Standard Conditions of Sale
THOMAS PRODUCTS LTD. (hereinafter referred to as THOMAS PRODUCTS) proposes to furnish the Purchaser the apparatus, units, or materials (hereinafter termed Units), subject to the following terms and conditions:
1. DELIVERY: Unless otherwise agreed, delivery to the transporting carrier shall constitute delivery to the Purchaser and shall constitute transfer of all title to the Purchaser, subject to the provisions of paragraph 2, below.
If shipment or any other act or condition affecting payment for Units shall be delayed on account of Purchaser, payment shall become due when Purchaser is notified that the Units are ready for shipment, and Units shall thereafter be held at Purchasers risk and expense. If partial shipments are made, proportionate payments shall become due and payable on the partial shipments. Purchaser must contact THOMAS PRODUCTS within ten days after receipt of shipment of partial or damaged goods.
Delivery dates are approximate. The specified shipment is subject to delays due to causes beyond THOMAS PRODUCTS reasonable control, including but not limited to, acts of God, or acts of Purchaser, fires, floods, strikes, accidents, wrecks, delays in transportation, embargoes, car shortages, acts of civil or military authority, compliance with priority orders or preferred ratings issued by the U.S. Government, delay by suppliers of material, shortages of material, unusually severe weather, or an inability to obtain necessary labor, materials or manufacturing facilities due to any such cases; and in the event of delay due to any such cause, the time specified for shipment or completion shall be extended during the continuation of such delay and a reasonable time thereafter to allow shipment. Prices will be subject to adjustment in accordance with the provisions of the annexed price adjustment clause, if any.
2. TITLE: Without relieving Purchaser from obligation to make payment as provided for and without reference to the form of invoice that may be used by Thomas Products, it is agreed that title, to the extent of a security interest in the Units furnished, is reserved in Thomas Products until the purchase price (including any extensions of payment whether evidenced by note or otherwise) shall have been fully paid in cash, and the Units shall remain personal property, whatever may be the mode of its attachments to realty or other property, until fully paid for in cash; and the Purchaser agrees to perform all acts which may be necessary to perfect and assure retention of title in Thomas Products as aforesaid in case of failure by the Purchaser to make any payment when due, it is expressly understood that it shall be optional with Thomas Products to take exclusive possession of the Units wherever found and remove same without legal process, all a the expense of the Purchaser. In the event of default by Purchaser, the amount of damage to Thomas Products being substantial and difficult or impossible to ascertain, it is hereby agreed that any payment, which may have been made to Thomas Products shall be retained by it as liquidated damages, without prejudice to its right of recovery for further damage it may suffer from any cause arising out of such default.
3. STANDARD WARRANTY: Thomas Products warrants that the Units will be free from defects in title, and will conform, in the manner herein provided to Thomas Products applicable specifications which are a part hereof and will be free from defects in material and workmanship, and should any part of it be found, when properly installed, maintained and used under specified service conditions, within one year after date of shipment by Thomas Products, to have been defective or nonconforming with the specifications, Thomas Products will repair or replace said part f.o.b. Its factory provided the original part is returned to its factory transportation prepaid and Thomas Products inspection reveals it to have been defective or nonconforming within the terms of this warranty. No device or part shall be returned without giving prompt notice of nonconformance or defect to Thomas Products. Thomas Products shall in no event be held liable for damage or delay caused by nonconformance or a defect in material or workmanship, and no allowance will be made for repairs or alterations to a Unit unless made with written approval. Purchaser, or any user claiming through Purchaser, assumes all liability for the consequences of the user or misuse thereof by itself or its employers or by others. Thomas Products shall not be liable for damage of any kind resulting from erosive, corrosive or other harmful action of any gasses or liquids or any other substance handled by the Units. The foregoing is in lieu of all other warranties by, and obligations or liabilities of Thomas Products, or its representatives, whether express, implied or statutory; and SINCE THE UNITS ARE SUBJECT OF SPECIFICATIONS, AS AFORESAID, NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE IS APPLICABLE.
Thomas Products assumes no responsibility for damages due to deterioration during periods of storage by the Purchaser prior to installation and operation.
4. TAXES: The Purchaser shall pay to Thomas Products in addition to the purchase price, the amount of any excise, sales, privilege, use, or any other tax, local, state, or Federal, which is payable by Thomas Products because of the acceptance of an order or sale, delivery, installation, or use of the Units covered hereby.
5. INSTALLATION: The Units shall be installed by and at the expense of the Purchaser.
6. SPECIFICATIONS: Any specifications referred to herein or annexed hereto are a standard form of covering Units of Thomas Products of substantially identical type and character and there may be variations therefrom in the details of design and construction of any particular unit. Thomas Products does not supply detailed or shop working drawings of its Units.
7. LAWS AND REGULATIONS: The Units to be produced by Thomas Products and delivered hereunder will be produced in compliance with the Fair Labor Standards Act of 1983, as amended, when applicable. Thomas Products will comply with Federal, state and local laws, orders and regulations applicable to it as of the date of its quotation. Thomas Products shall be responsible for compliance with the requirements and standards of OSHA, or any similar law, only to the extent that they apply to the Units themselves and are sufficiently specifically identified in the order to Thomas Products satisfaction and accepted by it in writing. Price and delivery shall be subject to adjustment to compensate for compliance by Thomas Products with any other laws, orders, regulations or requirements.
8. LIMITS OF LIABILITY: In no circumstances, shall Thomas Products be liable for special, consequential or exemplary damages including but not limited, loss of use of the Units or associated equipment, damage to associated equipment, loss of profit or revenues, capital costs, cost of substitute units, apparatus, equipment, facilities, or services, cost of replacement power, downtime costs, or claims of Purchaser’s customers or others for any such damages. The complete liability of Thomas Products to Purchaser, whether based upon breach of contract, warranty, tort (including negligence) or otherwise is limited to that stated herein; and Purchaser shall bind all successors in interest to the limitation of Thomas Products liability contained herein.
9. MANUFACTURE: The Units contemplated to be furnished hereunder, other than those items normally purchased from other, may be manufactured by any of Thomas Products’ Divisions, Affiliates, or Subsidiaries.
10. GENERAL: All the above provisions, together with those set forth in any Thomas Products form to which this is annexed, and such others as may be accepted by Thomas Products in writing, all of which are accepted by Purchaser and supersede Purchaser’s order from, if any, shall be and constitute the entire agreement for the sale of the Units. Any terms and conditions in any writing pertaining to the sale of the Units irrespective of its wording or of when received by Thomas Products which are inconsistent with, or add to, the terms and conditions hereof, will not be acceptable or become a part of the contract without Thomas Products’ written consent signed by its duly authorized representative. Commencement of performance or shipping shall not constitute acceptance of any such inconsistent or added terms and conditions. Any representation, promise, course of dealing or trade usage, not contained or referenced herein, will not be binding on Thomas Products. No modification, amendment, rescission, waiver, or other, or other change shall be binding on Thomas Products unless agreed to in writing by Thomas Products. The rights and obligations of the parties shall be governed in all respects by the laws of the State in which the order is accepted and entered by Thomas Products. In the event of any claim or dispute both the Purchaser and Thomas Products, the parties, agree that jurisdiction will be in the courts of the State of Connecticut. Any judgement rendered by said court shall be enforceable as to both parties.
11. Collection Fees: IF THIS BILL IS NOT PAID IN FULL WITHIN 30 DAYS FROM THE DATE HEREOF, PURCHASER AGREES TO PAY SERVICE CHARGES AT A RATE OF 1 AND 1/2% PER MONTH ON THE UNPAID BALANCE, TOGETHER WITH ATTORNEY’S FEES AND COSTS OF COLLECTION.
ALL ORDERS ARE SUBJECT TO ACCEPTANCE OF THOMAS PRODUCTS, AT IT’S HOME OFFICE AND NO ORDER SHALL BE BINDING UPON THOMAS PRODUCTS UNTIL SO ACCEPTED.
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