GENERAL TERMS AND CONDITIONS OF SALE
1.Applicability; Express Rejection of Other Terms. These terms and conditions of sale (these
“Terms”), together with any other documents that HEATELITE, its subsidiaries, parents, authorized
distributors or resellers (collectively, HEATELITE) has attached hereto or executed that specifically
references these terms and conditions (such as a purchase order confirmation, quotation, proposal,
standing order, credit application or letter of authorization (collectively, the “Agreement”) constitute
the entire binding agreement between HEATELITE and you (“Customer”) regarding the purchase,
use, and/or resale of products, equipment, services, software and support from HEATELITE
(collectively, the “Products”) and supersedes all other agreements and understandings, whether written
or oral, between the parties. The purchase and sale of Products may be accomplished through
HEATELITE’S website www.HEATELITE.com (the “Website”), or purchase order. Customer
will be deemed to have assented to these Terms upon Customer’s placement of an order with
HEATELITE either manually or after performing a click-through of these Terms on the Website
prior to order confirmation. All orders received by Customer are subject to acceptance by
HEATELITE. Notwithstanding anything herein to the contrary, failure of HEATELITE to
object to provisions contained in any purchase order or other form or document from Customer shall
not be construed as a waiver of these Terms nor an acceptance of any such provision. The latest version
of these Terms will be posted on the Website. The Terms may change without prior written notice at
any time, in HEATELITE’S sole discretion. If Customer is making a purchase through the Website,
Customer should also carefully review HEATELITE’S Terms of Use that generally applies to the use of
the Website along with HEATELITE’S Privacy Policy.
2.Customer’s Use Only/No Resale. The purchase of Products conveys to Customer the non-transferable
right for only Customer to use the Products and components of Products purchased in compliance with
the applicable use of the Products and any label documentation accompanying the Products. Customer
has no right to resell the Products, or any portion of them to a third party outside of Customer’s
organization, and any such purchase a by an unauthorized reseller shall be strictly prohibited, unless
Customer is an authorized distributor or reseller of HEATELITE.
3.Prices and Payment Terms.
a. Prices. All prices on the Website or quoted by HEATELITE to Customer are based upon
delivery when goods are loaded on the carrier at HEATELITE’S premises in Martell,
Nebraska, USA exclusive of shipping, insurance, freight and other installation charges, all of
which are the responsibility of Customer. All prices and other amounts payable to
HEATELITE are exclusive of and are payable without deduction for any sales, use, excise,
value added, withholding or other taxes, customs duties, tariffs or charges hereafter claimed or
imposed by any governmental authority upon the sale of the Products, all of which will be paid
by Customer. Any such charges will be added to the Product invoice or subsequently invoiced
and billed to Customer. In the event that HEATELITE is required to pay any such tax, duty
or charge, Customer will promptly reimburse HEATELITE. Typographical or other
clerical errors in stated prices are subject to correction by HEATELITE at
HEATELITE’S sole discretion.
Payment Terms. For all sales complete through the Website, payment shall be due upon
placement of Customer’s order. For all other sales, unless otherwise agreed to by
HEATELITE in writing, payment of all invoiced amounts shall be due and payable net
thirty (30) days of HEATELITE’S invoice. In cases of sales completed through the Website,
any amounts due that are not paid to HEATELITE (for any reason) shall become
immediately delinquent from and after the date the Customer’s order was placed. Customer
b. 4.5.shall make all payments in immediately available U.S. Dollars (“USD”), without set-off,
deduction or withholding of any kind and must be made by check (drawn on a U.S. bank) wire
transfer or major credit card. Customer shall pay interest on all late or delinquent payments at
the lesser of the rate of 1.25% per month or the highest rate permissible under applicable law,
calculated daily and compounded monthly. Customer shall reimburse HEATELITE for all
costs incurred in collecting any late or delinquent payments, including, without limitation,
attorneys’ fees. HEATELITE shall have the right of setoff in the amount of all late or
delinquent payments, against any amounts that HEATELITE may owe Customer, if any.
HEATELITE shall have all other remedies available to it under these Terms, at law or in
equity, including but not limited to, the right to defer further shipment of Products until
payments are made and satisfactory credit arrangements are re-established or cancel the
unshipped balance of any order. Customer hereby grants HEATELITE a security interest
in the Products or any deliverable in the amount of the unpaid balance of the purchase price
until paid in full. Customer acknowledges and agrees that HEATELITE may file a
financing statement for such security interest and Customer shall sign any such statements or
other documents necessary to perfect Customer’s security interest.
Shipment and Delivery. HEATELITE shall prepare and pack for shipment Products in accordance
with good commercial practices. All Product prices exclude costs of shipping and handling and
insurance. Unless specifically stated otherwise in the purchase order, HEATELITE will deliver the
Products in accordance with HEATELITE’s standard practices. Unless otherwise agreed, all costs
of handling, carriage, shipment, freight, insurance, taxes duty and other related transport charges in
connection with the delivery of the products will be added to the amount payable by Customer to
HEATELITE.
Title to Products; Risk of Loss. Title to and all risk of loss concerning the Products shall pass to
Customer upon the delivery of the Products to the carrier. The carrier shall be deemed Customer’s
agent, and any claims for damages in shipment must be filed with the carrier. HEATELITE is
authorized to designate a carrier pursuant to HEATELITE’S standard shipping practices unless
otherwise specified in writing by Customer. Customer’s rejection of any Products shall not shift such
risk until the Products are returned to HEATELITE, freight prepaid, pursuant to HEATELITE’S
written authorization. Customer hereby expressly acknowledges and agrees that Neb. U.C.C. § 2-510
shall not apply to this Agreement.
6.Manufacturing. HEATELITE.
At the sole and absolute discretion of HEATELITE, the Products may be
manufactured in whole or in part by HEATELITE or by third parties subcontracted by
7.Returns.
a. Customer Inspection. Promptly upon receipt of a shipment of the Products, Customer shall
inspect the shipment for shortages, defects, damage or nonconformance with purchase order
specifications. Under-delivery of the Products shall not give Customer any right to reject the
Products delivered or to claim damages, and Customer shall be obligated to accept and pay the
contract rate for the quantity of Product delivered. Within ten (10) days of receipt of the
shipment, Customer shall notify HEATELITE in writing of any shortages, defects, damage
or nonconformance that Customer claims existed at the time of delivery. HEATELITE will
replace the missing or nonconforming Products with conforming products within ten (10)
business days of receipt of such notice. If no rejection notice is received, Customer will be
deemed to have accepted the all Products in shipment. Notwithstanding the foregoing,8.b. Customer may not return any Products listed on its Website, catalogs or other sales materials
as non-returnable.
Conditions. Returned Products must be in original shipping cartons or equivalent. Products are
returnable only as provided herein. Products otherwise shall be non-returnable and the prices
shall be non-refundable. Customer may only return erroneously shipped Products or Products
that were damaged prior to shipment by HEATELITE. Products damaged after shipment
by HEATELITE may only be returned upon prior written approval by HEATELITE,
which may be withheld in HEATELITE sole discretion. Any claims for damage to
Products after shipment by HEATELITE shall be made by Customer against the carrier
and/or insurer of such Products. In order to be eligible to receive credit for returned Products,
Customer must adhere to HEATELITE’S then-current returns processing guidelines.
HEATELITE’S sole liability for any returned Products will be acceptance of their return and
issuance of credits pursuant to HEATELITE’S then-current returns processing guidelines. If
Customer desires to return any Products, Customer must initiate a new purchase order for the
replacement products. HEATELITE disclaims all responsibility for Products damages or
lost in transit during the court of any return.
Limited Warranty. The limited warranty provided herein is personal to the Customer as the original
buyer or user and may not be transferred or assigned to a third-party, including an affiliate of Customer
without HEATELITE’S prior written consent. The limited warranties described in these Terms
exclude any stand-along third party goods that may be acquired or used with the Products.
a. Limited Warranty. HEATELITE warrants that for a period of 1 year (12 months) from the
date of shipment of the Antennas from HEATELITE, the Antennas sold hereunder will be
free from material defects in materials and workmanship and will conform to
HEATELITE’S published specifications for such Products in effect as of the date of
manufacture. If during the warranty period (i) HEATELITE is notified within fifteen (15)
days in writing upon discovery of any defect in the Antenna, including a detailed description
of the alleged defect, (ii) such Antenna is returned, transportation charges prepaid, to
HEATELITE’S designated manufacturing facility; and (iii) HEATELITE inspections
and tests determine that the Antenna is indeed defective and there are no exclusions for
coverage as set forth below, then Customer’s sole remedy and HEATELITE’S sole
obligation under the foregoing warranty shall be to repair or replace the defective Antenna
without charge. Any Antenna that has been either repaired or replaced under this limited
warranty shall have warranty coverage (parts only) for the longer of ninety (90) days or the
remaining original warranty period. Replacement parts and/or replacement Products used in
the repair or replacement of Products may be new or equivalent to new at HEATELITE’S
sole discretion.
Exclusions from Coverage.The foregoing limited warranty is inapplicable and exclude any
defect, damage or malfunction resulting from (i) abuse, misuse, negligence, improper storage,
improper testing, improper handling or modification of any of the Products or any component
thereof by Customer or any other third party; (ii) unauthorized repair service to the Product or
Antenna provided by third parties other than HEATELITE; (iii) failure of Customer to
follow installation and/or operating manual instructions or specifications; (iv) failure due to an
Act of God, including but not limited to fire, flood, tornado, earthquake, hurricane or lighting;
or (v) use with a third party’s product (unless the operating manual instructions or specifications
for the Product expressly state such third party’s product is for use with the Product).
b. c. Disclaimer. HEATELITE MAKES NO WARRANTY, EXPRESS, IMPLIED OR
STATUTORY, WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (I)
WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE; (III) WARRANTY OF TITLE; (IV) ANY WARRANTY,
GUARANTEE, OR REPRESENTATION THAT ANY TESTS OR RESULTS FROM
THE USE OF THE PRODUCTS OR CORRESPONDING DATA IS ERROR FREE,
ACCURATE, WILL OPERATE WITHOUT INTERRUPTION, OR IS COMPATIBLE
WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS; OR (V)
WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY
RIGHTS OF A THIRD PARTY (EXCEPT FOR THE IMPLIED WARRANTY OF
TITLE); WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING,
COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. NO AGENT,
EMPLOYEE OR REPRESENTATIVE OF HEATELITE HAS ANY AUTHORITY
TO BIND HEATELITE TO ANY AFFIRMATION, REPRESENTATION OR
WARRANTY EXCEPT AS STATED IN THIS AGREEMENT. TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, HEATELITE HEREBY
EXPRESSLY DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY WAIVES,
ANY WARRANTY REGARDING RESULTS OBTAINED TRHOUGH THE USE OF
THE PRODUCTS, INCLUDING WITHOUT LIMITATION, ANY CLAIM OF
INACCURATE, INVALID OR INCOMPLETE RESULTS.
9.Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO
EVENT SHALL HEATELITE OR ITS SUPPLIERS BE LIABLE TO CUSTOMER OR ANY
THIRD PARTY FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR
SERVICES, LOST REVENUE OR PROFITS, LOSS OF USE, DATA OR BUSINESS LOSS OR
DIMINUTION IN VALUE, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND ARISING
OUT OF OR IN CONNECTION WITH, WITHOUT LIMITATION, THE SALE OF THE
PRODUCTS, THEIR USE, HEATELITE‘S PERFORMANCE OR ANY OF THESE
TERMS, HOWEVER ARISING OR CAUSED AND ON ANY THEORY OF LIABILITY
WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESSEABLE
AND WHETHER OR NOT HEATELITE HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAIURE OF ANY AGREED OR
OTHER REMEDY OF ITS ESSENTIAL PURPOSE. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, HEATELITE‘S TOTAL AND CUMULATIVE LIABILITY TO
CUSTOMER OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH
THESE TERMS, INCLUDING WITHOUT LIMITATION, THE PRODUCT (INCLUDING
USE THEREOF) AND HEATELITE‘S PERFORMANCE, WHETHER IN CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL IN
NO EVENT EXCEED THE AMOUNT PAID TO HEATELITE FOR THE PARTICULAR
PRODUCT CONTAINED IN THE PARTICULAR ORDER THAT DIRECTLY CAUSED THE
LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN
IF HEATELITE OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE
OF ANY LIMITED REMEDY.
10.Indemnity. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS
HEATELITE, ITS AFFILIATES, SUCCESSORS AND PERMITTED ASSIGNS AND
EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, ACTIONS, LIABILITIES, COSTSOR DAMAGES OF ANY KIND (INCLUDING REASONABLE ATTORNEYS’ FEES, EXPERT
FEES’ AND OTHER REASONABLE COSTS OF LITIGATION) INCURRED IN
CONNECTION WITH, OR ARISING OUT OF, (A) ANY CUSTOMER MODIFICATION OF
THE PRODUCTS; (B) SPECIFIC MODIFICATIONS TO THE PRODUCTS REQUESTED BY
CUSTOMER AND PERFORMED BY HEATELITE; (C) ANY BREACH OF THESE
TERMS BY CUSTOMER; AND (D) ERRORS OR OMISSIONS OF CUSTOMER OR ANY OF
ITS AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, PARTNERS,
SHAREHOLDERS, AFFILIATES OR REPRESENTATIVES.
11.Sales Literature. HEATELITE has made a diligent effort to accurately illustrate and describe the
Products on its Website and in its catalogs or other sales materials. The illustrations and descriptions,
however, are for the sole purpose of identification and do not express or imply any warranty in addition
to the limited warranty provided herein or that the Products will be conform to the exact illustrations
and descriptions represented.
12.No License to Intellectual Property. The sale of the Products will not confer upon Customer any
license, express or implied, under any patents, trademarks, trade names, designs or other proprietary
rights owned or controlled by HEATELITE, its subsidiaries or affiliates; it being specifically
understood and agreed that all the rights are reserved to HEATELITE its subsidiaries or affiliates.
Without limiting the foregoing, Customer will not, without HEATELITE’S prior written consent,
use any patent, trademark, trade name, design or other proprietary rights of HEATELITE in
connection with any of the Products, other than with respect to HEATELITE authorized resale of
the Products pre-marked or packaged by or on behalf of HEATELITE.
13.Compliance with Law. Customer shall comply with all applicable laws, regulations and ordinances.
Customer shall maintain in effect all the licenses, permissions, authorizations, consents and permits
that it needs to carry out its obligations under this Agreement. Customer shall comply with all export
and import laws of all countries involved in the sale of the Products under this Agreement or any
authorized resale of the Products by Customer. Customer assumes all responsibility for shipments of
Products requiring any government import clearance. HEATELITE may terminate this Agreement
if any governmental authority imposes antidumping or countervailing duties or any other penalties on
Products.
14.Waiver. No waiver by HEATELITE of any of the provisions of this Agreement is effective unless
explicitly set forth in writing and signed by HEATELITE. No failure to exercise, or delay in
exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be
construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege
hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy,
power or privilege.
15.Entire Agreement. These Terms supersede all prior communications, transactions, and
understandings, whether oral or written, and constitute the sole and entire agreement between the
parties pertaining to the referenced quotation or purchase order, provided that: (A) these Terms shall
not, without HEATELITE’S prior written consent, supersede any conflicting terms of prior written
agreements duly executed by HEATELITE.
16.Force Majeure. HEATELITE shall not be liable or responsible to Customer, nor be deemed to
have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any of the
terms hereof when and to the extent such failure or delay is caused by or results from acts or
circumstances beyond the reasonable control of HEATELITE including, without limitation, acts of
God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether waris 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
either party’s 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,
or Customer’s fault or negligence. In the event of any such delay the date of delivery shall, at the
request of HEATELITE, be deferred for a period equal to the time lost by reason of the delay.
17.Relationship of the Parties. The relationship between the parties is that of independent contractors.
Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint
venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and
neither party shall have authority to contract for or bind the other party in any manner whatsoever.
18.No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto, and the
authorized distributors and resellers of HEATELITE, and their respective successors and permitted
assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or
entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of
these Terms
19.Governing Law. All matters arising out of or relating to these Terms are governed by and construed
in accordance with the internal laws of the State of Nebraska, USA without giving effect to any choice
or conflict of law provision or rule (whether of the State of Nebraska, USA or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than those of the State of Nebraska,
USA.
20.Waiver of Jury Trial. THE PARTIES IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS
TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR
CROSSCLAIM IN ANY ACTION OR OTHER PROCEEDING BROUGHT BY THE OTHER WITH
RESPECT TO ANY MATTER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, ANY
PURCHASE FROM HEATELITE, WHETHER BASED UPON CONTRACTUAL,
STATUTORY, TORTIOUS OR OTHER THEORIES OF LIABILITY.
21.Severability. If any term or provision of the Terms is invalid, illegal or unenforceable in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision
hereof or invalidate or render unenforceable such term or provision in any other jurisdiction.
22.Assignment. Customer shall not assign or transfer these Terms or any rights or obligations under these
Terms, whether voluntary or by operation of law, without HEATELITE’S prior written consent.
HEATELITE may assign or transfer these Terms to any successor by way of merger, acquisition or
sale of all or substantially all of the assets related to these Terms. HEATELITE or any successor
may assign all or part of the right of payment under these Terms. Any assignment or transfer of these
Terms made in contravention of the terms hereof shall be null and void. Subject to the foregoing, these
Terms shall be binding upon and inure to the benefit of the parties’ respective successors and permitted
assigns.
23.Export Compliance. Customer shall not transfer, resell, or export any Products (A) into, or to a
national or resident of, any country to which the United States has embargoed goods, (B) to anyone on
the United States Treasury Department’s list of Specially Designated Nationals, (C) the U.S.
Department of Commerce Denied Persons List, (D) the U.S. Department of Commerce Denied Entity
List, (E) to parties directly or indirectly involved in the development or production of nuclear, chemical,
biological weapons, or in missile technology programs as specific in the United States Export
Administration Regulations (15 C.F.R. 744), or (F) in violation of any such limitations imposed by theUnited States or any other appropriate national government authority, as they may exist from time to
time. By using the Products, Customer represents and warrants that Customer is not located in, under
the control of, or a national or resident of any such country or on any such list. Customer acknowledges
that it is Customer’s sole responsibility to comply with any and all government export and other
applicable laws and that HEATELITE has no further responsibility for such after HEATELITE’S
delivery of the Product to Customer. Customer will further defend, indemnify, and hold harmless
HEATELITE from and against all fines, penalties, liabilities, damages, costs (including reasonable
attorney’s fees), and expenses incurred by HEATELITE as a result of any violation of such laws or
regulations by Customer or any of its agents or employees.