Terms & Conditions

1. Acceptance. These terms and conditions together with the Company’s proposal (the “Proposal”) constitute the entire agreement between Company and the party to whom this offer is made (“Customer”) (the “Agreement”)  for the sale of the described equipment (the “Equipment”) and if applicable, installation work associated therewith (the “Work”). The Proposal is subject to acceptance in writing by the Customer delivered to Company within 30 days from the date of the Proposal. If Customer’s order is expressly conditioned upon Company’s acceptance or assent to terms and/or conditions other than those expressed herein, return of such order by Company with these terms and conditions attached or referenced serves as Company’s notice of objection to Customer’s terms and as Company’s counteroffer to provide Equipment in accordance with the scope and terms and conditions of the Proposal. If Customer does not reject or object in writing to Company within 10 days, Company’s counteroffer will be deemed accepted. Customer’s acceptance of goods and/or Work by Company will in any event constitute an acceptance by Customer of these terms and conditions. This Agreement is subject to credit approval by Company. Upon disapproval of credit, Company may delay or suspend performance or, at its sole discretion, renegotiate prices and/or terms and conditions with Customer. If Company and Customer are unable to agree on such revisions, this Agreement shall be cancelled without any liability, other than Customer’s obligation to pay for Work rendered by Company to the date of cancellation. 

2. Pricing and Taxes. Following acceptance without addition of any terms and conditions of sale or any other modification by Customer, the prices stated in the Proposal are firm, provided that notification of release for immediate production and shipment is received at the manufacturer’s factory not later than 3 months from order acceptance. If such release is received later than 3 months from order acceptance date, prices will be increased a straight 1% (not compounded) for each 1 month period (or part thereof) beyond the 3 month firm price period, up to the date of receipt of such release. If such release is not received within 6 months after the date of order acceptance, the prices are subject to renegotiation or at Company’s option, the order will be cancelled. Any delay in shipment caused by Customer’s actions will subject prices to increase equal to the percentage increase in list prices during that period of delay, and Company may charge Customer with incurred storage fees. In no event will prices be decreased. Unless specifically identified in the Proposal at the time of invoice: (i) manufacturer’s gross receipts, consumer, sales, or use tax (Federal, Provincial, State, or Local), payable on the transaction under any applicable statute, code, or regulation shall be added; and (ii) cost of transportation, shipping and handling shall be added. Tax exemption is contingent upon Customer furnishing appropriate certificates evidencing Customer’s tax-exempt status. Company shall charge Customer additional costs for bonds agreed to be provided. 

3. Performance. Company shall be obligated to furnish only the Equipment described in the Proposal, and submittal data (if such data is issued in connection with the order), and Company may rely on the acceptance of the Proposal and submittal data as acceptance of the suitability of the Equipment for the particular project or location. Company’s duty to perform under any order and the price thereof is dependent upon mutual assent. If Company and Customer are unable to agree on revised prices or terms, the order may be cancelled without any liability. Unless specifically stated in the Proposal, compliance with any local building codes or other laws or regulations relating to specifications or the location, use or operation of the Equipment is the sole responsibility of Customer. 

4. Force Majeure. Company’s duty to perform under this Agreement and the prices are contingent upon the non-occurrence of an Event of Force Majeure (as hereinafter defined). If the Company shall be unable to carry out any material obligation under this Agreement due to an Event of Force Majeure, this Agreement shall at Company’s election (i) remain in effect but Company’s obligations shall be suspended until the Event of Force Majeure terminates; or (ii) be terminated upon 10 days notice to Customer, in which event Customer shall pay Company for all parts of the Work and equipment furnished to the date of termination. For purposes of this Agreement, an “Event of Force Majeure” shall mean any cause or event beyond the control of Company. Without limiting the foregoing, an Event of Force Majeure includes: acts of God; acts of terrorism, war, or the public enemy; flood; earthquake; tornado; storm; fire; civil disobedience; pandemic, epidemic, quarantine (including without limitation, COVID-19 infection (Coronavirus)); insurrections; riots; labor/labour disputes; labor/labour or material shortages; sabotage; restraint by court order or public authority (whether valid or invalid); and action or non-action by or inability to obtain or keep in force the necessary governmental authorizations, permits, licenses, certificates or approvals if not caused by Company; and the requirements of any applicable government in any manner that diverts either the material or the finished product to the direct or indirect benefit of the government. 

5. Warranty. Company does not make any representations or warranties of any kind regarding any Equipment, delivery services, installation specialists or other contractors, vendors, or suppliers recommended by Company. If the manufacturer of a product provides a manufacturer’s warranty, and such warranty is transferable to Customer, then Customer shall be afforded all rights, solely as against the manufacturer, and not Company, as provided for in the manufacturer’s warranty. Similarly, if any third party provides any warranty regarding any services or Equipment provided by them, then Customer shall be afforded all rights solely as against the provider of such service, and not Company. ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, ARE EXPRESSLY EXCLUDED, INCLUDING BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Any oral statement regarding Equipment or the Work that is made by Company, its employees or agents do not constitute warranties, and such statements shall not become a part of this Agreement, and shall not be relied upon by Customer. COMPANY MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING PREVENTION OF MOLD/MOULD, FUNGUS, BACTERIA, MICROBIAL GROWTH, OR ANY OTHER CONTAMINATES.

6. Indemnity. Customer shall indemnify, defend, and hold harmless Company from any and all claims, actions, costs, expenses, damages and liabilities, including reasonable attorneys’ fees, resulting from death or bodily injury or damage to real or personal property, to the extent caused by the negligence or misconduct of its employees or other authorized agents in connection with its activities within the scope of this Agreement. The duty to indemnify will continue in full force and effect, notwithstanding the expiration or early termination hereof, with respect to any claims based on facts or conditions that occurred prior to expiration or termination. 

7. Insurance. Upon request, Company will furnish evidence of its standard insurance coverage. If Customer has requested to be named as an additional insured under Company’s insurance policy, Company will do so subject to Company’s manuscript additional insured endorsement. Company does not waive any rights of subrogation. 

8. Customer Breach. Each of the following events or conditions shall constitute a breach by Customer and shall give Company the right, without an election of remedies, to terminate this Agreement, require payment prior to shipping, or suspend performance by delivery of written notice declaring termination, upon which event Customer shall be liable to the Company for all Work furnished to date and all damages sustained by Company (including lost profit and overhead): (1) any failure by Customer to pay amounts when due; or (2) any general assignment by Customer for the benefit of its creditors, or if Customer becomes bankrupt or insolvent or takes the benefit of any statute for bankrupt or insolvent debtors, or makes or proposes to make any proposal or arrangement with creditors, or if any steps are taken for the winding up or other termination of Customer or the liquidation of its assets, or if a trustee, receiver, or similar person is appointed over any of the assets or interest s of Customer; (3) any representation or warranty furnished by Customer in connection with this Agreement is false or misleading in any material respect when made; or (4) any failure by Customer to perform or comply with any material provision of this Agreement. 

9. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL INCIDENTAL, CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION REFRIGERANT LOSS, PRODUCT LOSS, LOST REVENUE OR PROFITS), OR PUNITITVE DAMAGES WHETHER CLAIMED UNDER CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY OF FACTS. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF COMPANY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE PROPOSAL OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE PROPOSAL. COMPANY DISCLAIMS ANY LIABILITY FOR DAMAGES OF ANY KIND (WHETHER DIRECT OR INDIRECT) ARISING FROM MOLD/MOULD, FUNGUS, BACTERIA, MICROBIAL GROWTH, OR ANY OTHER CONTAMINATES OR AIRBORNE BIOLOGICAL AGENTS. 

10. Shipping. Delivery dates are approximate and not guaranteed. Company will use commercially reasonable efforts to deliver the Equipment on or before the estimated delivery date and will notify Customer if the estimated delivery dates cannot be honored and will deliver the Equipment as soon as practicable thereafter. In no event will Company be liable for any damages or expense caused by delays in delivery times. All Equipment sales with destinations to Canada, Mexico or the U.S. shall be made FCA manufacturer’s U.S. manufacturing facility or warehouse (Incoterms 2000) and shall be invoiced to and become the property of Customer upon tender of delivery thereof to the carrier. All Equipment sales with destinations outside Canada, Mexico, and the U.S. shall be made Ex Works “EXW” (Incoterms 2000) manufacturer’s U.S. manufacturing facility or warehouse and shall be invoiced to and shall become the property of Customer upon tender of delivery thereof to the carrier. Customer shall have the right to specify the method of transportation for the Equipment and the common carrier to be used. Absent such specification, the Company shall ship the Equipment by a reliable common carrier of its own selection in order to meet the delivery schedule and invoice Customer for all applicable charges (including handling) associated with such shipment. Title and risk of loss or damage to Equipment will pass to Customer upon tender delivery of such to carrier at manufacturer’s U.S. manufacturing facility or warehouse, which delivery shall constitute delivery to Customer for all purposes. If Company arranges for shipping, shipping and handling shall be added to the quoted prices.  If the customer is not able to receive the equipment at the time of shipment then then the equipment may be moved to a 3rd party storage facility where all costs including handling and storage will be invoiced to the customer.

11. Cancellation. Equipment is specially manufactured in response to orders. If all or any portion of an order is cancelled by Customer, Customer shall be liable to Company for cancellation charges including but not limited to Company’s incurred costs and such profit as would have been realized by Company from the transaction had the order not been cancelled by Customer.  

12. Payment. Customer shall pay Company’s invoices within net 30 days of invoice. Company reserves the right to add to any account outstanding for more than 30 days a service charge equal to the lesser of the maximum allowable legal interest rate or 1.5% of the principal amount due at the end of each month. Customer shall pay all costs (including attorneys’ fees) incurred by Company in attempting to collect amounts due and otherwise enforcing these terms and conditions. If requested, Company will provide appropriate lien waivers upon receipt of payment. Customer shall pay the entire purchase price prior to shipment of the Equipment. Company reserves the right, in its sole discretion, to provide Customer with a credit on its order. 

13. Claims. Company will consider claims for concealed shortages in shipments or rejections due to failure to conform to an order only if such claims or rejections are made in writing within 15 days of delivery and are accompanied by the packing list and, if applicable, the reasons in detail why the Equipment does not conform to Customer’s order. Upon receiving authorization and shipping instructions from authorized personnel of Company, Customer may return rejected Equipment, transportation charges prepaid, for replacement. Company may charge Customer any costs resulting from the testing, handling, and disposition of any Equipment returned by Customer which are not found by Company to be nonconforming. 

14. Export Laws. The obligation of Company to supply Equipment under this Agreement is subject to the ability of Company to supply such items consistent with applicable laws and regulations of the United States and other governments. Company reserves the right to refuse to enter into or perform any order, and to cancel any order, under this Agreement if Company, in its sole discretion, determines that performance of the transaction to which such order relates would violate any such applicable law or regulation. Any such refusal or cancellation by Company will not constitute a breach of obligation by Company under this Agreement. Customer waives any and all claims against Company for any loss, cost or expense, including consequential damages that Customer may incur by virtue of such refusal or cancellation. 

15. Installation.  Unless otherwise agreed in writing, Company, is not responsible for unloading and the  installation of any equipment. 

16. General. Except as provided below, to the maximum extent provided by law, this Agreement is made and shall be interpreted and enforced in accordance with the laws of the state of Georgia for Equipment shipped to a US location and the laws of the province to which Equipment is shipped within Canada, without regard to its conflict of law principles, and not including the United Nations Convention on Contracts for the International Sale of Goods. To the extent the Equipment is being used at a site owned and/or operated by any agency of the Federal Government, determination of any substantive issue of law shall be according to the Federal common law of Government contracts as enunciated and applied by Federal judicial bodies and boards of contract appeals of the Federal Government. This Agreement contains all of the agreements, representations, and understandings of the parties and supersedes all previous understandings, commitments or agreements, oral or written, related to the subject matter hereof. This Agreement may not be amended, modified, or terminated except by a writing signed by the parties hereto. No documents shall be incorporated herein by reference except to the extent Company is a signatory thereon. If any term or condition of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law, all other terms and conditions of this Agreement will nevertheless remain in full force and effect as long as the economic or legal substance of the transaction contemplated hereby is not affected in a manner adverse to any party hereto. Customer may not assign, transfer, or convey this Agreement, or any part hereof, or its right, title, or interest herein, without the written consent of the Company. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of Customer’s permitted successors and assigns. This Agreement may be executed in several counterparts, each of which when executed shall be deemed to be an original, but all together shall constitute but one and the same Agreement. A fully executed facsimile copy hereof the several counterparts shall suffice as an original.