parties hereto and their
respective successors and permitted assigns and nothing
herein, express or implied, is intended to or shall confer
upon any other person or entity any legal or equitable
right, benefit, or remedy of any nature whatsoever under
or by reason of these Terms.
16. Governing Law. All matters arising out of or
relating to this Agreement are governed by and construed
in accordance with the internal laws of the State of Ohio
without giving effect to any choice or conflict of law
provision or rule (whether of the State of Ohio or any other
jurisdiction) that would cause the application of the laws
of any jurisdiction other than those of the State of Ohio.
17. Submission to Jurisdiction. Any legal suit, action,
or proceeding arising out of or relating to this Agreement
shall be instituted in the federal courts of the United States
of America or the courts of the State of Ohio in each case
located in the City of Columbus and County of Franklin,
and each party irrevocably submits to the exclusive
jurisdiction of such courts in any such suit, action, or
proceeding.
18. Notices. All 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 Sales
Confirmation 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),
facsimile (with confirmation of transmission), or certified
or registered mail (in each case, return receipt requested,
postage prepaid). Except as otherwise provided in this
Agreement, a Notice is effective only (a) upon receipt of
the receiving party, and (b) if the party giving the Notice
has complied with the requirements of this Section 18.
19. Severability. 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.
20. Survival. Provisions of these Terms which by
their nature should apply beyond their terms will remain in
force after any termination or expiration of this
Agreement.
21. Amendment and Modification. These Terms may
only be amended or modified in a writing stating
specifically that it amends these Terms and is signed by
an authorized representative of each party.
[End of Terms]