Product Testing Program Terms and Conditions

This constitutes a binding contract (this “Agreement”) between Thomas Products Ltd. (“TPL”) and the individual or entity submitting products for testing by TPL (hereinafter referred to as “Customer”).

TPL PROVIDES THE PRODUCT TESTING SERVICES (DESCRIBED BELOW) ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS THIS AGREEMENT BY CLICKING THE “ACCEPT” BUTTON BELOW AND BY SUBMITTING PRODUCTS FOR TESTING BY TPL, CUSTOMER (A) ACCEPTS THIS AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) IF A PERSON, CUSTOMER IS 18 YEARS OF AGE OR OLDER; AND (II) IF AN ENTITY, THE INDIVIDUAL ACTING FOR CUSTOMER HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND CUSTOMER TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, NO AGREEMENT IS FORMED AND TPL WILL NOT TEST ANY PRODUCTS OF CUSTOMER.

1. Definitions.  For purposes of this Agreement, the following terms have the following meanings:
   “Customer Product” means a product submitted to TPL by Customer under this Agreement.
   “TPL Product” means a product manufactured by TPL.
   “TPL Equivalent Product” means a TPL Product selected by Customer to be the TPL Product most similar to Customer Product in terms of product type and product specifications.
   “Product Testing” means comparative testing of Customer Product(s) for compliance with product specifications, durability and reliability performed by TPL on TPL testing equipment compared to a TPL Equivalent Product. TPL testing machines and equipment are maintained and calibrated per TPL standard specifications.
   “Test Result Data” means data showing performance of the Customer Product compared to the performance of TPL Equivalent Product under the same testing conditions on the same TPL testing equipment.
   “Test Report” means a report showing the Test Result Data.
2. Testing Program.  TPL is offering a Testing Program under which Customer provides a Customer Product to TPL for Product Testing by TPL.  The objective of the Product Testing by TPL is to provide Customer with Test Result Data showing performance of the Customer Product in comparison to a TPL Equivalent Product. Unless otherwise specified by TPL prior to testing, the Testing Program is a no-fee service provided by TPL to Customer under the Terms and Conditions of this Agreement.
3. Terms and Conditions. The Testing Program is provided under the following terms and conditions:

No Advice or Endorsement” TPL does not endorse any product, including TPL Products as superior or inferior as a result of the Test Result Data.  Test Report is provided for informational purposes only and Customer is solely responsible for any interpretations or conclusions reached from the Test Result Data and Test Report.

“No Affiliation” TPL is not affiliated with any testing standard setting organization or state or federal governmental agency, and the Product Testing is performed according to TPL methods on TPL testing equipment.  TPL makes no claim that the testing methods or results of the Product Testing meet any industry standards.

“No Warrantee” While the Test Result Data are believed to be as accurate, TPL does not warrant that the Test Result Data are suitable for any purpose other than providing Customer with information comparing a Customer Product to a TPL Equivalent Product.  Customer is encouraged to independently confirm the Test Result Data and performance of the Customer Product independently and TPL does not offer a conclusion as to the Customer Product suitability, specifications or performance for any purpose.

“No Publication or Dissemination” Customer hereby agrees that the Test Report is confidential and will be used solely by Customer for product evaluation purposes only, and no other purpose. For the avoidance of doubt, customer may not use the test report or test data as evidence in any litigation proceeding.  Customer agrees not to publish or disseminate the Test Reports in whole or in part to any person or entity, including but not limited to the Customer Product manufacturer, distributor, subcontractor, or other representative of the Customer Product, or to the public in any way or in any advertisement or marketing material or efforts.  Customer agrees to maintain the confidentiality of the Test Report with at least the same care Customer uses to maintain the confidentiality of its own confidential information.

“All Rights Reserved” TPL hereby reserves the right to refuse to test Customer Products for any reason whatsoever.  TPL hereby reserves the right to use the Test Result Data and Test Report for any purpose whatsoever.

“Limitation of Liability” TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL TPL BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, PRODUCT TESTING, AND USE OF PRODUCT TEST DATA.  CUSTOMER HEREBY AGREES TO DEFEND, INDEMNIFY AND HOLD TPL HARMLESS FROM AND AGAINST ANY CLAIM, CAUSE OF ACTION, HARM, LOSS, COST OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TESTING PROGRAM, INCLUDING COSTS OF INVESTIGATION, EXPERT WITNESS FEES, AND REASONABLE ATTORNEYS’ FEES AND COSTS.

THE TEST REPORT, TEST DATA AND PRODUCT TESTING IS PROVIDED BY TPL WITH NO REPRESENTATIONS OR WARRANTIES OF ANY TYPE OR NATURE WHATSOEVER. CUSTOMER PRODUCT SHALL NOT BE RETURNED TO CUSTOMER. TPL SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE TO CUSTOMER PRODUCT WHETHER AS A RESULT OF PRODUCT TESTING OR OTHERWISE.