Terms & Conditions of Sale
Agreement. All sales by Twinlode Corporation (“Twinlode”) are governed by and subject to these terms and conditions, as amended from time to time by Twinlode. These standard terms and conditions form a binding agreement between the original purchaser of Goods (the “Customer”) and Twinlode (the “Agreement”). This Agreement incorporates all additional terms and conditions stated in quotations, pricelists, invoices, order acknowledgments and other documentation furnished by Twinlode to Customer (“Additional Terms”). Stenographic and clerical errors are subject to correction. These standard terms and conditions govern in the event of any conflict or inconsistency with any Additional Terms. There are no other terms of agreement. Any changes to this Agreement are binding and enforceable only if made in writing and signed by an authorized officer of Twinlode. Twinlode rejects any terms or conditions contained in Customer’s purchase order or other documents that are additional to or in conflict or inconsistent with this Agreement, and any such terms or conditions shall be without force or effect. If Customer has not otherwise agreed to these terms, Customer’s acceptance of delivery of, or full or partial payment for, the Goods will constitute Customer’s acceptance of these terms and conditions.
Orders. All orders for products or services sold by Twinlode (together “Goods”) must be in the form of a purchase order. All purchase orders are subject to final acceptance by Twinlode. Following acceptance by Twinlode, purchase orders may not be changed or canceled without the prior written approval of Twinlode. Customer may request changes to or cancellation of a purchase order by submitting a written request to Twinlode. Customer shall reimburse Twinlode for all expenses and losses resulting from any change or cancellation. In the event of any suspension of payment or the institution of any proceedings by Twinlode against Customer, or the initiation of voluntary or involuntary proceedings in bankruptcy or insolvency proceedings, or proceedings under any provisions of the United States Bankruptcy Code in which Customer is a debtor, or for the appointment of a receiver or a trustee or an assignee for the benefit of creditors, Twinlode shall be entitled to cancel the order or any subsequently entered into agreement forthwith, without liability to Customer for loss of anticipated profits or otherwise.
Prices. The prices for Goods are those as specifically quoted by Twinlode. Except as otherwise stated in writing by Twinlode, quoted prices are subject to change by Twinlode without notice until an order acknowledgement has been issued by Twinlode. Prices quoted are exclusive of packaging/shipping and taxes, including without limitation, sales, excise, use and property taxes. Customer agrees to pay all applicable taxes and charges.
Payment Terms. Full payment for all Goods is due in accordance with the terms and payment procedures stated in the invoice issued by Twinlode to Customer. All payments shall be made in U.S. Dollars. Invoices not fully paid by the specified payment date are deemed overdue, and unpaid balances will accrue interest at the rate of 18% per annum or at the highest rate permitted by law, if lower. Twinlode will be entitled to suspend performance of any order or obligation to Customer until the Customer’s account is current. If at any time Twinlode determines in its sole discretion that Customer’s financial condition, payment practices or credit rating does not justify a sale on credit, Twinlode may require advance payment or such other payment assurances as it may deem acceptable in its sole discretion, and it may cancel any order without recourse by Customer. Customer will reimburse Twinlode for all expenses, including reasonable attorney and paralegal fees, incurred to collect any delinquent account, enforce its rights under this Agreement, or pursue any lawsuit, arbitration, or other proceeding related to this Agreement.
Title to Goods. Title to and risk of loss of the Goods will pass to Customer upon delivery of the Goods to the carrier at Twinlode’s place of business. Customer grants Twinlode a security interest in the Goods and will keep the Goods properly stored, insured and identifiable as subject to Twinlode’s lien until full payment is made by Customer for the Goods. Customer agrees that Twinlode may enter Customer’s premises to repossess Goods for which payment is overdue and file financing statements to reflect its lien in the Goods.
Delivery and Delay. Twinlode will deliver Goods to Customer FOB at Twinlode’s place of business within a variance of 10 percent. Delivery dates specified in a quotation or order acknowledgment are estimates only and time is not of the essence. Customer assumes the risk of loss of Goods once delivered to the carrier (the “Shipping Date”) or ten (10) days after Twinlode notifies Customer that the Goods are ready for pick-up. Twinlode may deliver all of the Goods at one time or in portions from time to time. All deliveries are subject to modifications or cancellation due to events beyond Twinlode’s reasonable control, including without limitation acts of God, compliance with any law, order, rule or regulation of any governmental or other authority, disruption of suppliers, delay in transportation, labor disputes, strikes, failure of equipment or systems, or shortages of any labor or materials or services (“Force Majeure Events”). Twinlode will not be liable for any loss of profit or property, or for any direct, indirect, special, incidental, consequential or other damages caused by any delay or failure to deliver. If Customer causes or requests a delay in the manufacture or delivery of any Goods, Customer will reimburse Twinlode for all resulting damages, including without limitation reasonable storage expenses. Customer shall acquire and maintain sufficient property and casualty insurance to cover any loss or risk of loss to any Goods.
Limited Warranty. Twinlode resells Goods only, and accordingly does not provide any warranty for the Goods it supplies other than to warrant to the original Customer only that Twinlode will provide the quantity of Goods ordered with title, subject to tolerances and variations consistent with usage of trade. There is no other warranty from Twinlode. Notwithstanding this As-Is limitation, the Goods may be separately warranted by the manufacturer and Twinlode shall pass through to Customer any transferable manufacturer warranty. Any such warranty is not Twinlode’s warranty. The sole remedy against Twinlode shall be the delivery of the quantity of Goods ordered. Under no circumstances shall Twinlode’s warranty apply to any claimed defect in or damage to the Goods.
Acceptance & Notice of Claims. The Goods shall be deemed to have been accepted within ten (10) days after receipt by Customer unless rightfully rejected within such period by written notice to Twinlode, by certified mail, return receipt requested, setting forth any claim for shortages with reference to Twinlode’s invoice numbers. Failure to give such notice shall constitute an absolute waiver and release of all claims Customer may have, and Twinlode shall have no liability, under this Agreement or otherwise. As a condition to the enforcement of any claim, Twinlode and its agents must be provided access to the original Goods for inspection. The product must remain unmodified for Twinlode’s inspection. Any modification, replacement, attempted repair, self-help, or alteration of the Goods, or other product into which the Goods are incorporated, without Twinlode’s prior approval or before Twinlode inspects the Goods shall render any warranty and claim null and void. Customer’s claims for damage or shortage in transit must be filed by Customer against carrier. Customer and any third-party seeking recourse for defects in or failures of the Goods shall make such claims exclusively to the manufacturer. No such claim shall be justification for withholding payment to Twinlode for receiving the right quantity of Goods. Customer also shall not withhold or reduce payments on account of claims not accepted by Twinlode.
Limitations on Liability. Twinlode PROVIDES AND CUSTOMER ACCEPTS ALL GOODS “AS IS” WITH ALL FAULTS AND ASSUMES THE RISK OF LOSS FOR ANY DEFECT OR NONCONFORMITY. CUSTOMER AND ANY THIRD-PARTY SHALL EXCLUSIVELY SEEK RECOURSE AGAINST THE MANUFACTURER FOR ANY DEFECT OR NONCONFORMITY IN THE GOODS, WHETHER THE CLAIM SOUNDS IN CONTRACT, TORT, STRICT LIABILITY, STATUTE, OR NEGLIGENCE. Twinlode DISCLAIMS ALL WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. Twinlode SHALL HAVE NO LIABILITY TO THE CUSTOMER OR ANYONE ELSE FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION PERSONAL INJURY, DEATH, PROPERTY DAMAGE, LOST PROFITS, LABOR COSTS, OR ANY OTHER PECUNIARY DAMAGE, WHETHER DUE TO ANY DEFECT IN THE GOODS, BREACH OF THIS AGREEMENT, DELAY, NON-DELIVERY, NON-PERFORMANCE, RECALL, OR ANY OTHER REASON. ALL CLAIMS IN TORT, STRICT LIABILITY, AND FAILURE OF ESSENTIAL PURPOSE ARE WAIVED, RELEASED, AND EXCLUDED, INCLUDING CLAIMS OF Twinlode’S NEGLIGENCE. Customer waives, relieves and releases Twinlode from any and all claims, causes of action, and liability for any redhibitory, patent, or latent vices or defects in the Goods. UNDER NO CIRCUMSTANCES SHALL Twinlode’s liability, IF ANY, whether based on contract, tort, warranty, strict liability, or any other theory, exceed the purchase price of the Goods. THERE ARE NO THIRD-PARTY BENEFICIARIES TO THIS AGREEMENT, AND CUSTOMER SHALL PASS THESE TERMS AND LIMITATIONS TO SUBEQUENT BUYERS AND USERS OF THE GOODS. CUSTOMER ACKNOWLEDGES THAT THESE LIMITATIONS AND WAIVERS HAVE BEEN BROUGHT TO ITS ATTENTION, THAT CUSTOMER HAS READ AND UNDERSTANDS ALL TERMS AND AGREES TO BE SO BOUND, AND THAT CUSTOMER’S RECEIPT OF THE AGREEMENT AND GOODS, AND ANY PAYMENT FOR THESE, SIGNIFIES THAT CUSTOMER HAS VOLUNTARILY AND KNOWINGLY CONSENTED TO ALL TERMS, INCLUDING THESE WAIVERS AND LIMITATIONS.
Modifications. No person at Twinlode other than its president has the authority to modify, expand or extend any warranty, to waive any of the limitations or exclusions hereunder, to make any different or additional warranties with respect to any Goods, or to alter, amend, or undo any term of sale. Any such alteration is not effective unless stated in writing signed by the president of Twinlode. All other statements and representations are null and void.
Intellectual Property & Confidentiality. Customer acknowledges Twinlode’s ownership of all trademarks, service marks, copyrights, imprints, rights of publicity, patents, design patents, registered designs, industrial designs, product design, trade secrets and other intangible rights relating to the Goods (“Twinlode Intellectual Property”) and agrees that Customer shall have no right, title or interest whatsoever in any Twinlode Intellectual Property. Customer shall keep confidential all designs, processes, drawings, and other technical or proprietary information disclosed by Twinlode to Customer.
Patent Liability. Where Twinlode supplies goods to Customer’s specifications and/or manufactured or fabricated from Customer’s blueprint, sketch, or specifications, Customer, at its own expense, shall defend any suit or proceeding of any kind whatsoever brought against Twinlode in any capacity if such suit or proceeding involves a claim that any goods or any part thereof constitutes an infringement of any patent, copyright or trademark and Customer shall pay or indemnify any and all judgments, expenses and costs which may be awarded against or incurred by Twinlode related to such legal action.
Period of Limitations. No claim, suit, or other proceeding arising out of or related to the Goods or this Agreement, including without limitation the limited warranty, may be brought by Customer after one (1) year from the date it accrues. No discovery, estoppel, or other rule shall apply to extend this limitations period.
Indemnity. Customer agrees to indemnify and hold Twinlode, as well as its officers, agents, employees, and representatives, harmless from and against all claims, causes of action, liabilities, losses, damages, judgments, and proceedings, whether based in contract, quasi-contract, subrogation, tort, strict liability, or any other legal or equitable theory, including without limitation all expenses, costs, damages or injury to person or property, and attorney fees incident thereto (collectively, “Losses”), arising from or relating to the use, handling, storage, transportation, possession, processing, fabrication, resale, or any other activity involving the Goods after risk of loss has passed to Customer; relating to the training, information, designs, services or other work supplied to Customer, whether caused by the concurrent and/or contributory negligence of Customer, Twinlode, or any of their agents, employees or suppliers; or relating to any extension or attempt to extend Twinlode’s warranty to anyone other than Customer. At Twinlode’s request, and subject to Twinlode’s sole discretion to choose its own counsel, Customer shall also defend Twinlode from any such claims, causes of action, or proceedings. Customer shall at its own expense apply for and obtain any permits and inspections required for the installation and/or use of the Goods. Twinlode makes no promise or representation that the Goods will conform to any federal, state or local laws ordinances, regulations, codes or standards, except as particularly specified and agreed upon in writing by an authorized representative of Twinlode. Twinlode shall not be responsible for any Losses sustained by Customer or any other person, and Customer waives all such claims, arising out of or resulting from the improper installation or misapplication of the Goods, or from any defect or alleged defect in the design, manufacture, instructions, warnings or labeling of any of the Goods or any other product liability claim relating to any of the Goods. Customer is solely responsible for all training related to the installation and use of any of the Goods. The obligations, indemnities and covenants contained in this paragraph shall survive the consummation or termination of this transaction.
Applicable Law. This Agreement shall be considered to have been made in the State of Indiana and shall be governed by and interpreted according to Indiana law, without giving effect to conflict of law principles. Except as provided below, any action or claim arising out of or relating to the Agreement may be brought only in a federal or state court in South Bend, Indiana, having jurisdiction over the subject matter, and Customer irrevocably consents that such court shall have personal jurisdiction over Customer and waives any objection that the court is an inconvenient forum. Alternatively, and at Twinlode’s sole election, any dispute arising out of or relating to this Agreement shall be submitted to binding arbitration in South Bend, Indiana in accordance with the rules of the American Arbitration Association. Any award ordered in such arbitration shall be enforceable in any court of competent jurisdiction. In the event any suit is brought against Twinlode by Customer in violation of this Agreement or for claims waived or released under the Agreement, Customer agrees to pay Twinlode’s attorney and paralegal fees as well as costs to defend such suit.
Independent Contractor. Twinlode is an independent contractor under this Agreement. Nothing in this Agreement shall be deemed to make Twinlode or its employees or agents an employer, employee, partner or joint venturer of Customer.
Miscellaneous. Except as otherwise agreed in writing, this constitutes the entire agreement between Twinlode and Customer, superseding all prior quotations and understandings, oral or written. All such previous communications are hereby abrogated and withdrawn, and no stipulations, representations or agreements by Twinlode, or its officers, agents, or employees shall be binding upon Twinlode unless reduced to writing and attached to and incorporated by reference herein, and no local, general, or trade custom shall alter or vary the terms hereof. If any provision or individual term of this Agreement is invalid or unenforceable under any applicable law, the provision or term shall be ineffective to that extent and for the duration of the illegality, but the remaining provisions and terms shall be unaffected. Customer shall not assign any of its rights nor delegate any of its obligations under this Agreement without the prior written consent of Twinlode. This Agreement shall be binding upon and enforceable by and against Customer and Twinlode, and their respective legal representatives, successors, and assigns.
Twinlode’s Rights. Twinlode has all rights and remedies given to sellers by applicable law, and Twinlode’s rights and remedies are cumulative and may be exercised from time to time by Twinlode. No waiver by Twinlode of any breach of the Agreement by Customer shall be effective unless in writing nor operate as a novation or waiver of any other breach. Twinlode shall not lose any right because it has not exercised that right in the past.
DMS 20218619v1