Terms and Conditions of Sale
- Definitions. “Services” means the heat treating services provided by American Heat Treating, Inc. (“AHT”) to the customer ordering or requesting such Services (the “Customer”). “Goods” means any products of Customer upon which AHT has performed or will perform the Services in accordance with the terms of an Order. An “Order” means any oral or written request, release or order for Services, including any formal Purchase Order issued by a Customer.
- Packing; Shipping; Delivery of Goods.
- Delivery of Goods is contingent on AHT receiving with the Order complete and detailed current specifications (including any prints or drawings) satisfactory for production with sufficient lead time for AHT to perform the Order.
- Unless AHT has quoted delivery, pick-up and trucking, all Goods are shipped F.O.B. AHT’s location. Risk of loss of any Goods in transit shall pass upon delivery to the F.O.B. point. The party undertaking risk of loss is solely responsible for all shipping and delivery charges and shall maintain adequate insurance with reputable carriers covering the replacement value of such Goods in transit.
- Inspection. Customer will inspect all Goods processed by AHT promptly upon receipt thereof and will notify AHT of any objections to the Goods or the Services within five (5) working days after receipt of the Goods. If Customer does not so object or refuses the opportunity to inspect the Goods, Customer will be deemed to have accepted the Goods and the Services as conforming to specification and otherwise meeting its requirements.
- Changes; Cancellations.
- No order that has been accepted by AHT may be changed or cancelled by Customer (in whole or in part) unless AHT agrees to such change or cancellation in writing or such cancellation is due to breach by AHT. Changes may result in a delay in the scheduled delivery date and a change in price. Any change in price or delivery will be as agreed to by Customer and AHT.
- Upon any cancellation (in whole or in part) including any cancellation for breach, Customer will pay all costs and expenses (including overhead and administrative expenses) incurred by AHT on the Order up to the effective date of cancellation.
- Pricing; Payment. Prices are as quoted by AHT and are subject to change upon notice to Customer. Payment is due within thirty (30) days after the date of invoice unless otherwise agreed by the parties. AHT reserves the right, without any liability whatsoever to Customer or any other person or entity, to suspend performance, refuse to accept additional releases or orders, stop delivery of Goods in transit, decline to deliver except for cash, require payment prior to shipment, and/or restrict or modify payment terms whenever Customer’s account is delinquent or, in AHT’s sole judgment, AHT has reason to doubt Customer’s solvency, financial condition or ability to pay.
- Force Majeure. AHT will not be liable for its failure to perform hereunder due to any contingency beyond its reasonable control, including without limitation, acts of God, fire, flood, inability to obtain material at reasonable prices, equipment or transportation, governmental laws or regulation, accidents, labor disputes or shortages, or other similar matters. In the event of a force majeure event, AHT will notify Customer and will attempt to minimize the duration of any impact on its ability to perform under an Order due to such force majeure event.
- Warranty, Liability, Indemnification.
- Given the uncertainties inherent in the heat treating process, Customer acknowledges and accepts that AHT’s liability under any Order shall be as provided for in the Metal Treating Institute’s Limits of Liability (the “MTI Limits”) which have been adopted by AHT and which are incorporated herein by this reference. A copy of the MTI Limits is available on AHT’s website (www.americanheattreating.com). In the event that AHT prevails in any legal action brought by or on behalf of Customer against AHT, Customer shall pay all fees, expenses and costs of AHT incurred as a result of such legal action, including its legal, professional, court and other fees and expenses.
- Customer will defend, indemnify and hold AHT harmless from any and all third party claims brought against AHT relating in any way to the manufacturing, sale, processing, distribution or use of the Goods or the provision of the Services if the Goods have been subjected to further processing, assembly or work after heat treating.
- Governing Law; Venue. This contract has been made in, and will be construed and enforced in accordance with the laws of, the State of Connecticut without regard to its principles of conflicts of laws. Customer and AHT consent to the exclusive jurisdiction of the state and federal courts of Connecticut for any actions, suits or other proceedings arising out of, or related to, the enforcement of either party’s rights hereunder. AHT and Customer agree not to commence any action suit or proceeding in any other court and hereby irrevocably and unconditionally waive any objection to the laying of venue in any such court. The Uniform Commercial Code expressly does not apply to any Order, Offer to Sell or any Services sold hereunder.
- Entire Agreement, Acceptance, Modification. Unless otherwise agreed to in writing by AHT, the terms and conditions contained herein and on any of AHT’s standard forms constitute AHT’s entire offer to sell the Services to the Customer (“Offer to Sell”), constitute the entire agreement between AHT and the Customer with respect to the subject matter thereof, and supersede all prior or contemporaneous communications and agreements. These Terms and Conditions shall apply to all orders and releases received from Customer. Customer’s acceptance of AHT’s Offer to Sell and AHT’s performance of the Order (in whole or in part) are expressly limited to, and conditioned upon, Customer’s acceptance of these Terms and Conditions, which may not be changed or waived except in a writing signed by both parties. Without limitation on the foregoing, AHT’s performance on an Order shall not be considered acceptance of any counter-offer or terms provided by Customer and AHT will not be bound by, hereby objects to, and rejects, any additional provision or any provision at variance with these Terms and Conditions or any other part of AHT’s Offer to Sell that may appear in Customer’s purchase order, standard terms and conditions, acknowledgments, form agreements, supplier or quality manuals, notices or in any other document or communication from Customer to AHT, or any updates or amendments thereto. These Terms and Conditions may only be modified by a writing signed by the General Manager or President of AHT.
- Survival. The provisions of Sections 7 and 8 will survive the expiration or termination of this contract.
- Severability. In case any one or more of the provisions or parts of a provision contained herein are, for any reason, held to be invalid, illegal or, such invalidity, illegality or unenforceability will not affect any other provision or part of a provision hereof, but these Terms and Conditions will be reformed and construed as if such invalid or illegal or unenforceable provision or part of a provision had never been contained herein and such provision or part will be reformed so that it would be valid, legal and enforceable to the maximum extent permitted while retaining as much as possible the original intent of the provision.
- Independent Contractors. Customer and AHT are independent contracting parties and nothing in the Order or AHT’s Offer to Sell will make either party the employee, partner, joint venturer, agent or legal representative of the other for any purpose. Neither the Order, nor the Offer to Sell, grants either party any authority to assume or to create any obligation on behalf of or in the name of the other. Each party understands that the other manufactures products or provides services for sale to a wide variety of customers and that nothing in these Terms and Conditions precludes either party from selling its products to customers or competitors of the other.