LIMITED WARRANTY AND TERMS OF SALE
Price: Subject to Change without Notice
Terms: Net 30 Days or per signed account agreement
The Buyer’s order is an offer to buy the product(s) indicated in the order. Upon receiving an order, Hetronic International, Inc., hereafter referred to as Company, shall send an email to the Buyer confirming receipt of the order together with the details of that order. This order confirmation is merely an acknowledgement that the order has been received and does not reflect acceptance by Company to fulfill the order. Unless otherwise indicated in the order, the Buyer’s order shall be binding for two weeks from the date of placement and a contract shall be concluded when Company within such period confirms acceptance as follows: The order shall be accepted once the products requested in the order are dispatched (shipped) and a PCE email or another certified email is sent confirming the dispatch.
The Buyer shall be deemed to have accepted the Limited Warranty and Terms of Sale at the time of placing the order. Company’s acceptance of Buyer’s order is expressly made conditional on Buyer’s acceptance of the terms and conditions set forth herein. Any additional or different terms and conditions contained in Buyer’s order or any other document shall not apply and are hereby rejected, and Company hereby provides notice of its objection to such terms. These terms and conditions are the entire agreement between the Parties related to an order. All proposals, negotiations, and representations, if any, made prior to the date hereof, whether oral or in writing, are merged and superseded by this Limited Warranty and Terms of Sale. Amendments and supplements to the Limited Warranty and Terms of Sale must be made in writing signed by the Company and Buyer. Any purported oral amendments or supplements are invalid.
Company warrants that all goods manufactured by it will be free from any defects of material and/or workmanship for a period of 2 years from the date of shipment, except in the case of batteries, battery cases, belts, chest plates, holsters, vests, carrying hooks, and labels, which shall be covered by a warranty of six months from the date of shipment (the “Limited Warranty Periods”). There shall not be any extension or renewal of the Limited Warranty Periods if goods initially delivered are repaired or added to, or defects in material and/or workmanship are remedied pursuant to this Limited Warranty. Company’s Limited Warranty shall lapse if the goods have been tampered with or have been altered. This Limited Warranty shall also not apply in the event of any misuse, improper maintenance and/or installation, normal wear and tear, or non-observance of operating, installation, and maintenance instructions, or the use of inadequate or inappropriate equipment. Further, any corrective maintenance performed by anyone other than Company during the warranty period shall render the warranty null and void. The Buyer is solely and exclusively responsible for using and maintaining the goods in accordance with any and all laws, rules, regulations, and standards; Company disclaims any and all such responsibility. Without limiting the foregoing, Buyer is responsible for checking the suitability of the goods for the operating conditions required and is solely and exclusively responsible for compliance with any requirements pertaining to regulations on the prevention of accidents.
EXCEPT FOR THIS LIMITED WARRANTY, THE COMPANY MAKES NO OTHER WARRANTIES OR GUARANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR OR INTENDED PURPOSE. THE ABOVE LIMITATION AND EXCLUSION OF THE LIABILITY DOES NOT APPLY IN CASES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY THE COMPANY.
The Limited Warranty contains the exclusive warranty offered by Company. Any statement, description, or specification in Company’s literature is for the sole purpose of identification of goods sold by Company and imparts no guarantee or warranty by Company of any kind. Components and accessories not manufactured by Company are not included in this warranty and are warranted separately by their respective manufacturers.
Company’s sole liability under this Limited Warranty shall be to repair at its factory, or replace, any item returned to it pursuant to the above Limited Warranty only during the applicable Limited Warranty Periods. The foregoing shall constitute the Buyer’s sole right and the Company’s sole liability under these terms and conditions. All goods to be repaired or replaced shall be shipped to Company within the respective Limited Warranty Periods, freight prepaid, as a condition to repair or replace defective material or workmanship. Prior return authorization from the Company is required before the Buyer is permitted to ship any item back to the Company.
Without limiting the foregoing disclaimers in any way, and solely for avoidance of doubt, to the extent permitted by law, Company will not be liable under any legal theory if anyone attempts to gain or gains unauthorized control of the goods by interfering with communication between the transmitter and receiver.
IN NO EVENT SHALL COMPANY HAVE ANY LIABILITY, TO THE BUYER OR THIRD PARTIES, WHETHER IN CONTRACT, TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE, FOR ANY DAMAGES OR LOSS OF ANY KIND, NATURE, OR FORM, INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, LOST PROFITS, ANY LOSS, DAMAGE, OR EXPENSE DIRECTLY OR INDIRECTLY ARISING FROM THE MISUSE OF THE PRODUCTS, OR ANY INABILITY TO USE THEM EITHER SEPARATELY OR IN COMBINATION WITH OTHER EQUIPMENT OR MATERIALS, OR FROM ANY OTHER CAUSE OF ANY KIND, NATURE, OR FORM, UNDER LAW OR EQUITY, ANYWHERE IN THE WORLD. UNDER NO CIRCUMSTANCES SHALL COMPANY’S LIABILITY EXCEED THE PURCHASE PRICE OF THE GOODS ORDERED AND INVOLVED IN OR GIVING RISE TO A CLAIM OF BREACH OR DAMAGE.
This limitation of liability shall apply to the fullest extent permitted by the law. For sales in the United Kingdom, Italy, Belgium, and Malta only, nothing in this clause is intended to exclude or limit liability for death or personal injury or any other damage caused by the Company’s gross negligence or limit liability as to fraud or willful misconduct.
Quoted prices will be honored for a period of 90 days from the date of the written quotation, unless otherwise stated. Unless otherwise stated, prices are quoted net and exclusive of any value-added tax that may be applicable and due. Other costs and charges (including but not limited to packaging, customs clearance, transport, and freight) shall be payable by the Buyer and are the Buyer’s sole and exclusive responsibility. Additionally, if applicable, when installation of the purchased products is requested by the Buyer, the costs of installation are charged separately and on an actual cost basis. Hourly rates will be charged per Company’s latest price list. If Buyer requests a delivery date four months beyond confirmation of the order by Company, prices applicable on the day of delivery may be charged for the installation.
Company shall, insofar as practicable, take reasonable steps to ensure that prices on the Company website are reasonably accurate; however prices reflected on the Company website may not reflect current pricing and the Company reserves its right to change prices at any time. Customers shall contact Company directly for the most accurate and current pricing. If Company discovers an error in the price charged to a Buyer, Company will inform Buyer as soon as reasonably possible and give Buyer the option of reconfirming the order at the correct price or cancelling it.
Payment and Shipping
Terms of payment are NET 30 days (or as stated in account agreement) from date of invoice. All materials and goods are sold Ex Works Company’s shipping point, as defined in the ICC’s Incoterms rules, 2010 edition. A processing fee of 5% of the freight charges will be applied to all invoices for requested prepaid freight charges other than UPS.
Company may charge interest at 5% per year for any delay in payment; any claim of higher interest rates and further damages in the event of default shall remain unaffected. The Buyer shall not be entitled to set off claims against claims of Company or to assert any right of retention against claims of Company unless Company has acknowledged these claims of the Buyer in writing or these claims have been confirmed by means of a final and binding judgment of a competent court or arbitral tribunal or these claims result from the same order under which the delivery in question was made.
The Buyer shall be responsible to insure the purchased goods against any damage or loss incurred during carriage. The Buyer should inspect the goods immediately on their arrival and shall within five calendar days of their arrival give written notice to Company of any claim that the goods do not conform with the terms of the contract. If the Buyer shall fail to give such notice, the goods shall be deemed to conform to the terms of the order. Any claim for material or item shortages must be accompanied by copies of the bill of lading and packing slip.
Unless a delivery date has been expressly promised or agreed, delivery schedules or commitments are estimates made based upon Company’s current production capacities, material or component availability, and inventory. These estimates may change, depending on the circumstances, at the Company’s discretion.
Unless agreed otherwise, delivery will be made to the delivery address indicated by Buyer. Any information about availability, shipping, or delivery of a product is merely estimated information and contains approximate values and does not constitute binding or guaranteed shipping or delivery dates, unless expressly stated otherwise. Failed and re-delivery shall be at the cost of the Buyer.
Company will not stock any built-to-order goods, and delivery of such goods shall be subject to the estimated lead times Company provides to the Buyer. Company shall not be liable for any late deliveries or extended lead times for built-to-order goods. Stocked goods shall be subject to availability depending on the quantity and type required by the Buyer.
Company shall not be responsible for cancellation or delay in delivery or the performance of its obligations resulting, in whole or in part, from causes beyond its control, including, but not limited to: acts of God; strikes or other labor disturbances; unforeseeable plant conditions; unforeseeable temporary or permanent plant closures; unforeseeable equipment failure; unforeseeable inability to obtain fuel, material, or parts; war; acts of terrorism; riot; unforeseeable delays in transportation; unforeseeable repairs to equipment; epidemics; floods; fires; unusually severe weather conditions; unforeseeable accidents; or other unforeseeable contingency, the non-occurrence of which was a basic assumption on which the purchase order was made.
The Buyer shall defend, indemnify, and hold harmless, Company, Company’s affiliates, and their respective employees, officers, and directors (jointly the “Indemnitees”) from and against any and all demands, claims, suits, causes of action, loss, penalty, or expense of any Indemnitee caused by acts of Buyer not authorized by these terms and conditions or by any willful or negligent act of the Buyer, in relation with these terms and conditions. The Buyer agrees to pay all costs of defending these demands, claims, suits, causes of action, losses, penalties, or expenses, including attorney fees.
Reservation of Ownership
Company retains ownership of all goods, which may only be sold under the terms of properly conducted business transactions, until they have been paid for in full. Until then, the goods shall not be pledged nor transferred as security. The Buyer must hold the goods separated and clearly identifiable and the Buyer must immediately inform Company in the event of attachment, liens, impounding, or other measures by third parties. This reservation of ownership also covers goods delivered for exchange. The retention of ownership shall extend to the full value of goods resulting from any processing or combining of the goods by Buyer while Company retains ownership; in this case, Company shall be deemed manufacturer. In case ownership rights of third parties remain in force in the event of processing or combining the goods with goods of third parties, Company shall acquire co-ownership in proportion to the processed or combined goods. The Buyer, as custodian, shall hold any of the funds from any resale of the goods sold or the new form for the benefit of Company. If goods sold are returned by the Buyer to Company for verification or checking, such action shall not terminate the contract of sale, even though subsequent agreement may be reached upon reduction of the price or quantity.
National Post/Telecommunications Regulations and Exports
With the exception of goods which the Buyer has indicated are for use in the United States, the Buyer shall be solely responsible for obtaining radio type approval certification and/or verifying available frequencies for use of the radio remote control apparatus with the respective national authorities at intended places of use. Refunds shall not be given for the Buyer’s failure to do so. Any onward resale, including sales in the United States, by the Buyer to any customer overseas is at its sole risk. If the Buyer engages in the export or onward resale, it shall do so as a seller and shall accept legal responsibility as a seller as for product liability, fault, and non-compliance to national law covering telecommunication devices in relation to third parties, and not as an agent for Company.
Use of Company Trademarks
If Buyer is an original equipment manufacturer that uses Company products in Buyer’s products or otherwise resells Company Products (a “Reseller”), then subject to the provisions of this Limited Warranty and Terms of Sale, Company hereby grants to Reseller a limited, non-exclusive, royalty-free, non-transferable license (with no right to grant sublicenses) to use the word mark HETRONIC® and the Hetronic design mark depicted at the top of this Limited Warranty and Terms of Sale (the “Company Marks”) on Reseller’s website, in other advertising and in printed material such as product brochures and catalogs solely for the purpose of identifying, advertising, promoting and reselling Company products purchased from Company. Reseller shall only use the Company Marks in a manner consistent with the current version of the Hetronic Style Guide, which is available from Company on request. Promptly on request, Reseller shall provide Company samples of Reseller’s materials using the Company Marks. Buyer shall not: (1) use any Company Mark in combination with any other name or mark; (2) challenge the validity, enforceability or Company’s ownership of any Company Mark; (3) register any Company Mark, or any confusingly similar mark, as a trademark; (4) use HETRONIC or any confusingly similar word in or as a company name; or (5) register or acquire any domain name that includes HETRONIC or any confusingly similar word. All use of the Company Marks by Buyer shall inure to the exclusive benefit of Company. Buyer shall not use the Company Marks or any confusingly similar names or marks in any manner other than as expressly permitted hereunder, and all rights not expressly granted hereunder are reserved by Company.
The Limited Warranty and Terms of Sale, and the entire legal relationship between Company and the Buyer, is governed by, and any controversy or claim arising out of or relating to this agreement shall be resolved in accordance with, the laws of the State of Illinois, to the exclusion of its conflict of laws rules. In the case of orders placed by a buyer located in the United Kingdom, the Unfair Contract Terms Act of 1977 shall apply. The United Nations Convention on the International Sale of Goods (“CISG”) shall not apply.
For sales within the US: The Parties hereby consent and agree that any and all disputes or claims arising out of or relating to this agreement shall be exclusively brought and maintained in either the federal or state courts located in Chicago, Illinois, and each Party hereby irrevocably accepts and submits to the sole and exclusive personal jurisdiction of such courts, generally and unconditionally, with respect to any disputes or claims.
For sales to Buyers with offices outside the US: Any controversy or claim arising out of or relating to the Limited Warranty and Terms of Sale, including any question regarding its existence, validity, or termination, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The number of arbitrators shall be three. The place of arbitration shall be Chicago, Illinois. The language of the arbitration shall be English. Discovery shall be permitted pursuant to the International Bar Association Rules on Taking Evidence. The only discovery permitted, unless otherwise agreed by the Parties, will be document disclosures and requests pursuant to the International Bar Association Rules on Taking Evidence and depositions in Chicago (not to exceed three per side). Except as otherwise specifically limited in the Limited Warranty and Terms of Sale, the arbitral tribunal shall have the power to grant any remedy or relief that it deems appropriate, whether provisional or final, including conservatory relief and injunctive relief, and any such measures ordered by the arbitral tribunal shall, to the extent permitted by applicable law, be deemed to be a final award on the subject matter of the measures and shall be enforceable as such. Any award of the arbitral tribunal shall be final and binding on the Parties. The Parties undertake to comply fully and promptly with any award without delay and shall be deemed to have waived their right to any form of recourse insofar as such waiver can validly be made. Judgment upon any award(s) rendered by the arbitrators may be entered in any court having jurisdiction thereof. In addition, each Party retains the right to apply to any court of competent jurisdiction for provisional and/or conservatory relief, including pre-arbitral attachments, injunctions, or interim orders of payment, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate.
If any of the provisions of the Limited Warranty and Terms of Sale, or of any other agreements, are invalid or should become invalid, this will not affect the validity of any of the other provisions or agreements.