Terms & Conditions of Sale
1. OFFERS: Offers made and prices quoted by BTU International (“BTU”) are valid for 60 days from the quotation date, unless otherwise specified in writing within the quotation.
2. CONTROLLING TERMS: No orders for products or services of BTU shall be binding on BTU until acknowledged in writing by an officer of BTU. These terms and conditions of sale apply to all purchase orders transmitted to BTU, they take precedence over Purchaser’s additional or different terms, and they are the complete and exclusive statement of the terms of the agreement of the parties. ISSUANCE OF A PURCHASE ORDER AND/OR ACCEPTANCE OF ITEMS BY PURCHASER SHALL IRREVOCABLY MANIFEST PURCHASER’S ASSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN, AND BTU AGREES TO FURNISH PRODUCTS AND SERVICES ONLY UPON THESE TERMS AND CONDITIONS. BTU’s failure to object to terms contained in any communication from Purchaser shall not be deemed a waiver of this provision. No waiver, alteration, or modification of any of the provisions hereof shall be binding on BTU unless made in writing and signed by an officer of BTU.
3. SHIPMENT, DELAYS IN PERFORMANCE: Shipment dates are approximate. Delivery of items to a carrier at BTU’s plant or other loading point shall constitute delivery to Purchaser; and title shall thereupon pass to Purchaser, and all risk of loss or damage to goods thereafter shall be borne by Purchaser. Shipment of items to Purchaser’s desired location, if arranged by BTU, shall be either freight collect or freight prepaid with charges invoiced to Purchaser, unless otherwise agreed. BTU reserves the right to make partial deliveries, and all such partial deliveries may be separately invoiced and shall be paid for when due. Delay in delivery of any installment shall not relieve Purchaser of its obligations to accept later deliveries. In no event shall BTU be liable for any failure or delay in performance or delivery due to unforeseen circumstances or causes beyond its control, including, but not limited to, acts of nature, acts of government, labor difficulties, or unavailability of necessary labor, materials, manufacturing facilities, or transportation.
4. SHIPMENT INTO STORAGE, CANCELLATION: If for any reason attributable to Purchaser, including, but not limited to, failure to give shipping instructions or make a due payment, BTU withholds shipping items to Purchaser, BTU may store the items, at Purchaser’s risk, in a warehouse or upon BTU’s premises, and in addition to its responsibilities otherwise under the order, including to make payments when due, Purchaser shall pay all costs resulting there from. No order may be cancelled by Purchaser, nor may shipments be deferred, unless agreed to by a separate document signed by an officer of BTU, setting forth and conditioned upon the payment to BTU of amounts as specified therein sufficient to compensate BTU for any loss incurred due to such cancellation, including any lost profit.
5. PAYMENT, SECURITY: Payments shall be due in accordance with the terms stated on BTU’s invoices. Any amounts not paid when due shall be subject to a late payment charge at the rate of 1 ½% per month, but not higher than permitted by law; and, in the event of any default in payment, without limitation of its rights otherwise, BTU shall be entitled to discontinue performance under any arrangement with Purchaser and to recover all costs of collection, including attorneys’ fees. BTU reserves the right, at any time, to require an irrevocable letter of credit from a bank which it designates or, when, in BTU’s opinion, the financial condition of Purchaser so warrants, to alter or suspend credit, refuse shipment, or cancel unfilled orders. BTU retains a security interest in each item, and in the proceeds thereof, until Purchaser has made full payment. Therefore, upon request of BTU, Purchaser shall sign any document required to perfect such security interest. Without limitation of its rights otherwise, BTU shall be entitled to all rights available to a secured party, including the right to repossess upon failure of payment or other default by Purchaser.
6. TAXES AND OTHER CHARGES: Any manufacturer’s tax, sales tax, use tax, value added tax, excise tax, custom, inspection or resting fee, or any other tax, fee, or charge of any nature whatsoever imposed by any governmental authority, upon or with respect to the transactions covered hereby shall be paid by Purchaser in addition to the prices quoted or invoiced. In the event BTU is required to pay any such tax, fee, or charge, Purchaser shall reimburse BTU therefore promptly upon notice from BTU.
7. INTELLECTUAL PROPERTY INDEMNITY: BTU accepts no liability for, and Purchaser shall defend, indemnify, and hold BTU harmless against any expense or loss resulting from infringement of patents, copyrights, trademarks, or other intellectual property rights of others arising from BTU’s compliance with Purchaser’s specifications, instructions or requirements that a product be produced to perform a specific process. The sale of products by BTU does not convey any license, by implication, estoppel or otherwise under any patents of BTU or others covering said products. Subject to the foregoing, BTU, if notified promptly in writing and given authority, information, and assistance for defense, shall defend any suit or proceeding brought against Purchaser, so far as based on a claim that any BTU manufactured product constitutes direct infringement of any U.S. apparatus patent, other than a software patent, of any third party.
In case said product is, in such suit, held to constitute direct infringement of such apparatus patent and all use of said product by Purchaser is enjoined, BTU shall, at its election, either procure for Purchaser the right to continue using said product, replace same with a non-infringing product, modify it so it becomes a non-infringing product, or remove said product and grant a credit to Purchaser based on a five year straight-line depreciation of the original purchase price. In no event shall BTU’s total liability to Purchaser under or as a result of compliance with the provisions of this paragraph exceed the aggregate sum paid by Purchaser for the allegedly infringing product. In no event shall BTU have any liability for any claim alleging infringement of a process patent or a patent covering software or covering a combination in which the product furnished by BTU is only a part. THE FOREGOING PROVISION IS STATED IN LIEU OF ANY OTHER EXPRESSED, IMPLIED. OR STATUTORY WARRANTY AGAINST INFRINGEMENT AND SHALL BE THE SOLE AND EXCLUSIVE REMEDY FOR PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT OF ANY KIND.
8. ACCEPTANCE OF ITEMS: If Purchaser has any claim or complaint concerning any item including, without limitation, claimed shortages, defects, quality problems, or delivery errors, it shall notify BTU in writing within 30 days after receipt thereof, specifying the basis of its complaint. If no notice is received from Purchaser within 30 days of receipt, the items shall be deemed accepted on the date of delivery and Purchaser shall be deemed to have waived all claims and complaints, except as permitted by BTU’s express warranty.
9. EXPRESS WARRANTY, REPAIRS, RETURNS: BTU warrants to Purchaser that items provided by BTU shall conform to its published specifications and shall be free from defects in material and workmanship when used under normal operating conditions and that all service provided by BTU shall be performed in a workmanlike manner. This warranty shall apply for such period of time and under such conditions as are specified in BTU’s standard warranty for each item. If not otherwise specified, complete systems shall carry a warranty for parts which shall apply for a period of one year from shipment by BTU. The warranty for spare parts shall apply for a period of 90 days from shipment by BTU. The warranty for service shall apply for a period of 90 days from performance of the service. The warranty granted hereunder, however, does not include parts which BTU considers as consumables under normal operating conditions; and, if a system includes major subsystems or components not manufactured by BTU, BTU’s warranty with respect to such shall be limited to the warranty extended to BTU by the supplier thereof. In no event shall BTU’s warranty apply to defects caused in whole or in part by external causes, such as, bur not limited to, catastrophe, power failure or fluctuations, environmental extremes, or improper or unconventional use, maintenance, or application. If an item or part thereof proves defective and does not meet its warranty, such item or part shall be repaired or replaced, at BTU’s option. BTU’s obligation to repair or replace shall be conditioned upon BTU’s receiving written notice of any alleged defect during the applicable warranty period and within 10 days after its discovery and, at BTU’s option, return of such item or part to BTU’s factory in Billerica, Massachusetts or such other facility as BTU may designate.
All items returned to BTU must be accompanied by a BTU Materials Return Authorization signed by an authorized representative of BTU. Unless specifically noted otherwise in writing, return of items by Purchaser shall constitute Purchaser’s authorization for BTU to repair such and to invoice Purchaser for its standard charges if the item is not covered by the terms of the warranty.
Purchaser shall be responsible for all freight and customs charges and all risk of loss or damage during transit, both to and from BTU’s facility, whether or not the item meets warranty requirements.
THE FOREGOING WARRANTY IS EXCLUSIVE AND NO OTHER WARRANTY, WHETHER WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. BTU SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITY: IN NO EVENT SHALL BTU BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR CONTINGENT DAMAGES, NOR SHALL ITS LIABILITY EXCEED THE PURCHASE PRICE OF THE ITEM WHICH GAVE RISE TO THE CLAIM, WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE.
11. INDEMNIFICATION: Purchaser agrees to defend, indemnify and hold BTU harmless from and against all claims of any kind, whether based on contract, tort or otherwise, for any losses, expenses, damages and liabilities (special, indirect, incidental, consequential or contingent) which may arise out of the use of items by Purchaser or others, or otherwise be based upon events occurring subsequent to shipment by BTU, except those caused solely by defects in materials or workmanship or by the sole negligence of BTU, which shall be governed by the provisions limiting liability set forth in Paragraph 10 or otherwise herein.
12. ASSIGNMENT, WAIVER. EXPORT, LAW: Purchaser shall not assign any of its rights or obligations without BTU’s prior written consent.
BTU’s failure to exercise any of its rights shall not constitute a waiver or forfeiture of such rights, and specific statement of its rights herein shall not limit its rights otherwise available.
Purchaser shall not take any action which might violate any governmental regulation pertaining to import/export, and any violation of this covenant shall be subject to its indemnification responsibilities set forth in Paragraph 11 above.
Disputes relating to transactions between Purchaser and BTU shall be governed by and determined in accordance with the laws of The Commonwealth of Massachusetts, and the courts of such state shall have jurisdiction. Any action relating to transactions covered by these terms and conditions, other than a claim for non-payment, must be commenced within one year after the cause of action has occurred.