TAH Industries > TAH INDUSTRIES, INC. (TAH) CUSTOMER ORDER TERMS AND CONDITIONS OF SALE


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TAH INDUSTRIES, INC. (TAH) CUSTOMER ORDER TERMS AND CONDITIONS OF SALE

TAH designs, manufactures and sells stock and custom products (“Products”). All TAH quotations are provided and orders for Products are accepted upon and subject to these the terms and conditions set forth herein (“Conditions”). Customer orders are received subject to TAH’s acceptance by issuance of a written order acknowledgement. Collectively, a TAH order acknowledgement, together with these Conditions, is referred to as the “Agreement.” In the event of a conflict between (1) any terms or conditions contained in these Conditions and (2) any terms or conditions contained in an order acknowledgement, the terms and conditions of the order acknowledgement shall govern. These Conditions may not be added to, modified, superseded or otherwise altered except by a written instrument signed by an authorized representative of TAH and delivered by TAH to Customer. Each shipment received by Customer from TAH shall be deemed to be upon these Conditions except as they may be added to, modified superceded or otherwise altered as provided above, notwithstanding any terms and conditions that may be contained in any Customer’s purchase order or other Customer form or correspondence. No prior course of dealing or usage of trade not expressly set forth in the Agreement shall be admissible to explain, modify, or contradict the Agreement in any way.

Pricing. All TAH quotations, including price lists and discount schedules, are intended as indications of the price at which Products are available and are subject to change without notice. Unless otherwise agreed in writing, TAH shall charge its prices in effect at the time of shipment of Products. TAH reserves the right to amend any quotation at any time prior to TAH’s issuance of a written order acknowledgement.

Payment Terms. Unless otherwise agreed, payment terms are net 30 days from the date of invoice. Invoices are dated upon shipment or, if shipment is deferred by Customer, as of the completion of manufacture. If payment is not made when due, Customer shall pay TAH a finance charge of 1% per month. No retainages shall be deductible from or withheld by Customer from payments due to TAH. Under no circumstances shall Customer have the right to delay payment until its receipt of payment from ultimate user or other third party. TAH reserves the right, among other remedies, either to terminate the Agreement or to suspend further deliveries if Customer fails to make any payments as herein provided or if TAH deems that its prospect of receiving payment is impaired. Customer agrees to pay all costs of collection, including attorney fees.

Taxes. Prices quoted do not include sales, use, excise or other taxes. When required by law, taxes will be billed and collectible as separate item at time of shipment unless proof of valid exemption satisfactory to the taxing authority is provided to TAH.

Security Interest. TAH hereby retains a security interest in and to all of the Products and the proceeds therefrom, to secure Customer’s payment of the purchase price.

Warranties. On a Product-by-Product basis, for a period commencing on the date a Product is delivered to Customer and ending on the earlier of the one-year anniversary or, if a shorter period, after 2,000 hours of operation of the Product (the “Warranty Period”), TAH warrants that the Product will be free from defects in materials and workmanship, and will conform to written design specifications. Customer agrees that there have been no affirmations of fact or promises made by TAH relating to the Products that have become part of the basis of the bargain, other than any affirmations and promises expressly set forth in the Agreement. Materials not specified by Customer shall be TAH’s standard materials of construction.

DISCLAIMERS. TAH DOES NOT MAKE AND HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. ANY AFFIRMATION OF FACT OR PROMISE MADE BY TAH SHALL NOT BE DEEMED TO CREATE AN EXPRESS WARRANTY THAT THE GOODS SHALL CONFORM TO THE AFFIRMATION OR PROMISE. WITHOUT LIMITING THE FOREGOING, TAH SPECIFICALLY DISCLAIMS ALL WARRANTIES IN THE EVENT THAT TAH CUSTOM BUILDS A PRODUCT TO CUSTOMER’S DESIGN SPECIFICATIONS; FOR ANY DAMAGE RESULTING FROM IMPROPER STORAGE OR HANDLING FOLLOWING SHIPMENT; FOR PRODUCTS THAT HAVE BEEN REPAIRED BY CUSTOMER OR THIRD PARTIES UNLESS TAH AUTHORIZES SUCH REPAIRS IN WRITING IN ADVANCE; FOR ANY DEFECTS IN ANY COMPONENTS OR EQUIPMENT FURNISHED BY CUSTOMER OR THIRD PARTIES; AND FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCT IN CUSTOMER’S MANUFACTURING PROCESSES OR IN COMBINATION WITH OTHER MATERIALS AND/OR EQUIPMENT.

Limitation of Liability. TAH’s sole liability and Customer’s sole remedy in any cause of action based on contract, tort or otherwise in connection with any Products furnished pursuant to the Agreement, shall be limited to either (i) the repair or replacement of any warranted Product or (ii) damages limited to the total amount paid by Customer to TAH under the Agreement, the election of such remedies to be made by TAH in its sole discretion. Immediately upon discovery of any breach of warranty, Customer shall notify TAH of such breach in writing. Customer shall return to TAH all Products that are subject to a warranty claim F.O.B. TAH’s plant or F.O.B. at another location designated by TAH. Without limiting the forgoing, under no circumstances shall TAH be liable for any expenses for removal of allegedly defective Products or for installation costs of repaired or replaced Products. UNDER NO CIRCUMSTANCES WILL TAH BE LIABLE TO CUSTOMER FOR DAMAGES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER TO TAH UNDER THE AGREEMENT OR FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF TAH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.

Limitation on Claims. No action, whether based on contract, tort or otherwise, arising out of or related to Products furnished pursuant to the Agreement may be brought by Customer more than one year after the cause of action has accrued and no claims for breach of warranty may be brought by Customer unless Customer notifies the TAH in writing within 30 days of discovery of the breach. Any claim made after the time periods specified in the foregoing sentence shall be deemed to be null and void.

Material Furnished by Customer. Materials which Customer furnishes for incorporation into Products, shall be shipped by Customer F.O.B. TAH’s plant, freight prepaid by Customer. If defects are discovered by TAH in materials furnished by Customer, TAH may notify Customer and charge for all expenses incurred by TAH through the date of discovery of the defect. If TAH can repair minor defects, Customer shall pay extra charges necessary to cover such repair work. If, as a result of TAH’s negligence, gross negligence or willful misconduct, TAH damages any material furnished by Customer, TAH shall be liable for such damages up to the cost of such material. Except as expressly set forth in the prior sentence TAH shall have no liability for loss or damage to material furnished by Customer.

Proprietary Information. Any Customer information provided to TAH relating to an Agreement shall not be considered confidential unless otherwise agreed to by TAH in a separate agreement. All TAH specifications, drawings, technical data or, engineering information (“Confidential Information”) supplied to Customer by TAH shall remain the property of TAH and be held in confidence by Customer. Customer shall not reproduce, use, or disclose to others such Confidential Information without TAH’s prior written consent and shall return all such Confidential Information upon TAH’s request.

Shipment. Unless otherwise agreed in writing, TAH will ship Products upon their completion by a common carrier of its choice, F.O.B. shipping point, and freight costs will be charged to Customer. Any shipping dates set forth in an Agreement are estimated and may be subject to Customer’s performance of its obligations (e.g., delivery of specifications and materials). TAH will not be liable for any delay in the performance or shipment of any Products, or for any damages suffered by Customer by reason of such delay. Without limiting the foregoing, TAH shall not be responsible for delays caused by, or in any manner arising from, fires, floods, accidents, civil unrest, acts of God, war, governmental interference or embargoes, strikes, labor difficulties, shortage of labor, fuel, power, materials, or supplies, transportation delays, or any other cause or causes (whether or similar in nature to any of these hereinbefore specified) beyond its control. Unless otherwise agreed in writing, once TAH has commenced manufacture of custom or non-stock Products, Customer may not defer delivery of the Products beyond the approximate shipment date set forth in the Agreement. When delivery of custom or non-stock Products is deferred (1) for Customer’s convenience, (2) due to lack of shipping instructions, (3) for failure to complete credit arrangements satisfactory to TAH or (4)due to late delivery of Customer supplied material; Customer shall pay storage charges and other expenses incurred by TAH due to the delay. Said storage charges and other expenses must be paid to TAH before order is delivered.

Rejection of Products; Inspections. Failure of Customer to give notice of any claim with respect to any Product delivered hereunder within fifteen (15) days after its receipt of such Product, shall be an unqualified acceptance of such Products and a waiver by Customer of any and all claims with respect thereto, other than warranty claims as expressly provided for herein. Thereafter, the shipment shall be deemed accepted and complete. Defects not impairing the operation of Products shall not be a ground for rejection. TAH reserves the right to inspect allegedly defective Products at points of delivery or have them shipped to a destination of its choice.

Returns. Custom and non-stock Products are not returnable (except pursuant to valid warranty claims). No Product shall be returned more than six (6) months from its delivery (except pursuant to valid warranty claims) or without TAH’s written authorization. All returned Products (other than Products returned pursuant to valid warranty claims) are subject to restocking charges.

Cancellations. Customer orders may not be cancelled without TAH’s written consent. Customer agrees to indemnify TAH against all loss, damage or expense incurred due to cancellation including but not limited to the cost of special materials, cost of custom or non-stock Products completed or in process, overhead, and any reasonable costs incurred to collect such losses from Customer.

Indemnification. Customer will at all times defend, indemnify and save harmless TAH against and from any loss, cost, damage, or expense resulting from the use by Customer of any Product or the incorporation by Customer of any Product into a Customer-produced product. In the event that TAH manufactures a custom Product based on Customer’s designs and/or specifications, Customer shall indemnify, defend and hold TAH harmless against any and all claims alleging that such custom Product infringes the patent, trademark or other intellectual property rights of a third party and any and all damages and expenses in connection with such claims.

Governing Law; Arbitration. All disputes claims or controversies arising out of or in any way relating to the Agreement or the sale of Products by TAH to Customer, shall be governed by, and construed and enforced in accordance with, the laws of the State of New Jersey without regard to its conflict of law rules. Except as set forth below, all disputes, controversies or claims arising out of or relating to the Agreement, or the breach thereof, not subject to a third-party claim shall be settled by Arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) in the office nearest to Trenton, New Jersey. The decision or award of the arbitrators shall be final and binding upon the parties hereto to the same extent and to the same degree as if the matter had been adjudicated by a court of competent jurisdiction and shall be enforceable under the Federal Arbitration Act and the Arbitration Act of the State of New Jersey. Any action or proceeding seeking to enforce any decision rendered by AAA arising out of the Agreement or any action for injunctive relief shall be brought against either of the parties exclusively in the courts of the State of New Jersey, County of Mercer, or, if it has or can acquire jurisdiction, in the U.S. District Court for the District of New Jersey.

Severability. If any provisions of this Agreement are held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the other portions hereof, all of which provisions are hereby declared severable.