Terms And Conditions
STANDARD TERMS AND CONDITIONS FOR SALE OF GOODS AND SERVICES
1.DEFINITIONS
a. “Tempest” shall mean Tempest Technology Corporation, its subsidiaries, related companies, agents and/or representatives
b.“Customer” shall mean the client, person or entity to which Tempest is selling Goods, as well as its agents and/or representatives
c.“Goods” shall the mean all tangible things (specifically manufactured goods) or services for which the Customer has placed an order, written or verbal, with Tempest
2.ACCEPTANCE
a. Tempest’s acceptance of any offer to sell Goods is limited to Customer’s complete and exclusive acceptance of all terms and conditions herein (the “Terms”). These Terms constitute the entire agreement between the parties and takes precedence over any and all previous verbal or written arrangements. Any deletions, modifications, alterations of or additions to the Terms shall be in writing and signed by an authorized representative of both Tempest and the Customer. Without limiting the foregoing, it is expressly acknowledged that any Customer document received is for order identification convenience only. Any and all provisions on the face or reverse side of any purchase order or service order which Customer may send to Tempest in connection herewith are expressly objected to by Tempest and waived by Customer and made inapplicable to any such purchase, unless both parties expressly agree in writing to include any such terms and conditions. Electronic commerce transactions between Tempest and Customer shall be solely governed by these Terms
b. Customer’s acceptance is hereby expressly limited to these Terms, and acceptance of any part of the Goods covered herein shall be deemed to constitute such acceptance. Tempest may provide the Goods from its affiliated companies, at the sole discretion of the Tempest, in which event these Terms will fully apply
c. Customer may not assign any order, in whole or part, without prior written consent of Tempest, with the exception that shipment of Goods may be to a third party assigned by the Customer. In such case, these Terms shall extend to this third party
3.PRICING AND PAYMENT
a. All orders will be invoiced at the time of shipment from Tempest and billed at prices in effect at the time of shipment of the Goods. Price, terms, and availability of Goods are subject to change without notice, including, but not limited to, changes caused by fluctuations in market price, and availability or quality of materials employed in the manufacture of the goods described herein
b. Unless otherwise quoted in writing, Customer shall pay, in addition to the purchase price of the Goods, value added taxes, transportation and/or shipping charges, packaging and processing charges, or other services. Price of Goods does not include personnel or equipment required to install or put the Goods into use, or the before mentioned additional charges
c. All prices are quoted in denominations of United States’ Dollars and, unless otherwise specifically stated in writing, quoted with a validity of thirty (30) calendar days.
d. Unless otherwise specified in writing, payment terms are Net 30 Days from date of invoice, up to a credit limit set solely by Tempest. Payment shall be made by cash or check only in denominations of United States’ Dollars. Payment by cash or credit card in advance of shipment will be required for any Customer without a preapproved and active credit account. Payment terms for international Customers are cash in advance of shipment. Deposit(s) may be required at the sole discretion of Tempest, and all deposits shall be considered non-refundable
e. A late charge at the rate of 1 ½% per month will be applied to all delinquent accounts. Tempest may at its sole discretion place a Customer on credit hold in case of late payment, and/or if the credit limit has been exceeded
f. If any portion of the invoiced amount is disputed by Customer, the Customer shall inform Tempest of the grounds for such dispute in writing within five (5) business days of receipt of the Goods, and shall pay to Tempest the value of the invoice less the disputed amount in accordance with established payment terms
4. DELIVERY, TRANSPORTATION AND RISK OF LOSS
a. Tempest shall use reasonable effort to make delivery of Goods or perform services within the time specified upon Tempest’s acceptance of the order. Tempest assumes no liability for damage or losses arising out of failure to deliver materials as requested and/or scheduled. In absence of written shipping and packaging instructions from Customer, Tempest shall use its own discretion in choice of carrier and method of packaging
b. Packaging will be standard commercial packaging acceptable to the commercial carrier. Special customer packaging will be furnished at additional charge only when requested at time of order placement and agreed to in writing by the parties. All prices quoted are based on Tempest’s standard packaging, unless specifically stated in writing
c. Unless otherwise agreed to by both parties in writing, all shipments are F.O.B. the original shipping point (“F.O.B. Origin”) and risk of loss shall pass to Customer at such time as possession of the Goods is given to a transportation carrier. Tempest has no obligation to obtain insurance for Customer covering Goods in transit to Customer, unless otherwise agreed to in writing by the parties. ANY AND ALL CLAIMS FOR LOSS OR DAMAGE TO GOODS IN TRANSIT MUST BE MADE TO THE DELIVERING CARRIER AND NOTED ON THE DELIVERY RECEIPT. UNLESS CUSTOMER PROVIDES TEMPEST WRITTEN NOTICE OF ANY CLAIM FOR SHORTAGES OR DEFECTS IN THE GOODS WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF SHIPMENT, THE GOODS SHALL BE DEEMED FINALLY INSPECTED AND ACCEPTED BY THE CUSTOMER
d. All freight is shipped prepay unless otherwise agreed upon.
5. CANCELLATION AND RESCHEDULING
a. Orders cannot be terminated, cancelled or modified after Tempest’s acceptance of Customer’s order, except with Tempest’s written consent and subject to the conditions herein. Cancellation charges may apply as stated herein:
i. For standard Goods or parts thereof, written consent will only be given upon payment of all reasonable charges for any expenses incurred by Tempest in the processing of the order, including charges from subcontractors and other third parties in connection with the order.
ii. For non-standard Goods or parts thereof, including discontinued or obsolete Goods, written consent will not be given
b. Shipment of orders may be deferred at the sole discretion of Tempest, upon receipt of written request from the Customer. If the rescheduling request is accepted by Tempest, Customer shall pay any expenses incurred by Tempest due to the delay, including, but not limited to, storage fees. The prices on the order shall be adjusted to reflect the prices in effect at the actual time of shipment
6. RETURNS AND REFUNDS
a. Customer cannot return Goods, and Tempest is not obligated to accept returned Goods, except with Tempest’s written consent and subject to the conditions herein. All returned Goods are subject to a 20% restocking fee:
i. For standard Goods or parts thereof, written consent will only be given to Goods returned in new condition, in the original factory packaging, subject to inspection. Any damaged or unsellable Goods will be credited to the Customer at the sale price less the cost of repairs or at salvage value, subject to a minimum inspection charge of Fifty Dollars ($50.00 US) or the actual labor cost incurred to inspect the Goods, whichever is more.
ii. For non-standard Goods or parts thereof, including discontinued or obsolete Goods, written consent will not be given
b. Requests to return goods must be made within thirty (30) calendar days of the date of shipment and must include Tempest’s order and invoice numbers, and the date received. The Customer is responsible for delivery and returns freight, and any necessary reconditioning and/or repackaging charges. Returned goods must be shipped within five (5) business days of the return authorization date
c. Tempest reserves the right to change or modify the specifications and/or construction of any of its Goods at any time without incurring any obligation to furnish or install such changes or modifications on Goods previously or subsequently sold
7. Warranty
a. The parties expressly agree that Customer’s sole and exclusive remedy against Tempest shall be for the repair and replacement of defective Goods as provided herein. THE WARRANTIES SET FORTH BELOW ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. NO AFFIRMATION OF TEMPEST, BY WORDS OR ACTION, OTHER THAN AS SET FORTH IN THIS SECTION, NOR ANY ADDITIONAL WARRANTIES, EXPRESS OR IMPLIED, MADE BY TEMPEST TO CUSTOMER OF THE GOODS SHALL CONSTITUTE A WARRANTY HEREUNDER. Tempest’s warranty does not apply to any Goods that have been subjected to misuse, mishandling, misapplication, neglect (including, but not limited to, improper maintenance), accident, improper installation, modification (including, but not limited to, use of unauthorized parts or attachments), or adjustment or repair performed by anyone other than Tempest or one of Tempest’s authorized agents. In no event shall Tempest be responsible for the quality or performance of any goods manufactured by other parties; such Goods shall carry only the warranty provided by that manufacturer
b. Except as otherwise set forth below, any claim by Customer with reference to the Goods sold shall be deemed waived by the Customer unless submitted in writing to Tempest within the earlier of (i) five (5) business days following the date Customer discovered, or by reasonable inspection should have discovered, any claimed breach of the foregoing warranty, or (ii) thirty (30) calendar days following the date of shipment. Any cause of action for breach of the foregoing warranty shall be brought within one (1) year from the date the alleged breach was discovered or should have been discovered, whichever occurs first
i. Limited Power Blower Warranty: Tempest warrants to the original purchaser that all Tempest gasoline and electric powered blowers (except the engine or motor and drive) will be free from original defects in workmanship and material, under normal-use conditions, and Tempest will replace any defective power blower part (except the engine or motor and drive) if returned during the applicable warranty period, for the time frame indicated below:
ii. Warranty Tempest – Gasoline & Electric Powered Blowers except engine or motor – Fire Market 5 Years and Industrial Market 1 Year.
iii. VS-1.2 Warranty is 1 year on the motor and electronics, the battery has a warranty of 2 years or 300 full charge cycles.
iv. VentMaster Warranty is 1 year from Ship Date.
v. Smoke Machine Warranty: Dusk is 1 year from ship date and Leader 3 & Leader 5 is 5 years from Ship Date.
vi. Leader – Gasoline Powered Blowers except engine or motor – 6 years.
vii. Leader – Electric Powered Blowers except engine or motor – 2 years.
viii. Batfan Warranty is 2 years from Ship Date.
ix. Nozzles – 5-year warranty.
x. Leader Mix – 2-year warranty.
xi. TIC – Camera has a 5-year warranty, Batteries have a 6-year warranty, Sensor has a 10-year warranty.
xii. Flame Generator – 1-year warranty, Igniter and batteries have a 6-month warranty.
xiii. Sentry – 2-year warranty.
xiv. Wasp – 2-year warranty.
xv. Leader Volt – 1-year warranty.
xvi. Search & Rescue – 2year warranty.
**Unauthorized repair or modification of the factory assembly or parts voids warranty.
xvii. Blower Engine / Motor and Drive Warranty: The engines manufactured by Honda and Briggs & Stratton are covered by a separate manufacturer’s warranty for a period of two (2) years. Electric motors manufactured by Magnetek, Marathon, Baldor, Franklin Electric and MultiFan are covered by a separate manufacturer’s warranty for a period of one (1) year.
xviii. Limited VentMaster Warranty: Tempest warrants to the original purchaser that all VentMaster Fire/Rescue Saws and Cutoff Saws (except the chain, guide bar and cutoff blade) will be free from original defects in workmanship and material, under normal-use conditions for one (1) year from the date of shipment. Tempest does not provide a warranty for Raptor Carbide Chain and Multi-Cut Cutoff Blades. Tempest will replace any defective VentMaster part, except for the unwarranted items mentioned prior, if returned during the applicable warranty period.
xix. Limited Shadow Smoke Machine Warranty: Tempest warrants to the original purchaser that the Tempest Shadow Smoke Machine will be free from original defects in workmanship and material for a period of one (1) year from the date of shipment. During the warranty period, machines will be repaired or replaced at the option of Tempest. The warranty does not extend to any parts of the Tempest Shadow Smoke Machine that have been subject to misuse or accident. In addition, it does not cover any machine that has been opened, modified or repaired other than by a Tempest designated repair station. The warranty will not apply if procedures described in the Operations Manual are not followed. It is the user’s obligation to clean and maintain the Tempest Shadow Smoke Machine according to these instructions and to follow acceptable practices for handling electrical devices. Note: Use of any fluid other than a Rosco brand will void the warranty
8. FORCE MAJEURE
a. Tempest shall have no liability or be in breach of its obligations to the extent that performance of such obligations is delayed or prevented, directly or indirectly, by (a) causes beyond its reasonable control; or (b) acts of God, acts (or failures to act) of governmental authorities, fires, severe weather conditions, earthquakes, strikes or other labor disturbances, floods, war (declared or undeclared), epidemics, civil unrest, riot, delays in transportation, or car shortages; or (c) acts (or omissions) of Customer; or (d) shipment to storage of the Goods; or (e) Tempest’s inability (due to causes beyond its reasonable control) to obtain necessary materials, components or services. Tempest shall notify Customer in the event of any such excusable delay, and the date of delivery or of performance shall be extended for a period equal to the time lost by reason of such delay, plus such additional time as may be reasonably necessary to overcome the effect of such delay. If Tempest is delayed by acts or omissions of Customer, or by the prerequisite work of Customer’s other contractors or suppliers, Tempest shall also be entitled to an equitable adjustment of price(s) and scheduled delivery date(s)
9. LIMITATION OF LIABILITY
a. Tempest shall not be liable for any claim arising out of the performance, non-performance, delay in delivery of or defect in the Goods nor for any special, indirect, economic or consequential loss or damage howsoever arising or howsoever caused (including loss of profit or loss of revenue) whether from negligence or otherwise in connection with the supply, functioning or use of the Goods. Any liability of Tempest shall in any event be limited to the license fees paid by the Customer in the year in which the event of default arises
b. Nothing herein shall limit either party’s liability for death or personal injury arising from the proven negligence by itself or its employees or agents.
c. The Customer shall fully indemnify Tempest against any liability to third parties arising out of the Customer’s sale or use of the Goods
10. CONFIDENTIALITY
a. The parties shall maintain strict confidence and shall not disclose to any third party any information or material relating to the other or the other’s business which comes into that party’s possession and shall not use such information and material. This provision shall not, however, apply to information or material which is or becomes public knowledge other than by breach by a party of this clause
11. INVALIDITY
a. The invalidity, in whole or in part, of the Terms, or any provision or any part thereof, shall not affect the validity or enforceability of any other terms or provisions
12. NOTICE
a. All written notices to be served on or given to the Customer, including order acceptance, shall be sent or delivered to the Customer’s principal place of business and shall be treated as having been given upon being sent
