All Purchase Orders (each, an “Order”) accepted by TCD Parts (“we,” “us” or “our”) shall be subject to the following terms and conditions of sale (the “Terms and Conditions”). With respect to all purchases of goods and services under this Order, the purchaser (“you”) agrees as follows:
ORDERS: We shall have no obligation to you with respect to any terms or conditions in an Order you propose (including, without limitation, as to price or delivery terms) that are inconsistent with, or add to, these Terms and Conditions unless we expressly and specifically accept such different or additional terms or conditions in writing. We will have accepted an Order you submit only if we (i) commence performance under such Order or (ii) affirmatively respond to you, in writing, accepting the Order. You agree that we will not have any obligation with respect to any Order you submit that we have not accepted in accordance with this paragraph.
PRICES AND QUOTATIONS: Orders will be invoiced at the price in effect at the time of shipment. Unless otherwise specified in the Order, prices are F.O.B. point of shipment. All prices and quotations are subject to change without notice. Items not listed in the price list will be quoted upon request.
CANCELLATION: Except as stated below concerning special products, Orders we accept are subject to cancellation before shipment. If you cancel an Order, you agree that we may bill you, and you will be responsible for, reasonable charges based on expenses we incur due to commitments we make with respect to the cancelled order.
SPECIAL PRODUCT PURCHASES: Products ordered to your specifications are not returnable or refundable. Requests for cancellation of such orders will not be granted if the manufacture of the product is in process, or if we have already ordered or purchased the product when the request of cancellation reaches our office.
MINIMUM ORDER: We have a $25.00 minimum order amount. All accounts with restricted credit will be shipped only with prior payment (including, without limitation, credit card payment) unless otherwise approved by our credit department.
TAXES: All taxes that may be imposed by law on our sale of goods or services to you will be added to the sale price of such items and you will be responsible for such taxes.
TERMS OF PAYMENT: All amounts due are due on receipt, net 30 days. 1.5% interest per month will apply to all unpaid balances remaining unpaid past 30 days (with a $2.00 per month minimum), and such interest will be added to all invoices. All orders will be held from shipment when any invoice on an account becomes 30 days past due. At 60 days from the invoice date an account is considered severely past due and may be placed for collection. If an account is placed for collection, (1) all future orders will be shipped only on terms of prepay, and (2) you agree that you will be responsible for all collection fees, costs and late charges. An account will not be considered for open status until the account is current and the customer has submitted an audited current financial statement and credit application.
WARRANTIES: ALL GOODS AND SERVICES WE DELIVER TO YOU UNDER AN ORDER ARE SOLD AND DELIVERED “AS IS” WITHOUT WARRANTY. ALL IMPLIED WARRANTIES ARE DISCLAIMED, INCLUDING, WITHOUT LIMITATION, (a) THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AND (b) WARRANTIES IMPLIED FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. You assume all risk from your purchase and use of such goods or services, and you agree that you will be responsible for, and will indemnify, defend and hold harmless us from and against, any use of such goods and services in violation of applicable law.
LIABILITY LIMITATION: You agree (1) that we will not be liable to you or your customers, employees or agents for any indirect, special, incidental, exemplary, punitive or consequential damages suffered by you, them or any third party in connection with any goods and services we deliver to you under an Order, including any damages resulting from loss of use, lost data, business interruption, lost profit, lost expected savings or other pecuniary loss, even if you, them or such third party has been advised of the possibility of such damages; (2) that the foregoing liability limitations will apply notwithstanding the failure of the essence purpose of any remedy and, to the extent allowed under applicable law, regardless of the basis of liability, including negligence, misrepresentation, breach of any kind, or any other claims in contract, tort or otherwise, and regardless of whether damages are foreseeable; (3) that we have relied on such liability limitations in our overall economic assessment of providing such goods and services; and (5) that such liability limitations constitute a material inducement for us to provide such goods and services at the prices set forth in the Order and on these Terms and Conditions. Furthermore, you agree that our total aggregate liability to you regarding any goods or services delivered to you under an Order, whether in contract, tort (including negligence) or otherwise, is limited to the amounts you pay to us for such goods or services.
FORCE MAJEURE: You agree that we will not be liable to you for failure or delay in performing its obligations with respect to any Order to the extent such failure or delay is caused by any cause beyond its reasonable control, including, without limitation, fire, flood, epidemics, terrorism, quarantine restrictions, labor strike, riot, war, act of God, governmental order or regulation.
OTHER PROVISIONS: No waiver or failure by us to exercise any option, right or privilege under these Terms and Conditions on any occasion or occasions shall be construed to be a waiver of the same or any other option, right or privilege on any other occasion. These Terms and Conditions, together with the applicable Order, (1) shall be construed in accordance with, and governed by, the laws of the State of Missouri, including, without limitation, the Uniform Commercial Code, as they apply to contracts entered into and performed wholly within Missouri, without giving effect to principles of conflicts of law; (2) contain the entire agreement between you and us respecting such Terms and Conditions and Order, superseding all prior or contemporaneous communications between you and us regarding the subject matter thereof; (3) shall be amended or modified only by written agreement of both you and us; and (4) bind and inure to the benefit of you and us and our respective successors and permitted assigns. If any provision of these Terms and Conditions for any reason is declared invalid or unenforceable by any court having jurisdiction, such decision shall not affect the validity or enforceability of the remaining provisions of these Terms and Conditions, and such provisions shall remain in full force and effect as if these Terms and Conditions and the related Order had been executed without the invalid or unenforceable provision. If any ambiguity or question of intent or interpretation arises, you agree that (i) these Terms and Conditions shall be construed as if you and we had jointly drafted them, and (ii) no presumption or burden of proof arise favoring or disfavoring either you or us by virtue of its role in drafting any provision of these Terms and Conditions.