Terms and Conditions

ACCEPTANCE OF PROPOSAL: By signing and returning a copy of this proposal or a purchase order to the Seller, or instructing the seller to proceed, the Buyer shall be deemed to have accepted this proposal and agreed to the terms and conditions set forth herein.

 

1. AGREEMENT. These terms and conditions of sale apply to all goods, services, or combination of goods and services, sold, furnished, rented, or provided by Cole Industrial Inc. (the “Seller”). They are the exclusive terms applicable to the goods and services provided by the Seller and any additional or different terms in any request for proposal, purchase order, invoice, contract, or other document will be of no force or effect and rejected. Only modifications will be made by a corporate officer of the seller’s company and only when in writing.
2. PRICE AND PAYMENT. The price agreed to by the Seller is firm for thirty (30) days. Unless itemized in the proposal, prices do not include taxes, bonds, freight, or insurance. If buyer is tax exempt, buyer must provide Seller with a resale certificate or other document acceptable to the appropriate taxing agency establishing an exemption from such taxes or duties at time of order. All payments shall be made is U.S. dollars without deduction, deferment, retention, set-off, lien or counterclaim of any nature. Pricing includes a discount for payment by Cash, Check or Wire Transfer. Invoices paid by Credit Card will forfeit the discount and a 3.5% premium to be added to the total invoiced. Payment terms are as indicated in Seller’s proposal, or if not shown in the proposal, ten (10) days net from the date of the invoice. All amounts due not paid within thirty (30) days after the date such amounts are due and payable shall bear interest at the lesser of 1.5 percent (1.5%) per month or the maximum rate of interest allowed by law. All terms are on acceptance of credit by the seller. (OAC)

Service, Repair, and Parts orders over $25,000.00 require a 50 % down payment and progress payments may also apply.

New Equipment over $ 50,000.00 Progress Payments apply as follows

•  25% Invoiced upon receipt of order, NET 10
•  30% Invoiced upon release for production, NET 10
•  45% Invoiced upon readiness for shipment, NET 30

If the sale consists of equipment and startup services, full payment shall be made per terms, based on date of equipment shipment regardless of whether or not field services have been completed.  If partial shipments are made or several types of services to be performed, Buyer may be invoiced as such partial shipment is made or upon completion of each type of service performed.

Sellers Role:  Buyer understands that Seller is an independent sales representative and may not own or manufacture any of the equipment it may be proposing. Thus, upon acceptance by Buyer, it is understood that Seller’s obligations hereunder may be subject to the further conditions of the manufacturer.

3. RENTAL BOILER & EQUIPMENT. Pricing is based on available equipment, subject to immediate change or anticipated availability and is not guaranteed. Additional Rental Boiler payment terms and additional agreement language are as stipulated in the rental agreement as provided by Cole Industrial Inc and require cash up front of the first month rent and required damage deposit prior to shipping.
4. DELIVERY AND SHIPMENT. Delivery is Ex works. The customer assumes all risk of loss following the goods being made available to ship. Dates for the delivery or shipment of goods or performance of the services are approximate only and are subject to change. The Seller is not liable for delays in performance or delivery of any kind due to causes beyond its reasonable control, including any labor difficulties, shortages, strikes or stoppages of any sort, failure, or delay in obtaining materials from ordinary sources, fires, floods, storms, accidents, or other acts of God or any similar or dissimilar events. If such a delay occurs, the Seller may, at its option, extend the performance or delivery date for a period of time equal to the delay or terminate acceptance of the purchase order.
5. WARRANTIES. The Seller hereby assigns to the customer any rights it may have under any warranty extended by a third party covering the goods or any part thereof. Goods manufactured by others and resold by the Seller carry the original warranty only but do not carry any additional warranty by the Seller unless stated specifically in writing or as set forth below.

(a).       LIMITED WARRANTY.  The Seller warrants that all services furnished shall be performed in a good and workmanlike manner. The duration of this warranty is thirty (30) days from the performance of the services, unless otherwise agreed in writing. In cases where a manufacturer’s warranty is available the warranty terms of the manufacturer shall apply. If no warranty is available, the Seller warrants that any goods provided by the Seller will be free from defects in material and workmanship for a period of 30 days from the date of install, unless otherwise agreed to in writing.

(b).       WARRANTY NOTICE AND REMEDY.  The customer must make a claim for any warranty by written notice to the Seller’s home office within fifteen (15) days of the discovery of the defect or non-conformance. The Seller will, at its option and expense, repair or replace, Ex-works seller’s or manufactures plant, any goods that it determines are defective, or will re-perform any services which do not meet this warranty. No expenses incurred by the buyer in replacing, repairing, or returning defective goods, services, or replacement parts will be reimbursed by the Seller. If the Seller is unable to repair the goods or re-perform the services so that they conform to the warranty after a reasonable number of attempts, the Seller will refund the portion of the purchase price paid that is attributable to the goods or services that were defective.  These remedies are the exclusive remedies for breach of warranty.

(c).       EXCLUSIONS FROM WARRANTY. These warranties are inapplicable to and exclude: (i) damage caused by accident or negligence, normal wear and tear, erosion, corrosion or by disasters such as fire, flood, wind, ice and lightning; (ii) damage caused by the failure to follow all installation and operating instructions or manuals or to provide normal maintenance; (iii) damage caused by improper water treatment; (iv) damage caused by unauthorized or improper installation of attachments, repairs or modifications; or (v) any other abuse or misuse. THE SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 

6. Security Interest. Until payment in full of the price, the customer grants to the Seller a purchase money security interest in the goods and any proceeds thereof to secure full payment of the price.  The customer authorizes the Seller to record its security interest, to file a mechanic’s lien, or both to secure payment.  Upon request, the customer will promptly sign any documents reasonably related thereto.  The customer will not encumber the goods with any mortgage, lien, pledge, or other attachment prior to payment in full of the price thereof.
7. HAZARDOUS MATERIALS. Any hazardous materials encountered by the Seller at the site will be the responsibility of the customer and may cause delays in performance. Where such services involve boilers or boiler equipment, the customer shall be responsible for having the stack, chimneys and/or breeching cared for, inspected, and cleaned by a qualified provider. The Seller does not clean or inspect chimneys or breeching.
8. SELLER’S REMEDIES: The Seller has the right to recover all amounts owed or incurred as a result of the goods and services it has provided. Customer specifically agrees that in the event customer’s creditworthiness becomes unsatisfactory to the Seller or upon customer’s default prior to receipt of payment in full, the Seller shall have the following rights, in addition to any and all other rights that Seller may possess under federal, state, or local law:

(a) At any reasonable time, to withhold shipment or suspend providing services in whole or in part.

(b) To require cash payments or satisfactory security for future deliveries of goods or the provision of services.

(c) To recall goods in transit and retake the same.

(d) To peaceably enter upon customer’s premises to repossess the goods, without the necessity of any legal notices or process; and

(e) To terminate this agreement.

Customer acknowledges and agrees that all goods withheld, recalled, retaken, or repossessed shall become the absolute and sole property of the Seller subject to the equitable right of set-off for any partial payment made to the Seller for such goods.

9. LIMITATION OF LIABILITY. THE SELLER will not be liable for and THE CUSTOMER hereby waives and releases any claims against THE SELLER for any DIRECT, special, incidental, exemplary, indirect or consequential damages, including lost sales, revenues or profit, loss or return of or damage to Product, loss of prospective economic advantage AND loss of facilities, inventory, work-in-process or time and materials, arising from any performance or failure of performance by THE SELLER or its employees or subcontractors under THIS AGREEMENT OR a Purchase Order or from the breach of warranty hereunder. The total cumulative liability of the SELLER, if any, for damages of any kind relating to the GOODS supplied or SERVICES performed HEREUNDER OR OTHER BREACH OF THIS AGREEMENT SHALL not exceed the purchase price paid SELLER for such GOODS OR SERVICES.
10. INDEMNITY. The Customer shall defend, indemnify and hold harmless the Seller, its agents, directors, officers and employees, from and against any and all claims, demands, causes of action, losses, costs, damages, liabilities and expenses (including reasonable attorney’s fees and litigation expenses) arising out of or resulting from customer’s breach of any provision of this agreement or any negligent acts or omissions of customer, or its agents, employees, subcontractors, vendors or invitees in connection with this agreement. The Seller will defend, indemnify, and hold harmless the customer from and against any and all third-party claims arising from Seller’s gross negligence. Neither party will be liable for any direct, indirect, special, incidental, or consequential damages.
11. FORCE MAJEUER. Neither party will be liable for delays in performance (other than the obligation to pay for services rendered and goods sold and delivered) caused by acts of God, flood, fire, storm, freeze, accident, wars, riots, or other events beyond its control.
12. GOVERNING LAW AND DISPUTE RESOLUTION. This agreement and any dispute arising under or with respect thereto will be governed by the laws of the State of Washington.  Except for amounts owed to the Seller for which it will be permitted to sue in any court of competent jurisdiction, any dispute, controversy, or claim arising out of, or in connection with this agreement shall first be settled without recourse to the courts in accordance with the rules of the American Arbitration Association. The number of arbitrators shall be one, the applicable rules shall be those of the American Arbitration Association and the location of the arbitration shall be in the county where the Seller’s principal office is located, unless otherwise agreed in writing. The proceedings will be conducted in English.  The parties agree to discuss any point of disagreement in good faith and to escalate issues within their respective organizations before taking the dispute to arbitration in accordance with this section. If settlement in the courts becomes necessary, it shall be in the county where the sellers’ principle office is located.
13. NOTICES. Unless specifically directed otherwise, whenever written notice is required under this Agreement, it may be provided by e-mail or other recognized electronic means where receipt can be verified and copied via certified mail, receipt required to the seller and buyers’ main office. The parties further agree that communications and other business dealings between the parties may, where appropriate, also be conducted by such means.
14. PATENT INFRINGEMENT: Seller shall not be liable for any change, loss or expenses incurred by Buyer in the event of any suits against the Buyer for an alleged infringement of any patent rights, covering equipment sold to buyer hereunder.  However, nothing herein shall be construed as relieving the manufacturer of such equipment from any responsibility it may have to the Buyer in connection with such a claim.
15. TRAINING: The accuracy and completeness of the information provided in the training and the opinions stated therein are not guarantees, nor warranties to or towards the equipment or services discussed. By attending a Cole Industrial, Inc. training, participants agree that Cole Industrial, Inc. shall not be held liable for incidental, special nor consequential damages based upon the use of the Cole Industrial, Inc. Intellectual Property provided, or that of its manufactures or vendors. Participants agree to do so at their own discretion and their own risk, and to not hold, nor attempt to hold Cole Industrial, Inc. liable for any loss, liability, claim, demand, damage and all legal cost or other expenses arising whatsoever in connection with the use, misuse, or inability to use the materials or learnings.
16. APPLICABLE LAW:  The validity, performance and construction of the proposal shall be governed by the laws of the State of Washington.
17. AFFIRMATIVE ACTION:  On purchase orders of $10,000 or more, vendor or subcontractor shall comply with current affirmative action requirements for Disabled Veterans and Veterans of the Vietnam Era and for Handicapped workers as described in FAR 52.222-35 and 36 respectively.

18. GENERAL. The rights and remedies contained herein are the exclusive remedies available for breach.  Neither party shall assign this Agreement or a purchase order without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.   No waiver by either party of any default or breach by the other party will operate as or be deemed a waiver of any subsequent default or breach.