JETCOOL Technologies Inc.
Terms and Conditions of Sale
(Last Updated May 31, 2022)
These JETCOOL Technologies Inc. Terms and Conditions of Sale (the “Agreement”) govern the sale and delivery of Products and Services by JETCOOL Technologies Inc. (“JETCOOL Technologies” or “JETCOOL”) to the customer identified on the applicable Order (“Customer”) and are effective as of the date of an Order signed by Customer and JETCOOL Technologies. JETCOOL Technologies rejects any terms and conditions contained in any acknowledgement, Purchase Order, or other communications of Customer that are in addition to or are inconsistent with this Agreement or the Order. This Agreement may otherwise not be varied or waived except with the express written agreement of JETCOOL Technologies.
- “Confidential Information” means any information disclosed by one party to another under this Agreement which is, prior to or at the time of disclosure, identified in writing as confidential or proprietary or which from the context of disclosure ought reasonably be understood to be confidential or proprietary. JETCOOL Technologies’ Confidential Information includes the terms and conditions of this Agreement, including any prices or discounts offered by JETCOOL Technologies, and any information regarding the Products (including, without limitation, performance characteristics or specifications) or otherwise about JETCOOL Technologies’ business or the JETCOOL Technology.
- “Delivery” means delivery to the specified Incoterms point where liability for the shipment transfers from JETCOOL Technologies to the Customer.
- “Exhibits” means attachments that describe or otherwise apply to the sale or license of Products as attached hereto or otherwise mutually executed by the parties.
- “Intellectual Property Rights” means any and all right, title, and interest in and to any and all trade secrets, patents, copyrights, service marks, trademarks, mask works, know-how, trade names, rights in trade dress and packaging, moral rights, right of privacy, publicity and similar rights of any type (including any applications, continuations, or other registrations) under the laws or regulations of any foreign or domestic governmental, regulatory, or judicial authority.
- “JETCOOL Technology” means the technology, designs, engineering details, schematics, and similar data related to, embodied by or incorporated in the Products and all copies, modifications, and derivative works thereof.
- “Order” means a purchase order for Products and/or Services by JETCOOL Technologies, accepted by JETCOOL Technologies, or other type of finalized order document accepted by JETCOOL Technologies in writing.
- “Order Form” means the standard order form created, adopted, and used by JETCOOL Technologies at the time of purchase.
- “Products” means hardware, software, documentation and/or parts that are offered by JETCOOL Technologies hereunder.
- “Services” means any installation, setup, or other professional services or support ordered by Customer that relate to the Products provided by JETCOOL Technologies directly or through a third-party.
- “Third Party” means any part that is not JETCOOL Technologies, the Customer, or an affiliate of either.
- “Working Days” means Mondays through Fridays, excepting federal holidays that are designated by the United States government.
All Orders must be signed by both parties to be valid. This Agreement shall govern all Orders unless explicitly waived, in a written instrument and signed by an officer of JETCOOL Technologies.
Product and Order Changes
Orders may not be cancelled without the written agreement of JETCOOL Technologies. Either party may request a change in the specifications or scope of the Products from time to time, which change shall become effective only by Change Order. A “Change Order” is a written order approved and executed by the parties. Any Change Orders shall be jointly reviewed and agreed upon and shall not be unreasonably rejected by either party. A request for a Change Order shall include a written statement setting forth the nature of the proposed change and associated costs to support the reasonableness of any proposed change in compensation, and justification for any time extension. JETCOOL Technologies shall not be under any obligation to commence any such work until any price changes are settled. JETCOOL Technologies may revise the conditions with regard to price, date of Delivery, and performance due to any agreed upon modification.
JETCOOL Technologies reserves the right to alter Product offerings at any time and to make any change in the specification of the Products which does not materially affect the installation, performance, or price thereof. JETCOOL Technologies shall inform Customer of such alterations made prior to Delivery as soon as reasonably practicable, except for minor alterations not affecting the specifications.
Prices; Quotations; Fees; Taxes; Security Interest
Unless otherwise specified in the Order, the price of the Products and/or Services will be the quoted price in the Order Form provided by JETCOOL Technologies. Prices and fees are valid for the period quoted by JETCOOL Technologies, and are exclusive of all excise, value-added, sales, use, property, export, and other taxes and duties. Due to current market conditions, prices are valid for 14 days from the quote date, unless otherwise stated. All prices are USD. Customer is responsible for all duties and export tariffs. JETCOOL Technologies will collect, and Customer will pay to JETCOOL Technologies, all applicable sales taxes on the Products sold to Customer, unless Customer has provided JETCOOL Technologies with an appropriate exemption certificate for the delivery location.
JETCOOL Technologies shall retain a first-priority purchase money security interest in all Products sold to Customer until the purchase price has been paid in full. JETCOOL Technologies is authorized to file this Agreement, any Order or purchase order submitted under this Agreement, and any other forms, financing statements or other documents necessary to perfect JETCOOL Technologies’ security interest. Customer agrees to provide any information, execute any such documents, and otherwise assist JETCOOL Technologies to perfect such interest without charge to JETCOOL Technologies.
Unless otherwise specified or set forth in an Exhibit, subject to credit approval by JETCOOL Technologies, all payments are due thirty (30) days from date of invoice. Unless otherwise agreed in writing or written otherwise on an accepted Order Form, the Customer shall make payment to JETCOOL Technologies in full without any set-off as follows:
- 70% of the total agreed price within thirty (30) calendar days after Order acceptance;
- 30% of the total agreed price within thirty (30) calendar days after Delivery of Product
Any payment not made when due shall be subject to a late payment charge on the past due balance in the amount of one and one half percent (1.50%) per month or the legal maximum, whichever is less. Customer shall reimburse JETCOOL Technologies for all costs, including collection agency costs, reasonable attorney fees, and court costs incurred to collect any unpaid or disputed amounts. For the purpose of this provision, past due balance shall include, but is not limited to, any set-offs taken by Customer, refunded amounts or failure to make timely payments. In the event of late payment, JETCOOL Technologies also reserves the right to suspend deliveries and/or cancel any of its outstanding obligations.
All payments shall be paid in U.S. dollars and shall be made payable to “JETCOOL Technologies Inc.” Payments shall be made via wire transfer, ACH transfer, or check. Payments shall be made to the following address:
JETCOOL Technologies Inc.
ATTN: Customer Accounts
305 Foster St., Suite 100
Littleton, MA 01460
Title and Risk of Loss
Title to the Products shall pass to the Customer on full payment. In case of non-payment or partial payment by the Customer, JETCOOL Technologies, without prejudice and in addition to any rights it has under this Agreement or otherwise, may take back all or part of the Products and dispose of these in any way it seems fit with a view to mitigating the consequences of the non-payment by Customer (for the avoidance of doubt all depreciation, de-installation and other costs will be borne by the Customer). Risk of loss shall pass to the Customer per the stated Incoterms shipping arrangement.
Shipping & Delivery
All Products delivered pursuant to this Agreement shall be shipped Free Carrier origin (FCA JETCOOL Technologies) to the Customer address set forth in the Order, unless otherwise mutually agreed in writing or indicated on the front page of a mutually accepted Order Form. Any term of delivery shall be construed according to the latest edition of Incoterms.
JETCOOL Technologies will use all reasonable endeavors to avoid delay in Delivery on the notified dates of Delivery. Failure to deliver by the specified date will not be a sufficient cause for cancellation, nor will JETCOOL Technologies be liable for any loss or damage due to delay in Delivery.
Partial deliveries and related invoicing shall be permitted. If the Customer fails to accept delivery of the Products to the contractual delivery address within a reasonable period after receiving notice from JETCOOL Technologies that they (or any part of these) are ready for Delivery, JETCOOL Technologies shall either in its sole discretion have a right to (i) receive a fee for the delay (Delay Fee) in the amount of 2% per calendar month of the total purchase price of the Products up to a maximum of 12 months (ii) or ship the Products to a storage at Customer’s direction and cost whereby title and risk shall transfer to Customer. If the Customer has not provided such direction within five (5) calendar days JETCOOL Technologies has the right to ship the Products to a third party warehouse. Nevertheless, JETCOOL Technologies reserves the right to terminate this Agreement if the Products cannot be delivered for over thirty (30) calendar days from JETCOOL Technologies’ notice above.
The Customer shall notify JETCOOL Technologies in writing within ten (10) Working Days of Delivery of any short delivery or defects reasonably discoverable on careful examination. JETCOOL Technologies’ sole obligation shall be, at its option, to replace or repair any defective Products or refund the purchase price of any undelivered Products. Where Delivery of any Product requires an export license or other authorization before shipment, JETCOOL Technologies shall not be responsible for any delay in Delivery due to delay in, or refusal of, such license or authorization.
Intellectual Property Rights
The parties recognize and agree that nothing contained in any purchase order or this Agreement shall be construed as granting any interest, title, or property rights, by license or otherwise, to any invention or any patent, copyright, trademark, trade secret, or other intellectual property right. JETCOOL shall retain all rights, title, and interest in and to any invention or intellectual property rights to the JETCOOL Technology and any improvements, modifications, or derivatives thereof.
Customer shall not (and shall not allow any third party to): (i) decompile, disassemble or otherwise reverse-engineer the Products or attempt to reconstruct or discover any underlying ideas, source code, algorithms, file formats or programming interfaces by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, and then only with prior written notice to JETCOOL Technologies); (ii) remove any product identification, proprietary, copyright or other notices in or on the Products; (iii) modify or create a derivative work of any part of the Products, or incorporate any part of the Products into or with other software or hardware, except to the extent expressly authorized in writing by JETCOOL Technologies relating to the Products; or (iv) copy JETCOOL Product specifications onto any public or distributed network. JETCOOL Technologies may use any feedback or suggestions Customer provides to JETCOOL Technologies regarding the Products.
Customer agrees that Products, Services, work product, JETCOOL Technology, tools and technical data delivered to Customer by JETCOOL Technologies may be subject to U.S. export controls or the trade laws of other countries. Customer shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any part of the Products: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Products are further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
If the parties have a separately executed confidentiality agreement or Non-Disclosure Agreement, the terms of that agreement shall take priority over this section. Notwithstanding the above, a party receiving Confidential Information (“Receiving Party”) must keep it confidential using the same standard of care that it exercises with respect to its own information of like importance but, in any event, no less than a reasonable degree of care, and may use or disclose it only for the purposes for which it was provided under the Agreement. Confidential Information may be disclosed only to employees or contractors with a need to know and obligated in writing to the Receiving Party under similar confidentiality restrictions. The Receiving Party shall remain responsible for such persons’ compliance with such confidentiality restrictions.
The provisions of this section shall not apply to information that the Receiving Party already lawfully knew, that is or becomes public through no fault of the Receiving Party, that was independently developed by the Receiving Party or that was rightfully obtained by the Receiving Party from a third party. The Receiving Party may make disclosures to the extent required by law, provided the Receiving Party notifies the other party in advance and cooperates in any effort to obtain confidential treatment.
The parties acknowledge that unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone may not be a sufficient remedy. In event of actual or threatened use or disclosure by the Receiving Party, the other party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law or otherwise. The obligation of confidentiality shall survive the termination of the Agreement for five (5) years unless it is a trade secret which shall be protected as per applicable law.
Customer agrees to allow JETCOOL Technologies to store, process, and use Customer’s contact information in connection with the business relationship between Customer and JETCOOL Technologies, including processing of orders, delivery, service and support information, satisfying legal or regulatory requirements, and providing information on new products, promotions and events.
JETCOOL Technologies warrants hardware Products to be free from defects in material or workmanship for a period of two (2) years from date of invoice. JETCOOL Technologies will, at its option, repair or replace the affected Products, provided that Customer agrees to follow the RMA Process as outlined in the JETCOOL Technologies Base Warranty, available upon request. Products may only be returned with prior written authorization from JETCOOL Technologies. JETCOOL Technologies does not warrant that the operation of Products will be uninterrupted or error-free. JETCOOL Technologies shall not be held responsible for the loss of data or runtime. JETCOOL TECHNOLOGIES’S RESPONSIBILITY FOR DEFECTS IN MATERIAL AND WORKMANSHIP IS LIMITED TO REPAIR OR REPLACEMENT. JETCOOL Technologies’ sole liability and Customer’s exclusive remedy for a breach of this warranty is limited to repair, replacement, or refund at the sole option of JETCOOL Technologies. JETCOOL Technologies does not warrant any Third Party products.
JETCOOL Technologies warrants that all Services will be carried out with reasonable care and skill. JETCOOL Technologies’ sole liability for breach of this warranty shall be at its option to give credit for or re-perform the Services in question. This warranty shall only extend for a period of ninety (90) calendar days after the completion of the Services and any claim shall be submitted in writing within such period.
General Warranty Provisions and Limitations
All other warranties, representations, terms and conditions (statutory, express, implied or otherwise) as to quality, condition, description, merchantability, fitness for purpose or non-infringement are hereby expressly excluded. To the maximum extent permitted by applicable law, JETCOOL Technologies hereby expressly disclaims, and Customer hereby expressly waives, any warranty regarding results obtained through the use of the Products including, without limitation, any claim of inaccurate, invalid, or incomplete results.
Any warranty expressed or implied shall not apply to defects or malfunctions arising from:
- improper or inadequate maintenance by Customer
- unauthorized modification
- unsuitable physical or operating environment
- usage beyond that of the intended application
- loss or damage in transit
- products, services or software supplied by a Third Party or Customer,
Adding or changing any components of the Product, except as expressly authorized in writing by a JETCOOL Technologies technical support representative, shall void the warranty of the affected Product. Any indication that the serial number of a Product has been altered or tampered with shall also void the warranty.
Disposition of Materials Subject to Warranty Exclusion
In the event that JETCOOL Technologies determines that a defect in a Product results from any cause listed in the Warranty Exclusions section above, JETCOOL Technologies shall use reasonable efforts to notify the Customer of such determination within five (5) business days of receipt, at which time JETCOOL Technologies will dispose of excluded components, or if elected by Customer, return them at Customer’s expense.
Warranty Repair Shipment Charges
Warranty Repairs within Thirty (30) Days of Product Shipment: Shipment fees for the return of defective Product to JETCOOL Technologies and return of repaired or replacement Product to Customer shall be borne by JETCOOL Technologies, provided Customer follows the RMA Process as outlined in the JETCOOL Technologies Base Warranty, available upon request.
Warranty Repairs after Thirty (30) Days of Product Shipment: Customer shall pay for shipment fees for the return of defective Product to JETCOOL Technologies. JETCOOL Technologies shall ship repaired or replacement Product at its expense, provided Customer follows the RMA Process as outlined in the JETCOOL Technologies Base Warranty, available upon request.
No Fault Found
In the event that JETCOOL Technologies determines “no fault found” for components or Products returned to JETCOOL Technologies for warranty repair or replacement, JETCOOL Technologies shall notify the Customer of said condition and return the components or Products to the Customer. JETCOOL Technologies shall reserve the right to invoice the Customer for costs incurred for component testing, and shall return the components at Customer’s expense.
No Other Warranties
TO THE FULLEST EXTENT PERMITTED BY LAW, THE EXPRESS WARRANTIES IN THIS SECTION ARE THE EXCLUSIVE WARRANTIES FOR THE PRODUCTS, AND EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTON, THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND ANY OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, IS HEREBY EXCLUDED.
High Risk Applications
Products are not designed or tested for use in high-risk activities. JETCOOL Technologies shall not have any liability for, and Customer shall indemnify and hold JETCOOL Technologies harmless from all loss, damage, expense or liability, JETCOOL Technologies incurs in connection with the Customer’s use of Products in any high risk activity, including, but not limited to, the operation of nuclear facilities, medical systems, life support systems, weapons systems, aircraft navigation or communication systems, or air traffic control.
JETCOOL Technologies shall, for as long as this Agreement remains in effect, be covered by worker’s compensation insurance as stipulated by law, as well as by liability insurance covering JETCOOL Technologies’s provision of Products and Services to Customer with a cover amount not less than $1,000,000.00 per incident and not less than $2,000,000.00 per calendar year. JETCOOL Technologies shall, at any time upon Customer’s reasonable request, provide Customer with a copy of its insurance policy or an insurance certificate.
Limitation of Liability and Remedies
PRODUCTS ARE PROVIDED “AS IS.” JETCOOL TECHNOLOGIES DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN. JETCOOL TECHNOLOGIES SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, SUSTAINED OR INCURRED BY CUSTOMER IN CONNECTION WITH JETCOOL TECHNOLOGIES’ PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN. EXCEPT WITH RESPECT TO ANY LIABILITY ARISING OUT OF OR IN CONNECTION WITH (i) JETCOOL TECHNOLOGIES’ BREACH OF ITS OBLIGATION OF CONFIDENTIALITY THAT MAY BE PROVIDED IN A SEPARATE, MUTUALLY-AGREED CONFIDENTIALITY AGREEMENT, (ii) ANY THIRD PARTY CLAIM SUBJECT TO INDEMNIFICATION, OR (iii) FOR ANY MATTER FOR WHICH IT WOULD BE ILLEGAL FOR JETCOOL TECHNOLOGIES TO EXCLUDE OR LIMIT OR ATTEMPT TO EXCLUDE OR LIMIT ITS LIABILITY. IN NO EVENT SHALL JETCOOL TECHNOLOGIES’ OR ITS AFFILIATE’S LIABILITY TO CUSTOMER OR ITS AFFILIATES EXCEED, IN THE AGGREGATE, FOR ANY AND ALL CLAIMS UNDER OR IN CONNECTION WITH THIS PROPOSAL/AWARD, AN AMOUNT EQUAL TO THE LESSER OF THE TOTAL AMOUNT ACTUALLY INVOICED AND PAID OR $1,000,000.00.
JETCOOL Technologies shall have no liability under its representations or the warranties in respect to: (i) the use of the warranted Product in combination with any software, tools, hardware, equipment, supplies, accessories or any other materials or services not furnished by JETCOOL Technologies or recommended in writing by JETCOOL Technologies; (ii) any defect in the Products arising from specifications or materials supplied by Customer; (iii) reasonable wear and tear; (iv) fraud, negligence or willful misconduct of Customer or any of its affiliates or representatives; (v) shipping, storage or working conditions after JETCOOL Technologies’ delivery of the Products to the Customer; (vi) failure to follow JETCOOL Technologies’ use restrictions, recommendations or instructions; (vii) any alteration, modification, repair or enhancement of the warranted Product by Customer or any Third Party without JETCOOL Technologies’ prior written consent; (viii) any misuse of the Products or Customer’s use of the Products not in accordance with JETCOOL Technologies’ specifications or the corresponding Product documentation; (ix) any allegation that Customer’s use of the Products infringes the intellectual property rights of any third party; (x) any Product damaged or lost as a result of a force majeure event; (xi) transfer, installation or use of the Product in a location different than its place of delivery (including, without limitation, outside the country of delivery); or (xii) any Product, if the price payable for such Product has not been paid in full in accordance with the terms of the Agreement.
Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party. Any attempt to do so will be void. Notwithstanding the foregoing, JETCOOL Technologies may assign this Agreement without Customer’s consent to an affiliate or any other entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of the voting securities or assets of JETCOOL Technologies. JETCOOL Technologies may use subcontractors in the performance of its obligations, in which case JETCOOL Technologies will remain responsible for the performance of its subcontractors.
If the performance of this Agreement, or any obligation hereunder, except the making of payments, is prevented, restricted or interfered with by any act or condition whatsoever beyond the reasonable control of the affected party, including, but not limited to, acts of God, acts of civil or military authority, failure or interruption of utilities, fires, floods, earthquakes, riots, wars, sabotage, or governmental actions, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference. If an event of force majeure that prevents, restricts or interferes with a party’s performance exceeds one (1) month, the other party may cancel the Order without liability, however, JETCOOL Technologies shall be compensated for the Services, work and deliveries carried out up to the point of termination.
Except where a claim arises as a direct result of the negligence or breach of contract of JETCOOL Technologies, Customer shall defend, indemnify and hold harmless JETCOOL Technologies and its affiliates and their respective representatives from and against any and all damages incurred or suffered by JETCOOL Technologies or such persons arising, directly or indirectly, from: from (i) a breach of the Customer’s express representations, warranties, or covenants set forth in this Agreement, (ii) the Customer’s gross negligence and/or intentional misconduct, (iii) any misuse or unintended use of the Products, (iv) any claim that the Customer’s use of the Products infringes the intellectual property rights of any third party, or (v) violation by Customer of applicable laws except to the extent that such claim is due to the violation of applicable laws, intentional misconduct or negligence on the part of JETCOOL Technologies
Customer and JETCOOL Technologies agree that business conducted electronically in a mutually-agreed manner will be subject to the same rights, obligations and terms as are delineated in this Agreement.
Geographic Scope and Governing Law
This Agreement and any Order issued hereunder shall be governed by the laws of the State of Massachusetts. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. The parties hereby agree and consent that any dispute relating to the Products sold hereunder shall be subject to exclusive jurisdiction and venue of the state and federal courts in Suffolk county, Massachusetts.
All headings are for convenience only and shall not affect the meaning of any provision of this Agreement.
The relationship established by this Agreement is that of independent contractors. Customer may not incur any obligation or commitment on behalf of JETCOOL Technologies unless specifically approved in writing, in advance by an authorized JETCOOL Technologies executive. Customer is responsible for all of its employees and agents and its labor costs and expenses.
Entire Agreement; General
This Agreement, along with any Exhibits, if any, constitutes the entire, final, complete and exclusive agreement between the parties regarding the subject hereof and supersedes any and all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may not in any way be modified, changed or amended except by a written instrument duly executed by an authorized officer of each party. Any terms and conditions of Customer’s purchase orders or other like documentation shall have no force or effect. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument. If any provision of this Agreement is adjudicated to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.