Contract and Terms and Conditions of Sale
- Acceptance of Terms and Conditions of Sale. Acceptance of merchandise or goods shall constitute acceptance of this Contract and these Terms and Conditions of Sale. All shipments shall be deemed to have been made pursuant to these Terms and Conditions of Sale of this order, proposal or invoice. Buyer shall not add, delete, modify, or alter these Terms and Conditions of Sale unless agreed to in writing by BioTherm. Unauthorized additions, deletions, modifications or alterations by buyer to these Terms and Conditions of Sale and other terms and conditions which may be contained in a purchase order or other form used by buyer to accept this order, proposal or invoice shall be void and of no force or effect. This Contract, order, proposal or invoice, together with any written documents which may be incorporated by specific reference, constitutes the entire agreement between the parties and supersedes previous communications between buyer and BioTherm
- Price. The quoted price is for the listed equipment and services specified in this order, proposal or invoice. BioTherm is not responsible for site preparation, permits, installation, or other similar costs. Equipment or services not specifically itemized on the Proposal are not the responsibility of BioTherm. We will proceed with your order according to the terms of the Proposal unless you advise in writing that changes are required. Notwithstanding the above, this offer shall remain valid for a period of three (3) business days, which, upon expiration of such 3-day period, BioTherm reserves the right to revoke this offer any time prior to receiving written acceptance of this proposal or invoice.
- Payment Terms. Unless otherwise agreed to in writing, payment in full is due and payable at the time of the terms shown on the Proposal. A service charge of 2% per month (24% annual) will be applied to all outstanding balances after 10 days from this date.
- Shipment Delay. Upon receipt of the order, proposal or invoice acceptance and preliminary down payment, the buyer is responsible for paying the remainder of the invoice according to the payment terms. If the buyer requests a shipment delay, they are responsible for paying the remainder of the invoice according to the payment terms relative to the date of the shipment delay request. Storage fees and/or additional shipping charges may apply if the shipment has to be rerouted or moved as a result of the delay. For each month or portion thereof that the shipment is delayed, customer will pay 2% of the outstanding contract balance. If it’s required to hold shipment beyond two (2) months, the client is responsible to pay 25% of the total contract plus storage fees.
- Cancellation. After acceptance of this order, proposal or invoice, buyer may only cancel this agreement by providing written notice of cancellation prior to the time the equipment is shipped. In the event of a cancellation, buyer shall remain responsible for and agrees to pay to TrueLeaf Technologies all amounts incurred for labor, material, engineering, administration, and overhead costs (including any cancellation charges charged by our vendors) up to and including the date that written notice of cancellation is received. No attempted cancellation will be effective after transportation of the shipment has begun. Notwithstanding the above, non-refundable deposits will not be refunded.
- Shipment. Unless otherwise noted in this order, proposal or invoice, all shipments are F.O.B. point of shipment. Risk of loss and title pass to buyer at this point. Unless otherwise agreed to in writing, costs related to off loading the shipment shall be the buyer’s responsibility.
BEFORE receiving, accepting, or SIGNING for your merchandise, please read this policy carefully and inspect your merchandise first.
Damaged / Incomplete Merchandise
Products shipped from BioTherm are received by the carrier complete and in good condition. Title of the merchandise is passed to the carrier at the time of pick-up and passed to you the customer upon delivery. When receiving merchandise from a freight carrier, you must make a complete visual inspection before signing the delivery receipt. Upon completing your visual inspection, please take one of the following courses of action if a problem is encountered:
If unacceptable damage is evident, you may immediately call our Logistics Department at 800-438-4328, or 707-794-9660 to gain authorization to refuse the product and have it return shipped to BioTherm (or the original vendor if drop shipped). We will then pursue claims and send you a product replacement as soon as we have received the item back and verified its condition.
If the product has questionable cosmetic damage, is incomplete, or items listed on the delivery receipts are missing, you must properly note this on all copies of the delivery receipt and immediately notify BioTherm.
If the delivery receipt is signed without noting the damage, BioTherm cannot be responsible for collection of claims or replacement of merchandise. Hidden damage, (not detectable at time of delivery), must be reported to BioTherm no later than ten (10) days if noted on the carriers delivery receipt. Please read small print on carrier’s Bill of Lading for details.
Off-Loading You the customer are responsible for Off-Loading the merchandise at the time of delivery, unless prior written arrangements have been made with BioTherm.
Overages There are several BioTherm products that are manufactured to the custom needs of a particular project order. Due to established tolerance ranges per product, these custom orders may result in more material being drop shipped to the job site than may have been quoted and ordered by the end user. In these cases, manufacturing overages remain the property of BioTherm. BioTherm will arrange for these overages to be shipped back at their expense after the project is complete, unless the end user decides they would like to purchase the extra material.
- Delay. BioTherm shall not be liable to buyer or any other person for any losses or damage which results from delay or failure to deliver all or a part of the equipment covered by this order, proposal or invoice in a reasonable manner or time, beyond the actual cost of providing comparable replacement goods less than the price of the equipment under this order, proposal or invoice. BioTherm shall not otherwise be liable in any measure if the cause of the delay or failure to deliver is beyond the reasonable control of BioTherm, such as delay caused by acts of God, war, acts of the public enemy, civil disorder, riot, sabotage, governmental action or law or regulation, strikes or other labor problems, fire, flood, earthquake, severe weather, health and safety considerations, embargoes, transportation shortages or delays, fuel or material shortages, or failure of performance by a vendor or subcontractor. In the event of a delay beyond the control of BioTherm, time for performance will be extended by the length of such delay. The previous sentence notwithstanding, in the event of delay of performance for greater than One Hundred Twenty (120) days, for any reason, buyer shall have the option to cancel the purchase for such item for which the performance is due and to be refunded all corresponding purchase monies, down payments and deposits (but excluding non-refundable deposits) relating to such item.
- Warranty. THE EQUIPMENT SOLD BY BIOTHERM CARRIES THE ORIGINAL MANUFACTURER’S LIMITED WARRANTY AGAINST DEFECTS IN MATERIAL AND WORKMANSHIP EXCEPT AS NOTED FOR EQUIPMENT AND MATERIALS MANUFACTURED BY BIOTHERM WHICH CARRY THEIR OWN WARRANTIES. BIOTHERM DOES NOT ITSELF WARRANT THE EQUIPMENT AND THE PURCHASER’S SOLE RECOURSE IS WITH THE ORIGINAL MANUFACTURER. THE TERMS OF THE ORIGINAL MANUFACTURER’S WARRANTY WILL BE MADE AVAILABLE UPON REQUEST. BIOTHERM SPECIFICALLY EXCLUDES EXPRESS AND IMPLIED WARRANTIES, INCLUDING THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES SHALL BIOTHERM BE LIABLE IN CONTRACT OR TORT FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE. IN NO EVENT SHALL BIOTHERM LIABILITY EXCEED THE RETURN OF THE PURCHASE PRICE PAID BY THE PURCHASER.
- Warranty Claims. In the unlikely event equipment proves to be defective, BioTherm will make a reasonable effort to assist the buyer in receiving full satisfaction from the product manufacturer under the terms of the manufacturer’s warranty. Under most manufacturers’ warranties, buyer’s rights will be limited to a repair or replacement part F.O.B. original point of shipment. To ensure that buyer’s manufacturer’s warranty rights are protected, buyer must notify BioTherm of defects within 10 days of discovery. Buyer’s manufacturer’s warranty rights will be lost if buyer:
- Fails to operate or maintain the equipment in accordance with generally accepted industry
- Fails to operate or maintain the equipment in accordance with instructions from BioTherm or the manufacturer; or
- Fails to give written notice to BioTherm within 10 days from discovery of defect; or
- The equipment has been altered or repaired by someone other than BioTherm or an authorized manufacturer’s representative.
Upon notification of a defective part, BioTherm will provide the customer with a Return Authorization Form to indicate where the part must be returned to. The part must be returned within 10 days of receipt of the form and must be shipped prepaid.
- Waiver. The waiver by BioTherm of any term or condition of this agreement shall not be a waiver of any other term or condition. Any such waiver shall not be deemed a waiver of any subsequent breach of the same term or condition, nor shall such waiver be deemed a waiver of any term or condition in any subsequent agreement.
- Dispute Resolution: The parties agree to mediate disputes between them arising out of this
transaction, or the alleged breach thereof, prior to the filing or commencement of any court
action or arbitration. The mediation shall be administered through the American Arbitration
Association or JAMS, unless another alternative dispute resolution provider is agreed to by the parties. Mediation is a non-binding process in which parties to a dispute meet with a neutral mediator (selected by the parties) who will try to work out a mutually acceptable resolution. The mediator does not impose a settlement on the parties. If the Parties cannot agree on a mediator, the Superior Court in and for the County of Sonoma, California shall appoint a mediator. The mediator may conduct more than one session and mediation fees shall be paid equally by the participating parties. Mediation shall take place in the County of Sonoma, California. Any party who files or commences any court action or arbitration prior to mediation or refuses or resists mediation shall not be entitled to recover prevailing party attorneys’ fees as set forth in Section 12.
- In the event mediation does not resolve the dispute, the parties shall submit any and all disputes to binding arbitration administered through American Arbitration Association or JAMS, unless another alternative dispute resolution provider is agreed to by the parties. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction.
- Governing Law and Venue. California law shall govern the interpretation of this agreement and enforcement of its terms and conditions. The parties agree that venue for any lawsuit or arbitration shall be in the County of Sonoma, California.
- Attorneys Fees. The prevailing party in actions to enforce the terms of this agreement or arising out of this transaction shall, in addition to any other rights or judgments, be entitled to recover its attorneys’ fees, expert fees, and court costs.