Product Terms and Conditions
- These terms and conditions of sale (the “Terms”) are the only terms which govern the sale of the products (“Products”) by Hoolest Performance Technologies, Inc., a Delaware corporation (“Seller”) to the buyer (“Buyer”) identified on the applicable purchase order for Products (each, an “Order” and together with the Terms, this “Agreement”), to which this Agreement is attached.
- This Agreement, including the list of Seller’s products and pricing (the “Product List”), attached hereto as Schedule 1, and each subsequent Order, comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement will prevail over any of Buyer’s general terms and conditions of purchase whether or when Buyer has submitted an Order or such terms and conditions. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend this Agreement.
- Buyer shall purchase the Products from Seller at the prices (the “Prices”) set forth on the Product List. Buyer agrees that Seller will not have any obligation to ship any Products until Seller has received Buyer’s full payment for an applicable Order.
- All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
- Shipping and Delivery. The Products will be confirmed by Seller in writing within five days after the receipt of each Order and Seller will make reasonable efforts to ship the Products to Buyer as indicated in the applicable Order promptly after such confirmation. Seller shall not be liable for any delays, loss, or damage in transit. All shipping costs and expenses will be pre-paid by Seller.
- Title and Risk of Loss. Title and risk of loss passes to Buyer once the Products have been made available to Buyer’s designated shipping carrier.
Inspection and Rejection of Nonconforming Products.
- Buyer shall inspect the Products within 10 days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Products” means only the following: (i) product shipped is different than identified in an Order; or (ii) product’s label or packaging incorrectly identifies its contents.
- If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Price (defined below) for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to Seller. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Buyer’s shipment of Nonconforming Products, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Products.
- Buyer acknowledges and agrees that the remedies set forth in Section 5(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided under Section 5(b), all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under this Agreement to Seller.
- Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of Seller.
- Seller warrants to Buyer that for a period of one year beginning on the date of manufacture for the applicable Product (“Warranty Period”), the Products will materially conform to the Product Specifications in effect as of the date of shipment under the corresponding transaction and will be free from material defects in material and workmanship. “Product Specifications” means the then current Product specifications, storage requirements, and other product details made available by Seller from time to time.
- EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 7(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
- Products manufactured by a third party (“Third-Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Products. Third-Party Products are not covered by the warranty in Section 7(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY, (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (C) WARRANTY OF TITLE, OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
- Seller shall not be liable for a breach of the warranty set forth in Section 7(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within 30 days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Products and Buyer (if requested to do so by Seller) returns such Products to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller verifies Buyer’s claim that the Products are defective, as determined by Seller in its sole discretion.
- Seller shall not be liable for a breach of the warranty set forth in Section 7(a) if: (i) Buyer makes any further use of such Products after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products; or (iii) Buyer alters or repairs such Products without Seller’s prior written consent.
- Subject to Sections 7(d) and 7(e) above, with respect to any such Products during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Products (or the defective part thereof) or (ii) credit or refund the price of such Products at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Products to Seller.
- THE REMEDIES SET FORTH IN SECTION 7(F) SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 7(A).
Limitation of Liability.
- IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER.
- Indemnity. Buyer will indemnify, defend and hold harmless Seller from and against any claim, losses, damages, liabilities, costs and expenses (including reasonable attorney fees) arising from any actions or omissions of Buyer or its employees, agents, or any representations, warranties, guarantees or other written or oral statements made by or on behalf of Buyer relating to the Products or Buyer’s use of the Products; provided that Seller promptly notifies Buyer in writing of such claims and Buyer is given reasonable information and assistance by Seller, at Buyer’s reasonable request and expense, for such claim. Buyer will not, without the prior written approval of Seller, enter into any compromise, settlement or other agreement that may impair any right or interest of Seller.
- Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
- Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, pandemic, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- Governing Law; Jurisdiction. Subject to Section 15 below, all matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule (whether of the State of Arizona or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Arizona. Subject to Section 15 below, any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Arizona in each case located in the County of Maricopa, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. The party prevailing shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys’ fees.
- Binding Arbitration. SELLER HEREBY WAIVES SELLER’S RIGHT TO: (I) LITIGATE ANY CLAIMS THAT MAY ARISE HEREUNDER IN COURT OR BEFORE A JURY; AND (II) CONSOLIDATE ANY CLAIM AND/OR PARTICIPATE IN ANY CLASS-ACTION CLAIM THAT MAY ARISE HEREUNDER IN ANY MANNER OR FORUM. Instead, any claim, dispute, or controversy of any kind or nature arising under or in connection with this Agreement which cannot be amicably resolved by the parties shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place before a single arbitrator sitting in Maricopa County, Arizona. The language of the arbitration shall be English. The arbitrator will be bound to adjudicate all disputes in accordance with the laws of Arizona. The decision of the arbitrator shall be in writing with written findings of fact and shall be final and binding on the parties. The party prevailing in any such dispute shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys’ fees. This Section 15 provides Seller’s sole recourse for the settlement of any disputes arising out of, in connection with, or related to this Agreement. If any provision of this Section is found unenforceable, such unenforceable provision will be removed and the remaining terms will be enforced.
- Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving Notice has complied with this Section.
- Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Survival. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Indemnity, Compliance with Laws, Governing Law, Submission to Jurisdiction and Survival.
- No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.