THNK, LLC TERMS AND CONDITIONS
AGREEMENT: Buyer’s order of goods from Seller (THNK, LLC) shall constitute an offer to purchase on the terms and conditions set forth on the face of the order and on these terms and conditions (“Terms and Conditions”). Any proposal for additional or different Terms or Conditions or any attempt by Buyer to vary in any degree the Terms and Conditions set forth herein is hereby objected to and rejected.
ACCEPTANCE: Any sales contract between Seller and Buyer shall be subject to these terms and conditions and not be effective until accepted by Seller at its home office in Holland, Ohio.
QUOTATIONS: Stenographical and clerical errors are subject to correction.
TERMS OF PAYMENT: Payment terms are net ten (10) days from receipt of invoice unless otherwise set forth on the face of the order. In the event payment is not received within that time period, Buyer agrees to pay a 1½ % per month finance charge. Accounts will be opened only on approved credit. Invoices for material delivered under this order are payable only in U.S. dollars.
CANCELLATION: Orders may be cancelled or deliveries deferred only upon the condition that Buyer immediately makes payment to Seller for all work completed at the unit price including any and all materials already in transit at time of cancellation.
PACKAGING AND PACKING: Standard methods will be used.
DELIVERIES: Seller will use reasonable efforts to fill orders within the timeframe requested. Seller shall not be liable for, and hereby expressly disclaims liability for, any damages resulting from or attributable to any delays.
SHIPMENT: All material is shipped F.O.B. shipping point. Seller’s liability for delivery ceases upon making delivery of product to carrier at shipping point, and risk of loss passes to Buyer upon such delivery. In ordering, Buyer should state explicitly specify the method of shipment preferred and in the absence of shipping direction Seller may use discretion. Shipments will be made at cost to the Buyer and freight charges will be included on the invoice.
WARRANTY: Seller warrants that goods sold hereunder shall be new and free from defects in materials and workmanship for three (3) months from date of shipment to Buyer. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, SELLER DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF WHATSOEVER NATURE WITH RESPECT TO THE MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSES, CONDITION, QUALITY, DESCRIPTION, DURABILITY OR SUITABILITY of ANY OF THE GOODS. As Buyer’s sole and exclusive remedy for any breach of this warranty, Seller will, at Seller’s sole option, repair or replace any goods manufactured by Seller and covered by Buyer’s purchase order which are nonconforming or defective in material or workmanship within three (3) months from date of shipment. Buyer agrees to pay all shipping and labor costs and expenses incurred by Seller in making replacement goods available to Buyer. Seller shall assume no liability for, and this warranty will not apply to, any defects that appear as a result of Buyer’s or end user’s failure to properly use or maintain the goods, or as a result of alterations which Buyer makes to the goods without Seller’s prior express written approval or from Buyer’s use or operation of the goods in a manner not disclosed to Seller at the time of Purchase’s purchase. This warranty does not extend to repairs necessitated by normal use, wear or tear nor to consumable goods.
LIMITATION OF ACTIONS/LIMITATION ON BUYER’S LIABILITY: The remedies herein provided are Buyer’s sole and exclusive remedy for any breach of the warranties herein contained. All other remedies are hereby expressly excluded. Seller shall not be liable, whether arising under contract, tort (including negligence), strict liability, or otherwise, for loss of anticipated profits, loss by reason of plant shutdown, non-operation or increased expense of operation, cost of money, loss of use of equipment, capital or revenue, or for any indirect, special, incidental or consequential loss or damage. The Seller’s maximum liability, whether arising from breach of contract, tort (including negligence), strict liability, breach of warranty or otherwise shall not exceed the purchase order price. Seller will not be responsible for any patent or copyright infringement by Buyer in the use of the product provided by Seller. Any action against Seller based on Seller’s alleged breach of its obligations hereunder must be commenced within one (1) year after the cause of action has accrued. Seller’s liability for any such breach shall in no case exceed the price allocable to the goods which give rise to the claim.
CHANGES, MODIFICATIONS, WAIVER: Seller may change the specifications, packaging, or instructions of the goods from time to time and without notice to Buyer so long as any such changes do not materially affect the function of the goods.
CLAIMS: If Buyer claims delivery of product is not as ordered, Buyer must notify Seller within ten (10) days of receipt of shipment or the product is deemed accepted by Buyer and in full satisfaction of any and all warranties. If such claim is sustained and the product furnished is not as ordered, Seller shall repair, replace, credit or complete the order with the limitations as set forth herein.
RETURNED GOODS: No shipments of returned goods shall be made without written authorization from Seller. Seller shall pay the freight charges of authorized returns but reserves the right to specify the type and routing of the carrier. Any returns received without authorization shall be immediately returned to Buyer at Buyer’s expense and Buyer shall be invoiced for any handling and/or freight charges incurred by Seller.
INDEMNIFICATION: Buyer agrees to indemnify, defend and hold harmless Seller from any claims, costs or other liabilities arising from the use of the product sold to Buyer including resale and distribution.
ARBITRATION CLAUSE: Any controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration administered by an arbitrator selected by Seller. The place of arbitration shall be Lucas County, Ohio. Ohio law shall apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
JURISDICTION AND VENUE: The Agreement shall be governed and constituted by the laws of Ohio. The parties submit to the personal jurisdiction and venue of the courts in Lucas County, Ohio for the purpose of enforcing any arbitration award.
GOVERNING LAW: Any contract from this Proposal shall be governed by the laws of the State of Ohio.
ENTIRE AGREEMENT: This contract (including these Terms and Conditions of Purchase) and any documents referred to on the face hereof constitute the entire agreement between the parties. No modification of any of the terms or conditions of this contract shall be effective against Buyer unless such modification is in writing and duly signed by Buyer.
ASSIGNMENT: Seller shall not assign any of its rights or delegate any of its duties under this contract, or assign any monies due to Seller hereunder, without the prior written consent of Buyer.
FORCE MAJEURE: Seller may delay delivery of goods occasioned by government action or failure of the government to act where such action is required, changes in Seller’s production, schedule, strike, or other labor trouble or fire or unusually severe weather, all without liability or obligation to Seller.