Terms and Conditions

Invoice Terms and Conditions of Dynatemp International, Inc.

  1. Delivery. The Goods will be delivered within a reasonable time after the receipt of Customer’s purchase order. Dynatemp shall not be liable for any delays, loss or damage in transit. Unless otherwise agreed in writing by the parties, Dynatemp shall deliver the Goods using Dynatemp’s standard methods for packaging and shipping such Goods. Dynatemp will prepay and allow FOB DESTINATION on orders greater than or equal to Ten Thousand Dollars $10,000 or eighty (80) cylinders. For orders less than Ten Thousand Dollars $10,000 and less than eighty (80) cylinders, Dynatemp will either (i) ship the Goods COLLECT, FOB ORIGIN, using Customer’s carrier of choice, or (ii) ship the Goods prepaid and add FOB DESTINATION, resulting in freight charges added to Customer’s invoice. Dynatemp may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. Customer shall pay for the units shipped whether such shipment is in whole or in partial fulfillment of Customer’s purchase order. Any liability of Dynatemp for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
  2. Inspection of Goods. Customer shall inspect the Goods upon receipt. Customer will be deemed to have accepted the Goods unless it notifies Dynatemp in writing within seven (7) days from delivery of any Nonconforming Goods and furnishes such written evidence or other documentation as reasonably required by Dynatemp. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Customer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents. If Customer timely notifies Dynatemp of any Nonconforming Goods, Dynatemp shall, in its sole discretion, (a) replace such Nonconforming Goods with conforming Goods, or (b) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the Nonconforming Goods to Dynatemp. If Dynatemp exercises its option to replace Nonconforming Goods, Dynatemp shall, after receiving Customer’s shipment of Nonconforming Goods, ship the replaced Goods to Customer and refund any reasonable shipping and handling expenses incurred by Customer in connection therewith.
  3. Price. The price of the Goods is the price stated in the Invoice (the “Price”).
  4. Payment Terms. Payment terms appear in the Invoice. All payments shall be in U.S. dollars unless otherwise indicated by Dynatemp. Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. In addition to all other remedies available under this Invoice or at law (which Dynatemp does not waive by the exercise of any rights hereunder), Dynatemp shall be entitled to suspend the delivery of any Goods if Customer fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof.
  5. Termination. In addition to any remedies that may be provided under the terms of this Invoice, Dynatemp may terminate this Invoice with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under any Invoice; (ii) has not otherwise performed or complied with any of the terms under this Invoice, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
  6. Warranty; Limitation of Liability. The Goods are sold AS IS. Any claims relating to product liability and warranty repairs should be directed to the manufacturer of the Goods. Claims relating to Goods with Dynatemp brand label or goods with generic packaging should be directed to Dynatemp. CUSTOMER EXPRESSLY AGREES THAT THIS REMEDY CONTAINED IN THE FOREGOING IS THE SOLE AND EXCLUSIVE REMEDY, IN LIEU OF ALL EXPRESS AND IMPLIED WARRANTIES WHATSOEVER, WHICH ARE HEREBY EXPRESSLY DISCLAIMED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. IN NO EVENT SHALL DYNATEMP BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OR USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT DYNATEMP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL DYNATEMP’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS INVOICE EXCEED THE TOTAL OF THE AMOUNTS PAID TO DYNATEMP FOR THE GOODS SOLD HEREUNDER.
  7. 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 Invoice.
  8. Amendment and Modification. The terms of this Invoice may only be amended or modified in a writing which specifically states that it amends this Invoice and is signed by an authorized representative each party.
  9. Force Majeure. Dynatemp shall not be liable for any failure to perform hereunder resulting from any cause beyond its reasonable control, including but not limited to, an act of God; accident; war; fire; lockout; strike or labor dispute; riot or civil commotion; act of the public enemy; enactment; rule; order or act of civil or military authority; or acts or omissions of any party, including Dynatemp’s vendors.
  10. Governing Law. All matters arising out of or relating to this Invoice shall be governed by and construed in accordance with the laws of the State of North Carolina, without giving effect to any conflict of laws provisions. Customer agrees that jurisdiction and venue shall be exclusively in the federal and state courts situated in North Carolina.
  11. Buying Group or Co-op Program. If Dynatemp and Customer have entered into any formal written commitments under a Buying Group or Co-op Program, and any terms of this Invoice are in conflict with such, the terms of the Buying Group Program will control.

A6115077:2