Scope: These Terms and Conditions of Sale govern all purchases of products (“Products”) by any “Buyer” from Perfect Aire LLC (“Seller”). Product purchases shall be initiated by Buyer’s written purchase order (“Order”). No Order shall modify these Terms and Conditions, nor shall any course of performance, course of dealing, or usage of trade operate as a modification or waiver of these Terms and Conditions. Orders with terms modifying, adding to, or inconsistent with these Terms and Conditions are hereby rejected, void and have no effect.
Orders: An Order will not be effective unless accepted by Seller’s written acknowledgement. All Orders are accepted subject to Seller’s selling prices, lead times and minimum quantities in effect as of the date of Seller’s acceptance.
Prices: Prices quoted to Buyer are in USD and represent the full and complete purchase price of a Product delivered according to Incoterm designation specified in the Price quotation. Prices are subject to change before Seller’s acceptance of an Order. Buyer may cancel an Order without penalty by written notice to Seller within 7 days of Seller’s acceptance thereof.
Delivery: Seller will use commercially reasonable efforts to deliver Products by the date stated in an accepted Order; provided Seller shall not be liable to Buyer for failing to deliver Products by any specific date. Seller may, without liability or penalty, make partial shipments of Products, each of which, when delivered, constitutes a separate sale, and Buyer shall pay for such Products as specified herein whether such delivery is in whole or partial fulfillment of an Order. Buyer must inspect Products upon delivery and notify Seller of any damage or shortage within 48 hours. Failure to notify Seller shall constitute unconditional acceptance by Buyer.
Risk of Loss: Title: The risk of loss to Products sold and purchased hereunder shall pass from Seller to Buyer according to the Incoterm designation specified in the Order. Title in the Products shall pass from Seller to Buyer simultaneous with the transfer of the risk of loss.
Invoices and Payment: Seller shall invoice Buyer upon delivery of Products. Subject to Buyer meeting Seller’s credit requirements, invoices are due and payable in full and without set-off or other deduction, 30 days from date of delivery or, if applicable, notification of readiness to ship by Seller. If Buyer defaults in any payment when due, Seller, in addition to other remedies available under applicable law and without liability to Buyer, may, at its option, suspend further performance under any Order until all past due amounts are paid, and/or require further deliveries be paid prior to shipment. Seller shall be entitled to be paid from Buyer a service charge of 1.0% per month on past due invoice amounts and costs and reasonable attorneys’ fees incurred by Seller in any legal action arising out of Buyer’s default in payment of an invoice.
Limited Warranty: Seller warrants to Buyer that Products shall be free from defects in material and workmanship under normal use and service for the period outlined per individual product category after date of shipment. Seller’s obligation under this warranty is limited to repairing or replacing the defective parts without charge, F.O.B. Seller’s facility, or, at its sole option, issuing a credit to Buyer’s account for Buyer’s purchase price of the Product. In no event shall the remedy for alleged damage or defective Products, irrespective of whether such defects are discoverable or latent, exceed Buyer’s purchase price of the Product. THE FOREGOING WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY, EXPRESS OR IMPLIED, AND THERE ARE NO OTHER WARRANTIES INCLUDING SPECIFICALLY BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. All warranty details and instructions are included with each product within the owner’s manual.
Limitation of Liability: SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR ANY REASON WHATSOEVER, INCLUDING BUT WITHOUT LIMITATION, DAMAGES IN THE CHARACTER OF (A) LOSS OF PROFITS OR REVENUE RESULTING FROM THE FAILURE OF THE PRODUCTS, (B) DAMAGES SUFFERED BY BUYER AS A RESULT OF LOSS OF PRODUCTION FACILITIES OR THE PRODUCTS, (C) COST OF REPLACED PRODUCTS OTHER THAN THE PRODUCTS SOLD BY SELLER, AND (D) DAMAGES SUFFERED BY CUSTOMERS OF BUYER.
Force Majeure: Seller shall not be liable for any failure to perform or delay in performance, caused by circumstances beyond its reasonable control which make such performance commercially impracticable, including, but not limited to, fire, storm, flood, earthquake, explosion, acts of a public enemy, war, insurrection, sabotage, epidemic, quarantine restrictions, terrorist acts, labor disputes, labor shortages, embargoes, or failure or delays in transportation, inability to secure raw materials or machinery, acts of God, acts of government authority, whether or not valid, or judicial action, whether or not valid.
(a) Construction and Interpretation. These Terms and Conditions shall be governed and construed by the law of Illinois, without reference to its conflicts of law principles. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. This Agreement shall not be construed against the drafter. The headings of sections in this Agreement are for reference purposes only. Whenever required by context, a singular word will include the plural, the plural word will include the singular.
(b) Dispute Resolution. All disputes between the parties arising from this Agreement shall be brought, heard, and resolved exclusively in the United States District Court for the Northern District of Illinois, Eastern Division and, in the absence of such jurisdiction, in the Circuit Court of Cook County, Illinois (the “Courts”). The parties’ irrevocably and unconditionally consent to the personal jurisdiction of the Courts and waive the defense of inconvenient forum. A final judgment in any such suit may be enforced in other jurisdictions or in any other manner provided by law. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING IN CONNECTION WITH OR RELATED TO THIS AGREEMENT AND AGREES SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A JURY.
(c) These Terms and Conditions express the entire agreement between Seller and Buyer with respect to the sale and purchase of the Products and supersede any previous communications, representations, or agreements, whether oral or written. Any failure by Seller or Buyer to enforce at any time any term or condition of these Terms and Conditions shall not constitute a waiver of same or any subsequent default. No addition to, or modification of, any of the foregoing terms and conditions shall be binding upon Seller unless made in writing and signed by a duly authorized representative of Seller.
(d) All notices a party required herein shall be in writing and served on the other party by overnight commercial service and email transmission to the party’s Account Manager Notice will be deemed given one business day thereafter.
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