Taconic Terms and Conditions of Sale
1. Acceptance Of Orders/Terms: All orders are subject to acceptance by Tonoga, Inc. d/b/a Taconic ("Taconic”). Taconic reserves the right to reject any order. Possession of a price list does not constitute an offer to sell. Acceptance of any order by Taconic is expressly conditioned on Buyer’s assent to the terms and conditions set forth herein (“Terms”) and the waiver by Buyer of any terms and conditions contained in any order form, confirmation, or any other communication of Buyer, whether previously or hereafter delivered to Taconic, which either add to, differ from, modify, conflict with or are otherwise inconsistent with any term or condition herein. Taconic hereby gives notice of its objection to any additional or different terms or conditions in any such order form, confirmation, or communication. Buyer's failure to object in writing to these Terms prior to the earlier of Buyer's acceptance of the products ordered or fifteen (15) days after delivery thereof to Buyer will constitute agreement by Buyer to these Terms.
2. Product Changes: Unless otherwise agreed between Taconic and Buyer, Taconic reserves the right to discontinue the manufacture or sale of any product at any time or to alter, modify, or redesign its products.
3. Price: Prices for products which are shipped within thirty (30) days from the date of Taconic’s order acknowledgement shall be at the price quoted by Taconic. For products which are shipped more than thirty (30) days after the date of such order acknowledgement (or if no order acknowledgement is sent, then thirty (30) days after Taconic’s receipt of Buyer’s order) prices may be increased by Taconic by agreement with Buyer. Such increase shall be applicable to products shipped after its effective date unless prior to said date Buyer shall cancel its order as to the undelivered balance of products to which the increased price applies. It is understood that Taconic shall not exercise the right detailed above where shipment is delivered through its fault, or where the parties agree otherwise in writing. Prices quoted shall remain valid for thirty (30) days, unless agreed otherwise.
4. Taxes/Duties: All federal, state, or local sales, use or other taxes, and all duties, import fees or other assessments imposed on products sold hereunder, or on the manufacture, sale or delivery thereof, shall be for Buyer's account, unless otherwise agreed between Taconic and Buyer.
5. Credit Approval: Buyer credit approval is required prior to any shipment. If Taconic determines at any time that Buyer's financial condition does not justify the extension of credit to Buyer, then Taconic may at its option require verified payments in advance or other satisfactory security prior to delivery.
6. Cancellation/Change Orders: Orders for standard products may only be revised or canceled with Taconic's prior consent and may result in a restocking fee. Orders for nonstandard or custom products may only be revised or canceled by Buyer prior to the commencement of production, and only with Taconic's prior consent. Any product which Taconic has the capability of producing but does not keep in inventory as a stock item is considered a nonstandard or custom product. Orders are not assignable or transferable by Buyer, in whole or part, except with the written consent of Taconic.
7. Packaging/Shipping/Risk of Loss: Unless otherwise agreed by Taconic in writing (i) Taconic shall select the method of shipment, and products shall be shipped EXW Taconic’s location, and (ii) costs for special packaging and/or handling requested by Buyer shall be the responsibility of Buyer. In the event of any general freight increase or any governmental ruling or regulation that results in increased freight costs, such additional costs shall be for Buyer's account. Title to, and the risk of loss, damage, or shortage of, such products shall pass to Buyer upon delivery to the carrier regardless of notice to Buyer. Taconic assumes no responsibility for insuring shipments unless specifically agreed to in writing by Taconic, in which case the cost of insurance shall be for Buyer's account unless otherwise agreed between Taconic and Buyer.
8. Delivery: Quoted shipping and/or delivery dates are based on estimates at the time of quotation. Taconic shall use reasonable commercial efforts to meet such shipping and/or delivery dates, but Taconic shall not be liable for any direct or indirect costs or damages, including without limitation incidental or consequential damages, resulting from late deliveries. For orders with indefinite delivery dates, Taconic shall have the right to manufacture or procure the products covered thereby and hold such products for Buyer's account pending receipt of definite shipping instructions. Except as expressly provided otherwise herein, Buyer agrees to purchase and pay for all material ordered.
9. Claims for Loss, Damage or Shortage: Upon delivery, shipments must be inspected by Buyer for damage, loss, or shortage prior to acceptance from the carrier. If damage, loss or shortage exists with respect to any shipment and it is not concealed, Buyer shall secure a notation of such damage, loss or shortage from the carrier on the freight bill or delivery receipt. If damage, loss, or shortage is concealed, Buyer must notify the carrier within fifteen (15) days, hold the merchandise for its inspection and secure a signed report from the carrier acknowledging the damage, loss or shortage. No claims for damage, loss or shortage will be allowed unless they are accompanied by an inspection report or signed delivery receipt noting such damage, loss or shortage signed by a representative of the carrier and forwarded to Taconic within thirty (30) days of the invoice date. Any claims for damage, loss or shortage should also be filed by Buyer with the carrier in writing immediately upon receipt of the products. In no event shall Taconic be liable for damage or loss to a shipment caused by a carrier.
10. Payment: All invoices, whether partial or in full, shall be due and payable in full by Buyer net 30 days from the date of shipment unless otherwise agreed to in writing by Taconic.
11. Nonpayment: Notwithstanding delivery (and solely for the purposes of securing payment of all outstanding invoices due to Taconic by Buyer in the event of Buyer entering into liquidation, having a winding-up order made against it or having appointed a receiver of its assets, income or any parts thereof), the products sold hereunder shall remain the absolute property of Taconic until payment of all amounts invoiced by Taconic to Buyer and outstanding from time to time or until products are processed or resold by Buyer whichever occurs first. Upon request, Buyer agrees to store such products as Taconic's bailee in such a way that they are readily identifiable as the property of Taconic. In the circumstances defined in this Condition, Taconic shall be entitled immediately after giving notice of its intention to repossess to enter upon the premises of the Buyer with such transport as may be necessary to repossess any products to which it has title hereunder. Nothing in this condition shall confer any right upon Buyer to return products sold hereunder or to refuse or delay payment thereof, unless otherwise agreed or business otherwise disposed of. products not paid for in full may not be assigned or pledged for third parties.
12. Goods Ordered to Specifications: If Buyer orders products to specifications, the Buyer’s purchase order shall state the specification requirements, in full. If requested by Buyer, Taconic will provide actual test reports or certifications to specifications.
13. Taconic Technical Statements and Advice: Statements, technical information and recommendations contained in brochures, technical briefs and literature published by Taconic are based on Taconic's general experience and tests which Taconic believes to be reliable, but the accuracy and/or completeness thereof is not guaranteed. Upon request, Taconic shall endeavor to furnish technical advice or assistance as is available in reference to the use of the products by the Buyer; it is expressly understood, however, that all such technical advice or assistance is given gratis and Taconic assumes no obligation or liability for the advice or assistance given or results obtained, all such advice or assistance being given and accepted at Buyer's risk.
14. Returned Products: Material may only be returned with the prior approval of Taconic. Material returned without such approval will not be accepted and such approval may be conditioned upon customer paying a restocking charge and freight costs of returned product (and out-freight if applicable). All returned products must arrive at the point of return designated by Taconic in salable condition, as determined by Taconic’s Quality Department before any credit is issued.
15. Warranty/Limitation of Liability: TACONIC WARRANTS THAT RODUCTS SOLD HEREUNDER SHALL BE EQUAL TO TACONIC’S SPECIFICATIONS, AND BUYER ASSUMES ALL RISKS AND LIABILITY FOR RESULTS OBTAINED BY THE USE OF THE PRODUCTS WHETHER USED SINGLY OR IN COMBINATION WITH OTHER PRODUCTS. WHERE PRODUCTS HAVE BEEN PROCESSED IN ANY MANNER BY ANY PARTY AFTER THEY HAVE BEEN SOLD BY TACONIC, THIS WARRANTY SHALL BE LIMITED TO THE PRODUCTS IN THEIR UNPROCESSED CONDITION. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, ORAL, OR WRITTEN, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL TACONIC BE RESPONSIBLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY EXPENSE FOR REMOVAL OR REINSTALLATION RESULTING FROM ANY DEFECT, INCLUDING ANY DIMENSIONAL DEFECT INVOLVING NONSTANDARD PRODUCTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR OF ANY EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO BUYER. THE WARRANTY PROVIDED BY TACONIC GIVES BUYER SPECIFIC LEGAL RIGHTS, AND BUYER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. NO TACONIC REPRESENTATIVE OR DISTRIBUTOR IS AUTHORIZED TO MAKE ANY CHANGE OR MODIFICATION TO THIS WARRANTY.
16. Remedies For Non-Warranty Claims: THE SOLE AND EXCLUSIVE REMEDY OF BUYER AND THE SOLE AND EXCLUSIVE OBLIGATION OF TACONIC IN CONNECTION WITH CLAIMS RELATING TO MANUFACTURING DEFECTS ARE SET FORTH IN SECTION 15. THE SOLE AND EXCLUSIVE REMEDY OF BUYER AND THE SOLE AND EXCLUSIVE OBLIGATION OF TACONIC FOR ANY BREACH OF CONTRACT CLAIM THAT PRODUCTS DELIVERED DO NOT OTHERWISE CONFORM TO THE ACCEPTED ORDER SHALL BE EITHER THE RETURN OF CONSIDERATION PAID BY BUYER TO TACONIC RELATED TO THE BREACH, OR UPON TACONIC'S ELECTION, THE DELIVERY OF CONFORMING PRODUCTS TO BUYER. WITH RESPECT TO TACONIC’S NONCOMPLIANCE WITH ANY OTHER OBLIGATION OF TACONIC HEREUNDER, THE SOLE AND EXCLUSIVE REMEDY OF BUYER AND THE SOLE AND EXCLUSIVE OBLIGATION OF TACONIC WILL BE AS TACONIC IN ITS DISCRETION WILL DETERMINE AS FOLLOWS: (1) TACONIC MAY ELECT TO CURE SUCH NONCOMPLIANCE WITHIN A REASONABLE PERIOD OF TIME, OR (2) IF TACONIC FAILS TO CURE SUCH NONCOMPLIANCE, BUYER MAY RECOVER AN EQUITABLE AMOUNT NOT TO EXCEED SUCH CHARGES AS WERE PREVIOUSLY PAID TO TACONIC BY BUYER HEREUNDER. BUYER WAIVES ALL OTHER REMEDIES, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE REMEDY OF SPECIFIC PERFORMANCE. ANY ACTION BROUGHT BY BUYER IN CONNECTION WITH TACONIC'S PERFORMANCE HEREUNDER MUST BE COMMENCED WITHIN SIX (6) MONTHS AFTER SUCH CAUSE OF ACTION ACCRUES OR IT WILL BE DEEMED WAIVED. TACONIC'S LIABILITY TO BUYER, REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, SHALL IN NO EVENT EXCEED AMOUNTS PAID BY BUYER TO TACONIC FOR THE PRODUCTS INVOLVED, AND BUYER RELEASES TACONIC FROM ALL CLAIMS AND LIABILITIES IN EXCESS OF THIS LIMITATION. IN NO EVENT SHALL TACONIC BE RESPONSIBLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES OF ANY KIND. EXCEPT AS PROVIDED BY LAW.
17. Excused Performance: Taconic shall not be liable for nor be deemed to be in default of these Terms on account of any failure to perform its obligations or attempt to cure any breach thereof if Taconic has been delayed or prevented from doing so by any cause or condition beyond Taconic’s reasonable control. If Taconic determines that its ability to supply the total demand for the products, or obtain any or a sufficient quantity of any material used directly or indirectly in the manufacture of the products, is hindered, limited or made impracticable, Taconic may allocate its available supply of the products or such material (without obligation to require other supplies of any such products or material) among itself and its customers as Taconic determines in its sole discretion without liability for any failure of performance which may result there from. Delivery suspended or not made by reason of this action shall be canceled without liability, but these Terms shall otherwise remain unaffected.
18. Fair Labor Standards Act: Taconic hereby certifies that the products sold hereunder that were produced in the United States were produced in compliance with all applicable requirements of Sections 6 (minimum wage), 7 (overtime) and 12 (child labor) of the Fair Labor Standards Act, as amended, and of regulations and orders of the United States Department of Labor issued under Section 14 thereof.
17. Change In Terms And Conditions Of Sale: The terms and conditions contained herein constitute the entire agreement between Taconic and Buyer and supersede any and all prior representations, agreements, or understandings, whether oral or written, relative to the products delivered hereunder. No course of dealing or usage of trade shall be relevant to supplement or explain any of these terms or conditions. No modification of these terms and conditions shall be effective unless made in writing and executed by Taconic.
19. General: This agreement shall not be assigned by Buyer without the prior written consent of Taconic, and any assignment made without such consent shall be null and void. This agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. This agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its conflicts of law provisions. The United States District Court for the Northern District of New York in Albany, New York shall have exclusive jurisdiction of all matters relating to or arising out of any sale of products by Taconic to Buyer hereunder, and Buyer hereby consents to the jurisdiction of such court.
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