All sales by TI Electrical, LLC (“TIE”) of TIE products (“Products”) to a customer of TIE (“Buyer”) shall be governed by and subject to the following terms and conditions of sale:
Terms/Conditions in Conflict. —
Any term or condition contained in any purchase order or other communication by Buyer which is at variance with these terms and conditions is agreed by Buyer to be superseded and controlled by these terms and conditions. Stenographic and clerical errors are subject to correction. No representations or warranties other than those contained in these terms and conditions shall be binding upon TIE unless made in writing and signed by a TIE officer.
Order Acceptance. — Orders for purchase of TIE Products shall be subject to written acceptance by TIE.
Cancellation. — Buyer may not cancel, change or assign orders accepted by TIE without TIE’s written consent.
Prices/Delivery Terms. — Prices for Products on TIE’s published price list shall be as in effect on the date of each respective receipt of an order. Prices otherwise quoted are guaranteed for thirty (30) days from date of quote. TIE may make delivery in installments when necessary and invoice each such installment separately. Unless otherwise agreed in writing, delivery shall be FOB TIE’s facility. All risk of loss shall pass to Buyer upon delivery to the first common carrier. Buyer hereby grants TIE a security interest in sold Products until TIE receives payment, and if requested, Buyer will execute and deliver documents effective to perfect such interest. Unless otherwise agreed in writing, all orders are subject to credit approval, and payment in full shall be due in U.S. dollars thirty (30) days from the date of each invoice and sent to the remittance address noted on the invoice. All applicable taxes are to the account of Buyer. If shipment or any other act or condition affecting payment for the Products or any of them shall be delayed on account of Buyer, payment shall become due as if shipment had been made without delay. A reasonable charge may be
made and such storage shall be at the risk of Buyer. Claims for factory damage or shortages shall not be considered unless made in writing within ten (10) days after receipt of the Products.
Except as provided by these terms and conditions or other written agreement to the contrary, all Products shall be deemed to have been accepted thirty (30) days after receipt by Buyer unless written notice of rejection shall have been made to TIE at 1030 Industrial Drive, Matthews, NC 28105 by certified mail/return receipt requested within that period. Any notice of rejection must describe the specific defect or defects upon which rejection is claimed.
Force Majeure. — TIE shall not be responsible nor deemed to be in default on account of delays in performance due to civil wars, insurrections, strikes, riots, fires, storms, floods, other acts of nature, explosions, earthquakes, accidents, any act of government, delays in transportation, inability to obtain necessary labor supplies or manufacturing facilities, allocation regulations or orders affecting materials, equipment, facilities or completed products, failure to obtain any required license or certificates, acts of God or the public enemy, failure of transportation, epidemics, quarantine restrictions, failure of vendors (due to causes similar to those within the scope of this clause) to perform their contracts or labor troubles causing cessation, slowdown, or interruption of work or any other beyond TI’s reasonable control.
Installment Shipments. — To the extent that any accepted order for TIE Products provides for installment deliveries and shipment, each such delivery shall be treated as a separate and independent contract with respect to terms of payment. If Buyer defaults in payment for any such delivery when due under this paragraph, upon five (5) days’ written notice to Buyer TIE may, in addition to its other remedies allow: (1) defer further performance until such payment default is cured; (2) make further deliveries under the order for cash in advance; or (3) declare the entire order in default.
Late Charges. —
received by TIE at the times specified by
these terms and conditions shall bear
interest after their due date at the
highest rate permitted by applicable law,
but not in excess of 12% per annum,
calculated on a 360-day year. If TIE is
required to commence any suit or
proceeding for collection of any
delinquency, customer agrees to pay our
actual costs of collection incurred,
including actual reasonable attorneys’
Warranty. — TIE warrants that its Products will conform to all specifications, drawings, samples, prototypes, or other descriptions provided by TIE. TIE makes no warranty with regard to component parts of its Products that are manufactured by others and instead passes to Buyer such warranties as may be provided by them to TIE.
Warranty Limitations. — Unless otherwise expressly agreed in writing, the TIE WARRANTY SET FORTH ABOVE IN THESE TERMS AND CONDITIONS IS EXCLUSIVE OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE ARISING FROM ANY COURSE OF DEALING OR TRADE USEAGE. TIE ALSO DISCLAIMS ANY WARRANTY OF FITNESS FOR INTEDED PURPOSES FOR PRODUCTS MANUFACTURED PURSUANT TO DESIGNS PROVIDED BY BUYER, WHICH ARE SOLD “AS-IS WITH ALL FAULTS”.
Remedies. —The warranties set forth above in these terms and conditions shall not apply to any defect to the extent caused in whole or in part by or resulting from Product misuse, neglect, improper installation, improper operation, improper maintenance, repair or alteration, accident, or unusual deterioration or degradation of a Product due to physical environment not expressly made known to TIE and beyond the requirements intended for such Product’s specifications. No defective Product may be returned to TIE without prior or written consent. Any return must be with transportation prepaid, which may be refunded at our discretion. Under no circumstances will TIE be liable for:
a. Failures not reported within the warranty period;
b. Failures or damage due to the negligence, accidents, abuse, improper installation, improper operation, or improper maintenance and repair of others;
c. Expenses incurred by Buyer in an attempt to correct or repair any alleged defect without the prior written consent of TIE; or
d. Any losses, costs, expenses, liabilities and damages, including but without limitation to, loss of use of profits, damage to persons or property, any liabilities Buyer may have to its customers or third persons, and all other special or consequential damages, whether direct or indirect. No liability whatsoever shall attach until the Products have been paid for in full. Should a TIE Product fail within the warranty period set forth above as a result of defect in manufacture or of failure to meet written specifications, TIE will repair or replace such nonconforming Product at its expense or refund its purchase price if paid.
If an TIE Product fails to conform to the warranties set forth in these terms and conditions and such nonconformity is not due to misuse or improper maintenance, Buyer shall notify TIE in writing not later than fourteen (14) days after the expiration of such warranties identifying the Product, its date of purchase and the details of failure and shall make the Product available for inspection by TIE or its designated representative. At the request of TIE any defective Product shall be returned to TIE for examination, with transportation charges prepaid and assumed by TIE if the Product is determined to be defective. Within a reasonable time TIE shall provide, at its option, with respect to a Product which fails to conform to the warranty either: a) repair or replacement of such nonconforming or defective Product; or b) full refund of its purchase price. THIS REMEDY SHALL BE THE EXCLUSIVE AND SOLE REMEDY FOR ANY BREACH OF WARRANTY.
Exclusion of Consequential, Special and Incidental Damages. — IN NO EVENT SHALL TIE BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER RESULTING FROM NONDELIVERY OR FROM THE USE, MISUSE OR INABILITY TO USE THE PRODUCT OR FROM DEFECTS IN THE PRODUCT OR FROM THE NEGLIGENCE OF TIE. This exclusion applies regardless of whether such damages are sought for breach of warranty, breach of contract, negligence or strict liability in tort or under any other legal theory.
Seller’s Right of Possession. — TIE may, in addition to all other rights it may possess, at any time, for credit reasons or because of Buyer’s default(s), withhold delivery, in whole or in part, of Products which may be stored with TIE for Buyer’s account, without the necessity of taking any other proceedings. This shall not be construed as limiting, in any manner, any of the rights or remedies available to TIE because of any default of Buyer under the Uniform Commercial Code as it is in force and effect in any applicable state.
Choice of Law; Venue. —Any controversy or claim arising out of or relating to this order or the performance or breach thereof shall be governed by the laws of the State of North Carolina, excluding its choice of law rules requiring the application of any other law, and shall be venued in the state or federal courts in the Mecklenburg County, North Carolina. Buyer irrevocably submits to the jurisdiction of each such court for purposes of such action and waives all objections to venue and personal jurisdiction of such courts. The prevailing party in any such action shall be entitled to recover its reasonable attorneys’ fees and the costs and expenses incurred in any such action.
The parties specifically exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
Interpretation. — This instrument is intended by the parties to be a final, exclusive, complete, and fully integrated expression of their agreement and its terms. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term used herein. Acceptance of, or acquiescence in, a course of performance rendered under this Agreement shall not be relevant to determine the meaning of this Agreement though the accepting or acquiescing party has knowledge of the nature of the performance and an opportunity to object.
Merchant Representations. Buyer and TIE represent to each other that they are merchants with respect to TIE Products that are subject to these terms and conditions of sale. No representations were made or relied upon with respect to the Products or the purchase and sale not contained in these terms and conditions. No agent, employee or representative of TIE made, or has any authority to bind TIE by any warranty, representation, or affirmation concerning TIE Products. Buyer acknowledges that no such affirmation, warranty, or representation has been made nor relied upon, and none forms the basis of this bargain.
Modification. — These terms and conditions of sale may be modified only by a written instrument signed by the parties or their respective agents.
Severability. — If any provision of these terms and conditions of sale is determined to be invalid, illegal, or unenforceable in whole or in part, then the invalid, illegal or unenforceable provision shall be deemed severed and the remaining provisions of such terms and conditions shall remain in full force and effect.