(Effective March 7, 2022)
PLEASE READ THESE TERMS AND CONDITIONS OF SALE CAREFULLY.
ACCEPTANCE BY TWIN CITY HOSE, INC. (“TCH”) IS EXPRESSLY LIMITED TO CUSTOMER’S AGREEMENT TO THESE TERMS AND CONDITIONS TOGETHER WITH ANY ADDITIONAL PRINTED TERMS AND CONDITIONS CONTAINED IN QUOTATIONS, OFFERS OR ORDER ACKNOWLEDGEMENTS PROVIDED BY TCH TO CUSTOMER AND CONSTITUTE THE GOVERNING TERMS AND CONDITIONS OF SALE, ALL OF WHICH ARE IN LIEU OF, REPLACE AND SUPERSEDE ANY AND ALL OTHER CONFLICTING TERMS AND CONDITIONS SET FORTH ON CUSTOMER’S PURCHASE ORDER, APPLICABLE SPECIFICATIONS, OR ANY OTHER DOCUMENT PROVIDED BY CUSTOMER. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS OR CONDITIONS PROVIDED BY CUSTOMER, EITHER BEFORE OR AFTER ISSUANCE OF TCH’S ACKNOWLEDGMENT, ARE HEREBY REJECTED BY TCH, AND ANY SUCH DOCUMENT SHALL BE WHOLLY INAPPLICABLE TO ANY SALE OF PRODUCTS BY TCH AND SHALL NOT BE BINDING IN ANY WAY ON TCH. IF CUSTOMER HAS NOT OTHERWISE ACCEPTED THESE TERMS AND CONDITIONS, THEN CUSTOMER’S ACCEPTANCE OR DELIVERY OF, OR PAYMENT FOR, THE PRODUCTS SHALL CONSTITUTE CUSTOMER’S ACCEPTANCE OF THESE GOVERNING TERMS AND CONDITIONS. TCH AND CUSTOMER ACKNOWLEDGE AND AGREE THAT IT IS THEIR INTENTION THAT THE “BATTLE OF THE FORMS” § 2-207 OF THE UNIFORM COMMERCIAL CODE SHALL NOT APPLY TO THESE TERMS AND CONDITIONS. NO WAIVER OR AMENDMENT OF ANY OF THE PROVISIONS OF THESE TERMS AND CONDITIONS SHALL BE BINDING ON TCH UNLESS IN WRITING AND SIGNED BY AN OFFICER, DIRECTOR, OR LEGAL COUNSEL (OR THEIR AUTHORIZED DESIGNEE) (EACH AN “AUTHORIZED REPRESENTATIVE”) OF TCH.
Any quotation or pricing proposal (a “Quotation”) is only valid if in writing and then only for five (5) days from the date of the Quotation unless otherwise set forth in such Quotation. All Quotations by TCH are subject to change or withdrawal without prior notice to Customer unless otherwise specifically stated in the Quotation. TCH shall have no obligation to provide, deliver, or sell products covered by TCH’s Quotation unless and until TCH issues an order acknowledgement or upon the shipment of products by TCH. Pricing stated in any Quotation is subject to adjustment for any deferred or future quantities or deliveries, as provided in Section 4 below.
3. Credit Approval
All Quotations and shipments to be made by TCH are subject to the approval of TCH’s accounting department. If, in TCH’s sole judgment, the financial viability or responsibility of Customer is or becomes unsatisfactory, then TCH may, at its option and without prejudice to any of its other remedies hereunder or at law or equity, (a) defer or decline to make any shipments except upon receipt of satisfactory security or cash payments in advance, and/or (b) terminate all purchase orders, blanket orders, or releases of Customer.
The purchase price for the products will be the price for the products in effect at the time of shipment, unless otherwise agreed upon in writing by the parties. All prices are F.O.B. Rogers, Minnesota. Product prices are in U.S. Dollars and, subject to TCH’s adjustment rights as stated below, are firm for the five (5) day period following issuance of the Quotation, and not subject to any trade, early payment or other discounts and do not include any taxes, duties or costs of special packaging and insurance, unless otherwise specifically agreed to by TCH in writing. Customer shall pay these charges when applicable, and if assessed to TCH, Customer shall indemnify and hold TCH harmless from all such charges. Applicable taxes may be collected by TCH from Customer; however, Customer may provide TCH with an appropriate tax exemption certificate acceptable to TCH and applicable taxing authorities. Customer may not offset or make any deduction or short payment for any claim against TCH, including any claim for products returned by Customer for repair or correction of defects, whether actual or alleged, or for any other reason. TCH reserves the right to make adjustments to pricing and product offerings for reasons including, but not limited to, material or component cost increases, material or component shortages or delivery delays, changing market conditions, product discontinuation, product unavailability, errors in advertisements, or other factors impacting TCH’s costs and ability to supply the products.
5. Payment Terms
For all products, terms of payment are net thirty (30) days from the date TCH has the products ready for shipment. If Customer delays shipment, or if shipment is delayed by a carrier through no fault of TCH, the payment due date will be based on the date TCH is prepared to make shipment, and products held for Customer shall be held at Customer’s expense and risk of loss. Delinquent accounts shall bear interest beginning on the first day after the payment due date, without any requirement for TCH to provide notice, on the unpaid balance at the lesser of (a) of twenty-five percent (25%) per annum, or (b) the maximum legal rate. In the event of a payment default, Customer will be responsible for all of TCH’s costs of collection, including court costs, filing fees and attorney’s fees.
Purchase order shall mean: (a) a specific order of firm quantity of products or (b) a valid blanket purchase order issued by Customer to TCH under which written paper or electronic releases are issued setting forth product delivery requirements. Orders are not binding upon TCH until accepted by TCH in writing through the issuance of an order acknowledgement, invoice, or upon undertaking performance. TCH does not guarantee same day fulfillment of any order.
Customer may place firm orders calling for delivery times, quantities, and other criteria outside of the parameters specified including custom specification products (“Special Orders”). Special Orders are not agreed upon unless expressly accepted by TCH in writing. TCH will use reasonable efforts to comply with Special Orders but will not be in default if TCH is unable comply. Additional costs to be paid by Customer that are related to Special Orders will be as agreed upon in writing between the Authorized Representatives of TCH and Customer. All sales of Special Ordered items are final; no cancellations will be accepted after a Special Order has been placed; and no returns will be accepted.
TCH may provide Customer with estimates or forecasts of its capacity for the manufacture or delivery of products. Customer acknowledges that any estimates or forecasts are provided for estimation of output only and, like any other forward-looking projections, are based on a number of economic and business factors, variables and assumptions, some or all of which may change over time. TCH makes no representation, warranty, guaranty or commitment, express or implied, regarding any estimates or forecasts provided to Customer, including as to the accuracy or completeness of the estimates or forecasts.
8. Allocation and Inability to Meet Quantities
In no event shall TCH be required to sell a greater number of products than it shall have available or allocated for such purposes. If TCH is unable to supply the total demands for any of the products, TCH shall have the right to allocate its available supply among its customers in such manner as TCH shall deem to be fair and equitable. In no event shall TCH be obligated to purchase products from others in order to enable it to deliver products to Customer.
9. International Orders
Due to the additional documentation required to ship to international destinations, all international shipments may take additional time to process and ship. TCH may also place additional order holds at its discretion for payments deemed by TCH to be suspicious or high-risk. All products will be shipped with an invoice reflecting their correct value as required by U.S. federal law. Customer is responsible for and agrees to pay all brokerage fees, taxes, tariffs, customs duties and other charges that may be payable in the U.S., the destination country or any other country or jurisdiction.
10. Shipping Title, Risk of Loss, and Delivery
All shipping dates are approximates, and are based upon prompt receipt of all necessary information from Customer. TCH’s line of products require close coordination of Customer’s requirements with TCH’s production schedules to avoid possible delays in shipments. Accordingly, TCH reserves the right to ship in advance of the shipping date, or in single or multiple shipments. Unless otherwise agreed upon, all products will be shipped F.O.B., Rogers, Minnesota, and title in and the risk of loss to such products will pass to Customer upon TCH’s delivery to the carrier at the point of shipment. Thereafter, Customer will be solely responsible for and bear the entire risk of any loss or damage to the products. TCH is not responsible for and shall have no liability for any delays in shipment or delivery. Any products for which Customer requires or requests deferred shipment or shipment at future dates are subject to price changes at the discretion of TCH. Notwithstanding transfer of title and risk of loss to Customer, Customer hereby grants to TCH a purchase money security interest in all products sold hereunder, including all proceeds, additions and accessions thereto.
11. Inspection / Non – Conforming Shipments
TCH grants Customer the right to inspect the products for a period of three (3) business days immediately following delivery (“Inspection Period”). Customer must notify TCH of any products that do not conform to the terms applicable
to its order within the Inspection Period, and afford TCH a reasonable opportunity to inspect such products and cure any nonconformity. If Customer fails to provide TCH with a written report specifying the non-conformity (a “Non- Conformance Report”) within the Inspection Period, Customer shall be deemed to have accepted such products. Customer will have no right to return any product without TCH’s prior written authorization. Any return authorized by TCH must comply with TCH’s return policies then in effect and must be accompanied by a Non-Conformance Report. TCH, in its sole discretion, may reject any return of the products not approved by TCH in accordance with this paragraph or otherwise not returned in accordance with TCH’s then current return policies.
12. Cancellation Policy
Once accepted by TCH, purchase orders may not be canceled, reduced, changed, or suspended by Customer without TCH’s written consent and payment of reasonable and proper cancellation charges determined by TCH. This includes all direct and indirect costs, expenses, and overheads (including a reasonable profit) incurred by, or in direct or indirect connection with the order and will be due and payable to TCH upon cancellation approval by TCH. Cancellation charges will be assessed against all work in progress, development costs, and inventory. Refused orders and/or returns shall be subject to a restocking/handling charge of no less than 25% of the total amount of the return, or more depending on the specific circumstances. For clarity, delays in shipment or delivery, or price adjustments due to material and supply costs or other market conditions as provided for in Section 4, shall not be a basis for cancellation.
13. Return Policy
Customer has no right to return products absent an express, written agreement from TCH in the form of a Returned Goods Authorization (RGA) issued by TCH, whether related to a warranty claim or otherwise. Customer must request an RGA within five (5) business days after Customer’s receipt of shipment. If TCH elects to accept returns in accordance with this paragraph, all such returns, other than those accepted by TCH due to warranty, shall be subject to a restocking charge. If returned product has been in service, Customer must include a Material Safety Data Sheet (MSDS). Customer must enclose customer’s name, address, telephone number, and reason for return with all returns. The RGA number must be clearly written on all returned packages.
TCH shall have sufficient time to inspect the returned product and determine corrective action before issuing any credit. All accepted returns must be received within thirty (30) days of issuance of the RGA number and Customer must place the returned product in commercially reasonable packaging to prevent damage to the contents. Products returned for repair will be evaluated by TCH’s quality control, and if accepted, all evaluation costs will be credited towards the entire repair. Customer must prepay freight on all products returned to TCH.
Products not acceptable for return credit or replacement include, but are not limited to, products received without an RGA, all Special Orders, products beyond TCH’s standard warranty term, products that have been modified, products not purchased from TCH, any material denied return by TCH, any non-stock material without a TCH invoice number.
Subject to the limitations in these Terms and Conditions, TCH warrants to Customer only, and not to any other third party, that the products will be free from significant operational defects in material and workmanship for a period of twelve (12) months beginning on the date of sale shown on the invoice. TCH’s liability is limited to replacing and repairing the products, at TCH’s discretion. A warranty replacement or repair of a claimed defective product shall not extend the warranty period. The warranty is valid only if Customer (a) notifies TCH in writing within thirty (30) days from discovery of any alleged nonconformity; (b) the products are returned to TCH for inspection; (c) TCH’s inspection discloses to its satisfaction that any alleged nonconformance is material and has not been caused by misuse, neglect, wear and tear, improper installation, unsuitable storage, repair, alteration, or accident; and (d) the products were installed, maintained and used in accordance with TCH’s instructions, if any.
TCH shall have the right either to replace or repair any defective products (to the extent such defect is proximately caused by TCH), to refund the product price, replace (or pay for replacement of) damaged products or parts, or to grant a reasonable allowance on account of such defects, and TCH’s liability and customer’s exclusive remedy for defective products shall be limited solely to replacement, repair, refund or allowance as TCH may elect. TCH shall be given a reasonable opportunity to investigate all non-conformance claims. There are no third party beneficiaries of this TCH warranty, and no third party may claim any rights under or related to this warranty.
15. Disclaimer of Other or Further Warranties
EXCEPT AS SET FORTH ABOVE, TCH MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY INTELLECTUAL PROPERTY OR THIRD PARTY RIGHTS, WITH RESPECT TO ITS PRODUCTS. TCH EXPRESSLY DISCLAIMS ANY SUCH WARRANTIES AND NO SUCH WARRANTIES EXIST WITH RESPECT TO TCH PRODUCTS.
16. Limitation of Liabilities and Remedies
TCH SHALL NOT BE LIABLE, AND CUSTOMER WAIVES ALL CLAIMS AGAINST TCH FOR, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, SCRAP, DOWNTIME PRODUCTION DELAYS OR OTHER COMMERCIAL LOSSES, WHETHER OR NOT BASED UPON TCH’S NEGLIGENCE, BREACH OF WARRANTY, OR STRICT LIABILITY, OR ANY OTHER CAUSE OF ACTION. TCH WILL NOT BE LIABLE TO CUSTOMER FOR ANY LOSS, DAMAGE, OR INJURY TO PERSONS OR PROPERTY RESULTING FROM
(A) THIRD PARTY INSTALLATION ACTIVITIES; OR (B) THE INSTALLATION, HANDLING, USE, STORAGE, OR RESALE OF THE PRODUCTS, (C) OR IN COMBINATION WITH OTHER SUBSTANCES, OR
(D) OTHERWISE. IN NO EVENT SHALL TCH’S ENTIRE LIABILITY EXCEED THE PURCHASE PRICE WITH RESPECT TO THE SPECIFIC PRODUCTS IN WHICH THE CLAIM IS MADE.
17. Ownership of Intellectual Property
All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights, trademarks, patents, etc. and applications therefore, and other information or intellectual property disclosed or otherwise provided to Customer by TCH and all rights therein (collectively, “Intellectual Property”) will remain the property of TCH and will be kept confidential by Customer in accordance with these Terms and Conditions. Customer shall have no claim to, nor ownership interest in, any Intellectual Property and such information, in whatever form and any copies thereof, shall be promptly returned to TCH upon written request from TCH. Customer acknowledges that no license or rights of any sort are granted to Customer hereunder in respect of any Intellectual Property, other than the limited right to use TCH’s proprietary products purchased from TCH. Unless otherwise agreed to in a writing signed by an Authorized Representative of TCH, any Intellectual Property developed by TCH or mutually with Customer in the course of providing, preparing to provide, or in any way related to the production/development of products shall be owned by TCH.
18. Confidential Information
Information furnished or made available by TCH (including, but not limited to, information disclosed prior to the applicability of these Terms and Conditions) to Customer in connection with the subject matter of these Terms and Conditions or of Customer’s purchase order shall be held in confidence by the Customer. Customer agrees not to use or disclose such information without the prior written consent of an Authorized Representative of TCH. The obligations in this section do not apply to information that (a) at the time of disclosure was or becomes, generally available to the public by no breach by the Customer of any obligation herein, (b) the Customer can show by written records was in its possession prior to disclosure by TCH, or (c) is legally disclosed to Customer by a third party having no direct or indirect confidentiality obligation to TCH respecting such information.
TCH may revise these Terms and Conditions at any time by posting them to its website, and Customer acknowledges and agrees any updates to these Terms and Conditions shall be binding upon Customer. TCH’s Terms and Conditions may be found at https://www.twincityhose.com/terms-conditions/.
20. Force Majeure
TCH shall not be liable for failure in delivery of any products due to (a) fires, floods, blizzards, snowstorms, hurricanes, tornados, windstorms or other inclement weather or natural disasters, pandemics, epidemics or other extraordinary health and welfare occurrences or situations, strikes or other labor disputes, accidents, sabotage, terrorism, war, riots, financial distress of a supplier or other disruption in TCH’s supply chain, acts of precedence or priorities granted at the request or for the benefit, directly or indirectly, of any federal, state or local government or any subdivision or agency thereof, delays in transportation or lack of transportation facilities, restrictions imposed by federal, state or local laws, rules or regulations; or (b) any other cause beyond the reasonable control of TCH. In the event of the occurrence of any of the foregoing, the time for performance shall be extended for such time as may be useful to enable TCH to perform. If the Force Majeure event makes performance impossible or impracticable, TCH shall be excused from further performance, and shall have no further obligations or liability. TCH may, during any period of shortage due to any of the above circumstances, allocate its available supply of resources to provide products among itself and its Customers in such manner as TCH, in its judgment, deems fair and equitable.
21. Assignment and Delegation
No assignment of any rights or interest or delegation of any obligation or duty of Customer under these Terms and Conditions, TCH’s Quotation, order acknowledgement, invoice, or Customer’s purchase order may be made without prior written consent of TCH’s Authorized Representative. Any attempted assignment or delegation will be wholly void and ineffective for all purposes.
No failure of TCH to insist upon strict compliance by Customer with these Terms and Conditions or to exercise any right accruing from any breach of Customer shall impair TCH’s rights in case Customer’s breach continues or in case of any subsequent breach by Customer, or with respect to reliance on or enforcement by TCH of that particular Term or Condition, or any other Terms or Conditions. Waiver by TCH of any breach by Customer of these Terms and Conditions shall not be construed as a waiver of any other existing or future breach of that particular Term or Condition or any other of these Terms or Conditions.
23. Limitation of Actions
Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of these Terms and Conditions by TCH shall be barred unless commenced by Customer within one (1) year from the accrual of such cause of action.
24. Dispute and Collection Costs
In any litigation or arbitration between TCH and Customer concerning these Terms and Conditions, the substantially prevailing party is entitled, in addition to such other relief that is granted, to reimbursement of attorney’s fees and costs. If TCH must take action, legal or otherwise, to collect any amount due but not timely paid by Customer, TCH shall in addition to that amount, together with interest, also be entitled to recover from Customer TCH’s attorneys fees and costs and other charges or expenses incurred in collecting the unpaid amounts.
If any provision of these Terms and Conditions are determined to be illegal or unenforceable, the remaining provisions of the Terms and Conditions shall not be affected.
26. Governing Law and Forum
These Terms and Conditions will be governed by Minnesota law without regard to rules pertaining to conflicts of law. The federal, state and local courts located in the State of Minnesota will have exclusive jurisdiction for any disputes relating to these Terms and Conditions and claims by Customer or TCH arising out of, in connection with or in relation to the sale of products by TCH to Customer or the business relationship between TCH and Customer. Customer consents to personal jurisdiction and venue in any of the Minnesota courts. If Customer commences any action in any other court, it agrees that action shall either be dismissed or transferred to the appropriate Minnesota court, and that TCH shall be entitled to its attorneys fees and costs incurred in connection with any such improperly filed action and the transfer or dismissal of that action. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms and Conditions.
27. Entire Agreement
These Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous oral and written agreements and understandings regarding the subject matter hereof. The Terms and Conditions shall not be supplemented or contradicted by course or dealing, usage of trade or course of performance under this or other agreements. These Terms and Conditions may not be modified or amended except by written agreement which specifically references these Terms and Conditions and which is signed by both parties.