THOMAS ELECTRONICS INC. TERMS AND CONDITIONS OF SALE
ALL TRANSACTIONS ARE GOVERNED BY THOMAS ELECTRONICS INC.’S (“SELLER”) TERMS AND CONDITIONS OF SALE. ANY PROPOSAL THAT INCLUDES DIFFERENT OR ADDITIONAL TERMS THAT VARY FROM SELLER’S TERMS AND CONDITIONS OF SALE ARE HEREBY REJECTED. NOTWITHSTANDING THE FORGOING, ANY SUCH COUNTERPROPOSALS BY A BUYER SHALL NOT OPERATE AS A REJECTION OF THESE TERMS AND CONDITIONS OF SALE.
1. PURCHASE AND SALE OF PRODUCTS.
An order is deemed by Seller to be an offer to purchase, which Seller may accept or reject in its sole discretion. Seller’s acceptance of an offer to purchase is binding on Seller only if made by written instrument or, if not by written instrument, by shipment of the products ordered (the “Products”), and acceptance by shipment shall only be binding as to the portion of the order actually shipped by Seller. Any automatic or computer-generated response to an order shall not be deemed an acceptance of an order. Seller’s acceptance is subject to these Terms and Conditions of Sale (these “Terms and Conditions”), and Seller hereby rejects any terms and conditions that purport to supplement, amend or otherwise modify these Terms and Conditions. Fulfillment of an order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to supplement, amend or modify these Terms and Conditions.
Unless otherwise specified, the Purchase Price is in U.S. dollars. All quotes by Seller are valid for sixty (60) days unless otherwise specified, and only for the Products in the quantities originally ordered.
Any added expenses incurred by Seller as a result of the acts or omissions of Buyer will be chargeable to Buyer.
Buyer shall pay, in addition to the quoted price, any and all customs duties and sales, use, value added, excise and/or other taxes payable by reason of the sale of Products, together with any interest and penalties thereon.
Payment terms will be as set forth in the quote for the Products delivered by Seller to Buyer. Seller may, but shall not be obligated to, grant credit terms to Buyer. Acceptance of any order is subject to credit approval by Seller. Seller reserves the right, in its sole discretion and without prior notice, to deny, change or limit the amount or duration of credit provided to Buyer, and may require cash payments in advance. Seller reserves the right to cancel any sale if Seller determines, in its sole discretion, that Buyer is unable to pay for any Products.
Buyer shall have no right of set-off or withholding, and no deduction of any amounts due from Buyer to Seller shall be made without Seller’s prior written consent.
4. DELIVERY; TITLE; RISK OF LOSS.
Delivery shall be made ex works (EXW) (Incoterms 2010) Seller’s facility. Title to the Products and risk of loss shall pass to Buyer at the time Seller makes the Products available for pickup at Seller’s facility. Any Products held beyond scheduled shipment date at Buyer’s request are subject to reasonable storage and incidental charges.
5. INSPECTION AND REJECTION OF NONCONFORMING PRODUCTS.
Buyer shall inspect the Products within ten (10) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller.
If Buyer timely notifies Seller of any nonconforming Products, Seller shall, in its sole discretion, (i) replace such nonconforming Products with conforming Products, or (ii) credit or refund the price paid for such nonconforming Products.
Seller warrants to Buyer that for a period equal to the shorter of (i) twelve (12) months from the delivery of the Products or (ii) 1,000 operating hours (the “Warranty Period”), that such Products are free from defects in workmanship and material.
The warranties set forth in this Section 6 do not apply to any Products that have been subjected to abuse, misuse, neglect, improper testing, improper installation, improper storage, improper handling, abnormal physical stress or abnormal environmental conditions, or have been reconstructed, repaired or altered by any person or entity other than Seller.
THE WARRANTIES SET FORTH IN THIS SECTION 6 ARE THE ONLY WARRANTIES MADE BY SELLER IN CONNECTION WITH THE PRODUCTS. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 6, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, AND SELLER SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES INCLUDING ANY (I) WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (III) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
BUYER’S SOLE REMEDY, AND SELLER’S SOLE OBLIGATION, FOR ANY BREACH OF THE WARRANTIES SET FORTH IN THIS SECTION 6 SHALL BE THE REPAIR OR REPLACEMENT OF NON-CONFORMING PRODUCTS.
7. LIMITATION OF LIABILITY.
IN NO EVENT WILL SELLER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, STATUTORY, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR LOSS OF DATA, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE,
EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. SELLER’S LIABILITY IS LIMITED TO THE PRICE PAID FOR THE PRODUCTS WITH RESPECT TO WHICH LIABILITY IS CLAIMED.
8. CANCELLATION; SELLER’S RIGHTS.
Buyer may not cancel any order without Seller’s written consent. Seller will not grant consent unless Buyer agrees to pay to Seller reasonable cancellation charges, as determined by Seller.
If Buyer fails in any manner to fulfill these Terms and Conditions, Seller may defer further shipments until such default is cured. Remedies provided herein shall be in addition to any and all other remedies available to Seller. If, for any reason, Seller is unable to provide the Products in the quantity ordered, Seller may allocate its available supply of Products in such manner as Seller deems proper in Seller’s sole discretion, without incurring any liability on account of the method of allocation or its implementation.
9. COMPLIANCE WITH LAW.
Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms and Conditions. Buyer shall comply with all export and import laws of all countries involved in the sale of the Products or any resale of the Products by Buyer. Buyer assumes all responsibility for shipments of Products requiring any government import clearance.
10. PATENTS AND TRADEMARKS.
The Products are offered and sold on the condition that such sale does not convey any license, expressly or by implication, estoppel, or otherwise, under any patent, trademark, copyright or know-how with respect to which Seller can grant licenses except as specifically set forth herein.
Seller will not be liable for any claim of infringement unless due to infringement by Products manufactured by Seller in the form in which Seller has supplied such Products to Buyer and without regard to their use by Buyer. Without limiting the forgoing, Seller will not be liable for any claim of infringement to the extent arising from any modification of any Product or any combination of the Product with any other product. Additionally, Seller will not be liable for any claim of infringement to the extent arising from specifications provided by Buyer.
Seller reserves the right to discontinue deliveries of any Products, the manufacture, sale or use of which would, in Seller’s opinion, infringe upon any intellectual property rights for any third party.
11. GOVERNING LAW.
These Terms and Conditions and the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the State of New York without reference to the conflicts of law principles thereof. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this contract.
Any legal suit, action or proceeding arising out of or relating to these Terms and Conditions (a “Proceeding”) shall be instituted in the United States District Court for the Western District of New York or the Supreme Court of the State of New York, County of Monroe, and each party irrevocably submits to the exclusive personal jurisdiction of such courts in any such suit, action or proceeding.
If any term or provision of these Terms and Conditions is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
13. FORCE MAJEURE.
Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached these Terms and Conditions, for any failure or delay in fulfilling or performing any term of these Terms and Conditions when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Buyer may not assign this contract without the prior written consent of Seller, and any assignment of this agreement by Buyer without such consent shall be void. No assignment or delegation relieves Buyer of any of its obligations hereunder.
These Terms and Conditions are the sole and exclusive statement of the parties’ understanding and agreement with respect to the transactions contemplated hereby, notwithstanding any other terms that might be contained in any purchase order or other document received from Buyer or submitted to Seller.
No waiver by Seller of any of the provisions of these Terms and Conditions is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms and Conditions operates, or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
The relationship between the parties is that of independent contractors. Nothing contained in these Terms and Conditions shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Paragraph headings are for convenience only and shall not be used in interpreting or construing these Terms and Conditions.
Updated November 23, 2019
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