TERMS AND CONDITIONS
All quotations must necessarily be subject to certain trade conditions. Misunderstandings occasionally arise because these conditions are not always brought to the Buyer's attention at the time his order is placed. As a frank understanding with our customers is to our mutual interest, we desire to remind them of the following conditions governing all quotations made by TSUNE AMERICA LLC. If an order based upon this quotation is accepted by TSUNE AMERICA LLC, it is agreed that the order shall be subject to the terms and conditions set forth herein below. It is also understood that if the order placed is pursuant to a government contract, it shall also be subject conditions required by laws of the United States and mandatory terms of such government contract as are disclosed to TSUNE AMERICA LLC. No contract term or condition shall be amended, deleted or added without the express written consent or TSUNE AMERICA LLC, and TSUNE AMERICA LLC hereby gives notice of objection to any terms set forth in any other writing which are in addition to or different from the terms set forth in this quotation.
The terms and conditions herein contained and any other terms and conditions executed and delivered in writing by a duly authorized agent of TSUNE AMERICA LLC contemporaneously herewith shall constitute the complete agreement between TSUNE AMERICA LLC and the Buyer and shall supersede all prior oral, written pr printed statements of any kind (including any terms and conditions submitted by the Buyer and any performance or production data from any source whatsoever, including references to accuracy, capacity, and capability of products, all of which are estimates only) made by TSUNE AMERICA LLC or the Buyer, or their respective representatives. No subsequent modification by the Buyer shall be binding upon TSUNE AMERICA LLC unless covered hereby. No statement, recommendation, or assistance given by TSUNE AMERICA LLC or its representatives to Buyer or its representatives, in connection with the provisions hereof or affect TSUNE AMERICA LLC's liability, as defined herein.
Prices: The products offered in this proposal and the prices quoted are based on our understanding of Buyer's requirements: any change in requirements will necessitate a revision in prices quoted. Prices are F.O.B, our dock, Edinburgh, Indiana or seller's Port of Entry, or other location as specified on proposal, equipment skidded, not necessarily crated. TSUNE AMERICA LLC’ s prices do not include sales, use, excise, or similar tax, applicable to the sale or use of the equipment proposed. These taxes shall be paid by the Buyer, or in lieu thereof, the Buyer shall provide TSUNE AMERICA LLC with a tax exemption certificate acceptable to the taxing authorities.
Delays or failure to deliver: TSUNE AMERICA LLC shall not be responsible for delay or failure to deliver hereunder due to acts of God, or to Government action (civil or military), or to prior orders, or to fire, embargo, strike, differences with workmen, wrecks, or delays in transportation, unusually severe weather or inability to obtain necessary labor or materials from the usual source of supply, or any circumstances beyond TSUNE AMERICA LLC's control without limitation. TSUNE AMERICA LLC shall not, however, be relieved from making shipment or the Buyer from accepting delivery, when the causes interfering with deliveries shall have been removed. TSUNE AMERICA LLC shall have the right to furnish suitable substitutes for materials which cannot be obtained because of such force majeure. If the product, goods, material, apparatus accessories or equipment (therein after all referred to as "equipment") is or hereafter becomes subject to Governmental control, allocation, regulation or restriction, the necessary and proper preference rating certificate or certificates shall be supplied by the Buyer.
Tariffs: The Buyer acknowledges and agrees that import tariffs imposed by the United States Government are subject to change and may vary at the time of entry. Accordingly, TSUNE AMERICA LLC expressly reserves the right to impose a supplemental surcharge to offset any increase in import duties, tariffs, or related governmental levies assessed at the time the equipment enters the United States. Such surcharge shall be payable by the Buyer upon request and shall not constitute grounds for delay in payment, cancellation, or refusal of goods.
Installation: Buyer shall install at its own expense, all products covered hereby in accordance with the Manufacturer's installation manual to be furnished to Buyer upon request. Unless otherwise stated, no installation services are included in the price indicated.
Limited warranty: TSUNE AMERICA LLC warrants to the Buyer (but not to any others) for a period of one year from date of shipment that all new parts manufactured by Manufacturer of the product whether or not incorporated in a machine when shipped are free from defects in material and workmanship. TSUNE AMERICA LLC's said warranty shall exist only if Buyer gives written notice to TSUNE AMERICA LLC and Manufacturer within ten days after the first determination that the part is defective and within the aforesaid one year period from the date of shipment and includes in said notice consent to TSUNE AMERICA LLC and to Manufacturer to inspect, at any reasonable time, said part and the machine in which it may be embodied, and if, and only if, TSUNE AMERICA LLC and Manufacturer determine to their reasonable satisfaction upon said inspection that said part and the machine in which it may be embodied are, and have been subjected only to ordinary use and service and are, and have been, used in accordance with all TSUNE AMERICA LLC's and Manufacturer's instructions as to maintenance and operation set forth in the operator's manual and instruction sheets relating to the machine. TSUNE AMERICA LLC's warranty is limited to shipping to Buyer replacement of any part which is so proven to be defective and neither TSUNE AMERICA LLC nor Manufacturer in any event shall have any liability whatsoever for payment of incidental or consequential damages or loss of profit, or including damages resulting from personal injury or death, or damage to, or loss of use of, any property (including but not limited to any product or products). TSUNE AMERICA LLC extends no warranty of any kind for tools, jigs, or fixtures. NOTWITHSTANDING ANY PROVISIONS OF THESE TERMS AND CONDITIONS, THIS WARRANTY IS THE ONLY WARRANTY EXTENDED BY TSUNE AMERICA LLC OR MANUFACTURER IN CONNECTION WITH ANY SALES OR PRODUCTS BY EITHER OF THEM AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE. There are no other warranties, expressed or implied, that extend beyond the warranty of the manufacturer of the equipment and any other statements, oral or written, inconsistent with such warranty, are not binding on TSUNE AMERICA LLC. Performance and production data, including accuracy<, capacity and capability of equipment are estimates only and not guarantees, since they are dependent upon varying future production factors and conditions not within TSUNE AMERICA LLC's control. NO AGENT, EMPLOYEE OR REPRESENTATIVE OF TSUNE AMERICA LLC HAS ANY AUTHORITY TO BIND TSUNE AMERICA LLC TO ANY AFFIRMATION, REPRESENTATION, OR WARRANTY CONCERNING THE PRODUCTS THAT ARE THE SUBJECT OF THIS QUOTATION BEYOND THAT SPECIFICALLY INCLUDED IN THE WRITTEN QUOTATION, TSUNE AMERICA LLC shall have no obligation to install or provide improvements or changes in design adapted by the manufacturer or TSUNE AMERICA LLC for similar equipment subsequent to acceptance of Buyer's order. WARRANTIES HAVE BEEN DISCUSSED AND UNDERSTOOD BY BOTH PARTIES.
Buyer's use and O.S.H.A.: Buyer shall use and require all persons operating the equipment to use any and all proper, safe operating procedures set forth in operator's manuals and instructions sheets relating to the equipment and observe all Occupational Safety Health and Standards Act (O.S.H.A.) American National Standards Institute (ANSI), and State regulations as required and any and all available, feasible and practical point of operation safety devices consistent with Buyer's use of the equipment. Buyer shall not remove or modify, any device, warning sign, operator's manual or work handling tools installed on or attached to the equipment. Buyer shall notify TSUNE AMERICA LLC promptly, in writing, and in all events within ten (10) days after its occurrence, of any accident or malfunction involving any equipment which results in injury to or death of persons, including Buyer's agents and employees, or damage to property, including Buyer's property, or the loss of use thereof, and Buyer shall cooperate fully with TSUNE AMERICA LLC and the manufacturer in investigation an determining the cause of any such occurrence or malfunction. At manufacturer's request made at any time. Buyer will either at its or manufacturer's place of business as designated by manufacturer, permit manufacturer to redesign, remodel or revise the equipment and Buyer waives any and all claims of any kind against TSUNE AMERICA LLC and manufacturer which may result from Buyers inability to use the equipment during the time that same is out of service for such revision, modification or redesign.
It is the Buyer's responsibility to provide all proper dies, devices, tools and means that may be necessary to effectively protect all personnel from bodily injury which otherwise may result from the method of particular use, operation, set-up, or service of the equipment. The operator's or machine manual, ANSI Safety Standard, OSHA Regulations and other sources should be consulted to implement the above.
Complete compliance with the regulations of O.S.H.A. by law, rests with the equipment purchaser or user. TSUNE AMERICA LLC does not either imply or warrant, under any circumstances, that the point of operation will be guarded. It is the responsibility of the user of this equipment to properly guard the point of operation so that the operator can not have any part of his body in the danger zone during the operation cycle.
TSUNE AMERICA LLC shall not be responsible for any failure to comply which results from the location, operation, design, use, or maintenance of the equipment or from alteration of the equipment by persons other than TSUNE AMERICA LLC, or from an option or accessory to the equipment which was available to the Buyer but omitted at the Buyer's direction, or from design or instructions furnished by the buyer or his agents. In view of the above, TSUNE AMERICA LLC does not make any warranties with respect to O.S.H.A. requirements, including noise; and will not be responsible for fines, penalties or consequential damage.
Payment terms: Net payment in full of all invoices is due Thirty (30) Days Net, subject to credit approval at time of acceptance of order unless stated in quotation. Any unpaid balance thereafter shall be subject to a service charge of up to 1.75% per month as allowed by law. There shall be no extension or change in the time for payment due to delays in installation and/or delays in operation of the equipment caused by damage, warranty service or warranty replacement of parts.
Attorney’s fees: If Buyer fails to pay the contract price as provided herein, or breaches any of the terms and conditions contained herein, and TSUNE AMERICA LLC institutes a lawsuit for the collection of all or part or said price or for any said breach, Buyer agrees to pay reasonable attorney fees incurred in connection therewith. If, in TSUNE AMERICA LLC's judgment, Buyer's financial responsibility at any time shall become impaired, TSUNE AMERICA LLC may decline to make further shipments, except for cash before shipment.
Acceptance of orders: All orders are subject to prior written acceptance or acknowledgment by TSUNE AMERICA LLC at its home office. Quotations are offered for written acceptance within thirty (30) days from date (unless otherwise stated) but are subject to change without notice at any time before acceptance. If any order as accepted by TSUNE AMERICA LLC contains printed, stamped or other provisions inconsistent or in conflict with the terms and conditions hereof, the terms and conditions hereof shall control, unless otherwise specifically stated by TSUNE AMERICA LLC in writing. All clerical errors are subject to change. All orders are subject to the credit approval of TSUNE AMERICA LLC, Edinburgh, Indiana. An order containing subject matter not within the contemplation of the proposal shall be subject to a further quotation as to price or delivery of both.
Title and security agreement: Delivery to carrier shall constitute transfer of title to the Buyer, and all risk of loss or damage in transit shall be borne by the Buyer.
By execution of a Purchase order relating to the machinery and equipment covered by the proposal. Buyer hereby grants to TSUNE AMERICA LLC a security interest in the equipment and to secure the purchase price thereof and Buyer authorizes TSUNE AMERICA LLC to file financing statements reflecting this security interest without Buyer's signature. Buyer will cooperate with TSUNE AMERICA LLC in preparing documents necessary to perfect this security interest.
Cancellation and delays: Modifications, changes, deferred shipments, cancellations or additions will be effective only if accepted by TSUNE AMERICA LLC in writing and then only upon terms that will indemnify TSUNE AMERICA LLC against all costs and losses.
In the event that, after TSUNE AMERICA LLC's acceptance of Buyer's purchase order, Buyer requests TSUNE AMERICA LLC to delay shipment of the equipment, the purchase price shall become due and owing thirty (30) days after the equipment is ready for shipment.
Property, quotation and other materials: This quotation and all drawings, specifications, materials, patterns, and special purpose manufacturing aids which are supplied to Buyer by TSUNE AMERICA LLC shall be kept in confidence and shall be listed and maintained in suitable condition at the expense of Buyer and are to be considered the property of TSUNE AMERICA LLC held on consignment by Buyer and to be insured while in Buyer's possession. Such articles and all copies thereof from any source shall be returned to TSUNE AMERICA LLC at any time upon request and shall not be used for any third parties without the express permission of TSUNE AMERICA LLC.
Performance in event of default: In addition to the rights and remedies conferred upon TSUNE AMERICA LLC by law, TSUNE AMERICA LLC will not be required to proceed with the performance of any order or contract if Buyer is in default in the performance of any order or contract with TSUNE AMERICA LLC and in case of doubt as to Buyer's financial responsibility, shipments under an order may be suspended or sent sight draft with bill of lading attached by TSUNE AMERICA LLC.
Errors: This proposal is subject to revision in case of clerical error, whether in favor of the Buyer or TSUNE AMERICA LLC, upon notice of either party.
Hold Harmless/indemnity: Except to the extent of the limited warranty set forth above: Buyer hereby: (1) Waives, releases and discharges any and all claims of any and every kind (including but not limited to injury or death of any person or damage to property), which it may have at any time against TSUNE AMERICA LLC, its agents or employees, by reason of or arising out of any claimed improper design, specification or manufacture of the equipment sold hereunder, or of any claimed inadequate or insufficient safeguards or safety devices; and (2) Covenants to indemnify and hold harmless TSUNE AMERICA LLC, its agents and employees of, from and against any and all loss, damage, expense, claims, suits or liability which TSUNE AMERICA LLC or any of its employees may sustain or incur at any time for or by reason of any injury to or death of any person or persons or damage to any property, arising out of any claimed improper design or manufacture of the equipment sold hereunder, or of any claimed inadequate or insufficient safeguards of safety devices.
Color: The equipment offered in this proposal will be painted the standard color used by the factory. For any deviation from this standard color, an extra charge will be made, unless so specified in this proposal.
Foundations: If a standard foundation drawing is supplied, it may include plan and elevation views. Due to many variations in soil type, adjacent equipment, workmanship etc. foundation depth is a suggestion only. The foundation is not guaranteed and we shall not be responsible for any inaccuracy which may result from an inadequate or insufficient foundation.
Electrical equipment: Motors, electrical equipment and wiring on the equipment quoted will be supplied in accordance with the Manufacturer's Standards. Unless specifically quoted, they are not guaranteed to meet Ordinances of any local governing body and the responsibility of conforming to any local Ordinance is assumed by the Buyer.
Inspection and testing, production estimates and performance: All working drawings or other materials provided by TSUNE AMERICA LLC are for general information purposes only and may or may not relate to Buyer's order or other equipment. Any specifications contained therein are not binding on TSUNE AMERICA LLC except as expressly so stated in this form or other written form, TSUNE AMERICA LLC reserves the right to make, at any time, such changes in detail of design or construction as shall in the sole judgment of TSUNE AMERICA LLC's careful analysis and understanding of the limits of the limits of accuracy, machinability of materials, amount of material to be removed, handling facilities provided, and locating points, but is nonetheless an estimate only and is not guaranteed or warranted. In no event shall TSUNE AMERICA LLC be responsible for performance figures supplied by TSUNE AMERICA LLC suppliers or other cooperating parties. If by written agreement the equipment is to be subject to acceptance tests before shipment, rejection under this clause must take place prior to shipment.
Returned equipment: In no case is equipment to be returned without first obtaining written permission from TSUNE AMERICA LLC. Unless otherwise expressly agreed, an order for equivalent value should accompany returned equipment and all such equipment accepted for credit only after factory inspection. Returned equipment could be subject to a restocking charge. Buyer returning equipment must pay transportation charges and bear risks of loss or damage to goods while in transit. Acceptance of returned products by TSUNE AMERICA LLC's receiving department shall not bind TSUNE AMERICA LLC nor have any force or effect unless acceptance is made by TSUNE AMERICA LLC in writing.
Loss or damage in transit: All equipment delivered to a carrier by the Buyer, or consigned to the Buyer upon his instruction of his order, is traveling at the Buyer's risk and the Buyer hereby assumes all risks from the time of such delivery or consignment notwithstanding any loss, injury, or destruction of such equipment from any cause whatsoever. Any such loss, injury or destruction shall not operate in any manner to release the Buyer from the obligation to pay for such property or of any other terms of condition hereof.
TSUNE AMERICA LLC's liability for loss or damage to the equipment proposed herein is limited to events which in TSUNE AMERICA LLC's sole judgment have occurred prior to its delivery to the F.O.B. point shown on Buyer's Purchase Order and agreed to in writing by TSUNE AMERICA LLC.
Venue and Choice of Law: All transactions covered hereby and all terms and conditions of sale shall be governed by the laws of the State of Indiana. Buyer agrees that the only proper venue of any lawsuit arising out of, or in connection with, or related to all transaction covered by these terms and conditions, or for failure to pay any amount owed to TSUNE AMERICA LLC, shall be in the courts of Bartholomew County, State of Indiana.