Terms & Conditions

14. CHANGES. Intellihot may at any time instruct Seller to make changes within the general scope of the Agreement in any of the following: (i) Intellihot’s drawings, designs, or specifications furnished to Seller; (ii) Seller’s method of shipment or packing; (iii) the quantities of product ordered; (iv) the place of delivery; and/or (v) the delivery schedule.  If any such change causes an increase or decrease in the cost of, or time required for, performance under the Agreement, Seller shall have thirty (30) days to request adjustments in the price and/or delivery schedule for Products directly affected by Intellihot’s changes.  To the extent that Intellihot agrees to such adjustments, Intellihot will revise the PO accordingly.  Any requests by Seller for adjustments under this Paragraph 14 shall be deemed waived if not asserted within such 30-day period and/or prior to shipment of such order, and failure to agree to an adjustment shall not excuse Seller from performing in accordance with the revised PO in the event that Seller makes changes in its design, manufacturing process, or specifications that affect products to be delivered or work to be performed under the Agreement, even if such changes do not materially affect the form, fit or function of such Products or work.  Seller shall inform Intellihot of such changes not less than (30) days before the Due Date in the PO specified for such Products or work.  Supplier shall give Buyer at least 180 days’ prior written notice before discontinuing the production of any Products covered by this Order, during which time Supplier shall accept final orders from Buyer at the negotiated price.  Any requests by Seller for adjustments under this Paragraph 14 shall be deemed waived if not asserted within such 30-day period and/or prior to shipment of such order, and failure to agree to an adjustment shall not excuse Seller from performing in accordance with the revised PO.  In the event that Seller makes changes in its design, manufacturing process, or specifications that affect products to be delivered or work to be performed under the Agreement, even if such changes do not materially affect the form, fit or function of such Products or work, seller shall inform Intellihot of such changes not less than (30) days before the Due Date in the PO specified for such Products or work.
15. TERMINATION; CANCELLATION. Unless otherwise provided in a written agreement executed by Seller and Intellihot, Intellihot may terminate any PO or any portion thereof upon giving notice to Seller of such termination not less than two (2) business days prior to the earliest applicable Due Date set forth in the original PO and Intellihot will revise or revoke the PO accordingly. Within ten (10) business days after receiving notice of such termination, Seller shall advise Intellihot in writing of any cancellation charges it desires to impose as a direct result of such termination.  Cancellation charges can only consist of actual out of pocket costs incurred by Seller for unique material purchased or labor incurred to build product unique to Buyer.  To the extent such charges are deemed reasonable in Intellihot’s sole discretion; Intellihot will pay such cancellation charges within forty-five (45) days after the date of the Seller’s written request.  Any request by Seller for cancellation charges shall be deemed waived if not asserted within ten (10) business days after Intellihot’s termination notice.

Notwithstanding the foregoing, Intellihot may cancel any PO or portion thereof without charge at any time upon notice to Seller if; (a) Seller fails to timely perform any of its obligations under the Agreement and such failure is not cured within ten (10) days after written notice of such failure is delivered to Seller, and/or (b) there is or comes to be any material misstatement or omission in the Representations and Certifications submitted to Intellihot by Seller (if any).

16. ASSIGNMENT. Seller shall not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Intellihot, and any assignments in violation of this provision shall be null and void.  Notwithstanding the foregoing Seller may assign claims for monies due or to become due under the Agreement without Intellihot’s consent, provided that Seller promptly furnishes Intellihot with two signed copies of all documentation evidencing such assignment and further provide that payment to any assignee shall be subject to setoff or recoupment of any present or future claims(s) that Intellihot may have against Seller.  Regardless of any such assignment, Intellihot shall continue to deal directly with Seller with respect to all matters other than payment of monies due under the Agreement.
17. COMPLIANCE WITH LAWS. By acceptance of Intellihot’s PO, Seller is certifying that Seller is in full compliance with all applicable laws, regulations, and rules of all governmental authorities having jurisdiction and will obtain all necessary permits, licenses, and consents of all governmental authorities necessary for the performance of this Order.  Without limiting the generality of this Section, Supplier agrees to fully comply with all export and import laws and regulations of the United States, the European Union, and other countries, including, but not limited to, the United States Export Administration Regulations. 

This includes the Fair Labor Standards Act of 1938, as amended, and regulations issued thereunder.  The Agreement is subject to Executive Order 11246 and Labor Department Order No. 4, including revision of December 4, 1971, OPCCP order No. 14, January 14, 1972 section 503 of the Rehabilitation Act of 1973, section 402 of the Vietnam Era Veterans Readjustment and Assistance Act of 1974, the Americans with Disabilities Act of 1990, and all rules and regulations promulgated pursuant thereto, as any of such laws of regulations may be amended at any time, all of which are incorporated herein by this reference.

Upon request, Seller shall furnish Intellihot with satisfactory evidence of its compliance with the representation in the Paragraph 3.

18. APPLICABLE LAW. This Agreement and any claim, dispute, action,

or issue arising out of or relating to this Agreement or the Services is governed by the laws of the State of Illinois without reference to conflict of laws principles. The parties hereby consent to the exclusive jurisdiction of, and venue in, the federal or state courts of competent jurisdiction located in Cook County in the State of Illinois for the purposes of adjudicating all such claims or disputes. The prevailing party in any legal proceeding shall be entitled to recover its reasonable attorney’s fees incurred in connection therewith.  The U.N. Convention of Contracts for the International Sale of Goods shall not apply to the purchase of Products or services by Intellihot.

19. INSURANCE. At Seller’s own cost, Seller shall obtain and keep (until completion of this Order), worker’s compensation and general comprehensive liability insurance covering each occurrence of bodily injury and property damage in the amount of not less than USD$2,000,000 combined single limit, with special endorsements providing coverage for: (i) Products and Completed Operations Liability; (ii) Blanket Broad Form Supplier’s Liability; (iii) Blanket Contractual Liability; and (iv) Automobile Liability. If requested, Supplier shall furnish Buyer with a certificate evidencing the required insurance. If Supplier or any of its employees, consultants, or agents enter Buyer’s premises in the course of fulfilling this Order, they shall at all times comply with Buyer’s safety and security policy, a copy of which is available upon request.  The Seller’s insurance coverage is primary and noncontributory to that of Buyer’s.  Seller’s purchase of insurance coverage and the furnishing of certificates of insurance shall not release Seller of its obligations or liabilities under this Agreement.  In the event of Seller’s breach of this provision, Buyer shall have the right to cancel the undelivered portion of any goods or services covered by this Agreement and shall not be required to make further payments except for conforming goods delivered or services rendered prior to cancellation.
20. INGREDIENTS DISCLOSURE. If any of the items ordered constitute or contain “hazardous or toxic chemicals” or “hazardous substances” or flammable or hazardous “petroleum products” as defined by any applicable Federal, State or local law, rule or regulation, Seller shall provide at the time of delivery all required notices and information, including without limitation, notices and information for OSHA, MSHA and Material Safety Data Sheets. Seller agrees to maintain such information current and shall provide Buyer with any amended, altered or revised information on a timely basis.  Seller warrants that the goods supplied under this Agreement do not contain any substance whose use is prohibited under Federal, State, or local law, including, but not limited to the Clean Air Act, the Toxic Substance Control Act, or the Federal Insecticide Fungicide and Rodenticide Act, and that any applicable requirements under these laws have been satisfied by Seller.  

If requested by Buyer, Seller shall promptly furnish to Buyer in such form and detail as Buyer may direct: (a) a list of all ingredients in the goods purchased; (b) the amount of one or more ingredients; and (c) information concerning any changes in or additions to such ingredients.  Prior to and with the shipment of the goods purchased, Seller agrees to furnish to Buyer sufficient warning and notice in writing (including appropriate placarding and labels on goods, containers, packing and vehicles used for shipment) of any “hazardous substance” which is an ingredient or a part of any of the goods, together with such special handling instructions as may be necessary to advise Buyer and third parties, including transportation carriers and Buyer’s employees, as to the degree of care and precaution that will best prevent bodily injury or property damage in the handling, transportation, processing, use, recycling or disposal of the goods.

21. FORCE MAJEURE. Any delay or failure of either party to perform its obligations shall be excused if it is caused by an extraordinary event or occurrence beyond the control of the nonperforming party and without the nonperforming party’s fault or negligence, such as acts of God, fires, floods, windstorms, explosions, riots, natural disasters, wars and sabotage. Written notice of such delay, including the anticipated duration of the delay, must be given by the nonperforming party within ten (10) days of the event.  During the period of any delay or failure to perform by Seller, Buyer, at its option, may purchase goods from other sources and reduce its schedules to Seller by such quantities, without liability to Buyer, or cause Seller to provide the goods from other sources in quantities and at times requested by Buyer and at the price set forth in this Agreement.  If requested by Buyer, Seller shall, within five (5) days of such request, provide adequate assurance that the delay will not exceed such period of time as Buyer deems appropriate.  If the delay lasts more than the time period specified by Buyer, or Seller does not provide adequate assurance that the delay will cease within such time period, Buyer may, among its other remedies, immediately cancel this Agreement without liability.
22. MISCELLANEOUS PROVISIONS. No addition or modifications to the Agreement shall be effective unless made in writing and signed by the respective representatives of Seller and Intellihot. Any delay or failure to enforce at any time any provision of the Agreement shall not constitute a waiver of the right thereafter to enforce each and every provision thereof.  If any of the provisions of the Agreement is determined to be invalid, illegal or otherwise unenforceable, the remaining provisions shall remain in full force and effect.  The rights and remedies expressly provided to Intellihot herein are not exclusive but are cumulative and in addition to any other rights and remedies available at law or in equity.