Sale of any goods or services covered by this quotation is expressly conditioned upon the terms and conditions contained or referred to herein, including those contained in any attachments hereto. Any order or any direction to proceed with engineering, procurement, manufacture or shipment shall constitute assent to said terms and conditions. Any additional or different terms or conditions set forth in Buyers purchase order or similar communication are objected to and will not be binding upon Nutherm International, Inc. (Nutherm) unless specifically assented to in writing by an authorized representative of Nutherm.

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PRICES - Any prices submitted by Nutherm are determined on the basis of the applicable specifications referred to therein and are subject to revision to reflect any changes in or additions to specifications. Unless expressly otherwise provided, this proposal shall expire thirty (30) days from the date of issue.

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TERMS - Unless otherwise stipulated, the terms quoted are net thirty (30) days after shipment, F.O.B. Mt. Vernon, Illinois and do not include sales, use, excise or similar taxes. The amount of any present or future sales, use, excise or similar taxes applicable to this order shall be paid by the Buyer or the Buyer shall provide Nutherm with a tax-exempt certificate acceptable to the taxing authorities.

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DELIVERY - Shipping dates given in advance of actual shipment are estimates by Nutherm and shall not be deemed to represent fixed or guaranteed shipping dates. Nutherm shall not be liable for failure to deliver or for delay in delivery or performance due to (i) a cause beyond its reasonable control, or (ii) an act of God, act or omission of Buyer, act of civil or military authority, governmental priority or other allocation or control, fire, strike or other labor difficulty, riot or other civil disturbance, insolvency or other inability to perform by a supplier, delay in transportation, or (iii) any other commercial impracticability. In the event of any such delay, the date of delivery or performance shall be extended for a period equal to the time lost by reason of delay. In addition to any other right which Nutherm may have hereunder or at law, Nutherm may suspend shipment of any goods for which Nutherm has not already received payment whenever Buyer is in default under this or any other contract of sale between Nutherm and Buyer. Delivery tolerance is +/-10% of quantity ordered for commodities such as wire & cable, steel, electrical terminations or hardware.

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PAYMENT AND FINANCIAL CONDITION - Each shipment or delivery shall be deemed to have been sold under a separate and independent contract. Any order for goods by Buyer shall constitute a representation that Buyer is solvent. If, in the judgment of Nutherm, the financial condition of the Buyer at the time of manufacture or shipment does not justify the terms of payment specified, Nutherm reserves the right to require from Buyer full or partial payment or other adequate assurance of performance before manufacture or shipment. Nutherm reserves the right to suspend its performance until such payment or adequate assurance of performance has been received. If payment is not made when due, Buyer agrees to pay a charge on the amount past due at the rate of 1-1/2% per month (18% per annum) or the maximum lawful rate, whichever is less. Nothing herein shall be deemed to extend or otherwise modify Buyer’s obligation to make payment when due. In the event of default, Buyer agrees to pay Nutherm’s reasonable attorneys fees, if any, incurred by Nutherm in collection of damages from Buyer.

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WARRANTIES - Nutherm warrants (A) that any services provided by Nutherm pursuant to this contract have been performed with reasonable diligence, (B) any test requested by the Buyer and provided by Nutherm pursuant to this contract has been carefully conducted and the information contained in the report of such test is true and accurate to the best of Nutherm’s knowledge and (C) equipment supplied by Nutherm is free of defects. The Buyer shall give written notice to Nutherm of any breach of these warranties within one (1) year after delivery. THERE ARE NO WARRANTIES, EITHER WRITTEN, ORAL, IMPLIED OR STATUTORY WHICH EXTEND BEYOND THAT DESCRIBED IN THIS PARAGRAPH. NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SHALL APPLY.

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LIMITATION OF LIABILITY – Nutherm’s liability on any claim for loss or damage arising out of this contract or from the performance or breach thereof or connected with the supplying of any goods hereunder, or their sale, resale, operation of use, whether based on contract, warranty, tort (including negligence) or other grounds, shall not exceed the price allowable to such goods or part thereof involved in the claim. Nutherm shall not, under any circumstances, be liable for any labor charges without the prior written consent of Nutherm.

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Nutherm shall not in any event be liable, whether as a result of breach of contract, warranty, tort (including negligence) or other grounds, for special, consequential, incidental or penal damages including, but not limited to, loss of profits or revenue, loss of use of the product or any associated product, cost of capital, cost of substitute products, facilities or services, downtime costs, or claims of customers of the Buyer for such damages.

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If Nutherm furnished Buyer with advice or other assistance, which concerns any goods supplied hereunder, or any system or equipment in which any such goods may be installed, and which is not required pursuant to this contract, the furnishing of such advice or assistance will not subject Nutherm to any liability, whether based on contract, warranty, tort, (including negligence) or other grounds.

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TERMINATION - Buyer may terminate an order only by mutual agreement based upon payment to Nutherm of reasonable and proper termination charges. If a delay in commencement or completion of work under this contract is attributable to Buyer’s failure to provide technical data or other required information or approvals to enable fulfillment of this contract and such delay exceeds thirty (30) days after Nutherm’s written request for such information or approvals, Nutherm may, at its option, upon proper notice consider the contract terminated by the Buyer with termination charges due to Nutherm.

 

GENERAL - All orders are subject to acceptance by Nutherm. Any representation, affirmation of fact and course of dealings, promise or condition in connection therewith or usage of trade not incorporated herein, shall not be binding on either party. No waiver, alteration or modification of any of the provisions hereof shall be binding upon Nutherm unless specifically assented to in writing by Nutherm.

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The validity, performance and all matters relating to the interpretation and effect of this agreement (including any applicable charges) and any amendment hereto shall be governed by the law of the State of Illinois.

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