Terms of Sale
1. General
All PROPOSALS are provided in accordance with these TERMS OF SALE (TERMS). All PURCHASE ORDERS (ORDERS) by BUYER are subject to acceptance by Solar Atmospheres Manufacturing, Inc. (SELLER). Acceptance of an ORDER is expressly limited to these TERMS OF SALE and in the terms and conditions contained in the PROPOSAL, and any additional or different terms and conditions contained in BUYER’s ORDER or response hereto shall be deemed objected to by SELLER and shall be of no effect nor in any circumstances binding upon SELLER, unless expressly agreed otherwise in writing by SELLER.
2. Proposals
Unless previously withdrawn, SELLER’s PROPOSAL is open for acceptance within the period stated therein or when no period is stated, within 30 days from the date of SELLER’s PROPOSAL.
3. Goods
All descriptions and illustrations contained in SELLER’s brochures, price lists, website, advertisements and all specifications, drawings and any other documents contained therein submitted with any proposal to BUYER or otherwise communicated to BUYER are intended merely to present a general idea of GOODS and SERVICES (GOODS) described therein and nothing contained in any of them shall form any part of the contract unless otherwise stated in SELLER’s PROPOSAL. GOODS include, but are not limited to, manufactured furnaces, furnace hot zones and subassemblies, electrical devices and associated equipment, and any other related products, and services such as repairs, rebuilds, training, consulting, material and component testing, and transportation.
4. Price
Unless otherwise specified in SELLER’s PROPOSAL the price excludes the cost of delivery of GOODS. Price includes such taxes as payroll taxes, unemployment taxes and social security taxes of employees of SELLER. The prices proposed herein do not include any federal, state, or other taxes including duties or other import/export fees levied on the GOODS, or their use or sale. Such taxes, where SELLER is required by law to collect them, whether designated as sales tax, use tax, gross receipts tax, etc., will be billed to BUYER based on the law in effect at the time of delivery unless BUYER furnishes SELLER with a proper tax exemption certificate. BUYER agrees to reimburse SELLER for any such taxes which SELLER or its suppliers are required to pay. BUYER agrees to reimburse SELLER for any additional costs attributed to changes in the specifications or design of the GOODS furnished hereunder which are requested by BUYER. SELLER will issue a supplementary proposal to BUYER covering such changes and will not proceed with their implementation prior to receiving BUYER approval.
5. Variation, Delay and Cancellation
If SELLER is prevented from proceeding with the ORDER by reason of delay or suspension by the BUYER, any costs reasonably incurred by SELLER as a result of such events shall be reimbursable to SELLER. Any request by the BUYER for deferral of delivery shall also result in additional costs which will be charged to the BUYER. Upon BUYER’s request, SELLER will complete the supply or manufacture of GOODS, invoice BUYER and hold GOODS for the BUYER at BUYER’s risk and expense. If BUYER wishes to cancel the ORDER at any time, BUYER shall notify SELLER formally in writing. SELLER will make safe all finished and partly finished GOODS and terminate all incomplete suborders and / or subcontracts. The costs of all work up to the time of cancellation, together with all costs incurred in making safe finished and partly finished GOODS and any cancellation costs incurred by SELLER, plus a reasonable profit, will be charged to BUYER. Under such circumstances, finished or partly finished GOODS will become BUYER’s property with the agreed terms of payment.
6. Payment
Terms of payment shall be as specified in the PROPOSAL and, unless otherwise agreed, payment shall be made within 30 days from the date of invoice. (No discounts shall be provided for payments earlier than 30 days.) Late payments shall accrue interest at the rate of one and one half percent (1.5 %) per month, or the highest interest rate allowable by applicable law, whichever is lower. BUYER shall pay all of SELLER’s costs and expenses (including reasonable collection agency and attorney’s fees) to enforce and preserve SELLER’s right to collect all amounts payable by BUYER to SELLER. In addition, in the event that BUYER becomes delinquent in the payment of any sum due to SELLER, SELLER shall have the right to suspend performance under any ORDERS until such delinquency is corrected. Partial shipments made under any ORDER shall be treated as a separate transaction and payment thereof shall be made accordingly. In the event of any default by BUYER, SELLER may decline to make further shipments without in any way affecting its rights under such ORDER or any other ORDERS or agreements between SELLER and BUYER.
7. Pre-delivery Inspection / Tests
All GOODS supplied pursuant to the ORDER will be subjected to SELLER’s standard inspection and test procedures prior to shipment together with any additional tests and / or inspection identified in SELLER’s PROPOSAL. Should BUYER require any additional testing or inspection, or to be present at SELLER’s standard testing, such attendance and any additional testing required by BUYER’s then defined requirements will constitute a change to the ORDER and all additional costs will be payable by BUYER.
8. Delivery
Unless otherwise stated in SELLER’s PROPOSAL, delivery dates are estimates only and are based, among other things, on the timely receipt of full and final technical information from BUYER. SELLER shall not be liable for any loss, liability, damages (whether direct, indirect or consequential) or other obligations because of any delay or failure to deliver all or any part of any ORDER for any reason, including, without limitation, SELLER’s active or passive negligence or any cause beyond SELLER’s control. The SELLER shall be entitled to deliver the GOODS in one or more consignments unless otherwise expressly agreed. Delivery shall be deemed to take place when SELLER or his agent shall have delivered the GOODS to the point of delivery defined in the ORDER. Unless otherwise specified in SELLER’s PROPOSAL, BUYER shall be responsible and assumes all risk for unloading the GOODS at the point of delivery. If SELLER does not receive sufficient delivery instructions to enable it to dispatch the GOODS within 14 days of notification of BUYER that the GOODS are ready for dispatch, they shall be deemed to have been delivered for payment purposes.
9. Passing Of Risk And Property
Risk of loss of or damage to the GOODS and title to the GOODS shall pass to the BUYER at the time the GOODS reach the delivery point which shall be the shipping dock of SELLER’s facility, unless a different delivery point is specified and agreed to by SELLER in writing. SELLER shall not be liable for any loss of any kind to BUYER arising from any damage to the GOODS occurring after the risk has passed to BUYER however caused, nor shall any liability or obligation of BUYER to SELLER be diminished or extinguished by reason of such loss.
10. Inspection And Acceptance of GOODS
BUYER shall inspect the GOODS immediately on receipt thereof and shall within five (5) days give notice to SELLER in detail of any grounds on which BUYER alleges that the GOODS are damaged, defective or not in accordance with the contract. If BUYER fails to give such notice the GOODS shall be conclusively presumed to be in all respects in accordance with the contract and free from any defect which would be apparent on reasonable examination of the GOODS and BUYER shall be deemed to have irrevocably accepted the GOODS accordingly. Not withstanding the foregoing, any use of the GOODS by the BUYER for any purpose after delivery therefore, including production or any other work, shall constitute an irrevocable acceptance of the GOODS by BUYER.
11. Confidentiality And Intellectual Property Rights
SELLER retains for itself all of its intellectual property rights in any supporting documentation supplied hereunder, including but not limited to all designs, engineering details, thermal processes, furnace and manufacturing fixtures, and other data or information pertaining to any GOODS sold except where such rights are assigned under written agreement by a corporate officer of SELLER. No title to or ownership of any manufacturing procedure or service or any parts thereof is transferred to BUYER by any delivery of such information to BUYER hereunder.
12. Limited Warranty – Limitation Of Liability And Remedies
SELLER warrants to the BUYER that any equipment sold will be free from defects in material or workmanship for a period of twelve (12) months from the date of shipment. If during the warranty period, the BUYER notifies the SELLER of a defect, the SELLER shall, at his option, repair or replace the defective material or workmanship. The BUYER shall bear the cost of freight to and from SELLER’s plant. Materials that are not warranted are items that will be subject to normal wear and tear, such as, but not limited to lamps, belts, filters, oils/lubrications. In addition, contact points or wear surfaces or any consumable or perishable items shall not be warranted. If materials have been added to the GOODS or if any part of the system has been modified by the BUYER outside the consent or knowledge of the SELLER or the equipment’s designed purpose during the warranty period, or if the equipment has been misused or negligently operated or maintained by the BUYER or if GOODS have been damaged caused by a process that would cause an adverse metallurgical reaction, then they shall not be warranted.
BUYER agrees to accept the limits of liability as expressed in this statement to the exclusion of any and all provisions regarding statements of liability on the BUYER’s own invoices, purchase orders and / or other documents. If BUYER desires other terms of liability to be in force and effect, the other terms of liability must be agreed to in writing and signed by an officer of SELLER. In such event, a different charge for SELLER’s GOODS, reflecting the higher risk to SELLER, shall be agreed to by the BUYER and SELLER.
Except for the express warranty stated above, SELLER disclaims all warranties, express or implied, including, without limitation, the implied warranties of merchantability and fitness for a particular purpose and disclaims all warranties for trade or samples previously supplied. The stated warranty and remedy provided are in lieu of other possible liability and damages against SELLER and in no event shall SELLER be liable for special, indirect or consequential damages resulting from the breach of this warranty or any other provision of these terms and conditions, the proposal, the purchase order and / or any agreement between BUYER and SELLER or otherwise arising out of or in connection with the GOODS or their sale, delivery, distribution, installation, maintenance, operation, service, performance or use, including, without limitation, any loss of use, lost revenues, lost profits, damage to associated equipment or to facilities, lost data, costs of substituted goods, equipment facilities or services, and any similar or dissimilar losses, costs or damages, whether based on warranty, contract, strict liability or negligence. In no event shall the liability of SELLER exceed the actual cost of correcting defects of the SELLER’s GOODS as herein provided, and upon expiration.
13. Excusable Delays
SELLER shall not be liable for delays or failure to perform due, directly or indirectly, to (a) causes beyond SELLER’s reasonable control, and (b) acts (including failure to act) of any governmental authority, wars, (declared or undeclared), electrical outages, strikes or other labor disputes, fires, and natural calamities (such as floods, earthquakes, storms, and epidemics).
14. Indemnity By BUYER
BUYER shall indemnify and hold SELLER harmless from and against any and all damages, claims, or expenses (including reasonable attorney’s fees) arising out of or relating to improper selection, application, or abuse of the GOODS. Should the GOODS be used in or with any nuclear installation or activity, or aircraft and any associated activity, or any transportation installation and any associated activity, or medical application and any associated activity, whatsoever, BUYER will indemnify SELLER and hold SELLER harmless from any liability or damage whatsoever including, without limitation, attorneys’ fees, arising out of the use of the manufactured GOODS.
15. Arbitration
If, at any time, any dispute, difference or question shall arise out of the contract or as to the rights or liabilities of the parties therein, or in connection therewith or as to the construction or interpretation thereof, either party shall be entitled to give notice in writing to the other requiring such dispute, difference or question to be referred to arbitration under the Rules of the American Arbitration Association in Philadelphia, PA.
16. Proper Law
All PROPOSALS and ORDERS are subject to the laws of the Commonwealth of Pennsylvania and the United States of America unless otherwise agreed in writing by SELLER. If any provision of these TERMS OF SALE is found to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
17. Assignment
BUYER shall not assign any benefit under the contract without the consent in writing of SELLER, which will not be unreasonably withheld.
18. Clause Headings
The clause headings used in these TERMS OF SALE are exclusively for reference purposes and in the interpretation of the subject clause the applicable clause title shall not act to limit, alter or otherwise affect the content of the clause.