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Terms and Conditions of Sale
Terms and Conditions of Sale
effective July 3, 2014
- Chromalox, Inc. (and any assignee thereof) is herein referred to as the
and the customer or person or entity purchasing products (
) from Seller is referred to as the
These Terms and Conditions, any price list or schedule, quotation, acknowledgment or invoice from Seller relevant to the sale constitute the complete and exclusive statement of the terms of the agreement (
) governing the sale of Products by Seller to Buyer. Buyer’s acceptance of the Products will manifest Buyer’s assent to these terms and conditions. Seller reserves the right in its sole discretion to refuse orders.
PRICES AND TAXES
- All prices are subject to change by Seller without notice. All prices specified herein are exclusive of any costs of any sales, use, value added, excise, gross receipts, business and occupation or similar present or future taxes imposed by any governmental body on the sale, delivery, use or other handling of the Products or in connection with any related or contemplated transactions, which are to be borne by Buyer.
EXCUSE OF PERFORMANCE
- Seller is not responsible for non-performance or delays in performance due to acts of God; war; epidemic; fire; flood; weather; sabotage; strikes or labor disputes; civil disturbances or riots; governmental requests, restrictions, allocations, laws, regulations, orders or actions; unavailability of or delays in transportation; default of suppliers; equipment breakdown or malfunction; unforeseen circumstances; acts or omissions of Buyer; or any events or causes beyond Seller’s reasonable control. Deliveries or other performance may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer in the event of any of the foregoing, but the balance of the Agreement will otherwise remain in effect. If Seller determines that its ability to supply the total demand for the Products, or to obtain material used directly or indirectly in the manufacture of the Products, is hindered, limited or made impracticable due to causes set forth in the preceding paragraph, Seller may allocate its available supply of the Products or such material (without obligation to acquire other supplies of any such Products or material) among itself and its purchasers on such basis as Seller determines to be equitable without liability for any failure of performance which may result therefrom.
- Subject to the limitations of Section 5, Seller warrants that the Products manufactured by Seller will be free from defects in material and workmanship under normal use and regular service and maintenance for a period of one (1) year from the date of shipment of the Products by Seller, unless otherwise specified by Seller in writing. Products purchased by Seller from a third party for resale to Buyer will carry only the warranty extended by the original manufacturer.
THE WARRANTY SET FORTH IN THIS SECTION 4 AND THE WARRANTY SET FORTH IN SECTION 6 ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY SELLER WITH RESPECT TO THE PRODUCTS AND ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS, DRAWINGS OR OTHERWISE, AND WHETHER OR NOT SELLER’S PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER’S OR ANY OTHER PERSON’S USE OR PURPOSE.
This warranty does not extend to any losses or damages due to misuse, accident, abuse, neglect, normal wear and tear, corrosion, moisture, Buyer’s or any other person’s negligence, unauthorized modification or alteration, use beyond rated capacity, unsuitable power sources or environmental conditions, improper installation, repair, handling, maintenance or application or any other cause not the fault of Seller, and, unless otherwise specified by Seller in writing, Seller has no duty to install, inspect, observe, advise and/or warn as to the Products, or as to any other products or conditions located on Buyer’s property or work site, at the time of sale, delivery, or otherwise. To the extent that Buyer or its agents has supplied specifications, information, representation of operating conditions or other data to Seller that are used in the selection or design of the Products and the preparation of Seller’s quotation, and in the event that actual operating conditions or other conditions differ from those represented by Buyer, any warranties or other provisions contained herein which are affected by such conditions are null and void. If within thirty (30) days after Buyer’s discovery of any warranty defects within the warranty period or within ten (10) days after shipment for quantity discrepancies, Buyer notifies Seller thereof in writing, Seller shall, at its sole option, repair, correct or replace F.O.B. point of manufacture, or refund the purchase price for that portion of the Products found by Seller to be defective or missing. Failure by Buyer to give such written notice within the applicable time period is deemed an absolute and unconditional waiver of Buyer’s claim for such defects or shortages. Products repaired or replaced during the warranty period will be covered by the foregoing warranty for the remainder of the warranty period or ninety (90) days from the date of shipment, whichever is longer. If Products are used as component parts by Buyer, it is Buyer’s responsibility to abide by all instructions and warnings provided to Buyer by Seller and to pass such instructions and warnings on to purchasers and end users of Buyer’s finished products. Buyer shall ensure that (i) the Products are used only for the purposes and in the manner for which they were designed and supplied, (ii) that all persons likely to use or come into contact with the Products receive appropriate training and copies of applicable instructions and documentation supplied by Seller, (iii) all third parties who use or may be affected by or rely upon the Products are given full and clear warning of any hazards associated with them or limitations of their effectiveness and that safe working practices are adopted and complied with, (iv) any warning notices displayed on the Products are not removed or obscured, (v) any third party to whom the Products are supplied agrees not to remove or obscure such warning notices.
Except for Buyer’s express warranties under this Section 4 and Section 6, Buyer assumes all other responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of Products, either alone or in combination with other products/components, and shall indemnify, defend, and hold Seller harmless for any such loss, damage or injury.
LIMITATION OF REMEDY AND LIABILITY - THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER (OTHER THAN THE WARRANTY PROVIDED UNDER SECTION 6) IS LIMITED TO, AT SELLER’S SOLE OPTION, REPAIR, CORRECTION OR REPLACEMENT, OR REFUND OF THE PURCHASE PRICE UNDER SECTION 6. SELLER IS NOT LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE AND IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN LAW, EQUITY, CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), DOES SELLER’S LIABILITY TO BUYER AND/OR END USERS FOR ANY OTHER DAMAGES HEREUNDER (INCLUDING, WITHOUT LIMITATION, DAMAGES IN AN ACTION FOR CONTRIBUTION OR INDEMNITY) EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC PRODUCTS PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. BUYER AGREES THAT IN NO EVENT DOES SELLER’S LIABILITY TO BUYER AND/OR END USERS EXTEND TO INCLUDE INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES.
The term “consequential damages” includes, but is not limited to, loss of anticipated profits; business interruption; loss of use, revenue, reputation or data; costs incurred, including, without limitation, costs for capital, fuel, or power; loss or damage to property or equipment; and environmental clean-up. Any action arising hereunder or relating hereto, regardless of the form of the action (whether based in law, equity, contract, infringement, negligence, strict liability, other tort or otherwise), must be commenced within one (1) year after the date of shipment or it shall be barred. Unless otherwise specified by Seller in writing, it is expressly understood that any technical advice furnished by Seller with respect to the use of the Products is given without charge, and Seller assumes no obligation or liability for the advice given or not given, or results obtained, all such advice being given and accepted at Buyer’s risk. Buyer expressly acknowledges and agrees that Seller has set its prices and entered into the Agreement in reliance upon the limitations of liability and other terms and conditions specified herein, which allocate the risk between Buyer and Seller and form a basis of this bargain between the parties.
- Subject to the limitations of the second paragraph of Section 5, Seller warrants that the Products sold, except as are made specifically for Buyer according to Buyer’s specifications, do not infringe any valid United States patent or copyright in existence as of the date of shipment. This warranty is given upon the condition that Buyer promptly notify Seller of any claim or suit involving Buyer in which such infringement is alleged and cooperate fully with Seller and permit Seller to control completely the defense, settlement or compromise of any such allegation of infringement. Seller’s warranty as to use patents only applies to infringement arising solely out of the inherent operation, according to Seller’s specifications and instructions of such Products. In the event such Products are held to infringe such a United States patent or copyright in such suit, and the use of such Products is enjoined, or in the case of a compromise or settlement by Seller, Seller will have the right, at its option and expense, to procure for Buyer the right to continue using such Products, or replace them with non-infringing Products, or modify same to become non-infringing, or grant Buyer a credit for the depreciated value of such Products and accept return of them. In the event of the foregoing, Seller may also, at its option, cancel the Agreement as to future deliveries of such Products without liability.
- Notwithstanding any tool, die, or pattern charges, all tooling and related items are and remain the property of Seller.
SHIPMENT AND DELIVERY
- Shipments are made F.O.B. Seller’s shipping point. Risk of loss of damage and responsibility passes from Seller to Buyer upon delivery to and receipt by carrier. Any claims for shortages or damages suffered in transit are the responsibility of Buyer and will be submitted by Buyer directly to the carrier. Shortages or damages must be acknowledged and signed for at the time of delivery. While Seller will use all reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by Seller, all shipping dates are approximate and not guaranteed. Seller reserves the right to make partial shipments. Seller, at its option, is not bound to tender delivery of any Products for which Buyer has not provided shipping instructions. If the shipment of the Products is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage costs and other additional expenses resulting therefrom.
TERMS OF PAYMENT
- Unless otherwise specified by Seller, terms of payment are net thirty (30) days from date of Seller’s invoice in U.S. currency. If any payment owed to Seller is not paid when due, it will bear interest, at a rate to be determined by Seller, which will not exceed the maximum rate permitted by law, from the date on which it is due until it is paid. Seller has the right, among other remedies, either to terminate the Agreement or to suspend further performance under this and/or other agreements with Buyer in the event Buyer fails to make any payment when due, which other agreements Buyer and Seller hereby amend accordingly. Buyer is liable for all expenses, including attorney’s fees, relating to the collection of past due amounts. Should Buyer’s financial responsibility become unsatisfactory to Seller, cash payments or security and/or further assurances satisfactory to Seller may be required by Seller for future deliveries and for the Products theretofore delivered. If such cash payment or security or assurance is not provided, in addition to Seller’s other rights and remedies, Seller may discontinue deliveries.
RETURNS AND CANCELLATIONS
- In the event Buyer desires to return Products, prior written approval of an authorized representative of Seller at Seller’s home office located at Pittsburgh, Pennsylvania is required. In the event of approval of a return request, (i) any allowed outgoing prepaid freight costs will apply, (ii) all returns must be shipped freight prepaid at Buyer’s expense, and (iii) Buyer must pay Seller’s return and restocking charge. Buyer may cancel orders only upon reasonable advance written notice and upon Seller’s approval and payment to Seller of Seller’s cancellation charges which include, among other things, all costs and expenses incurred and, to cover commitments made by Seller, a reasonable profit thereon. Seller’s determination of such cancellation charges is conclusive.
- These terms and conditions supersede all other communications, negotiations and prior oral or written statements regarding the subject matter of these terms and conditions. No change, modification, rescission, discharge, abandonment, or waiver of these terms and conditions is binding upon Seller unless made in writing and signed on its behalf by a duly authorized representative of Seller. No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement these terms and conditions is binding unless hereafter made in writing and signed by the party to be bound, and no modification or additional terms are applicable to the Agreement by Seller’s receipt, acknowledgment, or acceptance of purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to those set forth herein. Any such modifications or additional terms are specifically rejected and deemed a material alteration hereof. If these terms and conditions are deemed an acceptance of a prior offer by Buyer, such acceptance is expressly conditional upon Buyer’s assent to any additional or different terms set forth in these terms and conditions. If any provision of these terms and conditions is invalid or unenforceable in any circumstances, its application in any other circumstances and the remaining provisions of these terms and conditions are not affected thereby. No waiver by either party with respect to any breach or default or of any right or remedy, and no course of dealing, is deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound. All typographical or clerical errors made by Seller in any quotation, acknowledgment or publication are subject to correction. All notices, demands or consents required or permitted under the Agreement will be in writing. Notice is considered delivered and effective when (i) personally delivered; (ii) the day following transmission if sent by facsimile followed by written confirmation by registered overnight carrier or certified United States mail; or (iii) the day after posting when sent by registered private overnight. Notice will be sent to the parties at the addresses as will be given by either party to the other in writing.
APPLICABLE LAW AND FORUM
- The validity, performance, and all other matters relating to the interpretation and effect of the Agreement are governed by the law of the Commonwealth of Pennsylvania, without regard to its conflicts of laws doctrines. The U.N. Convention on Contracts for the International Sale of Goods does not apply to the Agreement. The exclusive jurisdiction and venue for all actions arising out of the Agreement, including any amendments or changes thereto, is only in a state or federal court located in the County of Allegheny, Commonwealth of Pennsylvania and Buyer agrees to submit to such jurisdiction and venue.
- Seller’s documentation, prints, and drawings (
), including, without limitation, the underlying technology, furnished by Seller to Buyer in connection with the Agreement are the property of Seller and Seller retains all rights, including, without limitation, exclusive rights of use, licensing and sale. Notwithstanding the foregoing, Buyer may use the Documents in connection with the Products.
– Buyer agrees that all applicable import and export control laws, regulations, orders and requirements, including, without limitation, those of the United States, and the jurisdictions in which Buyer and Seller are established or from which Products may be supplied, applies to their receipt and use. In no event will Buyer use, transfer, release, import, or export Products in violation of such applicable laws, regulations, orders or requirements.
UNITED STATES EXPORT CONTROLS
– Products, technical data/technology, and services of Chromalox, Inc., its subsidiaries, and distributors are subject to the export control laws and regulations of the United States. Diversion contrary to U.S. law is prohibited. Buyer acknowledges that Products, and the direct product thereof, must not be exported or re-exported, directly or indirectly (including via remote access) under the following circumstances: (i) to Cuba, Iran, North Korea, Sudan, or Syria, or any national of these countries; (ii) to any person or entity listed on any U.S. government denial list, including but not limited to, the U.S. Department of Commerce Denied Persons, Entities, and Unverified Lists, http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern/denied-persons-list, the U.S. Department of Treasury Specially Designated Nationals List, http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx, and the U.S. Department of State Debarred List, http://pmddtc.state.gov/compliance/debar.html; (iii) to any entity when Buyer knows, or has reason to know, the end use of the Product is related to the design, development, production, or use of missiles, chemical, biological, or nuclear weapons, or other un-safeguarded or sensitive nuclear uses; and (iv) to any entity when Buyer knows, or has reason to know, that an illegal reshipment will take place.
– U.S. antiboycott laws require U.S. firms to refuse to participate in foreign boycotts that the United States does not sanction. Chromalox will not and cannot support or participate in any foreign boycott contrary to U.S. regulations or U.S. policy.
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