HC Thermal Terms & Conditions of Sale

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”).

  1. 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
    payment.
  2. 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.
  3. 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.
  4. 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
    lien rights.
  5. 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.
  6. WARRANTY.
    (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.
  7.  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
    Agreement.
  8. 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.
  9. 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
    the job.
  10. QUOTATIONS.
    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.
  11. 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
    AND SERVICES.
  12. 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.

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