Technical Research and Manufacturing, Inc. (“Seller”) agrees to sell goods and services (“Products”) to the person or entity purchasing hereunder (“Customer”) according to the following Terms and Conditions of Sale (“Terms”):
GOVERNING TERMS: All quotations and sales of Products are exclusively and expressly made on the Terms contained herein, unless otherwise agreed to in writing by Seller. In case of a conflict between these Terms and those appearing in any other Customer documents, these terms shall control. No other terms and conditions, including any terms and conditions attached to, or contained within, Customer’s request for quotation, acknowledgment, purchase order or other contract documentation, shall apply. These Terms apply in lieu of any course of dealing between the parties or usage of trade in the industry. In the absence of a signed agreement between the parties, commencement of performance and/or delivery by Seller shall be for Customer’s convenience only and shall not be deemed or construed to be acceptance of Customer’s terms and conditions. Customer’s acceptance of the Products delivered by Seller shall constitute an affirmation by Customer that these Terms govern the purchase and sale of the Products. THESE TERMS SHALL SUPERSEDE ANY ADDITIONAL, DIFFERENT OR CONFLICTING TERMS PROPOSED BY CUSTOMER OR CONTAINED ON CUSTOMER’S PURCHASE ORDER OR ANY DOCUMENT OR INSTRUMENT SUBMITTED BY CUSTOMER, AND ALL SUCH TERMS PROPOSED BY CUSTOMER ARE HEREBY OBJECTED TO AND REJECTED BY SELLER. Seller’s failure to object to provisions contained in any communication from Customer shall not be deemed a waiver of the provisions herein.
PRICING: Published prices are subject to change without notice. Unless otherwise stated in the written quotation, quoted prices are firm for 30 days from the date of written quotation; unless otherwise stated, prices are in effect at the time of shipment. Except as otherwise set forth, prices do not include any taxes, freight, handling, duty or other similar charges, or qualification, environmental or other testing; payment of such will be the sole responsibility of Customer.
MINIMUM ORDER: Seller reserves the right to impose a minimum order amount.
PAYMENT TERMS: Payment terms are net 30 days from the date of shipment unless otherwise indicated in writing by the Seller. Partial shipments will be billed by Seller as made. Customer shall have no right to offset or withhold payment. Past due balances shall be subject to a service charge of 1 and ¾ percent per month but not to exceed the maximum amount permitted by applicable law. Seller may cancel or delay delivery of Products in the event of an arrearage in Customer’s account. Seller may waive any default without waiving any prior or subsequent default. Customer agrees to pay all costs, including reasonable attorneys’ fees, incurred in any collection efforts for outstanding balances. Seller shall retain a purchase money security interest in all Products, and the proceeds thereof, until Customer has made payment in full in accordance with the terms hereof. Customer shall cooperate fully with Seller to execute such documents and accomplish such filings and/or recordings as Seller may deem necessary for the protection of its interests in the Products furnished to Customer.
ORDER ACCEPTANCE: All orders shall be subject to acceptance by Seller. Acceptance of orders by Seller is subject to credit approval and such other conditions that may be set by Seller in its sole discretion. Seller reserves the right to modify terms prior to shipment, require payment in advance, or delay or cancel any shipment order by reason of Customer’s creditworthiness or should Customer fail to fulfill any obligation when due.
TRANSPORTATION AND RISK OF LOSS: All Products shall be packed for shipment in Seller’s standard packaging, marked for shipment to the address specified in Customer’s order, and, unless Seller receives specific written shipping instructions from Customer prior to the shipment date, shall be delivered by a carrier or forwarding agent chosen by Seller. All Products will be delivered to Customer FOB Seller’s facility, and upon delivery to the carrier or forwarding agent at Seller’s facility, title to and all risk of damage to or loss of the Products shall pass to Customer. Quoted shipment dates are estimates only. “Time is of the essence” terms will not apply to any orders accepted by Seller. Seller may ship partial orders, and Customer agrees to accept and pay for such partial shipments in accordance with agreed upon payment terms.
PERFORMANCE: Seller shall not be liable for any delay in delivery or other performance hereunder which is due to unforeseen circumstances, or to causes beyond its control, including, without limitation, strike, lockout, riot, civil disturbance, acts of terrorism, blockades, war, fire, act of God, accident, theft, malicious damage, failure or breakdown of components necessary to order completion; supplier, subcontractor or Customer caused delays; curtailment or termination of franchises or other supplier agreements; inability to obtain or substantial rises in the prices of labor, materials or manufacturing facilities; curtailment of or failure to obtain sufficient electrical or other energy supplies; technical difficulties; or compliance with any governmental law, regulation, or order, including but not limited to U.S. Export Administration Regulations. Performance shall be deemed suspended during and extended for such time as it is so delayed, and thereafter the other party shall accept performance hereunder. Seller reserves the right to allocate or defer or delay the shipment of any products in its sole discretion to serve its customers.
CANCELLATION: Orders may not be cancelled or rescheduled by Customer without Seller’s prior written authorization, and, in such event, Customer will be liable to Seller for any costs and expenses incurred by Seller to date. Seller may cancel any unfilled order without notice to Customer in the event that Customer becomes insolvent, adjudicated bankrupt, petitions for or consents to any relief under any bankruptcy reorganization statute, or becomes unable to meet its financial obligations in the normal course of business.
DELAYS AND/OR WORK SUSPENSION: Delays caused by Customer, including requests to suspend work, will result in Customer being billed for costs and expenses to date. Invoices issued in such circumstances are due upon receipt.
CUSTOMER ACCEPTANCE OF PRODUCT: Customer shall be responsible for inspecting all Products prior to acceptance. Products shall be deemed accepted by Customer, except as to warranty claims, unless Customer notifies Seller in writing within 30 days of shipment of Product shortages, damage or defect. Notwithstanding the above, any use of a Product by Customer, its agents, employees, contractors, customers or licensees, for any purpose after its receipt, shall constitute acceptance of the Product by Customer. Products may not be returned to Seller without Seller’s prior written authorization.
PROPRIETARY RIGHTS: Prices quoted and charged are for the Products only and do not included technical data, proprietary rights of any kind (including moral rights) or patent rights. Licensing of Seller’s Products requires a separate Agreement. Under no circumstances shall Customer present Sellers Products as its own or alter Seller’s Products in any way that may render the Products unidentifiable as those of the Seller. To do so violates any proprietary agreements in place between Seller and Customer. Further, to do so voids any warranty agreement and nullifies any warranty claims by Customer. Seller maintains sole proprietary rights to its Products; neither receipt of nor possession of its Products or documentation pertaining to those Products confers or transfers any right to reproduce, use or disclose, in whole or in part, the information therein.
LIMITED WARRANTY: As a manufacturer, Seller warrants that Products manufactured by Seller and supplied to Customer will be free from defects in material and workmanship for the period of one (1) year from date of shipment. Seller warrants that catalog Products manufactured by Seller and supplied to Customer will be free from defects in material and workmanship for the period of five (5) years from date of shipment. Customer recognizes and agrees that repair, or, at Seller’s option, credit (as described below) for an equitable portion of the purchase price or replacement of defective parts shall be the sole and exclusive remedy hereunder. The warranties in this section are expressly in lieu of and exclude all other warranties, express and/or implied including but not limited to warranties of merchantability and of fitness for a particular purpose, use or application and all other obligations or liabilities on the part of the Seller, unless such other warranties, obligations or liabilities are expressly agreed to in writing by Seller.
Warranty Criteria: Prior to Seller’s consideration of any warranty claim, Customer must: (a) make a claim within the applicable warranty period; (b) include in each claim: (i) the Product type (including any applicable serial number and/or date code), (ii) original invoice number and date or the applicable purchase order number, (iii) reason for the claim (c) must obtain from Seller written authorization to return Product. Customer must return in proper packaging (shipping damages resulting from improper packaging are the responsibility of Customer). Once Seller makes a determination on the warranty claim, Seller will either return the Product (repaired if appropriate) to Customer; or provide a credit to Customer’s account for an equitable portion of the purchase price. Credits provided herein may only be used against the future purchase of products from after issuance to Customer’s account.
Alteration, modification, deconstruction, remarking and/or reconstruction of Seller’s Product by Customer or its agent(s), contractor(s), customer(s) or licensee(s) voids this warranty agreement and nullifies any warranty claims by Customer.
Credit memos will not be issued, nor will debit memos be accepted, for non-warranty repairs. Payment for all repairs is due upon receipt of Product unless otherwise expressly agreed to in writing by Seller prior to shipment.
LIMITATION OF LIABILITY: Seller’s aggregate liability arising out of or in any way related to these Products shall not, under any circumstances, exceed the payment, if any, received by Seller for the Products furnished or to be furnished, as the case may be, which is the subject of claim or dispute. In no event shall Seller be responsible for incidental, special, consequential or punitive damages, or any damages resulting from loss of use, data or profits, whether in contract, tort, strictly liability or however caused, even if advised of the possibility of such damages. These limitations shall apply notwithstanding any failure of the essential purpose of any limited remedy.
DISPUTES: All disputes, under any contract with Seller, shall be resolved in a court of competent jurisdiction for the location of Seller’s corporate headquarters in Bedford, New Hampshire and/or in a court specified by Seller in order to secure jurisdiction over third parties. Customer hereby consents to the jurisdiction of such court or courts and agrees to appear in any such action upon written notice thereof. No action, regardless of form, arising out of or in any way connected with the Products may be brought by Customer more than one (1) year after the cause of action has accrued. All contracts, expressed or implied, entered into by Seller, shall be construed under and governed by the laws of the State of New Hampshire. If any part, provision or clause of these Terms, or the application thereof to any person or circumstances, is held invalid, void or unenforceable, such holding shall not affect and shall leave valid all other parts, provisions, clauses or applications of these Terms remaining, and to this end the Terms shall be treated as severable.
MISCELLANEOUS: Any assignment by Customer of any part of an order hereunder without the written consent of Seller shall render the order void and shall relieve Seller of any future performance responsibilities. These Terms together with any other documents incorporated herein by reference constitute the entire agreement between the parties hereto pertaining to the Products and expressly supersede any and all prior written or oral agreements or understandings. These Terms may only be modified in writing signed by the parties. No course of prior dealings, written or oral, between the parties, no usage of trade nor acceptance or acquiescence in a course of performance rendered under this Agreement shall be consider a waiver of any future rights under this Agreement, nor shall be relevant to supplement, explain or be relevant to determine the meaning of the terms of this Agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection. Customer agrees to comply fully with all laws and regulations concerning the purchase and sale of Products. In particular, Customer agrees to comply with the Export Administration Regulations of the United States in so far as they apply to the sale of Products. The Products are licensed by the United States for delivery to the ultimate destination as shown on the shipment/invoice address and any contrary diversion is prohibited. Seller’s Products and related documentation are controlled by the U. S. Department of State under 22 CFR (ITAR). Export or transfer of these products and/or information to a foreign person(s) or entity requires an export license or exemption issued by the U. S. Department of State prior to export or transfer. By accepting these Products and/or information, Customer confirms that they understand and will comply with all applicable ITAR and EAR requirements. Unless otherwise agreed in writing, these Terms shall be governed by and construed under the laws of the State of New Hampshire, USA.