Phoenix Terms & Conditions
- ACCEPTANCE OF ORDERS. All orders are subject to acceptance by authorized personnel at Therma-Stor LLC (Seller).
- PRICING GUIDELINES. Pricing categories are based on order destination and quantity. Standard pricing is effective on all orders shipped to a destination other than the customer (Buyer) address on record. Distributor pricing is only available to orders shipped to the Buyer’s address on record. Distributor prices reflect the functional benefit of the Distributor’s inventory investment and related carrying costs.
- INTERNET SALES. No Buyer may sell Seller’s products through online e-commerce channel without the prior written consent from the Seller. Seller reserves the market for internet commerce of its products and the exclusive right to sell to through online e-commerce channel.
- AVAILABILITY. Some products may be not be available in all areas, and some must be purchased through authorized dealers/wholesalers/reps. Please contact Seller or visit Seller’s website for details.
- DELIVERY AND TRANSPORTATION. All prices are F.O.B. Therma-Stor LLC, Madison, WI. Best way freight charges (based on size) will be determined at time of ordering. Seller will evaluate the “best way” for lowest possible shipping costs. UNWRAP PRODUCT AND INSPECT for damage of product before signing for it. If merchandise or boxes are damaged REFUSE SHIPMENT! Seller is NOT responsible for damaged products once delivery is accepted. Rush orders must be placed before Noon, Central Time. Expedited shipping is available for an additional charge. A monthly interest of 1.5% will be charged on any past dues. Orders are subject to product availability.
- TERMS OF PAYMENT. CHARGE (Visa/MasterCard/American Express), PREPAID CHECK, COD OR WIRE TRANSFER. Established businesses may open an account by filling out our credit application. Allow 10 days for processing. On approval, terms are NET 30 days. Prices are subject to change without notice. For prepaid, checks must clear before order is shipped.
- TAXES. Prices do not include foreign or domestic sales, use, excise or similar taxes. Consequently, in addition to the prices specified herein, the amount of any present or future sales, use, excise or other general or specific tax, or export or import duties, tariff or penalties or other governmental charges fixed or imposed by any lawful authority(s) upon or applicable to the production, sale, shipment, delivery or use of the products (or raw materials in the products) sold hereunder shall be added to the price and be paid by Buyer or, in lieu thereof, Buyer shall provide Seller with a tax exemption certificate acceptable to the taxing authorities. If such tax is paid by Seller, Buyer shall reimburse Seller upon presentation of invoice.
- WARRANTY. Warranties provided vary product as detailed on the respective individual warranty documents. Seller warrants that the products will substantially conform to the agreed specifications. THE INDIVIDUAL WARRANY DOCUMENTS STATE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY SELLER TO BUYER AND THERE ARE NO OTHER WARRANTIES EITHER EXPRESSED OR IMPLIED IN FACT OR BY LAW. THE WARRANTIES STATED THEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR VERBAL, STATUTORY, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY DISCLAIMED. SELLER’S WARRANTY DOES NOT APPLY TO ANY GOODS WHICH HAVE BEEN SUBJECTED TO MISUSE, MISHANDLING, MISAPPLICATION, NEGLECT, (INCLUDING BUT NOT LIMITED TO USE OF UNAUTHORIZED PARTS OR ATTACHMENTS), OR ADJUSTMENT OR REPAIR PERFORMED BY ANYONE OTHER THAN SELLER OR ONE OF SELLER’S AUTHORIZED AGENTS.
- LIMITATION OF LIABILITY. Seller shall not be responsible, obligated, or liable for any injury or damage resulting from an application or use of its products, either singly or in combination with other products. SELLER’S SOLE LIABILITY FOR BREACH OF WARRANTY OR ANY OTHER CLAIM SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF THE PRODUCTS OR RETURN OF THE PURCHASE PRICE, AT SELLER’S SOLE OPTION. SELLER SHALL NOT BE LIABLE FOR DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL, INCIDENTAL, PUNITIVE, LIQUIDATED OR SPECIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE PRODUCTS OR ARISING OUT OF ACCEPTANCE OF THIS ORDER. BUYER SHALL INDEMNIFY SELLER AGAINST ALL LIABILITY, COST, OR EXPENSE THAT MAY BE SUSTAINED BY SELLER BECAUSE OF ANY SUCH LOSS, DAMAGE, OR INJURY.
- RETURN OF PRODUCTS. No product may be returned to Seller without Seller’s prior written permission in the form of a return material authorization. Buyer is responsible for freight costs. Products must be clean, in original packaging, and returned within 45 days. All returns are subject to a 25% restocking charge.
- LIMITATIONS OF ACTIONS. All claims, demands or actions must be brought within one (1) year of date of tender of delivery, or eighteen (18) months of Buyer’s order, if no tender of delivery is made, notwithstanding any statutory period of limitation to the contrary.
- INTELLECTUAL PROPERTY. Buyer shall defend, indemnify and hold Seller harmless against all claims, demands judgment, expense or loss resulting from infringement of third-party patents, copyrights or trademarks arising from Seller’s compliance with Buyer’s design, specifications or instructions or Buyer’s distribution or use of the products. Seller retains all intellectual rights, title and interest in the products and its underlying technology, delivered hereunder including Seller’s process, manufacturing and all other technologies used in Seller’s performance hereunder. The sale of products or parts hereof by Seller does not convey any license, rights, title or interest by implication, estoppel, or otherwise, under patent claims, industrial property right, trademark, trade secret or any other intellectual property rights covering combinations of these products or parts with other devices or elements. Buyer agrees that Seller may receive service and condition related data from the products for the purpose of providing support, services, and improving the products. Buyer may opt out of this collection of data by providing Seller with written notice. Seller may share such information with its distributors and service representatives for purposes of providing support to Buyer.
- FORCE MAJEURE. Seller is excused for non-performance caused by any factor beyond its control Including but not limited to events of war, fire, epidemics, quarantine restrictions, epidemic, flood, strike, labor trouble, breakage of equipment, accident, riot, the imposition of any government price control regulation or tariff, or any other act of governmental authority, acts of God or other contingencies (whether similar or dissimilar to the foregoing) beyond the reasonable control of Seller, interfering with the production, cost, supply, transportation, or consumption practice of Seller respecting the products covered by the agreement between the parties or in the event of inability to obtain on terms deemed by Seller to be reasonable or practicable any raw material or required service (Including without limitation energy source) used in connection therewith, quantities so affected shall be deemed to be an excusable delay in Seller’s performance for the duration of time such condition exists. As promptly as practicable Seller will notify Buyer of any force majeure events that delays or threatens to delay Seller’s timely performance hereunder. Seller may during any period of shortage due to any of these causes, allocate its supply of such raw material among its various uses therefore (e.g. manufacturing and sales) in such manner as Seller deems reasonable and practicable and allocate its supply of such products among such various uses thereof in any manner which Seller deems fair and reasonable.
- REASONABLE ATTORNEY’S FEES. In the event suit or other proceeding shall be brought for the recovery of the purchase price, or any unpaid balance or the breach by Buyer of any term of the agreement between Seller and Buyer, Buyer shall pay to Seller in addition to any damages provided by law, reasonable attorney’s fees and costs of collection.
a. The agreement between Buyer and Seller and matter connected with the performance thereof shall be construed in accordance with and governed by the law of the State of Wisconsin, without regard to its conflict of laws principles. The provisions of the United Nations Convention for the International Sale of Goods (“CISG”) shall not govern the rights and obligations of the parties in connection with this order.
b. Any assignment of the agreement between Buyer and Seller or any rights or obligation of the agreement by Buyer without written consent of Seller shall be void.
c. Except as may be expressly provided to the contrary in writing, the provisions of the agreement between Buyer and Seller are for the benefit of the parties hereto and not for any other person.
d. By accepting delivery of any goods sold by Seller, Buyer waives any future claims and rights of setoff or withholding against any payments due hereunder and agrees to pay all sums due regardless of any dispute, setoff, or cross claim.
e. No waiver by Seller of any breach of any provision of the agreement between Buyer and Seller will constitute a waiver of any other breach.
f. The terms and conditions set forth above contain all of the representations, stipulations, warranties, agreements and understandings with respect to the subject matter of the agreement between Buyer and Seller, and its execution has not been induced by any representation, stipulation, warranty, agreement or understanding (Including any course of prior dealings between the parties hereto) of any kind other than those set forth herein.
g. No amendment, addition to, alteration, modification or waiver of all or part of the agreement between Buyer and Seller shall be of any force or effect unless in writing and signed by Seller. If the terms and conditions set forth above conflict with those of any purchase order of Buyer written in connection with the sale of the products or any portion thereof, then the terms set forth above shall govern.
h. In addition to the rights and remedies conferred upon Seller by law, Seller shall not be required to proceed with the performance of any order or contract, if Buyer is in default in the performance of any order or contract with Seller, and in case of doubt as to Buyer’s financial responsibility, shipments under this order may be suspended or sent sight draft with bill of lading attached by Seller.
i. No delay or omission by Seller in exercising any right or remedy provided for herein shall constitute a waiver of such right or remedy and shall not be constituted as a bar to or a waiver of any such right or remedy on any future occasion.
- ENTIRE CONTRACT. The terms and conditions set forth herein constitute the entire expression of all the terms of this agreement and form a complete and exclusive statement as to the agreement between Seller and Buyer notwithstanding any other representations, promises, warranties, statements or agreements to the contrary. Any additional, contradictory or different terms contained in any initial or subsequent order or communication from Buyer pertaining to the products described on the face hereof are hereby objected to. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term used in this agreement. Acceptance or acquiescence in a course of performance rendered under this agreement shall not be relevant to determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and the opportunity for objection. No waiver or alteration of terms herein shall be binding unless in writing, signed by an executive officer of Seller.
- COMPLIANCE WITH LAWS. It is the intention of the parties that the transaction covered by these terms and conditions will always, comply with all applicable laws including, without limitation, all export and import laws, regulations and restrictions, foreign corrupt practices and anti-bribery laws.
- EXPORT LICENSING/ITAR REPRESENTATION. Buyer agrees to comply with all applicable US and applicable non-US export and import laws and regulations, including but not limited to the International Traffic in Arms Regulation (ITAR) and the Export Administration Regulations (EAR) governing the export of any product and supporting technical data delivered hereunder. Furthermore, any controlled technical data is not to be placed in the public domain, exported from the US, or given to any Foreign Person in the US without the prior specific written authorization of the Seller and the US Department of State or the US Department of Commerce as applicable. Notwithstanding anything that may be to the contrary Buyer’s obligation as set forth in this provision shall survive the expiration or termination of this agreement. Buyer agrees to defend, indemnify, and hold Seller harmless from all claims or liabilities that may arise from Buyer’s violation of any US or applicable non- US import or export laws.
- ARBITRATION. With respect to sales within the United States, any controversy or claim arising out of or relating to the Agreement between Buyer and Seller, or the breach thereof, shall be finally settled in the City and State of the Seller’s accepting offices, by arbitration in accordance with the Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. With respect to sales outside the United States, any controversy or claim arising out of or relating to the Agreement between Buyer and Seller, or the breach thereof shall be finally settled in New York, NY under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof pursuant to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Award.