» Terms & Conditions

These Terms and Conditions apply to all bids, offers, letters of intent, quotations and sales of goods and / or services(the “Goods“) by Applied Cryo Technologies, Inc., a Texas corporation, or any of its subsidiaries or affiliates(collectively, “Seller“) to a customer(“Buyer“). Acceptance of Buyer’s purchase order with respect to any of Seller’s Goods is expressly limited to these Terms and Conditions, and any specifications or other terms attached hereto by Seller (collectively, the “Agreement”), and such documents constitute the entire agreement between Seller and Buyer with respect to the Goods; provided, however, any typographical or clerical error herein or therein is subject to correction by Seller.
NOTWITHSTANDING ANY ORAL OR WRITTEN STATEMENT MADE BY BUYER, AND UNLESS AN AUTHORIZED OFFICER OF SELLER EXPRESSLY AGREES IN WRITING TO ACCEPT BUYER’S TERMS AND CONDITIONS OR ANY PART THEREOF, BUYER’S ACCEPTANCE OF ANY QUOTATION AND SELLER’S ACCEPTANCE OF ANY PURCHASE ORDER IS CONDITIONED UPON ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND IS LIMITED ONLY TO THE TERMS AND CONDITIONS SET FORTH HEREIN. Seller hereby expressly objects to any additional or different term or condition in this transaction that may be contained in any prior, contemporaneous or subsequent communication (whether written, verbal or transmitted though electronic means) from Buyer that is in addition to or different from the terms and conditions contained herein. Buyer’s assent is conclusively established by Buyer’s (i) execution of this Agreement, (ii) acceptance of delivery of any of the Goods covered by this Agreement, or (iii) failure to expressly object hereto. Seller’s issuance of a quote or acceptance of a purchase order is subject to the terms and conditions set forth in these Terms and Conditions, regardless of whether these Terms and Conditions are expressly referenced in such quote or purchase order. Seller and Buyer may be referred to herein collectively as the “Parties” and individually as a “Party“.
Quotations: All quotations are made for prompt acceptance, and any terms quoted therein are subject to change without notice unless specifically stated otherwise on the quotation. Any Goods that may be available at the time a quotation is provided are subject to prior sale and to price fluctuation.
Taxes and Duties: Unless expressly provided otherwise in Seller’s quotation, transportation charges, customs duties, insurance charges, packaging costs, consular fees and any other similar charges are not included in the quotation or the sales price and shall be borne by Buyer. Unless otherwise specified in Seller’s quotation, Buyer shall be responsible for all taxes (other than taxes based on the income of Seller), charges and assessments levied or imposed by any foreign governmental entity, or by any local, state, or federal governmental entity of the United States on the sale of the Goods, whether in effect on the date of this Agreement or thereafter enacted, increased or levied and irrespective of whether such taxes, charges or assessments are quoted on Seller’s quotation or invoice. In the event Seller is required to pay any such tax, charge or assessment, Buyer agrees to promptly reimburse Seller for said amount.
Delivery: Delivery of Goods shall be FOB Seller’s facility at 7150 Almeda Genoa, Houston, Texas 77075, USA. Delivery is subject to all U.S. local, state and federal laws and regulations applicable to the sale of the Goods and to all laws and regulations of any other country or jurisdiction whose laws are applicable to the sale of the Goods. ALL DELIVERY DATES GIVEN ARE APPROXIMATE. Seller does not guarantee delivery on or before the delivery dates given, and Seller is not responsible or liable to Buyer or any third party for damages or losses of any kind whatsoever, including, without limitation, consequential loss, due to a changed delivery date.
Shipment: Unless Buyer and Seller otherwise agree in writing, Seller shall select the carrier(s) and arrange, at Buyer’s expense, for shipment of the Goods to a location specified by Buyer. If shipment of the Goods shall be on a date other than a date that is no more than ten days prior to or after the date specified in a purchase order for shipment of the Goods, Seller shall notify Buyer in advance of the date of shipment. In the event that Buyer does not accept delivery of conforming Goods when tendered, or if shipment is delayed pursuant to Buyer’s instructions2 or for any reason beyond Seller’s reasonable control, Buyer agrees that Seller may invoice Buyer and Buyer shall pay for all Goods tendered for delivery.
Risk of Loss: Risk of loss of the Goods shall pass to Buyer upon Seller’s delivery of the Goods at Seller’s location (as set forth in Section 4 above) for shipment to Buyer or Buyer’s designee; provided, however, that title to the Goods shall not pass to Buyer until Seller shall have received payment in full for the Goods.
Insurance: In the event Seller arranges for shipment of the Goods, Seller may obtain, at Buyer’s expense, insurance in the amount of the purchase price of the Goods, insuring the Goods against all risk of loss or damage. If Buyer has not paid Seller in full prior to such shipment, Seller may be named as the loss payee on such policy for the amounts due and owing to Seller.
Changes: No part of this Agreement or any purchase order may be amended, modified or supplemented except by means of a written instrument specifically designated as an amendment, modification or supplement of this Agreement or purchase order and executed by a duly appointed and acting officer of Seller.
Acceptance of Goods: If Buyer accepts Goods tendered under this Agreement, such acceptance shall be final and irrevocable. If Buyer fails to inspect the Goods as provided in this paragraph, Buyer will be deemed to have inspected and accepted the Goods upon receipt of such goods. Buyer may reject any Good only if such Good is found by Buyer and confirmed by Seller not to be in compliance with Seller’s standard specifications in effect at the time such Good is made available for inspection or, for a custom Good, with any specifications, design, drawings or descriptions for such Good agreed to in writing by Seller. Buyer shall supply Seller detailed defect data stating the reason for rejection of any Good at the time of such rejection. Buyer’s sole remedy for rejection shall be that Seller shall, at its option, (i) cure the defect, (ii) replace the Good, or (iii) reduce the number of Goods to be delivered under the purchase order by the number of nonconforming Good(s) and reduce total purchase price of the Goods under the purchase order by the purchase price of the non-conforming Good(s).
Force Majeure: For purposes of this Agreement, “Force Majeure” shall mean acts of God, acts, orders, decrees, instructions or other requirements of governmental entities or instrumentalities, insurrections, mobilizations, riots, acts of terrorism, vandalism, sabotage, strikes, lock-outs or other labor disturbances (it being expressly agreed that Buyer shall have no right to compel Seller to settle any such strike or other dispute on terms unsatisfactory to Seller in Seller’s sole and absolute discretion), quarantines, floods, storms, hurricanes, tornadoes, droughts or other adverse weather conditions, fires, explosions, embargoes, or by other cause not reasonably within the control Seller. In the event Seller is hindered or prevented from performing its obligations under this Agreement as a result of any Force Majeure, the time for Seller’s performance hereunder shall be extended for a period equal to the duration such Force Majeure hinders or prevents Seller’s performance, and Seller shall not be liable for any direct, indirect or consequential damage or loss due to any such delay. If a Force Majeure continues for more than 60-days, either party may cancel this sale, in whole or in part, without any resulting liability.
Payment, Interest and Performance: Unless otherwise agreed to in writing by Seller, Buyer shall pay for the Goods in cash in U.S. dollars as follows: 25% of the aggregate purchase order price shall be due and payable upon acceptance of Buyer’s purchase order. The remaining 75% shall be due and payable within 2 days of notice of shipment of the Goods. Buyer shall pay all collection costs, including, without limitation, attorneys’ fees, incurred by Seller in collecting any past due amount. In the event Buyer disputes the accuracy of any portion of any invoice, Buyer may not withhold the payment of the disputed amount, but shall promptly notify Seller, specifying the amount in dispute and reasons therefor. Buyer shall make timely payment of all amounts, including those in dispute. Buyer and Seller will promptly attempt to resolve the dispute, and upon resolution, Seller will promptly credit Buyer’s account for any amounts due Buyer. The rights and remedies herein reserved to Seller shall be cumulative and in addition to all other rights and remedies available to Seller under applicable law. The failure of Seller to insist upon strict performance hereof in any one instance shall not constitute a waiver of Seller’s right to require or establish a course of dealing with respect to such performance in the future with respect to such incidents or with respect to any later breach of this Agreement by Buyer.
Return or Cancellation of Goods: No Goods may be returned to Seller for credit or adjustment without Seller’s written consent. No sale or purchase order may be cancelled or changed without first obtaining the written permission of Seller. Seller, in its sole judgment, may accept or reject Buyer’s request to return Goods, cancel a purchase order or change the purchase order. If Seller agrees to such return, cancellation or change, Seller may charge Buyer and Buyer agrees to pay for any materials purchased or customized specifically for such Buyer purchase order. In the event of defects and nonconformities in the Goods, Buyer’s sole and exclusive remedy shall be as set forth in Section 22 below. Goods are manufactured according to Seller’s (or Seller’s vendor’s) specifications, and Seller (on its behalf and on behalf of its vendors) reserves the right to change the design, specifications or components at any time. Goods incorporating variation from Seller’s specifications are considered special or custom Goods. Purchase orders for Goods that are specially manufactured or custom manufactured for Buyer may not be cancelled, and Buyer agrees to be responsible for, defend and indemnify Seller from and against any and all claims relating to the design of such Goods.
Export: Unless otherwise specified on Seller’s quotation or invoice, all export sales shall be delivered FOB Seller’s facility at 7150 Almeda Genoa, Houston, Texas 77075, USA. Sales are not conditional upon Buyer obtaining any necessary export licenses or import permits pertaining to the sale. In the event Buyer is not able to obtain such permits or licenses, Buyer shall not be relieved of the obligation of purchasing the Goods from Seller. Seller shall not be obligated to provide any import/export certification or other documentation, nor agree to any contract provision or otherwise act in any matter which may cause Seller, in Seller’s sole judgment, to be in violation of any U.S. federal, state or local law, rule, judgment or decree or the law, rule, judgment or decree of any country or other jurisdiction applicable to the Seller or the sale.
Written Assurance on Export Law Compliance: Buyer understands that the Goods it will be purchasing from Seller pursuant to this Agreement may be subject to United States of America export restrictions. Buyer hereby gives written assurance to Seller that neither the Goods nor any technical software or data provided to Buyer under this Agreement is intended to or will be shipped, exported or re-exported, directly or indirectly, to any country, person or other entity contrary to any laws, regulations or administrative orders of the United States or any other jurisdiction applicable to any of the transactions contemplated by this Agreement. Such laws, regulations and administrative orders include, without limitation, the Export Administration Regulations and economic sanctions regulations issued pursuant to the International Emergency Economic Powers Act and other authorities. Buyer further acknowledges that Seller, in determining to enter into this Agreement, has expressly relied on the written assurance contained in the immediately preceding sentences and would not have entered into this Agreement without such written assurance.
Invalidity/Validity: All terms contained herein are severable, and any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof or thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
Assignment: Buyer’s rights and obligations under this Agreement may not be assigned or transferred without the prior express written consent of Seller, and any attempted assignment made without such prior written consent shall be void. In the event of any permitted assignment, Buyer shall nevertheless not be relieved of liability for performance of its obligations under this Agreement unless and until expressly agreed by Seller in writing.
Governing Law: This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Texas without giving effect to any choice or conflict of laws rules, provisions or principles (whether of the State of Texas or any other jurisdiction) the application of which would result in the application of the laws of any jurisdiction other than the State of Texas.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF TEXAS OR OF THE UNITED STATES OF AMERICA LOCATED IN HOUSTON, HARRIS COUNTY, TEXAS, AND, EACH OF THE PARTIES HEREBY ACCEPTS FOR ITSELF AND (TO THE EXTENT PERMITTED BY LAW) IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS. Each of the Parties further consents to the exercise of personal jurisdiction over it by courts in Texas with respect to any proceedings arising from or related to this Agreement. Notwithstanding the foregoing in this paragraph, in the event the Goods are being sold to a Buyer not located in the United States and a dispute arises out of, in connection with, or in any way relating to this Agreement, such dispute shall be resolved by final and binding arbitration. The arbitration shall be governed by the substantive laws of the State of Texas and by the Rules of Arbitration of the American Arbitration Association under its then current International Arbitration Rules (the “ICDR International Rules“). The seat of the arbitration shall be Houston, Texas. The decisions of the arbitrators shall be final and binding on Buyer and Seller and judgment on the award may be entered by any court having jurisdiction over Buyer or Seller or their respective property, as applicable. Unless otherwise provided by this Agreement, each party involved will bear its own cost of any legal representation, discovery or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential except to the extent disclosure of an arbitration award is necessary for a court to enter judgment on the award.
Consequential Loss and General Limitation of Liability: In no event shall Seller or Seller’s affiliates, or the agents, directors, officers, shareholders, members, managers, partners, employees, consultants, representatives or independent contractors of Seller or Seller’s affiliates be liable to Buyer, Buyer’s customer, or any other person or entity claiming losses through any of them or any other user or beneficiary of the goods, or their respective affiliates, agents, officers, employees, invitees, representatives, successors, assigns or transferees, for any special, indirect, incidental, consequential, statutory, punitive, exemplary or special damages of any nature or kind whatsoever (including, without limitation, economic loss, loss of revenues or profits or anticipated revenues or profits, loss of product, lost or damaged data, loss of use of services, property or equipment (including those provided by third parties), business interruptions, loss of business opportunities, loss of use of any property or services of any kind, cost of capital, cost of substitute goods, damage to associated equipment, downtime costs or claims of their respective customers for such damages) whether known to Seller at the date of sale or not, arising out of, resulting from, or in any way relating to the design of the Goods, the manufacture or service of the Goods or the use, operation, marketing, sale, lease or other commercialization of the Goods or any defect in the Goods or any loss of use of the Goods, regardless of whether such liability arises under contract, tort, equity or breach of duty (whether statutory or otherwise) and by whomsoever caused. Buyer agrees that Seller’s total liability under this agreement for all causes of action, whether in contract or in tort, shall be limited to a maximum amount equal to the purchase price Buyer paid for the Goods.
Indemnification: Buyer agrees to defend, protect, indemnify, and hold Seller and Seller’s affiliates and their respective directors, owners, officers, members, managers, shareholders, partners, employees, consultants, agents, representatives, vendors, suppliers, subcontractors (or their servants), licensees and invitees (collectively, the “Seller’s Group“) free and harmless from and against any and all losses, costs (including, without limitation, the costs of investigation, suit and attorneys’ fees), claims, causes of action, damages and liabilities (the “Losses“) arising in favor of any person, corporation or other entity, including the parties hereto and their employees, directors, representatives, contractors and agents, on account of bodily injuries or death (including related damages) on account of injury to or death of any such persons or entities or loss of or damage to any property of any such persons or entities, including the Goods after delivery, arising out of, resulting from, or relating in any way to (i) this Agreement or any acts or omissions in connection herewith, including, without limitation, any breach of this Agreement; (ii) the presence of Seller or its employees, contractors or agents on an Buyer’s premises to perform work related to this Agreement; or (iii) any patent, copyright, trademark, trade secret or other intellectual property infringement or alleged infringement resulting from any person or entities purchase, sale or use of any specially manufactured or custom Good supplied by Seller under this Agreement pursuant to specifications provided by or on behalf of Buyer. IT IS THE INTENTION OF BUYER THAT SUCH INDEMNITY SHALL APPLY REGARDLESS OF WHETHER THE CLAIMS ARISE IN WHOLE OR IN PART FROM THE SOLE, CONCURRENT OR CONTRIBUTORY NEGLIGENCE OF ONE OR MORE MEMBER OF SELLER’S GROUP, and regardless of any defect in premises, equipment or materials, irrespective of whether same pre-existed this Agreement, except for such Loss resulting solely from a member of Seller’s Group’s gross negligence or willful misconduct.
Headings: Section headings used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
Descriptive Literature: Drawings, pictures, descriptive matter, information expressed or implied in Seller’s catalog, website, price sheets or other communications (other than Seller’s quotations) are intended to reflect the general features of the Goods and do not form a part of this Agreement.
Nonconformities; Workmanship:
- Generally. Seller warrants each new Good that Seller manufactures (but excluding equipment, accessories, equipment, components, parts, subassemblies and other component parts of such products, which are purchased from other vendors, which are subject to Section 25 below) purchased by Buyer, as the original retail customer, shall be in compliance with Seller’s standard specifications in effect at the time such Good is delivered to Buyer or, for a custom Good, with any specifications, design, drawings or descriptions for such Good agreed to by Seller. Buyer’s sole remedy for Goods that do not comply with such warranty, shall be that Seller shall, at its option, (i) cure the defect, (ii) replace the Good, or (iii) refund the amount paid by Buyer as the purchase price paid of the non-conforming Good(s). Seller warrants all Goods to be free from defects in material and workmanship for one year after the date of shipment.
- ACT Cryogenic Equipment. With respect to ACT Cryogenic Equipment delivered hereunder, Seller guarantees that the annulus space will not exceed 20 microns, when the inner vessel is cold (see tank cool down procedure) within THREE YEARS after the date of shipment provided that the Vacuum Gauge Valve and/or the Evacuation Valve has not been misused, tampered with or disturbed, thus causing gas to bleed in and compromise the annulus space. Furthermore, Buyer hereby acknowledges and agrees that any misuse or abuse of the ACT Cryogenic Equipment resulting in over pressurization is dangerous and will void the foregoing workmanship and vacuum warranty. Should warranty be required the Transport Trailer will be repaired at the nearest Applied Cryo Technologies, Inc. Authorized Service Center, by the Buyer, or an Applied Cryo Technologies’ Service Technician in the field at the manufacturer’s discretion.
EXCLUSIONS: The warranty stated in Section 22 above shall not apply to:
- any Goods that have been repaired or altered by anyone other than Seller or Seller’s authorized representative in such a way, in Seller’s judgment, as to affect the Goods adversely;
- any Goods that have, in Seller’s judgment, been subject to abuse, misuse, negligence, accident, improper storage, installation or application, shock; electrostatic discharge; heat or humidity beyond product specifications;
- any Goods that have not been operated or maintained in accordance with the manufacturer’s specifications and recommendations;
- any components, parts or accessories manufactured, warranted or serviced by others (see Section 25 for pass-through warranties of other manufacturers);
- any used, reconditioned or previously owned Goods;
- any damage due to continued use of the Goods after partial failure of any item;
- any work performed or cost incurred by Buyer, or others, without Seller’s express prior written Consent;
- any claim not reported promptly (in no event later than 10 days after discovery or one year after delivery, whichever is sooner);
- any cost of delays, freight charges, or excess costs for repairs made outside the continental United States, including incidental or consequential damages;
- any damages caused during shipment unless Seller expressly agrees in writing, in advance of shipment, to assume the risks of damage caused during shipment; or
- any Goods that are considered expendable in nature and expire as a result of normal wear and tear.
REMEDIES EXCLUSIVE: THE REMEDIES PROVIDED IN SECTION 22 FOR BREACH OF THE WARRANTY SET FORTH THEREIN ARE EXCLUSIVE. IN NO EVENT SHALL THE OBLIGATION OF SELLER TO REPLACE DEFECTIVE GOODS BE CONSTRUED TO REQUIRE SELLER TO REPAIR OR REPLACE MORE THAN THE ORIGINAL PURCHASE PRICE OF THE GOOD.
THIRD PARTY MANUFACTURED GOODS: Any equipment, components, parts or other goods not manufactured by Seller are not warranted by Seller to any extent, but Seller shall use its commercially reasonable efforts to assign, to the extent that Seller is permitted to assign pursuant to the original manufacturer’s warranty, to Buyer, without recourse, any warranties furnished to Seller by the vendors of such equipment, components, parts or other goods. If the original manufacturer of the Goods subject to a claim by the Buyer does not permit the assignment of its warranty, then no warranty, express or implied, shall apply to such Goods.
SOLE AND EXCLUSIVE WARRANTY: THE WARRANTY SET FORTH IN SECTION 22 ABOVE IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AND ALL OTHER REMEDIES OR LIABILITIES (WHETHER BY STATUTE, COMMON LAW OR IN CONTRACT, TORT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE, WHETHER OCCASIONED BY ACTS OR OMISSIONS OF SELLER, SELLER’S SOLE NEGLIGENCE OR CONCURRENT NEGLIGENCE). WITHOUT LIMITATION OF THE GENERALITY OF THE IMMEDIATELY PRECEDING SENTENCE, SELLER EXPRESSLY DISCLAIMS AND NEGATES (i) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE (ii) ANY IMPLIED OR EXPRESS WARRANTY OF DILIGENCE, (iii) ANY IMPLIED WARRANTY OF FREEDOM FROM PATENT OR COPYRIGHT INFRINGEMENT AND (iv) ANY OTHER IMPLIED WARRANTIES.
Any statement, representation, agreement or understanding, oral or written, made by any person (including, without limitation, any agent, distributor, representative or employee of Seller) that is not contained in this Agreement shall not be binding upon Seller unless made in writing and executed by an authorized officer of Seller.
No replacement, refund or adjustment made pursuant to this Agreement shall be construed as an admission by Seller that any Goods were not as warranted.
All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be (a) sent by an overnight courier service that provides proof of receipt, (b) mailed by registered or certified mail (postage prepaid, return receipt requested) or (c) telecopied to the parties at the following addresses (or at such other address for a Party as shall be specified by like notice):