Contract Of Sale
These terms and conditions are incorporated into the purchase order (“order”) being entered into by customer (“Customer”) to purchase goods and/or services from PTAC Direct Sales, Inc. (“PTAC DIRECT”) in such order. Subject to the terms and conditions stated herein, PTAC Direct agrees to sell to Customer, and Customer agrees to purchase from PTAC Direct, the goods and/or services described in the order. No order is binding upon PTAC Direct unless accepted in writing by PTAC Direct in its sole discretion. PTAC Direct reserves the right, at its sole discretion, to refuse any order. All orders are subject to credit acceptance. The order and these terms and conditions shall constitute the complete and exclusive statement of the contract between the parties (“Agreement”). Any terms proposed by the Customer which add to, vary from or conflict with the terms herein are hereby objected to by PTAC Direct. PTAC Direct rejects all terms of any order issued except those relating to identification of products, price, and quantity. Product purchased and sold to Customer, unless otherwise agreed to in writing by PTAC Direct, shall be PTAC Direct’s standard products as specified in PTAC Direct’s quotation or acknowledgement.
The price for the goods or services shall be the price as shown on the order. Quoted prices are good for thirty (30) days unless otherwise stated in writing by PTAC Direct.
PTAC Direct’s prices are exclusive of all taxes, VAT, duties, other governmental charges, and any other taxes, freight or insurance.
All shipments shall be F.O.B. PTAC Direct's shipping point. Customer is responsible for all freight and insurance unless otherwise provided in a purchase order accepted in writing by PTAC Direct. Shipping dates quoted by PTAC Direct are approximate. PTAC Direct does not guarantee a particular date for shipment or delivery. PTAC Direct reserves the right to make partial shipments. Any claims for shortages or damages suffered in transit are the responsibility of Customer and shall be submitted by Customer directly to the carrier. Shortages and/or damages must be acknowledged and signed for at the time of delivery. If products are held by PTAC Direct for Customer at Customer’s request or due to Customer’s failure to supply shipping instructions, PTAC Direct may invoice Customer for storage and handling costs. Product held for Customer by PTAC Direct, for whatever reason, is held at Customer’s risk and Customer shall reimburse PTAC Direct for any insurance, storage or other costs incurred by PTAC Direct.
Payment shall be due prior to shipment unless otherwise stated on an invoice issued by PTAC Direct. PTAC Direct reserves the right to require cash payment or other alternative method of payment prior to completion of work if PTAC Direct determines, in its sole discretion. Any payment not made when due shall be subject to an interest charges at the maximum rate permitted by law. Partial shipments of product are payable as they occur in accordance with these terms.
6. Excusable Delay
Neither party shall be deemed to be in default on account of delays in the delivery of goods or in the performance of services (other than the payment of money) to the extent it is beyond such party’s control and not occasioned by such party’s fault or negligence, including, but not limited to, natural disasters, acts of government, power failure, fire, flood, acts of God, labor disputes, riots, acts of war or terrorism, epidemics, or material and transportation shortages.
7. Disclaimer Of Warranty
PTAC Direct does not warrant products not manufactured by PTAC Direct, but it does pass on to Customer any available manufacturer’s warranty for those products. Any products provided by PTAC Direct are “AS-IS” and except as may be provided in an express warranty by PTAC Direct, neither PTAC Direct, its affiliates, subsidiaries nor its or their suppliers make any warranties, express or implied, including any implied warranties of merchantability and fitness for a particular purposes. PTAC Direct and its affiliates, subsidiaries and its and their suppliers expressly disclaim all warranties not stated in an express written warranty provided to Customer, if any. PTAC Direct shall not be responsible for any costs associated with any Customer warranty remedies, including without limitation labor charges for removal or reinstallation of defective parts, for charges for transportation, handling and shipping or refrigerant loss. PTAC Direct shall have no liability for parts or service required as a consequence of faulty installation, misapplication, abuse, improper servicing, unauthorized alteration or improper operation by persons other than PTAC Direct Customer acknowledges that any technical advice furnished by PTAC Direct with respect to the design, location use or other aspect of the products is given without charge and PTAC Direct assumes no obligation or liability to Customer for the advice given or results obtained, and all such advice is given by PTAC Direct and accepted by Customer at Customer’s risk. Customer is responsible for obtaining any and all permits and licenses necessary in connection with the installation and/or use of any products. PTAC Direct makes no representation or warranty regarding compliance with local codes or otherwise. If Customer is not the ultimate end user or owner of the products and/or services in the order, PTAC Direct does not accept and will not be held liable for any flow down requirements from the ultimate user or owner or any higher tier contractor unless specifically agreed to in writing.
8. Limitation Of Liability
UNDER NO CIRCUMSTANCES SHALL PTAC DIRECT BE HELD LIABLE FOR ANY INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE OR PROFIT, LOSS OF USE OF EQUIPMENT OR FACILITIES, OR ECONOMIC DAMAGES, WHETHER BASED ON STRICT LIABILITY OR OTHERWISE, WHETHER ANY CLAIM IS BASED UPON THEORIES OF INFRINGEMENT, WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHERWISE, EVEN IF PTAC DIRECT HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. PTAC Direct shall only be liable for damage to property, other than the equipment provided under this Agreement, and/or injury or death of persons, to the extent that PTAC Direct’s grossly negligent acts or omissions directly and solely caused such injury, death or property damage. PTAC Direct’s maximum liability for any reason shall consist of the refunding of all moneys paid by Customer to PTAC Direct under this Agreement.
Customer may not change or cancel any purchase order without PTAC Direct’s consent, and upon any such change or cancellation Customer shall pay PTAC Direct for all incurred direct and indirect costs including overhead and a reasonable profit. If any portion of an order for special order or configured products is canceled after order release, Customer is subject to a cancellation charge up to 100%. All sales of non-stock items are final, and returns will not be allowed.
No right or interest in this Agreement shall be assigned by Customer without PTAC Direct 's prior written consent. Any attempted assignment or delegation shall be wholly void and totally ineffective for all purposes. The assignor shall remain liable for performance notwithstanding the approval of an assignment.
11. Proprietary Rights
In connection with this Agreement PTAC Direct may elect to install, attach to Customer equipment, or provide portable devices (hardware and/or software) that shall remain the personal proprietary property of PTAC Direct. No devices installed, attached to real property or portable device(s) shall become a fixture of the Customer locations. Customer shall not acquire any interest, title or equity in any hardware, software, processes, and other intellectual or proprietary rights to devices that are used in connection with providing service on Customer equipment. All intellectual property rights shall remain PTAC Direct’s property. PTAC Direct shall have free access to enter Customer locations to disconnect and remove any PTAC Direct personal proprietary property or devices as well as remove any and all PTAC Direct owned parts, tools and personal property.
12. Intellectual Property
All inventions, patents, copyrights, trade secrets, know-how or other industrial or intellectual property relating to any products or services shall be and remain the property of PTAC Direct. Any improvements, materials, notes, records, drawings, designs, inventions, developments or other intellectual property which is patentable, copyrightable or otherwise protectable anywhere in the world which is conceived, made, discovered, prepared or developed in connection with or in furtherance of the provision of goods or performance of services or otherwise pursuant to this Agreement are and shall be the sole property of PTAC Direct or its affiliates. PTAC Direct’s prints, drawings or written specification (and the technology depicted) which are furnished to Customer in connection with this Agreement are the property of PTAC Direct, and PTAC Direct retains all patent, copyright and other rights, including; without limitation, exclusive rights of use, license, or sale. Customer’s possession of such prints, drawings or specifications does not grant Customer any rights or license, express or implied therein and Customer shall, upon PTAC Direct’s request, immediately return all originals and copies of such items to PTAC Direct.
13. Waste Disposal
Customer is wholly responsible for the removal and proper disposal of waste oil, refrigerant and any other material generated in connection with this Agreement.
Any suits by Customer arising from the performance or non-performance by PTAC Direct under this Agreement, whether based upon contract, negligence, strict liability or otherwise, shall be brought within one (1) year from the date the claim arose or be deemed waived.
15. U.S. Export Regulations
Customer will not export or re-export any of goods or services in violation of applicable U.S. laws.
16. Government Procurements
PTAC Direct offers standard commercial items that may not comply with Government specifications. PTAC Direct does not comply with the Cost Accounting Standards (CAS) or with the Federal Acquisition Regulations (FAR). In no event shall PTAC Direct provide any Cost or Pricing Data in connection with this Agreement or subsequent modifications.
17. Governing Laws
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED ACCORDING TO THE LAWS OF THE STATE OF DELAWARE, EXCLUDING ITS “CHOICE OF LAW” OR “CONFLICT OF LAW” RULES.
If any provision of the Agreement shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of the Agreement shall remain in full force and effect.
19. No Amendment Or Waiver
Except as otherwise provided in these terms and conditions, no amendment to this Agreement shall be made without the express written consent of both Customer and PTAC Direct. Any waiver under this Agreement must be in writing and signed by the party being charged with such waiver. The failure of a party to enforce any provision of this Agreement promptly shall not be construed as a waiver of such provision or of the right of such party to enforce such provision at a later time. Waiver of any breach shall not constitute waiver of any other or future breach of the same of any other provision.
In the event of any conflict between these terms and conditions and any terms of the order, these terms and conditions shall control.
21. Exclusion Of U.N. Convention On International Sales
Unless otherwise agreed by PTAC Direct and Customer in writing, there is excluded from this Agreement (including any amendments or changes thereto) the application of the United Nations Convention on Contracts for the International Sales of Goods.
22. Waiver Of Jury
As a material condition of the Agreement, in the event of any litigation between the parties, each party hereby waives all right to a trial by jury.