TERMS AND CONDITIONS OF SALE
1. Interpretation. In these terms and conditions, unless the context otherwise requires:
(a) ‘T.E.A.' means T.E.A. Machine Components, Inc.;
(b) 'The Customer' means the person acquiring goods from T.E.A.;
(c) ' goods' means all goods supplied by T.E.A. to the customer;
(d) 'supply' when used as a verb includes supply (including resupply) by way of sale;
(e) 'person' includes corporation, firm and unincorporated association;
(f) 'corporation' includes person, firm and unincorporated association
(g) any gender imports the other genders;
(h) the singular includes the plural and vice versa.
Clause headings used herein are for convenience only and shall be disregarded in construing these terms and conditions.
2. Offer and Acceptance.
These terms and conditions shall apply to the supply of goods by T.E.A. to the Customer. T.E.A.’s acceptance of the Customer’s order for goods is made expressly conditional on the Customer’s assent to these terms and conditions. By acknowledging receipt of these terms and conditions or by accepting delivery of goods, the Customer shall be deemed to have assented to these terms and conditions.
T.E.A. reserves the right to accept in whole or in part any order by the Customer or to decline any such order. Any order or part order not accepted is deemed cancelled.
The giving of a quotation by T.E.A. shall be construed as an invitation to the Customer to make an offer based on such quotation. Such an order shall not create a contract between the Customer and T.E.A.
All telephone orders should be confirmed in writing by the Customer.
Unless otherwise stated in a quotation, if the Customer does not place an order based on the quotation within thirty (30) days after the date of the quotation, the quotation shall be deemed to have been withdrawn by T.E.A.
Every order, or alteration to an order, requires the written confirmation of T.E.A.
Unless otherwise agreed by T.E.A. in writing, the price for goods shall be that price existing at the date of delivery thereof, notwithstanding that delivery may be delayed by agreement or otherwise.
Subject to the foregoing, prices shall be subject to alteration by T.E.A. without notice to the Customer.
Except as otherwise stated in writing by T.E.A., prices shall be exclusive of any sales or other taxes and any delivery charges, which taxes and delivery charges shall be for the account of the Customer.
Where a price is stated in writing by T.E.A. to be inclusive of sales tax, any increase in sales tax between the date the price is stated and the date of delivery of goods, which are the subject of the sales tax, shall be for the account of the Customer.
The terms of payment shall be net amount due 30 days after delivery unless otherwise agreed in writing by T.E.A. When the Customer opens an account with T.E.A., the Customer may be required to secure sureties or guarantors prior to credit being approved.
To the extent permitted under applicable law, a minimum invoice charge may apply to the supply of goods on credit.
To the extent permitted under applicable law, T.E.A. may charge an account fee for providing the Customer with a charge account facility, which shall be in addition to any minimum invoice charge.
Unless otherwise agreed in writing by T.E.A., payment for goods shall be made directly to T.E.A. only, and not to any representatives, agents, carriers or sub-contractors.
If the Customer fails to comply with T.E.A.'s terms of payment, T.E.A. may forthwith discontinue supply of further goods to the Customer, and T.E.A. may without notice charge interest at a rate equal to the lesser of (i) the [highest prime rate published in the Money Rates section of the Wall Street Journal on the date of delivery of the goods or, if not published on that date, on the next date of publication] [prime rate of interest of Bank of America prevailing at the date of delivery of the goods], or (ii) the maximum rate permitted under applicable law
Notwithstanding anything contained in this Paragraph 4, T.E.A. may, at the time of any particular delivery of goods, require payment therefore in advance of delivery.
5. Delivery and Return of Goods.
Unless otherwise agreed in writing by T.E.A., delivery is F.O.B. shipping point. The Customer shall bear all delivery charges for delivery of goods to the Customer's premises and title and risk of loss shall pass to the Customer at the time of loading onto the carrier. If the goods are ready for loading onto the carrier but delivery is delayed for reasons for which T.E.A. is not responsible, title and risk of loss pass to the Customer at the time that the Customer receives notification that the goods are ready for loading onto the carrier.
Where goods are transported by T.E.A. to the Customer’s premises, delivery and passing of title and risk of loss shall be deemed to take place at the moment that the goods pass over the side of the vehicle on or in which they were transported to the Customer’s premises.
Where, in order to deliver or collect goods, T.E.A. or its carrier enters upon the Customer's premises, the Customer shall provide full and safe access to T.E.A. or its carrier and shall be liable for, and indemnify T.E.A. against all claims, losses, liabilities, damages and expenses (including reasonable attorney’s fees) for personal injury to or death of persons and damage to property occurring directly as a result of the failure by the Customer to ensure such full and safe access the Customer shall be responsible for providing adequate labor and/or materials-handling equipment for the loading and unloading of goods at its premises.
The Customer understands that goods are non-refundable unless agreed to in writing by T.E.A.
Where T.E.A. agrees to collect goods from the Customer's premises, the Customer shall ensure that such goods are all available for collection at an easily accessible central point and that they are ready for loading at the time T.E.A. arrives to collect them.
Where the Customer returns goods to T.E.A. other than by T.E.A.'s vehicles, T.E.A. shall be informed in advance of the details of such returns, including details of goods and the date and method of return thereof. The Customer shall label goods with the name and address of the Customer.
Whenever goods are returned to T.E.A., the Customer shall ensure that they are returned in a safe condition, both from the point of view of risk to persons handling them and in their vicinity and from the point of view of the risk of damage to the goods themselves.
In the event that goods are returned to T.E.A., there shall be no refund of the costs of the packing material and labor used to pack such goods when delivered to the Customer, and T.E.A. shall not be liable for any packing costs incurred in the return of the goods to T.E.A.
Delivery dates proposed by T.E.A. shall not be binding on T.E.A. T.E.A. shall not be liable for any errors or omissions in delivery of goods by any carrier or sub-contractor. In such event, the Customer has no right of withdrawal from the contract.
6. Passing of Title.
The passing of title of goods from T.E.A. to the Customer is subject to T.E.A.’s right to reclaim ownership of any goods supplied until any outstanding monies whatsoever owed by the Customer to T.E.A. have been paid in full. In the event of attachment, seizure or restraint, by any party, of goods supplied by T.E.A. to the Customer, the Customer agrees to inform T.E.A. immediately upon the occurrence of such event. Any such attachment, seizure or restraint shall not affect T.E.A.'s title to goods nor rights herein. The Customer shall not create, or suffer the creation of, any security interest, lien or other encumbrance on any goods delivered to the Customer.
7. Drawings and Specifications.
All technical information (including drawings, specifications, catalogs, illustrations and particulars of dimensions and weight) supplied by T.E.A. to the Customer is approximate only and shall not be binding on T.E.A.
All technical information supplied by T.E.A. to the Customer shall be treated by the Customer as confidential, and the Customer shall not communicate such information to third persons without the written consent of T.E.A. No such information or materials shall be reproduced nor given to third parties.
T.E.A. reserves the right to make alterations to the design, dimensions and weights of its goods.
Catalogs, photographs, samples and price lists remain the property of T.E.A. and shall be returned on demand.
8. Fore Majeure.
If the performance or observance by T.E.A. of its obligations (or any of them) is prevented, restricted or interfered with by reason of any cause or causes beyond the reasonable control of T.E.A., T.E.A. shall, upon prompt notice of such cause or causes being given to the Customer, be excused from such performance or observation to the extent of such prevention, restriction or interference, provided that T.E.A. shall use all reasonable efforts to avoid or remove the cause or causes of non-performance and observance.
9. Warranties and Remedies.
T.E.A. warrants to the Customer that, insofar as they are manufactured or imported by T.E.A., goods will at the time of delivery be of merchantable quality and free from defects in workmanship and materials. The foregoing warranties do not apply to:
1. components not of T.E.A. manufacture that are contained in the goods, and
2. obsolete goods sold at auction, second-hand goods and prototype goods.
The foregoing warranties are made solely to the Customer and do not run to the benefit of any other person. T.E.A. disclaims all other warranties, expressed, implied or statutory, including, without limitation, the IMPLIED WARRANTY OF MERCHANT ABILITY and the IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
The Customer’s sole and exclusive remedies for breach of the foregoing warranties with respect to goods which, upon examination, are found by T.E.A. to be defective in workmanship and/or materials are the following (the choice of which shall be at the option of T.E.A.):
(a)the replacement of the goods or the supply of equivalent goods;
(b)the repair of the goods;
(c)the return of the goods;
(d) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(e)the payment of the cost of having the goods repaired.
The foregoing remedies are made conditional upon the Customer notifying T.E.A. in writing of its claim within seven (7) days of becoming aware of the basis thereof, and at its own expense returning the goods which are the subject of the claim to T.E.A., notwithstanding the foregoing, there shall be no return of defective goods to T.E.A. unless the Customer notifies T.E.A. in writing within three (3) days of the Customer’s receipt of such goods.
T.E.A. shall not be liable in contract, under any warranty, in tort (including negligence), in strict liability or otherwise for any loss, damage, death or injury of any kind whatsoever occasioned to the Customer and/or any third parties in respect of the supply of goods including direct, indirect, consequential, incidental loss, damage or injury of any kind. In no event shall T.E.A.’s liability exceed the amount of the purchase price of the goods. No action, regardless of form, arising out of the supply of goods to the Customer by T.E.A. may be brought by the Customer more than one (1) year after the cause of action has accrued. The Customer indemnifies and keeps indemnified T.E.A. against any loss, damage, claim, cost or demand (including reasonable attorney’s fees) sustained by T.E.A. or made against T.E.A. by any person arising out of the supply of goods herein.
T.E.A. accepts no liability for loss of or damage to drawings, models, samples, etc. sent to T.E.A. by the Customer.
10. Governing Law and Jurisdiction. These terms and conditions and the contract evidenced thereby shall be governed by and construed in accordance with the laws from time to time of the Commonwealth of Virginia, and the Customer hereby submits to the jurisdiction of the federal and state courts therein.
11. Security Interest. In addition to any lien to which T.E.A. may be entitled by statute or the common law, the Customer grants to T.E.A. a security interest in and lien on all goods supplied to the Customer by T.E.A. and all property whatsoever owned by the Customer and in the possession of T.E.A. to secure the Customer’s obligations to pay the unpaid price of any goods supplied by T.E.A. to the Customer.
12. Waivers. Failure by T.E.A. to insist on strict performance by the Customer of any terms and conditions contained herein shall not be taken to be a waiver of any rights of T.E.A. in relation thereto and in any event shall not be taken to be a waiver of the same terms and conditions on any subsequent occasion.
13. Licenses and Permits. It shall be the responsibility of the Customer to obtain, in relation to all goods supplied by T.E.A. to its Customer, all licenses and permits needed under any relevant statute, ordinance or related rule or regulation.
14. Notices. Notices to T.E.A. shall be hand-delivered or transmitted by registered mail, postage pre-paid, to the address of T.E.A. No notice to T.E.A. shall be deemed to have been given until it is actually received by T.E.A.