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U.S. TERMS AND CONDITIONS OF SALE
PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. THIS DOCUMENT CONTAINS A DISPUTE RESOLUTION CLAUSE.
These terms and conditions ("Agreement") apply to your purchase of climate control products sold in the United States ("Product"). By accepting delivery of the Product, you accept and are bound to the terms and conditions of this Agreement. If you do not wish to be bound by this Agreement, you must notify Hodyon and return your purchase pursuant to Hodyon’s Return Policy. THIS AGREEMENT SHALL APPLY UNLESS (I) YOU HAVE A SEPARATE PURCHASE AGREEMENT WITH HODYON, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN; OR (II) OTHER HODYON TERMS AND CONDITIONS APPLY TO THE TRANSACTION.
1. Other Documents
This Agreement may NOT be altered, supplemented, or amended by the use of any other document(s) unless otherwise agreed to in a written agreement signed by both you and Hodyon. If you do not receive an invoice or acknowledgement in the mail, via e-mail, or with your Product, information about your purchase may be obtained at by contacting your sales representative.
2. Payment Terms; Orders; Quotes; Interest
Customer's payment obligations are stated on Hodyon’s invoices. Late charges of one and one-half percent [1 ½%] or the maximum permitted by law, whichever is less, per month on outstanding balances may be charged. All amounts due shall be payable in United States dollars unless otherwise specifically agreed upon in HODYON’S Order Acknowledgement.
If, in Hodyon’s judgment, Customer's financial condition does not justify continuation of the existing payment terms, HODYON may:
• require full or partial payment of Customer's account;
• require payment in advance of Material shipment;
• require payment in advance for performance of any Services;
• change Customer's credit terms; or
• any combination of the above.
3. Shipping Charges; Taxes; Title; Risk of Loss
Shipping and handling are additional unless otherwise expressly indicated at the time of sale. Title to products passes from Hodyon to Customer on shipment from Hodyon’s facility. Loss or damage that occurs during shipping by a carrier selected by Hodyon is Hodyon’s responsibility. Loss or damage that occurs during shipping by a carrier selected by you is your responsibility. You must notify Hodyon within 21 days of the date of your invoice or acknowledgement if you believe any part of your purchase is missing, wrong or damaged, regardless of the carrier. Unless you provide Hodyon with a valid and correct tax exemption certificate applicable to your purchase of Product and the Product ship-to location, you are responsible for sales and other taxes associated with the order. Shipping dates are estimates only.
4. Warranties
The warranties applicable to Hodyon product can be found at http://www.hodyon.com/warranty.aspx.
5. Return Policies; Exchanges
Hodyon’s return policy can be found at http://www.hodyon.com/returnpolicy.aspx. You must contact us directly before you attempt to return Product to obtain a Return Material Authorization Number for you to include with your return. You must return Product to us in their original or equivalent packaging. You are responsible for risk of loss, shipping and handling fees for returning or exchanging Product. Additional fees may apply. If you fail to follow the return or exchange instructions and policies provided by Hodyon, Hodyon is not responsible whatsoever for Product that is lost, damaged, modified or otherwise processed for disposal or resale. At Hodyon’s discretion, credit for partial returns may be less than invoice or individual component prices due to bundled or promotional pricing.
6. Limitation of Liability
HODYON DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO ANY LIABILITY FOR PRODUCT NOT BEING AVAILABLE FOR USE, LOST PROFITS OR LOSS OF BUSINESS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, HODYON WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. YOU AGREE THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCT, HODYON IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AMOUNT INVOICED FOR THE APPLICABLE PRODUCT. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
7. Applicable Law
The Customer will comply with all applicable laws affecting the purchase and use of Product. Customer agrees to maintain all registrations with governmental agencies, commercial registries, chambers of commerce, or other offices which may be required under law in order to properly conduct commercial business. Prior to the date specified in the Purchase Order, Customer will notify HODYON in advance of any requirements including all local laws, regulations, ordinances and the like to which HODYON is or will be required to comply in the supplying of Products hereunder.
When required, Customer will comply with United States laws applicable to the use, sale or license of Material , including but not limited to the Foreign Corrupt Practices Act and the Export Administration Act.
8. Governing Law
THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES THERE UNDER, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND HODYON arising from or relating to this agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this agreement, Hodyon’s advertising, or any related purchase SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS OF LAWS RULES.
9. Binding Arbitration
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND HODYON, its agents, employees, principals, successors, assigns, affiliates (collectively for purposes of this paragraph, "Hodyon") arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Hodyon’s advertising, or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE NATIONAL ARBITRATION FORUM (NAF) under its Code of Procedure then in effect (available via the Internet at http://www.arb-forum.comExternal link, or via telephone at 1-800-474-2371). In the event of any inconsistency or conflict between NAF Code of Procedure and this Agreement, this Agreement shall control. The arbitration will be limited solely to the dispute or controversy between customer and Hodyon. NEITHER CUSTOMER NOR HODYON SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The individual (non-class) nature of this dispute provision goes to the essence of the parties' arbitration agreement, and if found unenforceable, the entire arbitration provision shall not be enforced. This transaction involves interstate commerce, and this provision shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA). Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. Hodyon will be responsible for paying any arbitration fees to the extent such fees exceed the amount of the filing fee for initiating a claim in the small claims or similar court in the state in which you reside. Each party shall pay for its own costs and attorneys' fees, if any. However, if any customer prevails on any claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for fees, the Arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law. Information may be obtained and claims may be filed with the NAF at P.O. Box 50191, Minneapolis, MN 55405.
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