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Heatsail General terms & Conditions of sale

These General Terms and Conditions of Sale (“Terms”) apply to the purchase and sale of products through HEATSAIL’s website, catalogue, or leaflets. Buyer must review these Terms prior to purchasing any products offered by HEATSAIL. ARTICLE 1  DEFINITIONS Under these Terms, the following definitions shall apply: 1. Offer: any offer of goods by HEATSAIL to a Buyer in a catalogue, e-commerce site, in leaflets or otherwise. 2. Buyer: any legal entity or person who acquires or uses goods marketed by HEATSAIL. 3. Goods: any and all material goods that are the subject of an agreement, as well as any and all material results of the provision of services by HEATSAIL. 4. Agreement: any agreement regarding the sale of goods between a Buyer and HEATSAIL. 5. Price: the price of a good offered, as set out in Article 5 of the Terms. 6. Sale: a system organized by HEATSAIL for selling goods and/or services to Buyer. ARTICLE 2 – SCOPE 2.01 In these Terms, “HEATSAIL” refers to HEATSAIL USA Inc., with a registered office at 10440 N C Expressway, Suite 800, Dallas TX 75231. 2.02 These Terms shall assume precedence over any terms and conditions of Buyer or of any third party. 2.03 The Terms shall apply to each Agreement and/or quote between HEATSAIL and Buyer and shall form an inseparable part thereof. The Terms can be consulted on the reverse side of each quote or invoice as well as on HEATSAIL’s website, and by request via email at [email protected] ARTICLE 3 CONCLUSION OF THE AGREEMENT 3.01 An Agreement is concluded when the Offer is accepted by Buyer and the conditions set out therein are met. (see also Article 4) 3.02 HEATSAIL may choose not to accept orders at its sole discretion or may request or attach special conditions to the delivery, if it has sound reason to believe that Buyer may not fulfill their obligations based on prior failure to meet conditions of the Terms or Offer. ARTICLE 4 – QUOTES 4.01 Unless expressly stated otherwise, HEATSAIL’s quotes are valid for a maximum period of one (1) month. Quotes are always drawn up on the basis of information provided from Buyer and may be subject to change. HEATSAIL is not responsible for retention of information related to Buyer’s quote beyond the one-month period. 4.02 Buyer agrees to be bound by each order placed, and HEATSAIL shall only be bound after an explicit, written confirmation of the order by HEATSAIL or by an authorized representative of HEATSAIL. If prior to the acceptance of a quote, there is any change or reservation regarding the quote offered by HEATSAIL, an agreement shall only be concluded if HEATSAIL expressly agrees to that change or reservation. 4.03 Given the expense of manufacture and shipping of HEATSAIL products, Buyer must pay a cancellation fee to initiate cancellation of a HEATSAIL order once it has been confirmed. Buyer agrees to remit flat-rate, conventional damages of 30% of the amount of the order/quote (including shipping), with a minimum sum of $500.00 USD owed to HEATSAIL. 4.04 HEATSAIL’s Terms as well as the instructions for use/user’s manual as provided by HEATSAIL and meant for the specific products manufactured and provided by the same, such as DOME, form an inseparable part of the Agreement and therefore are incorporated therein. 4.05 By signing the Agreement, Buyer confirms that they have read both the Terms and the instructions for use/user’s manual, and that they agree to them. 4.06 Buyer represents and warrants that Buyer is not buying products from HEATSAIL for export. Buyer further represents and warrants that all purchases are intended for final delivery to locations within the U.S. and Canada. ARTICLE 5 – PRICE 5.01 The Price shall be stated in the quote in US Dollars. HEATSAIL strives to display accurate price information, however HEATSAIL may, on occasion make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. HEATSAIL reserves the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences. 5.02 Unless stated otherwise, the price shall not include value-added tax (VAT). Any contingent printing errors or misprints, any changes in the price due to changes of VAT rates and/or other legal levies shall also be taken into account. 5.03 HEATSAIL will not increase the price between the time of conclusion of the Agreement and the delivery, unless: A) the price increase is a result of legal regulations or of changes in prices imposed by the manufacturer; or B) Buyer submits changes to be made in the Agreement after the conclusion thereof; or C) a manifest error was identified. 5.04 Prices as stated in the quote by HEATSAIL do not include taxes or charges for transport, shipping, and handling, all such taxes and charges will be added to Buyer’s merchandise total and will be itemized in the order confirmation email. ARTICLE 6 –  SHIPMENT; DELIVERY: TITLE AND RISK OF LOSS 6.01 HEATSAIL will arrange for shipment of the products to Buyer. Buyer will pay all shipping and handling charges specified during the ordering process. Shipping and handling charges are reimbursement for the costs HEATSAIL incurs in the processing, handling, packing, shipping, and delivery of Buyer’s order. 6.02 All delivery dates and periods are stated in good faith. Shipping and delivery dates are estimates only and cannot be guaranteed. HEATSAIL is not liable for any delays in shipments. 6.03 A failure to meet the set delivery time does by no means make HEATSAIL liable, and neither shall it give cause for the payment of damages or interests or for a refusal to accept the Goods. Nor shall late delivery constitute grounds for a termination of the Agreement. 6.04 HEATSAIL shall retain the title of the Goods delivered to Buyer until the latter has paid in full and HEATSAIL completes delivery to Buyer. Prior to the transfer of title, Buyer does not have the right to dispose of the Goods or to sell, convert, transfer or encumber them. The risk of damage, destruction or disappearance of the Goods is transferred onto Buyer upon delivery. If Buyer refuses to immediately accept undamaged goods delivered to him in a correct manner, any ensuing costs shall be borne by Buyer. ARTICLE 7 – CONFORMITY 7.01 HEATSAIL shall assure that the goods have all the features as are required for normal use and under all circumstances (i.e., that they are sound and in proper working order), as well as for particular use, in so far as agreed upon and in accordance with the instructions for use/user’s manual which form an inseparable part of the Agreement. HEATSAIL shall not be bound by any public statements made regarding any special features of the Goods, if HEATSAIL can prove that the said statement was not known or could not reasonably be known, that the statement had been corrected before the conclusion of the Agreement or that the decision of purchase of the Goods could not have been influenced by that statement. 7.02 Buyer is responsible for the accuracy of any data provided regarding the Goods and delivery of the Goods, and Buyer shall check such data on the order form. 7.03 In the event of any visible defect, Buyer shall inform HEATSAIL hereof within fifteen (15) days from delivery, in writing, by email and registered mail. Failing this, the complaint is inadmissible. (see also Article 9) 7.04 If the delivered product has any hidden defect, Buyer shall inform HEATSAIL hereof by email and registered mail within five (5) days after the hidden defect was revealed or such revelation could have reasonably taken place. Failing this, the complaint is inadmissible. (See also Article 9.) Buyer shall direct its end-customers to HEATSAIL’s defective goods policy. ARTICLE 8 – FORCE MAJEURE EVENTS 8.01 HEATSAIL will not be liable to Buyer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in HEATSAIL’s performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond HEATSAIL’s reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic/pandemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage (hereinafter “Force Majeure Events”). 8.02 As soon as HEATSAIL becomes aware of a Force Majeure Event, it shall inform Buyer hereof without delay. Buyer will also be informed if the ground for the release of the obligations ceases to exist. Any ground for release under this article shall discharge HEATSAIL of the liability for damages, fines and other contractual sanctions, with the exception of the obligation to pay interest on the amounts due for as long as and insofar as such ground remains. 8.03 If the grounds for release of liability persist for more than 6 months, either party has the right to terminate the agreement by means of notice. ARTICLE 9 – INSTALLATION DISCLAIMER & WARRANTY 9.01HEATSAIL acts as a producer/seller only, not as an installer or advisor. Hence HEATSAIL can never be held liable by Buyer or any other subsequent Buyer for any shortcoming resulting from the installation of the product or the place of installation of the product, since HEATSAIL does not contribute to the same. 9.02HEATSAIL refers to the detailed instructions for use/user’s manuals of its products, which form an inseparable part of each Agreement and which are signed as “read and approved” by Buyer. HEATSAIL also presumes the expertise of Buyer and the product know-how of Buyer’s installer and/or adviser, irrespective of any opinions of HEATSAIL’s representatives/appointees or of HEATSAIL itself, and irrespective of any question posed to HEATSAIL’s representatives/appointees or to HEATSAIL itself. Buyer is obliged to check the local regulations regarding conditions for installation and applicability of HEATSAIL products and to comply with such. HEATSAIL can by no means be held responsible or liable for the same. 9.03Buyer explicitly undertakes to inform any subsequent Buyer of the content of Section 9.01 and to assert the same to any subsequent Buyer transferring this commitment. Buyer hence undertakes to act as a voluntary third-party intervener to indemnify HEATSAIL against all liability ensuing from any shortcoming in the installation of the product or from noncompliance with the local legal requirement regarding the installation, the use or the conditions for application. 9.04The warranty is dependent on the product purchased and shall be stated in the relevant quote. To obtain warranty service for defective products, please follow the instructions included in the manufacturer’s warranty. 9.05HEATSAIL provides Buyer with a manufacturer’s warranty for each lack of conformity existing at the moment of delivery of the Goods. This means that in the event of any flaws or defects of the good under normal use, up to one (1) year from delivery, HEATSAIL shall repair or replace the good free of charge. The following are not covered by warranty: any defects or damage caused by incorrect use, water, oxidation, drops or impacts, negligence, improper maintenance or use contrary to the manufacturer’s instructions or the user’s manual as provided by HEATSAIL, as well as wear and tear. 9.06HEATSAIL’s liability towards Buyer is therefore expressly limited to its warranty obligation. Any claim on account of loss of profits and/or any other form of indirect and/or other types of consequential damage is excluded from the warranty. (see also Section 8.01) 9.07Buyer shall inform HEATSAIL of the lack of conformity of the Goods, in writing by email and by registered mail, at the latest within 15 days after having identified the lack of conformity. After this period, HEATSAIL shall no longer answer for such defects. The period is shortened to 48 hours in the event of visible defects. (see also Sections 7.03 and 7.04) 9.08The warranty shall not apply if the goods were modified or revised by third parties without prior written consent of HEATSAIL. 9.09Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimer may not apply to Buyer. ARTICLE 10 – PAYMENT 10.01HEATSAIL’s invoices and/or claims are to be paid at its registered office at 10440 N C Expressway, Suite 800, Dallas TX 75231. Payments shall be made punctually and in accordance with the terms of payment in the Agreement and the relevant invoices. HEATSAIL accepts check and transfer wires for all purchases from buyers in the U.S. and Canada. For electronic wire payments, Buyer represents and warrants that (i) the financial institution’s information provided is true, correct and complete, (ii) Buyer is duly authorized to use such account information for the purchase, (iii) charges incurred by Buyer will be honored by Buyer’s financial institution, and (iv) Buyer will pay charges incurred by Buyer at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted at the time of Buyer’s order. 10.02Failing payment of invoices or advances by the due date, a late payment interest shall be due by operation of law and without notice of default, at the maximum allowable rate as from the due date. 10.03HEATSAIL shall likewise have the right to suspend its further contractual performance, or to dissolve the agreement to the detriment of Buyer. In such an event, Buyer cannot lay claim to any damages. Any payments already executed shall not be returned. 10.04If it is established that Buyer is insolvent and/or that the financial situation of Buyer involves payment risks, HEATSAIL may dissolve the agreement to Buyer’s detriment or may suspend its performance, unless the party involved can provide sufficient guarantees for the fulfilment of its obligations. 10.05Buyer is obliged, without delay and at the latest within eight (8) calendar days, to inform HEATSAIL of any inaccuracies in data provided or data stated anywhere relating to the Agreement. ARTICLE 11 – RETURN POLICY & NONREFUNDABLE GOODS 11.01 With the exception of HEATSAIL’s warranty obligations under Article 7, HEATSAIL does not accept returns. For warranty-based product returns, please refer to the manufacturer’s warranty (see Article 9) included with the product or as detailed in the product’s description on the HEATSAIL website. 11.02 Buyer bears the risk of loss during shipment of returns based on nonconforming or defective Goods. HEATSAIL will repair or replace the nonconforming Goods in a timely manner upon receiving delivery of the nonconforming Goods. 11.03 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL AMOUNTS PAID TO HEATSAIL UNDER THIS AGREEMENT SHALL BE NONREFUNDABLE. ARTICLE 12 – CONTRACTUAL DEFAULT AND EXPLICIT RESOLUTIVE CONDITION 12.01In the event of contractual default, bankruptcy or (the application for) judicial reorganization of Buyer, HEATSAIL shall have the right to terminate the agreement without prior notice of default and without judicial intervention, or to suspend the fulfilment of its obligations, without owing any damages. ARTICLE 13 – INTEKKECTUAL PROPERTY 13.01Buyer shall by no means acquire any intellectual property rights of the purchased goods based on the Agreement. ARTICLE 14 – JURISDICTION 14.01 The Terms as well as the Agreement shall in all respects be interpreted under, and governed by, the laws of the State of Texas including as to validity, interpretation and effect, without giving effect to the State of Texas (or any other jurisdiction’s) conflicts of laws principles. Any legal action, suit or proceeding brought by a Party in any way arising out of or relating to this Agreement shall be brought solely and exclusively in the state and federal courts located in Dallas County, Texas and each Party irrevocably accepts and submits to the sole and exclusive personal jurisdiction. ARTICLE 15 – MISCELLANEOUS 15.01 Buyer will not assign any of rights or delegate any obligations under these Terms without prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of Buyer’s obligations under these Terms. 15.02 IN NO EVENT SHALL HEATSAIL BE LIABLE TO BUYER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. HEATSAIL’S SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY BUYER FOR THE PRODUCTS BUYER HAS ORDERED FROM HEATSAIL. The limitation of liability set forth above shall only apply to the extent permitted by law. 15.03 The failure by HEATSAIL to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of HEATSAIL. 15.04 The order confirmation, the Agreement, these Terms, and the HEATSAIL user manual will be deemed the final integrated agreement between Buyer and HEATSAIL on matters contained in these Terms.