Terms and Conditions
TSE Brakes Terms and Conditions of Sale - Rev. 1 11.25.19
These Terms and Conditions of Sale and alldocuments referenced herein (collectively, the “Terms”) are the only terms andconditions which govern the sale of goods (“Goods”) and/or services (“Services”and together with Goods, the “Deliverables”) by TSE Brakes, Inc. (“Seller”) to thebuyer (“Buyer”) and supersede all other terms and conditions, oral or written,and all other communications between the parties suggesting additional ordifferent terms. These Terms represent the final and complete understanding ofthe parties and may be amended or cancelled only by mutual written agreement.Acceptance is expressly limited to these Terms. Any proposal for additional or differentterms or any attempt by Buyer to vary these Terms is hereby deemed material andis objected to and rejected. No terms of any document or form submitted byBuyer shall be effective to alter or add to these Terms. The earlier ofSeller’s commencement of performance or Buyer’s receipt of any of theDeliverables shall constitute acceptance of these Terms.
Pricesquoted unless otherwise indicated in the purchase order are in U.S. Dollars andbased on the price at the time of quotation and are subject to change withoutnotice. Clerical errors are subject to correction without liability.
Prices do not include any sales, use, excise, privilege,ad valorem, or other taxes, duties, tariffs or assessments now or hereafterimposed or levied (“Taxes”) by or under the authority of any foreign, federal,state, provincial, or local law, rule, or regulation (collectively, “Law”)concerning the Deliverables or the manufacture or sale thereof. If Seller paysany such Taxes, Buyer shall, upon demand, immediately reimburse Seller for suchamounts.
4. TERMS OF PAYMENT.
All payments are due within 30 days from dateof invoice. Orders are subject to acceptance in writing by Seller. All paymentsshall be made without abatement, deduction, discount or setoff. Late paymentsare subject to a service charge of the lesser of 1.5% per month or the highestrate permitted under applicable Law. Buyer shall be liable for all costs andexpenses
relatedto collection of past due amounts, including, without limitation, attorneys’fees and costs. If, in Seller’s judgment, the financial condition of Buyer doesnot justify continuance on the terms of payment above, Seller may require fullor partial payment in advance or otherwise adjust the terms including ceasingto supply Buyer.
Delivery shall be made F.O.B shipping point atSeller’s facility and title and risk of loss passes to Buyer at such time.Delivery/performance dates are estimates only. Seller shall not be liable for anyclaim, loss, expense, or damage of any kind whatsoever for delays, or loss ordamage in transit. Claims for loss or damage shall be made solely against thecarrier. Seller may, in its sole discretion, without liability or penalty, makepartial shipments of Goods to Buyer. Each shipment will constitute a separatesale, and Buyer shall pay for the units shipped whether such shipment is inwhole or partial fulfillment of Buyer’s purchase order.
Buyer shall inspect the Goods upon receipt andServices upon performance, and Buyer shall immediately notify Seller in writingof any claims that the Deliverables are different than identified in Buyer’s purchaseorder whereupon Seller shall determine the remedy pursuant to Section 12.Failure to give such written notice upon receipt will constitute irrevocableacceptance by Buyer of all Deliverables.
7. CHANGES OR CANCELLATION.
Changes in specifications or designs to anyDeliverables, changes in delivery or performance schedules or reschedules orcancellations of orders are not permitted unless Seller has accepted same inwriting, has determined the additional charge to be made, if any, and the samehas been paid by the Buyer. Once ordered, deliverables that are made to order, discontinuedor custom products (“Special Order Goods”) may not be cancelled by Buyer.Seller reserves the right to cancel any purchase orders or releases thereunder,or terminate any agreement relating to purchase of Seller’s Deliverables, upon10 days’ notice to Buyer.
Goods may not be returned without prior writtenauthorization of Seller and compliance with Seller’s return policies andprocedures then in effect.
9. SERVICE TERMS.
(a) Services will be provided at Seller’s thencurrent service rates; (b) If the site is not prepared for the Services uponSeller’s arrival, Seller may charge a service fee and for any delay and/ortravel time; (c) Buyer shall provide Seller with advance notice of any rules,requirements and Laws; (d) Seller may refuse, without any liability, to provideServices and to allow Seller service personnel to suspend Services or vacateany site where, in Seller’s opinion, provision of Services would pose a risk tothe safety of any person. In such event, Buyer is responsible for payment ofany delay and/or travel time at Seller’s regular service rates; (e) Buyer issolely liable for all damages or injuries caused or contributed to by Buyerthat may occur; and (f) Buyer must provide at least 72 hours’ notice ofcancellation of any Service order. If Buyer cancels with less than 72 hours’notice, Buyer is responsible for any costs incurred by Seller caused by suchcancellation.
Buyer shall, at its own expense, maintain andcarry insurance in full force and effect which includes, but is not limited to,commercial general liability (including product liability) in a sum no lessthan $2 million per occurrence, $2 million products-completed operationsaggregate and $4 million annual aggregate with insurance carriers having an AMBest rating of “A- VIII” or better. Upon Seller’s request, Buyer shall provide Sellerwith a certificate of insurance from Buyer’s insurer evidencing the insurancecoverage specified in these Terms. Buyer shall provide Seller with 30 days’advance written notice in the event of a cancellation or material reduction ofcoverage in Buyer’s insurance policy. Except where prohibited by law, Buyershall require: (i) that Buyer’s insurance will be primary and noncontributory,(ii) that Seller be named as an Additional Insured as its interests applies perthis agreement; and (iii) that Buyer and its insurer waive all rights ofsubrogation against Seller’s insurers and Seller.
11. LIMITED WARRANTIES.
Unless otherwise provided by Seller in itswritten warranty, Seller warrants that (i) Goods designed and manufactured bySeller will be free from defects in material and workmanship for a period of 12months after shipment; and (ii) Services will be performed in a timely andcompetent manner in accordance with industry standards. THESE ARE SELLER’S ONLYWARRANTIES. SELLER DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING,WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENTAND FITNESS FOR A PARTICULAR PURPOSE. If during the warranty period, Buyer notifiesSeller in writing that the Deliverables are not in conformity with the warrantyand Seller agrees, after Seller’s inspection (at its option), then: (a) for Goods,Seller will repair, replace or refund the total amount received by Sellertherefor, at its sole option, provided Buyer returns such Goods to Seller’splant for inspection; and (b) for Services, Buyer’s sole remedy is for Seller,at its sole option, to re-perform the Services or credit Buyer’s accounttherefor. These shall be Buyer’s exclusive remedies for Seller’s liability. Anyclaims not made during the warranty period are deemed waived. Seller’s warrantydoes not attach to Deliverables or parts not manufactured by Seller. Anycontract created between Seller and Buyer is subject to the specific conditionsthat (a) Seller is not obligated to provide insurance or indemnify Buyer, and(b) there are no flow-downs from any person or entity including the federalgovernment that become part of the contract. Upon the occurrence of any eventdescribed in Section 14(e)(i)-(vi) without the prior written consent of Seller,this warranty shall be void.
12. LIMITATION OF LIABILITY.
SELLER SHALL NOT BE LIABLE TO BUYER OR ANYOTHER PERSON OR ENTITY FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE ORSPECIAL DAMAGES OR ANY OTHER LOSSES, DAMAGES OR EXPENSES WHETHER ARISING OUT OFBREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OFWHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISEDOF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANYAGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER BELIABLE FOR ANY AMOUNT IN EXCESS OF THE PRICE RECEIVED BY SELLER FOR THE DELIVERABLESWITH RESPECT TO WHICH SUCH LIABILITY IS CLAIMED.
Buyer shall defend, indemnify and hold Seller,its affiliates and their respective officers, directors, members, managers, representatives,agents and employees harmless from and against all claims, suits, demands,losses, liabilities, damages (including injury and death) and expenses(including reasonable attorneys’ fees) (collectively, “Losses”), arising out ofor relating to: (a) Buyer’s or its agents provided specifications, design, structure,operation, material or method of making Deliverables (“Buyer’sSpecifications”), including without limitation, any resulting violation ofintellectual property or proprietary rights; (b) Buyer’s use, misuse ordisposal of Deliverables or materials; (c) Buyer’s non-compliance with any Law;(d) breach of these Terms by Buyer; and (e) Deliverables subjected to: (i)improper installation or storage; (ii) accident, damage, abuse or misuse; (iii)abnormal operating conditions or applications; (iv) operating conditions orapplications above the rated capacity of the Deliverables; (v) repairs or modificationsmade to all or part of the Deliverables without the prior written consent ofSeller; or (vi) a use or application other than or varying in any degree fromthe specifications and Seller’s instructions.
Provided Buyer has made all payments dueSeller, Seller shall defend any suit brought against Buyer based upon a claimthat the Deliverables infringe any United States patent issued as of the dateof Seller’s quotation and shall pay any damages and costs finally awardedtherein against Buyer, provided that Seller is notified promptly in writing ofsuch suit and is given full authority, information and assistance by Buyer todefend or settle the suit. Notwithstanding anything to the contrary, Sellerwill have no liability to the extent that the suit is based upon: (i)modifications to any item made by or on behalf of the Buyer in a manner thatcauses the infringement; (ii) use of any item in combination with theDeliverables that causes the infringement; (iii) the failure of the Buyer touse corrections or enhancements to the Deliverables that are made available bySeller; (iv) Buyer’s Specifications; (v) Buyer’s distribution, marketing or usefor the benefit of third parties of the Deliverables; or (vi) use notauthorized under these Terms. If the Deliverables or any part thereof are deemedto infringe any such patent, Seller shall, at its expense and sole optioneither: (a) procure for Buyer the right to continue using said Deliverables orpart; (b) replace them with non-infringing Deliverables or parts; (c) modifythem so they become noninfringing; or (d) remove them and refund the purchaseprice for them depreciated over no more than 3 years.
In no event shall Buyer have any interest inany tools, jigs, dies, patterns, etc. (collectively, “Tooling”) which is madeor obtained for the production of the Deliverables. Such Tooling shall remainthe property of Seller.
All non-public or proprietary information ofSeller, including all IP, quotations and pricing information, is confidential, solelyfor the use in performing hereunder and may not be disclosed, used or copiedunless authorized by Seller in writing.
17. INTELLECTUAL PROPERTY.
All drawings, know-how, designs,specifications, inventions, devices, developments, processes, copyrights, trademarks,patents and applications therefor, and other information or intellectualproperty disclosed or otherwise provided to Buyer by Seller and all rightstherein (collectively, “IP”) are and will remain the property of Seller. Buyershall have no claim to, nor ownership interest in, any IP and such information,in whatever form and any copies thereof, shall be promptly returned to Sellerupon written request from Seller. Buyer acknowledges that no license or rightsof any sort are granted to Buyer hereunder in respect of any IP, other than thelimited right to use the Deliverables purchased from Seller.
18. EXPORT COMPLIANCE.
Any items provided by Seller are controlled bythe United States Government and authorized for export only to the country ofultimate destination for use by the ultimate consignee or end-user(s) hereinidentified. They may not be resold, transferred, or otherwise disposed of, toany other country or to any person other than the authorized ultimate consigneeor end user (s), either in their original form or after being incorporated intoother items, without first obtaining approval from the United States Governmentor as otherwise authorized by U.S. Law and regulation.
19. FORCE MAJEURE.
Seller shall not be liable for any delay in orfailure to perform due to any event or contingency beyond its reasonablecontrol (an event of “Force Majeure”), including acts of God, epidemics, actsof war whether declared or undeclared, blockades, labor disputes (whether of Seller’semployees or the employees of others), raw material shortages and materialincreases in costs of raw materials, including those material increases in costsresulting from the imposition of tariffs. In the event of Force Majeure, thetime for performance will extend for such time as reasonably necessary to enableSeller to perform. Seller may, during any period of shortage due to any of theabove circumstances, allocate its available supply of Deliverables among itselfand its purchasers in such manner as Seller, in its sole judgement, deems fair andequitable.
Seller shall have the right to cease work orterminate these Terms or any purchase order, in whole or in part, at any time,without liability, if: (i) Buyer breaches or defaults under these Terms or anyother agreement it has with Seller; (ii) a petition under any applicable law relatingto bankruptcy, insolvency, or reorganization is filed by or against Buyer;(iii) Buyer executes an assignment for benefit or creditors; (iv) a receiver isappointed for Buyer or any substantial part of its assets; or (v) Seller shallhave any reasonable ground for insecurity with respect to Buyer’s ability to performand Buyer is unable to provide Seller with adequate assurance within 10 daysafter written request therefor by Seller. In all cases, Seller’s rights arecumulative, are not exclusive and in addition to all other rights and remediesit may have at law or in equity. No termination shall affect any accrued rightsor obligations of either party as of the effective date of such termination.
All waivers by Seller shall be in writing. Failureof Seller at any time to require Buyer’s performance of any obligationhereunder shall not affect Seller’s right to require performance of that obligation.No delay or omission in the exercise of any right, power, or remedy hereundershall impair such right, power, or remedy or be considered to be a waiver ofany default or acquiescence therein.
22. GOVERNING LAW.
Any dispute arising out of or related to theseTerms will be governed by and construed in accordance with the laws of theState of Illinois without regard to any rules on conflicts of laws andexclusively litigated in either (i) a state or federal court located in CookCounty, Illinois, or (ii) a state or federal court located in the state ofSeller’s principal place of business, at Seller’s sole discretion.
The unenforceability or invalidity of anyclause in these Terms shall not have an impact on the enforceability orvalidity any other clause in these Terms. Any unenforceable or invalid clauseshall be regarded as removed from these Terms to the extent of itsunenforceability and invalidity.
Buyer shall not assign any of its rights orobligations under these Terms or any purchase order without Seller’s priorwritten consent. Buyer shall comply with all applicable laws. There are nothird-party beneficiaries. Provisions which by their nature should survive willremain in force after any termination or expiration of any sale of Deliverables.The section headings are included solely for the convenience of the parties.