GENERAL. These TERMS AND CONDITIONS OF SALE INCLUDING LIMITATIONS OF WARRANTY (hereinafter “Terms and Conditions”) of Twinlode Corporation (“Twinlode”) shall apply to all sales of TWINLODE® Rack Systems and other products manufactured and/or sold by Twinlode and any ancillary services provided by Twinlode.
ORDER PLACEMENT. Placement of order by Buyer shall be in accordance with Twinlode’s then current procedure. Acceptance by Twinlode of Buyer’s order is expressly conditioned upon Buyer’s acceptance of these Terms and Conditions, including those on the face of Twinlode’s written proposal or order acknowledgment, and any provisions of Buyer’s order or other communication in conflict with, inconsistent with, or in addition to these Terms and Conditions are expressly rejected. Buyer acknowledges that no representation or warranty other than those contained in this document have been made or relied upon.
PRICE, DELIVERY AND DELAY. Unless otherwise provided on the face of hereof or agreed by Twinlode in writing, price and delivery terms shall be F.O.B. shipping point. Prices do not include any federal, state, or local taxes. Unless otherwise agreed in writing, Twinlode will select the route and manner of shipment, and reserve the right to make delivery in installments when necessary, to invoice each installment separately and to expect payment for each installment within Twinlode’s selling terms. All risks of loss or damage shall pass to Buyer at the place and time such goods are placed into the possession of the carrier or shipper, in accordance with the previously referenced F.O.B. shipping point term. Buyer shall be responsible for obtaining and paying for insurance to cover any loss to Buyer. Buyer shall reimburse the Seller for the contract price in the event of loss of the goods. Prices for goods shall be those in effect on the date of invoice unless otherwise provided by this Twinlode’s written proposal, order acknowledgment or otherwise agreed to in writing by Twinlode. If Buyer fails to accept delivery, according to the agreed upon delivery schedule, Twinlode may cancel the then remaining balance of the order. Such cancellation, if elected by Twinlode, shall be in addition to, and not in lieu of, any other rights or remedies that Twinlode may have at law or equity. Prices are only good for quantities indicated. If shipment or any other act or condition affecting payment for the goods or any part of them shall be delayed on account of Buyer, payment shall be due as if shipment had been made. A reasonable storage charge may be made and such storage shall be at the risk of Buyer. Twinlode shall not be liable for any direct, indirect, consequential, special, or incidental losses or damages to Buyer or to any third parties resulting from Seller’s delay in shipment regardless of cause, including but not limited to those causes set forth in the Force Majeure section of this document.
CHANGES IN SPECIFICATIONS OR DESIGN. If Buyer requests any change in quantity, specification or design relating to any goods, or changes of delivery date and/or schedules, such proposed change shall be subject to the terms and conditions contained herein and must be approved in writing to be binding upon Twinlode. Product information and specifications set forth herein are current as of the date hereof.
PAYMENT, CREDIT AND SECURITY. All payments shall be in U.S. dollars. Unless otherwise provided in writing by Twinlode, payment shall be due as follows: 50% deposit upon the earliest of Buyer’s execution of Twinlode’s written proposal or upon delivery of Buyer’s purchase order; 30% prior to shipment; and 20% upon installation. All orders received are subject to credit approval. Buyer agrees to submit from time to time to Twinlode those items reasonably requested in order to establish or update Buyer’s credit. Twinlode shall be entitled to charge interest for payments not made in accordance with the stated or agreed upon terms of payment at lesser of 18% per year or the highest rate permitted by law on the date(s) such payment(s) were due. Whenever Twinlode in good faith deems itself insecure, it may, without prejudice or waiving any other rights or remedies it may have at law or equity, cancel any outstanding orders with Buyer and/or hold production/shipment of any unfilled orders, modify or revoke its extension of credit to Buyer, and take any other steps permitted by law and necessary or desirable to secure Twinlode with respect to Buyer’s payment for goods and services furnished or to be furnished. Buyer will pay Twinlode’s actual costs of collection, including but not limited to court costs, additional litigation expenses, and reasonable attorneys’ fees, incurred for collection of any delinquency. Title to the goods shall remain with Twinlode until Buyer receives physical possession of the goods and the goods are fully paid for by the Buyer. Buyer shall have no right of offset against amounts owed to Twinlode.
ACCEPTANCE. Goods furnished or services performed by Twinlode in all events will be deemed to have been accepted within thirty (30) days after receipt of Buyer, unless rightfully rejected within such period by written notice to Twinlode, by certified mail, return receipt requested, setting forth all of the defects upon which the rejection is claimed. Claims for factory damage or shortages shall not be considered unless made in writing within ten (10) days after receipt of the goods or services and accompanied by reference to Twinlode’s invoice numbers. Buyer’s claims for damage or shortage in transit must be filed by Buyer against carrier. Defective goods shall be held for Twinlode’s inspection or disposition.
LIMITED WARRANTY AND REMEDY.
Twinlode warrants that all goods sold by Twinlode will be of the kind and quantity specified in Twinlode’s written proposal or order acknowledgment, and are free from defects in title and defective workmanship or material as of the time and place of delivery by Twinlode. This warranty is extended to Buyer for a period of twelve (12) months (unless limited further below) from the date of delivery. If, within the applicable warranty period any part within the scope of this warranty proves to be defective in material or workmanship, Twinlode shall, at its option, repair, replace, or authorize the repair or replacement of the defective part.
In order to obtain performance of the obligations under this warranty, the Buyer must promptly (in no event later than thirty (30) days after discovery of the defect) give written notice of the defect to Twinlode Corporation, 51024 Portage Road, South Bend, Indiana 46628, and, at Twinlode’s discretion, return the defective part or product to Twinlode or to such other party as designated by Twinlode. All transportation shipping costs and the return of such parts shall be at Buyer’s expense. This warranty does not extend to any defect or problem caused by the negligence or acts of Buyer, or others, failure to properly install, operate or maintain the product in accordance with installation, operating and/or maintenance instructions furnished with such products, unreasonable use, accidents, alterations, or ordinary wear and tear. Twinlode WILL NOT BE RESPONSIBLE OR LIABLE FOR INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, however arising, including but not limited to use of any products, loss of time, inconvenience, lost profit or other incidental or consequential damages with respect to persons, business, or property, whether as a result of breach of warranty, negligence or otherwise. Notwithstanding any other provision of this Proposal, BUYER’S REMEDY AGAINST Twinlode FOR GOODS SUPPLIED OR FOR NON-DELIVERY OR FAILURE TO FURNISH GOODS, WHETHER OR NOT BASED ON NEGLIGENCE, STRICT LIABILITY OR BREACH OF EXPRESS OR IMPLIED WARRANTY, IS LIMITED SOLELY, AT Twinlode’S OPTION, TO REPLACEMENT OF OR CURE OF SUCH NONCONFORMING OR NON-DELIVERED GOODS OR RETURN OF THE PURCHASE PRICE FOR SUCH GOODS AND IN NO EVENT SHALL EXCEED THE PRICE OR CHARGED FOR SUCH GOODS. Twinlode EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE GOODS SOLD. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTIONS SET FORTH HEREIN, notwithstanding any knowledge of Twinlode regarding the use or uses intended to be made of goods, proposed changes or additions to goods, or any assistance or suggestions that may have been made by Twinlode personnel. This warranty may be altered only in writing signed by an officer of Twinlode. It may not be altered or extended orally or in writing by any other person.
INDEMNIFICATION. Buyer shall defend, indemnify and hold Twinlode harmless from and against any and all claims, liabilities, loss, costs, damage or expense (including reasonable attorneys’ fees) of any kind or nature whatsoever relating to the goods and services provided by Twinlode hereunder, including, without limitation, Prices, including, without limitation, claims made for property damage or personal injury (including death), whether such claims are premised on contract or on tort (including, without limitation, strict liability) and shall include, but not be limited to, any such claims arising in whole or in part from Buyer’s dismantling of safety devices, if any, attached to the goods, failure to follow instruction manuals and product warnings, as well as other improper use of the goods. This indemnity provision shall not apply where such damage or injury is attributable solely to the negligence of Twinlode, its employees or agents.
BUILDING STRUCTURE, ETC. Buyer will be responsible for providing a building structure and foundations, and any other necessary building work, in a condition suitable for the efficient reception, installation and maintenance of the goods. Twinlode accepts no responsibility for any damages or loss whatsoever arising from the inadequacy of the aforementioned structure and installations.
FORCE MAJEURE. Twinlode will not be liable for any delay in the performance of its obligation under any proposal or order acknowledgment, or for any damages suffered by the Buyer by reason of such delay, when such delay is directly or indirectly caused by or in any manner arises from: fires; floods; accidents; riots; acts of God; governmental interference; embargoes; strikes; labor difficulties; shortages of labor, fuel, power, materials or supplies; transportation delays; any existing or future laws or acts of the federal or any state government (including, specifically, but not exclusively, any orders, rules or regulations issued by any official or agency of any such government) affecting the conduct of Twinlode’s business; or any other cause or causes (whether or not similar in nature to any of those specified above) beyond Twinlode’s control.
NO WAIVER. The failure of Twinlode upon knowledge of any default or violation by Buyer of any of these Terms and Conditions, or any agreement entered into between Twinlode and Buyer, to enforce its rights or remedies shall not be construed as a waiver of such default or violation, or of any provision hereof, or of any of its rights or remedies.
CANCELLATION FOR INSOLVENCY OR INSTITUTION OF PROCEEDINGS. In the event of any suspension of payment or the institution of any proceedings by Buyer against Twinlode, or the initiation of voluntary or involuntary proceedings in bankruptcy or insolvency proceedings naming Buyer as a debtor, or proceedings under any provisions of the United States Bankruptcy Code in which Buyer 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 this its order or any contract entered into without liability for loss of anticipated profits.
LIMITATION OF LITIGATION AND ATTORNEY FEES. Any controversy or claim of Buyer arising out of or related to this Proposal must have accrued within the applicable warranty period, and then be commenced within one (1) year after the cause of action has accrued. Twinlode shall be entitled to reimbursement of all costs and expenses, including reasonable attorneys’ fees and other litigation expenses, from the Buyer relating to any lawsuit arising from any proposal, order acknowledgment or any subsequently entered into agreement in which Twinlode prevails.
ENTIRE AGREEMENT, SEVERABILITY AND GOVERNING LAW AND FORUM. Except as otherwise agreed in writing, this constitutes the entire agreement between Twinlode and Buyer, superseding all prior proposals, quotations, orders, agreements 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. Any questions, disputes, controversies, or litigation arising either directly or indirectly hereunder, including, but not limited to, disputes concerning the validity, interpretation or effect of the agreement between Twinlode and Buyer, or interpretations and enforcement of the rights and obligations of the parties hereunder, shall be governed by the laws of the State of Indiana; and the State courts of Indiana shall be the exclusive jurisdiction within which to resolve all such questions, disputes, controversies, or litigation. If any provision of this agreement is determined invalid under applicable law, such invalidity shall be limited to such provision without invalidating the remainder of the other Terms and Conditions or any other provision hereof.