(1) GENERAL; DEFINITIONS. Unless otherwise agreed in writing by Munters Corporation, its affiliates, subsidiaries, and companies within the Munters group (collectively referred to as “Munters”), the terms and conditions contained herein with respect to the purchase and sale of goods and services hereunder constitute the entire agreement between Munters and Purchaser with respect to the subject matter hereof and supersede all prior communications and agreements between the parties. Munters shall not be bound by any additional or different terms whether printed in Purchaser’s purchase orders or otherwise, or in any other communications from Purchaser to Munters unless specifically agreed to by Munters in writing. For the avoidance of doubt, any and all provisions contained in Purchaser’s terms and conditions are expressly rejected, including, without limitation, any “Pay when Paid” or “Pay if Paid” or like provisions and any indemnification requirements sought to be imposed on Munters. Acceptance by Munters of any purchase order for Munters’ goods or services, and Purchaser’s acceptance of any quotation or proposal by Munters is expressly limited to and conditioned upon Munters’ Standard Terms and Conditions of Sale, which may not be changed or waived except in writing signed by both parties. Notwithstanding the foregoing, any order for extended warranties, services or labor shall also be subject to Munters’ “Additional Terms and Conditions – Service Plans,” which shall be provided by Munters to Purchaser if applicable.

As used herein:
(a) “Purchaser” means the person or entity that accepts a proposal or quotation from Munters for the sale of Products or whose order for Products is accepted by Munters;
(b) “Conditions” means the standard terms and conditions of sale set out in this document and includes any special terms and conditions agreed in writing between Purchaser and Munters;
(c) “Order” means an order for Products placed by Purchaser with Munters, and accepted by Munters;
(d) “Products” means the products and any related services ordered by Purchaser and furnished by Munters and shall include all products, equipment, parts, materials, accessories and any related services furnished to Purchaser by Munters.

 

(2) APPROVAL DOCUMENTATION. Before Munters commences work, Munters must be in receipt of an Order and Purchaser must have approved in writing all drawings submitted by Munters, if any. Purchaser’s failure, refusal or omission to furnish all necessary information, documents and drawings requested by Munters, or to approve all drawings or specifications as requested by Munters, or to promptly respond to inquiries of Munters shall cause an automatic extension of the delivery and/or completion date equal to at least the number of business days caused to be lost by the Purchaser’s action or non-action and a corresponding increase in price to compensate for such conditions.

 

(3) SHIPMENT AND DELIVERY. Unless otherwise specifically agreed to in writing, Products shall be delivered F.O.B. point of origin. Partial shipments of Products may be made. Unless otherwise agreed to by Munters, all shipping dates are approximate and are contingent upon prompt receipt by Munters of all necessary information. Munters assumes no responsibility for delays, breakage or damage after having made delivery of Products to a carrier, at which time all risk of loss for any cause passes to Purchaser. Notwithstanding any language to the contrary set forth herein, upon the mutual agreement of the parties, the Purchaser may take possession of the Products directly from Munters’ facilities and Purchaser shall retain title and risk of loss as of the date that such Products are made available by Munters for pick up by the Purchaser.

Unless otherwise provided in the Order, once an Order has been released to manufacturing and a ship date has been communicated to Purchaser, any request by Purchaser to change the date of shipment shall constitute a change order. To delay a shipment, Purchaser must deliver a signed delayed shipment form, in a form reasonably acceptable to Munters, to Munters before the original ship date. At that time, Purchaser shall pay the full invoice amount and title and risk of loss shall pass to Purchaser as of the original ship date. In addition, storage fees, which shall be quoted separately, will apply.

 

(4) CLAIMS FOR SHORTAGES AND SHIPPING DAMAGE. No claim for shortages in Orders shall be considered by Munters unless presented to Munters in writing within seven (7) days after receipt of Product(s). All claims for breakage or other damage due to shipment or handling shall be made to the common carrier by Purchaser within seven (7) days after receipt of Product(s).

 

(5) PRICE. Subject to any adjustments set forth herein, the price for Products shall be the price expressly quoted by Munters to Purchaser (the “Purchase Price”). Unless otherwise agreed to in writing, pricing includes standard packaging for domestic shipment, labels and raw material and production costs, but does not include the following, which shall be separately itemized and which Purchaser shall also pay: handling charges; freight charges; special packaging; and any insurance requested by Purchaser.

Foreign shipments placed with Munters may require additional charges for documentation and overseas packaging. Such charges shall be clearly identified on Munters’ invoices. In the event that Purchaser causes or requests changes to be made that affect delivery, installation, specifications, completion dates or otherwise, Purchaser shall reimburse Munters for any expense incurred by Munters as a result of each such change or delay upon presentation by Munters of a simple invoice.

If Munters is requested to store the Products after they are ready for shipment, the Purchase Price is subject to a one percent (1%) increase for each month or part thereof that shipment is delayed by Purchaser beyond the stated delivery date.

Any Order not released for immediate manufacture and shipment by Purchaser within a one hundred and eighty (180) day period may, at Munters’ option, be subject to a new price quotation or cancelled by Munters.

Notwithstanding the foregoing, in the event Munters’ cost to manufacture, ship, deliver, or otherwise provide any Product included in an Order increases by 5% or more before such Product is made available to Purchaser, Munters may increase the Purchase Price of such Product by an amount equal to the excess of such 5% increase.

 

(6) SUBSTITUTION OF PARTS AND COMPONENTS. Munters shall have the sole right and discretion to substitute, procure, modify, and use any substantially similar part, component, process or design in the equipment ordered due to delays in transportation, supplier issues, obsolescence, inability to obtain materials, legal requirements, sustainability initiatives or changes in manufacturing process.

 

(7) PAYMENT AND CREDIT. Unless otherwise provided in the Order, payment shall be due thirty (30) days from date of invoice. If partial shipments are made, payments for such shipments shall become due as shipments are made and invoices rendered.

Munters may require progress payments and may modify payment terms to include payment in advance. Munters’ acceptance of an Order is subject to credit review of Purchaser. Any delay resulting from a credit review may delay shipping.

For Orders outside the Continental United States, Canada or Puerto Rico, Munters requires an irrevocable letter of credit or similar guarantee of payment acceptable to Munters.

Munters reserves the right to add a late charge of 1½% per month on overdue balances.

 

(8) TAXES. The Purchase Price does not include sales, use, excise, value added or similar taxes. Such taxes shall be paid by Purchaser unless Purchaser provides a valid tax-exemption certificate acceptable to the taxing authorities.

 

(9) CANCELLATION CHARGES. Orders are not subject to cancellation except on terms acceptable to Munters. If Purchaser cancels without consent, Purchaser is liable for damages and cancellation charges:

30% of the Purchase Price if cancelled before materials are purchased.
70% if cancelled after materials are purchased.
100% if cancelled after production begins.

 

(10) WARRANTY. Munters warrants that Products (excluding services and labor) shall be free from defects in workmanship and materials for the lesser of:

15 months from shipment, or
12 months from when the product becomes operational.

The warranty applies only when products are properly installed, maintained and operated under normal conditions.

Munters’ obligation is limited to repair or replacement of defective parts. The warranty does not include labor or services unless specified under Service Plans.

THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

(11) DISCLAIMER OF DAMAGES AND LIMITATION OF LIABILITY. Munters shall not be liable for indirect, special, incidental or consequential damages including loss of profits, revenue, or use of products. Munters’ total liability shall not exceed the purchase price.

 

(12) OWNERSHIP. All drawings, designs, patterns, tools, and documents prepared by Munters remain the sole property of Munters and are protected by intellectual property laws.

 

(13) NONCONFORMITY AND DEFECTS. Munters is not responsible for defects arising after delivery due to shipment, handling, purchaser specifications or modifications made by others.

 

(14) COMPLIANCE WITH TRADE SANCTION LAWS. Purchaser must comply with all trade sanctions laws, export restrictions and embargoes imposed by relevant authorities including EU and US laws.

 

(15) FORCE MAJEURE. Munters shall not be liable for delays caused by events beyond its control including natural disasters, government actions, strikes, transportation delays or supply shortages.

 

(16) COVID-19. The COVID-19 pandemic may affect Munters’ ability to perform contractual obligations and may require adjustments to delivery schedules.

 

(17) DEFAULT. If Purchaser defaults under any Order, Munters may suspend manufacturing or delivery, cancel Orders, and declare all amounts immediately due.

 

(18) CLERICAL ERRORS. Munters reserves the right to correct clerical or typographical errors in quotations, acknowledgements, invoices or other documents.

 

(19) CHOICE OF LAW. These Conditions are governed by the laws of the State of New York, excluding the United Nations Convention on Contracts for the International Sale of Goods.

 

(20) SAVINGS CLAUSE. If any clause is found invalid or unenforceable, the remaining clauses remain in full force and effect.