Terms and Conditions
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SALES TERMS & CONDITIONS
The following Sales Terms & Conditions (“Terms”) apply to all sales of products (“Goods”) and the supply of Services (“Services”) by The Thaman Rubber Company, Inc. (“Seller”), its officers, employees, agents, and affiliates, to any buyer (“Buyer”). Any conflicting sales terms contained in Buyer’s sales documentation are expressly rejected and will not apply to the sale of Goods and Services from Seller to Buyer to the extent inconsistent with these Terms. As a condition of purchasing Goods or Services from Seller, Buyer consents to and accepts these Terms, and waives any terms and conditions to the contrary contained in Buyer’s sales documentation.
1. Limited Warranty. Seller is a distributor of Goods. Seller warrants that the Goods it sells to Buyer will be of good quality and workmanship. BUYER’S SOLE REMEDY AGAINST SELLER, IF GOODS ARE DEFECTIVE, IS TO BE ENTITLED TO HAVE THE GOODS REPLACED, OR TO OBTAIN A REFUND OF THE PURCHASE PRICE, PROVIDED THAT THE DEFECTIVE GOODS ARE RETURNED TO SELLER WITHIN 30 DAYS AFTER DELIVERY. SELLER DOES NOT OFFER ANY OTHER WARRANTY ON GOODS, BUT IS WILLING TO PASS ALONG ANY WARRANTY OFFERED BY THE MANUFACTURER TO THE EXTENT THAT IT APPLIES TO BUYER OR ITS CUSTOMER. SELLER SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY NATURE WHATSOEVER WITH RESPECT TO GOODS SOLD, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. In those events where Seller provides Services, Seller warrants that its Services will be provided in a good and workmanlike manner, consistent with industry standards, but Seller will not be responsible for following directions, using blueprints or drawings, or otherwise performing Services, provided by or specifically requested by Buyer. Due to the number and variety of applications for which the Goods may be purchased, and because Seller in most instances has no control over or knowledge of the specific conditions or applications for which Goods may be used by Buyer or others, SELLER MAKES NO RECOMMENDATION, WARRANTY, OR REPRESENTATION AS TO THE SUITABILITY OF THE GOODS FOR BUYER’S PARTICULAR APPLICATION OR USE, OR THAT OF BUYER’S CUSTOMER. Any claim against manufacturer under its limited warranty must be made within the time limits mandated by the manufacturer. Any claim related to defective Services must be set forth in writing to Seller, specifically identifying in what respect said Services are claimed to be defective, within 30 days after such Services have been rendered by Seller, or such claims will be deemed to be waived.
2. Alterations. Neither Seller nor the manufacturer will have any responsibility or liability for Goods that are altered or modified by Buyer or its customer, or to the extent any such Goods are combined with or used in connection with non-conforming parts, supplies, tooling, or other non-sanctioned components. The alteration or modification of any Goods, or their use in connection with non-conforming parts or other component, or for non-conforming applications, will void any warranties given with respect to such Goods by the manufacturer or otherwise. Buyer agrees to indemnify Seller, its officers, employees, agents and affiliates from any and all claims of any nature whatsoever from any person or entity for personal injuries, property damages, or otherwise resulting from or arising out of the misuse of Goods or the use thereof in connection with non-conforming parts, supplies, or other components, or for the wrong purposes or applications.
3. Limitation of Liability. Any Goods, which Buyer claims to be defective, must be returned to Seller in enough time for Seller to return them to the manufacturer in accordance with the manufacturer’s limited warranty and stated return policy. All returns will be subject to manufacturer’s policies and the Goods sought to be returned shall be in good, saleable condition in original packaging where applicable. All returns will be subject to reasonable handling charges. Seller’s sole responsibility is to process the return to the manufacturer. Buyer’s sole remedy in the event it received defective Goods is to be entitled to replacement Goods or to receive a refund of the purchase price of the defective Goods. As a sole remedy for defective Services, Seller will either perform Services without charge to fix the situation or will make an appropriate adjustment against the amount billed for the allegedly defective Services rendered. IN NO EVENT WILL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES RESULTING FROM THE SALE, OR THE USE BY BUYER OR ITS CUSTOMER, OF DEFECTIVE GOODS OR SERVICES, ALL OF WHICH ARE HEREBY WAIVED BY BUYER.
4. Payment. Payment for all Goods & Services received by Buyer from Seller is due upon receipt of invoice. Payments not made by Buyer to Seller within 30 days after invoice date will be subject to interest at the rate of 1½% per month dating back to the original invoice date. In the event that Buyer orders Goods or Services to be delivered in various installments, Seller retains the right to invoice each installment shipment separately and require payment be made for that installment prior to delivering any subsequent installment of Goods.
5. Change Orders. Buyer is responsible for paying additional charges for any change orders issued to Seller with respect to Goods or Services provided by Seller, whether such change orders are verbal or in writing,
6. Delivery and Acceptance. Unless otherwise specified, Buyer agrees to pay all shipping charges for the Goods. Seller will use commercially reasonable efforts to meet any actual quoted delivery dates, and will have the right to deliver any partial shipments of Goods. Seller will not be responsible for any damages resulting from the failure to deliver Goods or Services on a timely basis or within the quoted delivery dates where Seller’s failure to timely deliver is caused by delayed delivery from the manufacturer or other causes beyond Seller’s control, like: weather, acts of God, freight interruptions, labor unrest or shortages, terrorist activities or war, production shortages, lack of raw materials, or other causes force majeure. Buyer will, upon receipt of delivery of Goods, immediately inspect the Goods to determine whether they meet the specifications ordered by Buyer, whether the quantities delivered comply with the amounts ordered, and whether there have been any damages to the Goods sustained in transit. BUYER WILL NOTIFY SELLER IN WRITING OF ANY SUCH NON-CONFORMING GOODS WITHIN SEVEN DAYS AFTER RECEIPT, OR WILL BE DEEMED TO HAVE ACCEPTED THE GOODS AS DELIVERED AND TO HAVE RELEASED ANY CLAIMS FOR NON-CONFORMING GOODS.
7. Delays Caused by Buyer. Buyer is responsible for preparing its worksite and having all necessary apparatuses, tools, equipment, and personnel available when Seller’s workers are scheduled to be at the worksite of Buyer or its customer to perform Services. If Seller’s workers are delayed from commencing or continuing work due to factors caused by Buyer or its customer, or because of weather or other conditions present at the worksite, Buyer will pay for Seller’s downtime at normal hourly rates and reasonable lodging/meal accommodations for Seller’s Service crews. If Buyer orders Goods and requests that delivery be delayed after fabrication, Buyer will pay reasonable fees and storage charges to cover out-of-pocket expenses and carrying costs.
8. Transit Risks. The risk of loss or damage to the Goods passes to the Buyer when the Goods are delivered by Seller to a common carrier for deliver to Buyer or Buyer’s customer, or when delivered to Buyer if Seller delivers them. Buyer bears all risk of loss or damage to the Goods after shipment by Seller. Title to the Goods will pass to Buyer when Seller has received payment in full of the invoice price for the Goods.
9. Applicable Law and Jurisdiction. The laws of the State of Ohio will apply to any claims that arise in connection with the sale of Goods or Services by Seller to Buyer. Buyer specifically consents that THE COURTS LOCATED IN HAMILTON COUNTY, OHIO WILL HAVE EXCLUSIVE JURISDICTION AND VENUE OVER ANY CLAIM BY BUYER OR ITS CUSTOMERS CONCERNING GOODS OR SERVICES SUPPLIED BY SELLER TO BUYER OR ITS CUSTOMERS. IN THE EVENT OF ANY SUCH ACTION, BUYER AGREES TO WAIVE ALL RIGHTS TO A JURY TRIAL WITH RESPECT TO SUCH CLAIMS. In the event that Seller is the prevailing party on any such claims asserted against Seller by Buyer or its customers, or if Buyer defaults in making payments when due to Seller for Goods or Services supplied by Seller and Seller commences legal proceedings to collect amounts due, in either of such cases Seller will have the right to recover reasonable attorney fees and costs incurred in connection with such actions.
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