Terms & Conditions of Sale
1. These terms and conditions shall apply to all sales of products and services (collectively, “Products”) by “ThermoSafe Technologies Inc. (“ThermoSafe”) to the customer (“Customer”). ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS IN CUSTOMER’S ORDER, ACKNOWLEDGMENT OR OTHER RESPONSE HERETO SHALL BE DEEMED OBJECTED TO AND REJECTED BY THERMOSAFE AND SHALL BE OF NO EFFECT. Customer will be deemed to have accepted these terms and conditions unless Customer notifies ThermoSafe in writing of any specific objection(s) no later than five (5) days after receipt of the document or other communication incorporating or referencing these terms and conditions. Such notice must be separate from any other communication or document provided by Customer to ThermoSafe.
2. Customer’s order for Products is not subject to Customer’s cancellation, change, reduction in amount, or suspension of delivery except with ThermoSafe’s prior written consent and upon terms satisfactory to ThermoSafe.
3. Prices are subject to change without notice. Customer shall be responsible for all taxes, duties, or other charges imposed by any governmental authority with respect to the manufacture, sale, transportation, delivery and/or use of the Products.
4. Unless otherwise specified in the applicable order, payment terms shall be net thirty (30) days from the date of ThermoSafe’s invoice. Customer shall not be entitled to withhold payment or deduct from any invoice the amount of any claim asserted against ThermoSafe or any affiliate of ThermoSafe.
5. ThermoSafe’s acceptance of Customer’s order is based on ThermoSafe’s continuous production of the quantity specified herein. If a smaller production run is necessary, ThermoSafe has the right to increase the purchase price.
6. Unless otherwise specified in the applicable order, title and risk of loss to the Products will pass to Customer FOB ThermoSafe’s manufacturing facility.
7. Delivery by ThermoSafe of 10% more or less than the quantity specified herein shall constitute satisfactory fulfillment of this order and shall be paid for on a pro rata basis.
8. Customer shall be responsible for the costs of any changes to Customer’s molds or tools made necessary by changes to Product specifications accepted by ThermoSafe. Customer shall also be responsible for any damages to the molds or tools or to ThermoSafe’s equipment as a result of such changes.
9. Customer’s molds and tools shall not be removed from ThermoSafe’s plant except on terms satisfactory to ThermoSafe.
10. ThermoSafe shall retain a lien on Customer’s molds or tools in ThermoSafe’s possession for any unpaid balances for invoiced Products.
11. ThermoSafe warrants that, at the time of delivery, the Products (a) will conform to mutually agreed upon specifications, (b) will be free of all liens, encumbrances and claims of third parties, and (c) will not infringe any existing United States patents held by third parties; provided, however, that the foregoing warranty does not extend to infringement arising out of any designs, specifications, technology, or materials provided by Customer to ThermoSafe for use in producing the Products, or the use of the Products in combination with other products or in the operation of any process. ThermoSafe makes no other warranties, express or implied by operation of law or otherwise, including, specifically, THERMOSAFE MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO THE MERCHANTABILITY OF SAID PRODUCTS OR WITH RESPECT TO THEIR FITNESS FOR ANY PARTICULAR PURPOSE.
12. ThermoSafe warrants that any Products delivered hereunder were produced in compliance with the requirements of the Fair Labor Standards Act, as amended.
13. Customer’s remedy for any claim arising in connection with Products sold hereunder, including, without limitation, any claim arising out of the design, manufacture, sale, delivery, use or resale of Products, whether based on warranty, contract, negligence, strict liability or otherwise, will be to notify ThermoSafe in writing of the claim within thirty (30) days of delivery of the Products. ThermoSafe will, upon confirmation of its breach or other fault, at its option and as Customer’s exclusive remedy, replace or rework the Products or refund the purchase price. ThermoSafe will not be liable under any circumstances for any special, consequential, incidental or punitive damages, including without limitation, any loss, damages, or expenses directly or indirectly arising from the use of goods, warehousing or manufacturing costs, lost profits or goodwill, labor, handling and service charges, recall or lost product costs or die, equipment, or machine breakage.
14. Except for the exercise by Customer of its exclusive remedy described above, Customer agrees to indemnify, hold harmless and defend (including, without limitation, reimbursement for reasonable attorney’s fees and expenses of litigation) ThermoSafe, its agents, servants, representatives or employees, against any and all claims, by whomsoever made, arising in connection with Products sold hereunder, including, without limitation, any claim arising out of the design, manufacture, sale, delivery, use or resale of Products, whether based on warranty, contract, negligence, strict liability or otherwise for loss, damage or injury to property or person (including injuries resulting in death) allegedly caused by or arising out of the use of Products sold hereunder. The term “claims” wherever used in this paragraph shall include, without limitation, any claims in which ThermoSafe, its agents, servants, representatives or employees, have or are alleged to have been negligent or otherwise to have contributed to the loss, damage or injury.
15. ThermoSafe will not be liable for default or delays in delivery of Products hereunder if such default or delay is caused by fire, strike, riot, war, act of God, governmental order or regulation, complete or partial shutdown of plant by reason of inability to obtain sufficient raw materials or power, and/or any similar or different contingencies beyond ThermoSafe’s reasonable control. Quantities so affected may be eliminated from the amount ordered at the sole discretion of ThermoSafe without liability, and ThermoSafe may allocate its available supply internally or among its various customers (including affiliates) in any manner deemed fair and reasonable by ThermoSafe in its sole discretion.
16. If at any time and for any reason the financial responsibility of Customer shall become unsatisfactory to ThermoSafe, ThermoSafe may, without liability, decline to make further deliveries of Products except upon receipt of cash or other satisfactory security from Customer.
17. Customer shall not delegate any duties or liabilities nor assign any rights or claims hereunder without the prior written consent of ThermoSafe. Any such attempted delegation or assignment shall be void. Except as provided in this provision, the terms set forth herein shall be binding upon and inure to the benefit of the successors and assigns of the parties.
18. This order and the parties’ respective performance obligations hereunder are governed by and construed in accordance with the laws of the State of Pennsylvania. Any judicial proceeding arising out of or related to this order or the Products shall be instituted and maintained in the federal or state courts for Pennsylvania, and each party submits to the exclusive jurisdiction of such courts. The parties exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
19. Failure by either party to require strict performance hereunder will not be deemed a waiver of that party’s right to subsequently require strict performance. Except as provided expressly herein, these terms and conditions constitute the entire agreement of the parties with respect to the Products, all prior and contemporaneous agreements being merged herein, and may not be modified except by written instrument executed by duly authorized officers of each party hereto.