1. Agreement; Acceptance of Orders. The terms
and conditions set forth herein, together with such terms and conditions
as are set forth on the face of any quotation, order confirmation
or similar document by TMC, (collectively, the "Agreement")
constitute TMC's acceptance of all orders, and all offers and sales
by TMC are subject to and expressly conditioned upon the purchaser's
assent to such terms and conditions and shall constitute the entire
Agreement between TMC and purchaser. Any of purchaser's terms and
conditions that are different from or in addition to those referred
to above are objected to by TMC and shall be of no effect unless
specifically agreed to in writing by TMC. Commencement of performance
or shipment shall not be construed as acceptance of any of purchaser's
terms and conditions that are different from or in addition to those
contained in this Agreement. If a contract is not earlier formed
by mutual agreement in writing, acceptance by purchaser of products
or services furnished by TMC pursuant hereto shall be deemed consent
to all of the terms and conditions referred to herein. This Agreement
shall be deemed accepted in, and shall be construed and enforced
in accordance with the laws of, the Commonwealth of Massachusetts
as if made and to be performed entirely within such state.
2. Prices. The prices stated in this Agreement
do not include transportation, insurance or any sales, use, excise
or other taxes, duties, fees or assessments imposed by any jurisdiction
except to the extent specifically set forth herein. All applicable
taxes will be paid by purchaser, unless purchaser provides TMC with
appropriate tax exemption certificates. Any taxes at any time paid
by TMC that are to be paid by purchaser hereunder shall be invoiced
to purchaser and reimbursed to TMC. All prices and other terms are
subject to correction for typographical or clerical errors.
3. Terms of Payment. Purchaser shall pay for
products in cash upon delivery, unless an earlier or later time
for payment is specified in TMC's quotation or order confirmation,
in which case payment shall be due at the time so specified. Each
shipment shall be considered a separate and independent transaction
and payment for each shipment shall be due accordingly. TMC may,
at its option, elect to extend credit to purchaser. If TMC extends
credit to purchaser, invoices will be issued upon shipment and payment
shall be due in full within the credit terms so extended by TMC.
TMC reserves the right to change the amount of or to withdraw any
credit extended to purchaser.
4. Delivery, Title and Risk of Loss. Products
shall be shipped F.O.B. [Ex-works (Incoterms, 2000)] TMC's manufacturing
facilities or such location as otherwise specified in the applicable
TMC quotation or order confirmation to any location designated by
purchaser (subject to Section 14) and shall be deemed delivered
to purchaser when delivered to the transportation company at the
shipping point. Unless otherwise agreed in writing by TMC, all transportation
charges and expenses shall be paid by purchaser, including the cost
of any insurance against loss or damage in transit that TMC may
obtain. TMC reserves the right to ship products freight collect.
Title and risk of loss and/or damage to products
shall pass to purchaser upon delivery of the products to the transportation
company at the shipping point. Confiscation or destruction of or
damage to products shall not release, reduce or in any way affect
the liability of purchaser. In the event purchaser rejects or revokes
acceptance of any products for any reason, all risk of loss and/or
damage to such products shall nonetheless remain with purchaser
unless and until the same are returned at purchaser's expense to
such place as may be designated by TMC in writing.
All products must be inspected upon receipt
and claims filed by purchaser with the transportation company when
there is evidence of shipping damage, either concealed or external.
5. Performance. TMC will make a reasonable effort
to observe the dates specified in its quotation and its order confirmation
or such later dates as may be agreed to by purchaser for delivery
or other performance, but TMC shall not be liable for any delay
in delivery or failure to perform due to strike, lockout, riot,
war, fire, act of God, accident, delays caused by any subcontractor
or supplier or by purchaser, technical difficulties, failure or
breakdown of machinery or components necessary to order completion,
inability to obtain or substantial rises in the price of labor or
materials, curtailment of or failure to obtain sufficient electrical
or other energy supplies, or compliance with any law, regulation,
order or direction, whether valid or invalid, or any governmental
authority or instrumentality thereof, or due to any unforeseen circumstances
or any causes beyond its control, whether similar or dissimilar
to the foregoing and whether or not foreseen. As used herein, "performance" shall
include, without limitation, fabrication, shipment, delivery, assembly,
installation, testing and warranty repair and replacement, as applicable.
Purchaser agrees that such delay in delivery or failure to deliver
or perform any part of this Agreement shall not be grounds for purchaser
to terminate or refuse to comply with any provisions of this Agreement
and no penalty of any kind shall be effective against TMC for delay
or failure; provided, however, that if the delay or failure extends
beyond six (6) months from the originally scheduled date either
party may, with written notice to the other, terminate this Agreement
without further liability.
6. Acceptance. All products delivered hereunder
shall be deemed accepted by purchaser as conforming to this Agreement,
and purchaser shall have no right to revoke any acceptance, unless
written notice of the claimed nonconformity is received by TMC within
twenty (20) days of delivery thereof. Notwithstanding the foregoing,
any use of a product by purchaser, its agents, employees, contractors
or licensees, for any purpose, after delivery thereof shall constitute
acceptance of that product by purchaser.
7. Default and Termination. Purchaser may terminate
this Agreement if TMC materially defaults in the performance of
its obligations hereunder and fails to cure such default within
thirty (30) days after written notice thereof from purchaser. Such
termination shall be purchaser's sole remedy in the event of a default
by TMC.Purchaser shall be deemed in material default under this
Agreement if purchaser fails to pay any amounts when due hereunder,
cancels or attempts to cancel this Agreement prior to delivery or
refuses delivery or otherwise fails to perform its obligations hereunder
or fails to pay TMC any amounts due under any other agreement or
otherwise. In the event of a material default by purchaser, TMC
may, upon written notice to purchaser, (1) complete any work in
process and thereafter purchaser shall be responsible for payment
of all products produced by TMC pursuant to this Agreement, (2)
suspend its performance and withhold shipments, in whole or in part,
(3) terminate this Agreement, (4) declare all amounts owing to TMC
immediately due and payable and/or (5) recall products in transit,
retake same and repossess any products held by TMC for purchaser's
account, without the necessity of any other proceedings, and purchaser
agrees that all products so recalled, taken or repossessed shall
be the property of TMC, provided that purchaser is given credit
therefore. Exercise of any of the foregoing remedies by TMC shall
not preclude exercise of any of the others, and neither the existence
nor exercise of such remedies shall be construed as limiting, in
any manner, any of the rights or remedies available to TMC under
the Uniform Commercial Code or other laws.
8. Patents and Other Intellectual Property Rights.
The sale of products or provision of services hereunder does not
convey any express or implied license under any patent, copyright,
trademark or other proprietary rights owned by TMC, whether relating
to the products sold or any manufacturing process or other matter.
All rights under any such patent, copyright, trademark or other
proprietary rights are expressly reserved by TMC.
TMC will defend any suit or proceeding brought
against purchaser insofar as such suit or proceeding is based on
a claim that the design or manufacture of products furnished hereunder
which were manufactured solely to TMC's designs and specifications
infringe any U.S. patent, provided TMC is promptly notified in writing
of such suit or proceeding and is given full authority, information
and assistance by purchaser for such defense. TMC will pay all damages
and costs based on such claim of infringement which are finally
awarded against purchaser in any such suit or proceeding or paid
by way of settlement, but TMC shall have no liability whatsoever
with respect to any settlement made by purchaser without TMC's prior
written consent, which TMC may withhold in its sole discretion.
If such products are held to infringe any U.S. patent and their
use or sale enjoined, or if in the opinion of TMC such products
are likely to become the subject of such a claim of infringement,
TMC may, in its sole discretion and at its own expense, either procure
a license which will protect purchaser against such claim without
cost to purchaser, replace such products with non-infringing products,
or require return of such products and refund an equitable portion
of the price paid by purchaser to TMC for such products.
The foregoing states TMC's sole liability for
any claim based upon or related to any alleged infringement of any
patent or other intellectual property rights. TMC shall have no
liability for any claim of infringement that is based on a combination
of products furnished under this Agreement with products, equipment
or materials not furnished hereunder, or based upon any items made
with the products furnished under this Agreement.
Purchaser shall defend and hold TMC harmless
against any expense, loss, costs or damages resulting from any claimed
infringement of patents, trademarks or other intellectual property
rights arising out of compliance by TMC with purchaser's designs,
specifications or instructions.
9. Limited Warranty. TMC's standard limited
warranty is applicable to each product sold pursuant to this Agreement.
Such standard limited warranty is provided upon shipment of the
products purchased pursuant to this Agreement; a copy of TMC's standard
limited warranty is available upon request. The standard TMC limited
warranty is exclusive and is given and accepted in lieu of any and
all other warranties, express or implied, including without limitation
warranties of merchantability and fitness for a particular purpose,
and the remedies provided therein are given in lieu of all other
remedies including, without limitation, incidental and consequential
10. LIMITATION OF LIABILITY AND CLAIMS.
TMC'S AGGREGATE LIABILITY IN DAMAGES OR OTHERWISE SHALL IN NO EVENT
EXCEED THE AMOUNT, IF ANY, RECEIVED BY TMC HEREUNDER. IN NO EVENT
SHALL TMC BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL LOSS
OR DAMAGES OF ANY KIND, HOWEVER CAUSED, OR ANY PUNITIVE, EXEMPLARY
OR OTHER DAMAGES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF
OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR PRODUCTS OR SERVICES
FURNISHED BY TMC MAY BE BROUGHT BY PURCHASER MORE THAN ONE (1)
YEAR AFTER THE CAUSE OF ACTION ACCRUES.
11. Entire Agreement. This Agreement constitutes
the entire agreement of the parties and supersedes all prior negotiations,
proposals, agreements and understandings, whether oral or written,
relating to the products to be purchased
hereunder or otherwise relating to the subject
matter of this Agreement. Any representation, warranty, course of
dealing or trade usage not expressly contained or referenced herein
shall not be binding on TMC
.12. Attorney's Fees. In the event of default
in payment of the purchase price or any part thereof, purchaser
agrees to pay TMC's expenses, including reasonable attorney's fees
and expenses, incurred by TMC in enforcing payment thereof.
13. Assignment. Purchaser shall not assign or
transfer any rights or claim under this Agreement without the prior
written consent of TMC, and any purported assignment made without
such consent shall be void. This Agreement shall be binding upon
and shall inure to the benefit of the successors and permitted assigns
of the parties.
14. Export Control. Purchaser shall comply fully
with all export administration and control laws and regulations
of the U.S. government as may be applicable to the export, resale
or other disposition of any products purchased from TMC.
15. General. If the products purchased from
TMC are to be used in the performance of a U.S. government contract
or subcontract, no government requirements or regulations shall
be binding upon TMC unless specifically agreed to by TMC in writing.
No modification, amendment, rescission, waiver
or other change in this Agreement shall be binding on TMC unless
agreed to in writing by TMC's authorized representative.
The invalidity or unenforceability, in whole
or in part, of any provision herein shall not affect the validity
or enforceability of any other provision herein.
Failure or delay on the part of either party
to exercise any right, power, privilege or remedy herein, except
as otherwise provided in this Agreement, shall not constitute a
The section headings contained herein are for
convenience of reference only and are not to be used in the construction
or interpretation of this Agreement.