1. Governing Provisions. These Terms and Conditions of Sale apply to all sales by Daikin Comfort Technologies Distribution, Inc., a Texas corporation, Daikin Comfort Technologies Manufacturing, L.P., a Texas limited partnership, Quietflex Manufacturing Company, L.P., a Texas limited partnership, Daikin Comfort Technologies Canada, ULC, a Nova Scotia unlimited liability company, and each of their respective subsidiaries (each entity and subsidiary, a “Seller”), and constitute the complete and final agreement between Seller and the buyer of products sold by Seller (“Buyer”). Seller’s acceptance of any order is conditional upon the Buyer’s assent to these Terms and Conditions of Sale. No additional or different terms or conditions, including any such contained in any Buyer purchase order, acknowledgment or other form or correspondence will be of any force or effect; and Seller hereby objects to any such additional or different terms or conditions. THE SALE OF THE PRODUCTS COVERED BY THESE TERMS AND CONDITIONS OF SALE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS (WITHOUT REFERENCE TO CONFLICTS OF LAWS). THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY TEXAS STATE COURT OR FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN HARRIS COUNTY, AND ANY APPELLATE COURT FROM ANY OF THE AFOREMENTIONED COURTS, WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND CONSENT TO THE SERVICE OF PROCESS IN ANY MANNER PERMITTED BY LAW.
2. Invoices; Payment. Any invoice to Buyer shall conclusively be deemed accepted, and all defenses thereto irrevocably waived, unless written objection thereto is received by Seller within sixty (60) days after receipt of the invoice by Buyer. Payment is due as stated on Seller’s invoice, unless Seller requires payment in advance. Credits for cooperative advertising, warranty or other claims shall not be applied until Seller’s approval thereof. Seller may withhold or cancel scheduled shipments at any time that any portion of Buyer’s account with Seller is overdue.
3. Credit. Following acceptance, each order is subject to credit approval by Seller, which may, in its discretion, require payment in advance as a condition to shipment`.
4. Delivery, Claims and Force Majeure. Delivery of goods to a carrier at Seller’s plant or other loading point shall constitute delivery to Buyer. Regardless of shipping terms or freight payment, all risk of loss or damage in transit shall be borne by Buyer. Seller may make delivery in installments. All installments shall be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Claims for shortages or other errors in delivery must be made immediately after receipt of a shipment. Failure to give notice constitutes unqualified acceptance and a waiver of all such claims by Buyer. Claims for loss or damage to goods in transit must be made to the carrier, and not to Seller. All delivery dates are approximate. Further, Seller shall not be liable for any damage as a result of any delay or failure to deliver due to any cause beyond Seller’s reasonable control, including (but not limited to) any act of God, act of the Buyer, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, riot, act of terrorism, pandemic or other widespread outbreak of disease, delay in transportation or delays by Seller’s suppliers.
5. Taxes and Other Charges. Any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, value added tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority on or measured by the transaction between Seller and Buyer, excluding business income or franchise taxes imposed on Seller, shall be paid by the Buyer in addition to the prices quoted or invoiced. In the event Seller is required to pay any such tax, fee or charge, the Buyer shall reimburse Seller therefor.
6. Changes. Seller may, without notice or other obligation to Buyer, at any time make such changes in design and construction of products as Seller deems appropriate. Seller may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or nonavailability of materials from suppliers. Seller may also at any time, upon notice but otherwise without obligation to Buyer, discontinue manufacture of any product ordered.
7. Warranties. Products manufactured by Seller and supplied hereunder are warranted by Seller directly to the end user, on the terms of Seller’s written warranty in effect from time to time. Buyer shall deliver that written warranty to its customers, for ultimate delivery to the end users of those products. Performance of the remedy provided in that written warranty shall be Seller’s sole obligation and Buyer’s exclusive remedy with respect to defective products. For any other products supplied by Seller and warranted by the manufacturer, Seller will either assign the manufacturer’s warranty to Buyer or pass on to Buyer any remedy to which Seller is entitled under that warranty. SUCH WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED. SELLER MAKES NO WARRANTY (EXCEPT OF TITLE) TO ANY DISTRIBUTOR OR OTHER INTERMEDIARY PURCHASER.
8. Returns. No products shipped hereunder may be returned without Seller’s prior written approval, at Seller’s sole discretion.
9. Patents, Trademarks and Copyrights. Seller will, at its own expense, defend any suits that may be instituted by anyone against Buyer for alleged infringement of any United States patent, trademark or copyright relating to any products manufactured and furnished by Seller hereunder, provided Buyer shall have made all payments then due hereunder and shall give Seller immediate notice in writing of any such suit and transmit to Seller immediately upon receipt all processes and papers served upon Buyer and permit Seller through its counsel, either in the name of Buyer or in the name of Seller, to defend the same. If such products are in such suit held in and of themselves to infringe any valid United States patent, trademark or copyright, then: (a) Seller will pay any final award of damages in such suit attributable to such infringement, and (b) if in such suit resale of such products by Buyer is permanently enjoined by reason of such infringement, Seller shall, at its own expense and at its sole option, (i) modify the products to render them non-infringing, (ii) replace the products with non-infringing goods, or (iii) refund the purchase price and the transportation costs paid by Buyer for the products. Notwithstanding the foregoing, Seller shall not be responsible for any compromise or settlement made without its written consent, or for infringements of combination or process patents covering the use of Seller’s products in combination with other goods or materials not furnished by Seller. The foregoing states the entire liability of Seller for infringement.
10. Compliance with Law. Buyer shall ensure that all products purchased by Buyer from Seller are sold in compliance with all laws, statutes, regulations, judicial or governmental restrictions, codes and ordinances, whether local, state or national. Buyer shall immediately provide to Seller a copy of all communications received from or sent to any regulatory body that pertains to the products purchased by Buyer from Seller. Buyer shall be responsible for, and shall defend and hold Seller and its affiliates harmless from, any claims made for products purchased by Seller and resold in violation of this Section 10.
11. Consequential Damages and Other Liability. Seller’s liability with respect to the products sold hereunder shall be limited to the warranty remedies of end users referred to in Section 7 hereof, and with respect to other performance of this contract shall be limited to the contract price under the applicable invoice. SELLER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR CONTINGENT DAMAGES WHATSOEVER, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES OF LAW, WITH RESPECT TO PRODUCTS SOLD BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. Without limiting the generality of the foregoing, Seller shall have no liability for property or personal injury damages, penalties, special or punitive damages, damage for lost profits or revenues, loss of use of products or any associated equipment, cost of capital, cost of substitute products, facilities or services, or for any other types of economic loss, or for claims of Buyer’s customers or any third party for any such damages.
12. Severability Clause. If any provision of these Terms and Conditions of Sale shall for any reason be held unenforceable, such provision shall be deemed deleted and replaced by an enforceable provision which, insofar as possible, achieves the same economic and other benefits for the parties as the severed provision was intended to achieve, and the remaining provisions of these Terms and Conditions of Sale shall continue in full force and effect.
Last Modified: August 16, 2023.