Terms & Conditions of Sale
These terms and conditions of sale, together with any quote, purchase order, scope of work, plans,
specifications or other documents listed therein or herein and any other attachments, exhibits and/or
documents attached hereto or thereto (collectively, the “Agreement”) shall govern any purchase of
products or services by any person or entity (“Customer”) from HC Thermal LLC (“HC Thermal”).
- CREDIT RESERVATIONS.
Unless otherwise agreed to in writing by HC Thermal, all shipments,
deliveries and performance of work shall at all times be subject to the approval of HC Thermal’s
credit department. Notwithstanding any standard terms of payment or other arrangements, HC
Thermal, without breaching this Agreement, may delay or suspend any delivery or performance
until HC Thermal receives from Customer commercially reasonable and adequate assurances of
- INTEREST CHARGES AND LEGAL FEES.
Customer shall pay to HC Thermal all amounts due
within 30 days after the date of invoice. All amounts not paid when due shall bear interest at the
rate of 1 ½% per month or the maximum allowed by law until paid. HC Thermal shall also be
entitled to recover all costs of collection with respect to any unpaid amounts, including, but not
limited to, reasonable attorneys’ fees.
- SALES, USE, EXCISE TAXES.
Unless specifically stated otherwise, prices quoted or stated do
not include any federal, state or local sales, use, excise or other taxes (including VAT), duties or
tariffs. Customer is responsible for payment of any and all such taxes, duties and tariffs incurred
in connection with this Agreement.
- SECURITY INTEREST – LIENS.
Until HC Thermal receives full payment therefore, it reserves a
security interest in and to all goods delivered by HC Thermal. Such security interest shall be
superior to the rights of any and all creditors of Customer. Customer hereby grants such security
interest to HC Thermal and authorizes HC Thermal, its employees, attorneys and agents, to file
records reflecting such security interest, including financing statements, amendments and
continuations, and to send notices to prior secured parties related to the security interest granted
herein. Such security interest shall not preclude the enforcement of materialmen’s and/or
mechanics’ liens by HC Thermal and such liens and rights shall constitute alternate and
additional security. HC Thermal may proceed concurrently to enforce its security interest and its
- SHIPMENT AND DELIVERY DATES – FORCE MAJEURE.
All goods are delivered FOB, point
of shipment (or EXW point of shipment per Incoterms). HC Thermal agrees to deliver the goods
and the services, if any, in accordance with the delivery schedule. HC Thermal shall have no
liability to Customer for any loss or damage suffered by Customer, resulting directly or indirectly
from, or through, or arising out of any delay in filling an order, shipment or delivery of any
materials, or any fabrication, installation or erection under this Agreement, to the extent that HC
Thermal’s performance is prevented or delayed due to acts of God, fire, flood, strikes or other
labor difficulties, war, riot, embargoes, material shortages, governmental priorities or allocations,
shortage or unavailability of transportation by common carriers, acts of civil or military authorities,
or other causes of any nature beyond the control of HC Thermal. If delay occurs by virtue of any
such event, HC Thermal’s time for performance shall be extended accordingly.
(a) For a period of eighteen (18) months from delivery or twelve (12) months from
date of first use, whichever comes first, HC Thermal warrants that goods manufactured,
fabricated or assembled by HC Thermal will conform to the specifications and be free from
defects in materials and workmanship. This warranty does not include products, parts,
accessories or attachments not manufactured by HC Thermal. Customer’s sole and exclusive
remedy for the breach of this warranty is limited to HC Thermal’s furnishing (but not dismantling
or installing) necessary replacement parts, F.O.B. HC Thermal’s plant. These warranties shall be voided as to any part of the goods that have been subject to abuse, misuse, improper installation
(to the extent not installed by HC Thermal), operation or maintenance, accident, negligence, use
other than as contemplated by the specifications. (b) If this Agreement requires erection or
installation of goods by HC Thermal, the sole responsibility of HC Thermal with respect to such
erection or installation services shall be to perform such services in a good and workmanlike
manner. Following inspection and acceptance of such services by Customer, no claim shall be
made, and HC Thermal shall not be liable for, any damage or other claim for or on account of any
alleged defect of any nature unless claim therefore is made within one year from and after HC
Thermal’s performance of such services. HC Thermal’s sole responsibility and Customer’s sole
remedy shall be correction of any such defective services by HC Thermal within a reasonable
time after receipt of notice thereof. (c) THESE WARRANTIES ARE IN LIEU OF ALL OTHER
EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
WHICH ARE EXPRESSLY DISCLAIMED AND WAIVED. (d) HC Thermal will, upon written
request of Customer, assign to Customer any warranties made to HC Thermal by any vendor or
supplier of HC Thermal when permitted by the terms and conditions of such vendor’s or supplier’s
warranties to HC Thermal.
- MODIFICATIONS, CHANGES.
No changes to Customer’s order will be accepted by HC Thermal
unless Customer agrees to a change in the delivery schedule and additional charges, as
applicable. No modification, alteration or changes in specifications, designs, schedules, price or
other contract terms (except extras ordered and accepted by Customer) shall be accepted by HC
Thermal until confirmed in writing with reasonable identification (number, date, etc.) to this
- EXTRA CHARGES AND REPRICING.
Customer shall be liable for any and all extra charges
arising from delays initiated or caused by Customer. These charges include, but are not limited
to, storage charges, handling charges, demurrage charges on trailers already loaded for
shipment at the time of delay, unloading charges, and any and all other direct or indirect charges
incurred by HC Thermal in connection with the delay. If a job is held beyond the estimated
shipping date as set forth on the face of this Agreement due to delays created by Customer such
as delay of approved drawings, failure to furnish information necessary for processing of order or
failure to supply adequate assurances for payment of the order as requested from HC Thermal,
HC Thermal reserves the right to reprice the job based on the prices in effect at the time of
receipt of approved drawings, information necessary for processing of order, or presentation of
adequate assurance for payment as requested by HC Thermal.
- CANCELLATION CHARGES.
No order may be cancelled or suspended by the Customer without
prior written approval of HC Thermal, which approval may be granted or withheld at the sole
discretion of HC Thermal. Should HC Thermal decide to allow cancellation before any fabrication,
Customer shall be liable for all direct costs incurred by HC Thermal, including applicable
overhead in connection with the job. If cancellation is allowed after fabrication is commenced,
Customer shall be liable for all direct costs and overhead attributable to the job, plus all storage,
handling, demurrage, and any and all other direct or indirect expenses incurred in connection with
Quotations issued by HC Thermal are not binding contracts and may be changed
or withdrawn by HC Thermal without notice. No contract shall be deemed to have been entered
into until Customer’s order has been accepted by an authorized HC Thermal representative.
- LIMITATION OF LIABILITY.
IN NO EVENT SHALL HC THERMAL, ITS SUPPLIERS OR
SUBCONTRACTORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY OR
CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS,
WHETHER SUCH CLAIM IS BASED UPON BREACH OF WARRANTY, BREACH OF
CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY,
AND REGARDLESS OF WHETHER HC THERMAL, ITS SUPPLIERS OR SUBCONTRACTORS
HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY, HC THERMAL’S TOTAL
CUMULATIVE LIABILITY, INCLUDING LIABILITY FOR DEFAULT, INDEMNITY, REWORK, REPERFORMANCE,
OR REPLACEMENT, UNDER ANY CAUSE OF ACTION, WHETHER IN
TORT, CONTRACT OR OTHERWISE AT LAW, SHALL NOT EXCEED THE AGGREGATE
AMOUNT OF THE PURCHASE PRICE PAID BY CUSTOMER FOR THE AFFECTED GOODS
- GOVERNING LAW.
This Agreement is deemed made and shall be construed and enforced by
the laws of the State of Texas without regard to the choice of law principles thereof. Customer
hereby consents to the exclusive jurisdiction and venue of the federal or state courts located in
Conroe, Montgomery County, Texas, with respect to any matter pertaining to this Agreement and
hereby waives any defenses it may have with respect to the jurisdiction and venue of such courts.
13. INDEMNIFICATION. Customer agrees to indemnify, defend and hold HC Thermal, its suppliers
and subcontractors, and their respective officers, directors, owners and agents (collectively, the
“HC Thermal Parties”) harmless from any and all demands, claims, actions or judgments of a
third party against any HC Thermal Party, directly or indirectly, relating to injury and/or death of
any and all persons and for loss of and/or damage to property arising out of Customer’s use,
misuse or operation of the goods sold and/or Customer’s negligence or willful misconduct.