I. TestEquity LLC Standard Terms and Conditions
A. SALES POLICY FOR PRODUCTS
- Wholesale Only
TestEquity LLC ("TestEquity") sells its complete offering wholesale to business customers, while also serving individuals.
Prices listed are wholesale in U.S. dollars, do not include freight, handling fees, taxes, and/or duties, and are subject to correction or change without notice. Market sensitive commodity products will be priced according to current market conditions. Customer should contact TestEquity at 800-950-3457 or check online at www.TestEquity.com for current pricing. Export orders may be subject to other special pricing. TestEquity reserves the right to accept or reject any order.
- Sales Tax
Customer is responsible for payment of all applicable state and local taxes, or for providing a valid sales tax exemption certificate. Sales tax on the final invoice may vary from what you paid at checkout with your credit card, due to the location from where the shipment originates.
- Payment and Credit Terms
TestEquity accepts checks, money orders, Visa, MasterCard, Discover, American Express, and SmartPay. For customers with established TestEquity credit, payment terms are net thirty (30) days from the date of shipment. All credit extended by TestEquity to customer, and the limits of such credit, is at TestEquity's sole discretion, and may be reduced or revoked by TestEquity at any time, for any reason. As a condition for the continued extension of credit, customer agrees to provide TestEquity with current credit information and three (3) trade references and one (1) bank reference within five (5) business days following request by TestEquity. TestEquity reserves the right to charge a convenience fee for late payments. TestEquity further reserves the right to charge customer a late payment fee at the rate of one and one-half percent (1½%) of the amount due for each month or portion thereof that the amount due remains unpaid, or such amount as may be permitted under applicable law. Anticipation and cash discounts are not allowed. Export orders are subject to special export payment terms and conditions identified in Section III. All payments must be made in U.S. dollars. TestEquity has the right of set-off and deduction for any sums owed by customer to TestEquity.
If customer fails to make payment within thirty (30) days of shipment, or fails to comply with TestEquity's credit terms, or fails to supply adequate assurance of full performance to TestEquity within a reasonable time after requested by TestEquity (such time as specified in TestEquity's request), TestEquity may defer shipments until such payment or compliance is made, require cash in advance for any further shipments, demand immediate payment of all amounts then owed, elect to pursue collection action (including without limitation, attorneys' fees and any and all other associated costs of collection), and/or may, at its option, cancel all or any part of an unshipped order. Additionally, customer, and each of its subsidiaries and affiliates, agrees to provide to TestEquity proper authorization necessary for TestEquity to request any financial information from third parties.
Customer agrees to assume responsibility for, and customer hereby unconditionally guarantees payment of, as provided herein, all purchases made by customer, its subsidiaries and affiliates. Each of customer's subsidiaries and affiliates purchasing from TestEquity are jointly and severally liable for purchases with customer, and customer is also acting as agent for such subsidiaries and affiliates.
- Security Interest
Customer hereby grants to TestEquity a first priority purchase money security interest and/or chattel mortgage in the products and any accounts receivable or cash from resale thereof until full payment is made to TestEquity. Customer agrees to file, and it permits and authorizes TestEquity to file, any financing statements or other appropriate documents with its governmental authorities to perfect the validity, priority, and enforceability of TestEquity's lien or security interest.
- Credit Balance
Customer agrees that any credit balance(s) issued by TestEquity will be applied to customer's account within one (1) year of its issuance. IF CUSTOMER HAS NOT REQUESTED THE CREDIT BALANCE WITHIN ONE (1) YEAR, ANY REMAINING CREDIT BALANCE WILL BE CANCELLED, AND TESTEQUITY SHALL HAVE NO FURTHER LIABILITY.
B. FREIGHT POLICY
- Products are shipped F.O.B. origin to customer's single location located in the contiguous United States, in accordance with TestEquity's freight schedule. Receipts for shipping will not be furnished. COD shipments are not permitted. Other terms and conditions may apply for other than standard ground delivery ("Other Freight Services"), including without limitation, expedited same day delivery, air freight, freight collect, export orders, sourced products, non-stock products hazardous materials, customer's carrier, shipments outside the contiguous U.S. or other special handling by the carrier. Any charges incurred for other Freight Services must be paid by customer. Fuel surcharges may be applied. Title and risk of loss pass to customer upon tender of shipment to the carrier. If the product is damaged in transit, customer's only recourse is to file a claim with the carrier.
C. PRODUCT WARRANTY POLICY
- Products Damaged in Shipment
Products damaged in shipment will be repaired or replaced at no cost to customer if TestEquity is notified within 10 days of delivery. Customer should immediately notify carrier of any visible damages upon delivery.
- LIMITED WARRANTY PERIOD FOR NEW PRODUCTS
TESTEQUITY WARRANTS NEW PRODUCTS AGAINST DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL USE FOR A PERIOD OF THIRTY (30) DAYS AFTER THE DATE OF PURCHASE FROM TESTEQUITY, UNLESS OTHERWISE STATED, OR IN THE CASE OF HAZ-MAT, SOURCED, OR CUSTOM PRODUCTS. PROVIDED THAT TESTEQUITY ACCEPTS THE PRODUCT FOR RETURN DURING THE LIMITED WARRANTY PERIOD, TESTEQUITY MAY, AT ITS OPTION: (i) REPAIR; (ii) REPLACE; OR (iii) REFUND THE AMOUNT PAID BY CUSTOMER. TESTEQUITY'S REPAIR, REPLACEMENT, OR REFUND OF AMOUNTS PAID BY CUSTOMER FOR THE PRODUCT, SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY.
- LIMITED WARRANTY PERIOD FOR USED PRODUCTS
TESTEQUITY WARRANTS USED PRODUCTS AGAINST DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL USE FOR A PERIOD OF ONE(1) YEAR AFTER THE DATE OF PURCHASE FROM TESTEQUITY, UNLESS OTHERWISE STATED, OR IN THE CASE OF HAZ-MAT, SOURCED, OR CUSTOM PRODUCTS. PROVIDED THAT TESTEQUITY ACCEPTS THE PRODUCT FOR RETURN DURING THE LIMITED WARRANTY PERIOD, TESTEQUITY MAY, AT ITS OPTION: (i) REPAIR; (ii) REPLACE; OR (iii) REFUND THE AMOUNT PAID BY CUSTOMER. TESTEQUITY'S REPAIR, REPLACEMENT, OR REFUND OF AMOUNTS PAID BY CUSTOMER FOR THE PRODUCT, SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY.
- WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY TO ALL CUSTOMERS
EXCEPT AS SET FORTH HEREIN AND WHERE APPLICABLE, NO WARRANTY OR AFFIRMATION OF FACT OR DESCRIPTION, EXPRESS OR IMPLIED, IS MADE OR AUTHORIZED BY TESTEQUITY. TESTEQUITY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. TECHNI-TOOL ALSO DISCLAIMS ANY LIABILITY FOR CLAIMS ARISING OUT OF PRODUCT MISUSE, IMPROPER PRODUCT SELECTION, IMPROPER INSTALLATION, PRODUCT MODIFICATION, MISREPAIR OR MISAPPLICATION. ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES IS EXPRESSLY DISCLAIMED TO THE EXTENT PERMISSIBLE. TESTEQUITY'S LIABILITY IN ALL EVENTS IS LIMITED TO THE PURCHASE PRICE PAID FOR THE PRODUCT THAT GIVES RISE TO ANY LIABILITY.
- Warranty Product Return
To return a product during the Limited Warranty Period, customer must call 800-832-4866 or 610-941-2400 for a return authorization number. Each return authorization number is valid for thirty (30) days. There is no restocking fee, except as otherwise noted herein, if products are returned within the Limited Warranty Period, shipping prepaid, in saleable condition, with manufacturer's original packaging unblemished and all accessories, manuals and warranties included. Customer must include a copy of the packing list or invoice with a reason for the return. Late returns and incomplete returns will incur a 15%, or higher, restocking fee.
- Manufacturer's Warranty
For information on a specific manufacturer's warranty, please contact TestEquity 800-950-3457 or 610-941-2400.
- Product Compliance and Suitability
Jurisdictions have varying laws, codes and regulations governing construction, installation, and/or use of products for a particular purpose. Certain products may not be available for sale in all areas. TestEquity does not guarantee compliance or suitability of the products it sells with any laws, codes or regulations, nor does TestEquity accept responsibility for construction, installation and/or use of a product. It is customer's responsibility to review the product application and all applicable laws, codes and regulations for each relevant jurisdiction to be sure that the construction, installation, and/or use involving the products are compliant.
- Cross-Reference Information
Product cross-reference comparisons do not imply that products are available or perfectly comparable. CROSS-REFERENCED PRODUCTS ARE NOT REPRESENTED OR WARRANTED AS FUNCTIONAL OR PERFORMANCE EQUIVALENTS. Customer shall review all cross-referenced product specifications prior to purchase and use to determine suitability of the product for customer's intended use.
D. PRODUCT INFORMATION
- Catalog/Website Information
Product depictions in the catalogs and websites are for illustrative purposes only. Possession of, or access to, any TestEquity catalog, literature or websites does not constitute the right to purchase products. TestEquity reserves the right to revise publishing errors in its catalogs or any of its websites. Despite our efforts, occasional pricing errors may occur in the TestEquity catalogs and websites. TestEquity reserves the right to cancel any and all orders resulting from such pricing errors, even if customer has received an order confirmation from TestEquity.
- Product Substitution
Products and/or country of origin may be substituted and may not be identical to descriptions and/or images published in the catalog or on the website.
- Safety Data Sheets or Material Safety Data Sheets
Safety Data Sheets ("SDS") or Material Safety Data Sheets ("MSDS") for OSHA defined hazardous substances are prepared and supplied by the manufacturers. TESTEQUITY MAKES NO WARRANTIES AND EXPRESSLY DISCLAIMS ALL LIABILITY TO ANY CUSTOMER OR USER WITH RESPECT TO THE ACCURACY OF THE INFORMATION OR THE SUITABILITY OF THE RECOMMENDATIONS IN ANY SDS/MSDS. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY RELIANCE ON OR USE OF ANY INFORMATION, AND FOR USE OR APPLICATION OF ANY PRODUCT.
- California Proposition 65
The State of California requires that certain warnings be given concerning products subject to Proposition 65. For products denoted with a symbol, the following warnings apply:
Warning: This product contains a product known to the State of California to cause cancer.
Warning: This product contains a chemical known to the State of California to cause birth defects or other reproductive harm.
- SDS/MSDS and Proposition 65 Regulated Product Requests
Information on SDS/MSDS and Proposition 65 regulated products are available: (i) by contacting TestEquity, 1547 N. Trooper Rd. PO Box 1117, Worcester, PA 19490-1117; (ii) by calling 800-950-3457 or 610-941-2400 or faxing 805-498-3733 or 610-828-5623; and (iii) by visiting our website at www.TestEquity.com. A complete list of Proposition 65 regulated chemicals is available by logging on to www.oehha.ca.gov.
- California, Maryland and Vermont Customers
Regulations in CA, MD and VT prohibit the introduction into commerce of any solder, flux, pipe, pipe or plumbing fitting, or fixture intended to convey or dispense water for human consumption that is not "lead free". The maximum allowable lead content is 0.25 percent lead in wetted surfaces of pipes, pipe fittings, and plumbing fittings and fixtures, as determined by a weighted average. The maximum allowable lead content is 0.2 percent lead in solder and flux.
E. GENERAL TERMS
- Electronic Data Interchange
If TestEquity and customer mutually agree to use an Electronic Data Interchange ("EDI") system to facilitate purchase and sale transactions, customer agrees that it will not contest: (i) any contract of sale resulting from an EDI transaction under the provisions of any law relating to whether agreements must be in writing or signed by the party to be bound thereby; or (ii) the admissibility of copies of EDI records under the business records exception to the hearsay rule, the best evidence rule or any other similar rule, on the basis that such records were not originated or maintained in documentary form. TestEquity and customer will negotiate and agree on technical standards and methods to use in making EDI purchases, and will use reasonable security procedures to protect EDI records from improper access. In the event of a conflict, the business records maintained by TestEquity regarding EDI purchases made by customer shall be deemed to be conclusive.
- Third-Party Payment Provider
If customer elects to use a third-party payment system provider ("Third-Party Provider") and TestEquity is charged fees by the third-party Provider, TestEquity reserves the right to seek reimbursement from customer for any and all costs paid to the third-party provider for the transfer of funds, retrieval of payment detail, or any other purpose from the third-party provider.
- Intellectual Property
Customer shall have no right, title, or interest in the trade names, trademarks, trade dress, copyrights, patents, domain names, product names, catalogs or any other intellectual property rights reserved by TestEquity, or any trademarks or service marks owned by suppliers to TestEquity. All materials contained on the www.techni-tool.com website are subject to the ownership rights of TestEquity and its suppliers. Customer shall have no right to copy or use any of the intellectual property of TestEquity or its suppliers without TestEquity's permission.
- Independent Contractors
TestEquity and customer are independent contractors and not principal and agent. Nothing contained in these terms and conditions shall be construed to create a partnership, dealership, reseller, agency, employment or joint venture relationship. Customer does not have the right to bind or otherwise obligate TestEquity in any manner, nor may customer represent to anyone that it has the right to do so.
- Sourced Product
TestEquity may procure product not available through the TestEquity catalog or available on www.TestEquity.com for a customer from other sources ("Sourced Product[s]"). Sourced Product is priced according to current market conditions on a per order basis, and is shipped F.O.B. origin with freight and handling fee paid by TestEquity and charged to customer. Sourced Product may not be returned without a return goods authorization issued by TestEquity. TestEquity, at its sole discretion, may withhold the issuance of such authorization. A restocking fee may apply for any returned Sourced Product. TESTEQUITY'S LIMITED WARRANTY TERMS INCLUDED IN THESE TERMS AND CONDITIONS DO NOT APPLY TO SOURCED PRODUCTS. THE PRODUCT WARRANTY PROVIDED BY THE MANUFACTURER AND/OR SUPPLIER WILL BE CUSTOMER'S SOLE REMEDY.
- Custom Product
TestEquity may offer products manufactured or assembled to customer's specifications ("Custom Product(s)"). TestEquity is not responsible for verifying or confirming the accuracy of specifications provided by customer to TestEquity for Custom Products. TESTEQUITY'S LIMITED WARRANTY TERMS INCLUDED IN THESE TERMS AND CONDITIONS DO NOT APPLY TO CUSTOM PRODUCTS. THE PRODUCT WARRANTY PROVIDED BY THE MANUFACTURER AND/OR SUPPLIER WILL BE CUSTOMER'S SOLE REMEDY, AND ALL OTHER WARRANTIES ARE DISCLAIMED UNDER SECTION 1.C. ABOVE. All Custom Products are sold on a "FINAL SALE" basis only, and no cancellations, returns, refunds or credits are allowed.
All product order cancellations, if not prohibited above, must be approved by TestEquity, and may be denied or subject to restocking fees and other charges.
- Non Cancellable / Non Returnable (NCNR) products
Products classified as Non Cancellable / Non Returnable designation online or the No Cancel - No Return note, on quote and order acknowledgments, cannot be cancelled once placed on order nor returned once shipped. All Non Cancellable / Non Returnable are sold on a “FINAL SALE” basis only, and no cancellations, returns, refunds or credits are allowed.
- Product Return
To return a Product, customers must call 800-950-3457 for a return authorization number. Return authorization numbers shall only be valid for thirty (30) days. Customer will not be charged a restocking fee for standard products, except as may be expressly noted, as long as returned Products are returned in saleable condition. To be eligible for credit, customers must not write anything on the manufacturer's original packaging or use such packaging as a shipping carton, must include all accessories, manuals and written warranties, include a copy of the packing list or invoice and provide a reason for the return. Late returns, returns of special ordered items and incomplete returns will incur a 15%, or higher, restocking fee. TestEquity reserves the right to refuse any returns received after thirty (30) days. Proof of purchase is required in all cases.
- Materials of Trade
Customer represents that if it is purchasing products as its "materials of trade," as defined in the Hazardous Materials Regulations in Title 49 of the Code of U.S. Federal Regulations, the products shall be used in direct support of its business, such business does not concern transportation, and such products shall not be resold or transported in a vehicle other than one owned by itself.
- Force Majeure
TestEquity shall not be liable for any delay in, or impairment of, performance resulting in whole or in part from any force majeure event, including but not limited to acts of God, labor disruptions, acts of war, acts of terrorism (whether actual or threatened), governmental decrees or controls, insurrections, epidemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to procure or ship product or obtain permits and licenses, inability to procure supplies or raw materials, severe weather conditions, catastrophic events, or any other circumstance or cause beyond the reasonable control of TestEquity in the conduct of its business.
Customer shall not assign any order, or any interest therein, without the prior written consent of TestEquity. Any actual or attempted assignment without TestEquity's prior written consent shall entitle TestEquity to cancel such order upon notice to customer.
- No Third-Party Benefit
Customer shall not assign any order, or any interest therein, without the prior written consent of TestEquity. Any actual or attempted assignment without TestEquity's prior written consent shall entitle TestEquity to cancel such order upon notice to customer.
- Waiver, Choice of Law and Venue
The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent non-performance of any such term or condition by the other party. All transactions shall be governed by the laws of the state of Delaware, excluding its conflict of law rules, and venue shall either be in the state or federal courts in state of Delaware.
If any portion of these terms and conditions is found to be invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable term shall be severed from these terms and conditions, and the remaining terms and conditions shall be valid and fully enforceable as written.
- Modification of Terms
TestEquity's acceptance of any order is subject to customer's assent to all of the terms and conditions set forth herein. Customer's assent to these terms and conditions shall be presumed from customer's receipt of TestEquity's acknowledgment, or from customer's acceptance of all or any part of the products ordered. No additions or modifications of TestEquity's terms and conditions by customer shall be binding upon TestEquity, unless agreed to in writing by an authorized representative of TestEquity. If a purchase order or other correspondence submitted by customer contains terms or conditions contrary or in addition to the terms and conditions contained herein or in TestEquity's acknowledgment, TestEquity's fulfillment of any such purchase order shall not be construed as assent to any of the terms and conditions proposed by customer, and will not constitute a waiver by TestEquity of any of the terms and conditions contained herein or in TestEquity's acknowledgment.
- Complete Agreement
The terms and conditions in: (i) TestEquity's forms; (ii) acknowledgments; (iii) quotations; (iv) invoices; (v) websites; (vi) catalogs; and (vii) extension of credit are incorporated herein by reference, and constitute the entire and exclusive agreement between customer and TestEquity.
II. Additional Terms and Conditions Related to the Performance of Services
IN ADDITION TO THE STANDARD TERMS AND CONDITIONS IN SECTION I, PERFORMANCE OF SERVICES WILL BE GOVERNED BY THE FOLLOWING ADDITIONAL TERMS AND CONDITIONS ("ADDITIONAL SERVICE TERMS").
Services may be performed by: (i) TestEquity, its employees and agents ("TestEquity Personnel"); (ii) TestEquity affiliates ("TestEquity Service Entities"); or third-party subcontractors ("Thid-Party Providers"). For purposes of this Section II, TestEquity Personnel, TestEquity Service Entities and Third-Party Providers are each referred to as a "Service Provider" and each Service Provider, together with its personnel, is referred to as "Service Provider Personnel."
The terms and conditions contained in this Section II are extended solely by the specific Service Provider performing services, and any obligations contained in this Section II do not apply to any other Service Provider referenced in the foregoing paragraph. Depending upon the nature of the services provided, the applicable Service Provider may require customer to execute additional contractual documents prior to the performance of services.
In the event of a conflict between the Standard Terms and Conditions in Section I and the Additional Service Terms in Section II, the Additional Service Terms in Section II shall prevail for the performance of services.
- LIMITED SERVICES WARRANTY
ALL SERVICES WILL (i) BE PERFORMED IN A WORKMANLIKE MANNER; (ii) CONFORM TO THE SPECIFICATIONS (IF ANY) PROVIDED BY THE SERVICE PROVIDER IN A STATEMENT OF WORK; AND (iii) BE WARRANTED FOR A PERIOD OF NINETY (90) DAYS AFTER PERFORMANCE OF SERVICES ("LIMITED WARRANTY PERIOD"). IF SERVICES ARE IMPROPERLY PERFORMED AND CUSTOMER NOTIFIES THE SERVICE PROVIDER OF THE IMPROPERLY PERFORMED SERVICE DURING THE LIMITED WARRANTY PERIOD, THEN THE SERVICE PROVIDER WILL RE-PERFORM THOSE SERVICES, IN WHOLE OR IN PART, AS NECESSARY TO CURE THE PARTICULAR BREACH, OR AT THE SERVICE PROVIDER'S SOLE OPTION, REFUND THE AMOUNT PAID BY CUSTOMER FOR THE SERVICES DIRECTLY ATTRIBUTABLE TO THE PARTICULAR BREACH. THE SERVICE PROVIDER'S RE-PERFORMANCE OR REFUND OF AMOUNTS PAID BY CUSTOMER FOR THE SERVICE DIRECTLY ATTRIBUTABLE TO THE PARTICULAR BREACH SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY.
- WARRANTY DISCLAIMER AND WAIVER FOR SERVICES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION II FOR SERVICES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND THE SERVICE PROVIDER DISCLAIMS, AND CUSTOMER WAIVES, ALL OTHER WARRANTIES FOR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. THE WARRANTIES SET FORTH IN THIS SECTION II ARE EXPRESSLY CONDITIONED UPON THE USE OF THE SERVICES FOR THEIR INTENDED PURPOSE AND SHALL NOT APPLY TO SERVICES WHICH HAVE BEEN SUBJECT TO MODIFICATION BY CUSTOMER OR ANY THIRD PARTY.
- LIMITATION OF LIABILITY
THE SERVICE PROVIDER EXPRESSLY DISCLAIMS ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES IN THE PERFORMANCE OF SERVICES. THE SERVICE PROVIDER'S LIABILITY IN ALL CIRCUMSTANCES IS LIMITED TO, AND SHALL NOT EXCEED, THE PURCHASE PRICE FOR THE PERFORMANCE OF THE PORTION OF SERVICES THAT GIVES RISE TO ANY PARTICULAR LIABILITY.
- Payment and Credit Terms
Except as otherwise agreed to by the parties, customer will be invoiced upon completion of services. Payment terms are net thirty (30) days from the date of invoice. All other payment terms are as set forth in Section I.A.4.
Either party may terminate the service agreement at any time and for any reason upon thirty (30) days' written notice to the other party. If terminated by customer, customer shall pay Service Provider an amount equal to the greater of (i) Ten percent (10%) of the total project cost quotation thereto (the "Total Project Cost"), or (ii) an amount equal to the Total Project Cost multiplied by the percentage completion for such project at the time the notice of termination is given, as determined by Service Provider.
Customer shall defend, indemnify and hold harmless Service Provider and its respective officers, directors, employees, subcontractors and agents (each individually, an "Indemnified Party") from and against any and all any claims, suits, liabilities, damages, settlements, charges, taxes and any other losses or expenses (including reasonable attorneys' fees) (collectively "Liabilities") for physical injury to, illness or death of, any third party regardless of status and damage to or destruction of any tangible property which the third party may sustain or incur, to the extent such Liabilities relate to the services; except for such Liabilities relating to or arising out of a final judgment of gross negligence or willful misconduct of the Indemnified Party. In any action, suit or proceeding brought against an Indemnified Party by reason of any such claim as specified above, customer shall resist and defend such action, suit or proceeding by counsel of its choice, at the sole expense of customer, provided that (i) the Indemnified Party notifies customer promptly in writing of the claim; (ii) customer's counsel does not give rise to a conflict of interest with respect to the Indemnified Party; (iii) customer has the sole control of the defense and all related settlement negotiation but shall keep the Indemnified Party reasonably informed of status; and (iv) the Indemnified Party provides customer with all reasonably necessary assistance, information, and authority to perform the foregoing at customer's expense.
- Access to Customer's Premises
To the extent access to customer's premises is required, customer shall provide Service Provider Personnel access to customer's premises free of charge as necessary for performance of services supplied by Service Provider. Prior to starting any work at customer's premises, customer will: (i) provide documentation that identifies any existing hazardous materials, or dangerous or potentially dangerous conditions on or about customer's premises; and (ii) allow Service Provider Personnel, at its option, reasonable access to customer's premises to perform or have performed a visual site inspection. Service Provider will have no responsibility or liability for the actual existing conditions; or identifying, correcting or advising customer of existing conditions on customer's premises ("Pre-Existing Conditions"), and customer shall be responsible for and shall indemnify each Service Provider and each of the Service Provider Personnel from and against any Liabilities arising out of or relating to any Pre-Existing Conditions, regardless of whether previously disclosed to any Service Provider or Service Provider Personnel. Customer shall not attempt to condition the right of Service Provider Personnel to obtain free access to customer's premises upon the signing of any agreement, waiver, or release which in any way purports to affect the legal rights or obligations of Service Provider or Service Provider Personnel. If any Service Provider Personnel signs such an agreement, waiver, or release, it shall be of no force and effect.
- Health and Safety Matters
Customer shall take all precautions, at all times, for the health and safety of Service Provider Personnel at customer's premises, including but not limited to identifying to Service Provider all hazardous materials or safety or health hazards to which Service Provider Personnel on customer's premises may be exposed; (i) providing to Service Provider Personnel for review, and instructing Service Provider Personnel regarding customer's safety practices; and (ii) proper and safe handling of, and protection of, Service Provider Personnel from exposure to hazardous materials or dangerous conditions. Customer agrees to provide Service Provider Personnel with all safety health and other protections required by law for customer's own employees, including, without limitation, all protections required by federal, state and local laws, standards, regulations, orders and other requirements under OSHA, and similar workplace safety and health statutes and programs.
- Right to Subcontract
Customer agrees that the Service Provider may subcontract the performance of services to third parties. Customer authorizes the Service Provider to disclose all information to the subcontractor, including confidential information necessary for such performance of services by the subcontractor.
- No Third-Party Reliance
Customer acknowledges and agrees that any advice, recommendation, information or work product provided to customer by Service Provider in connection with the services is for the sole use of customer and may not be relied upon by any third party; and customer is prohibited from making such advice, recommendation, information or work product available to any third party without prior written consent from TestEquity.
III. Additional Terms and Conditions Related to Export of TestEquity Products
IN ADDITION TO THE STANDARD TERMS AND CONDITIONS IN SECTION I, EXPORT SALES OF TESTEQUITY PRODUCTS WILL BE GOVERNED BY THE FOLLOWING ADDITIONAL TERMS AND CONDITIONS RELATED TO EXPORT OF TESTEQUITY PRODUCTS ("ADDITIONAL EXPORT TERMS"). IN THE EVENT OF A CONFLICT BETWEEN TESTEQUITY'S STANDARD TERMS AND CONDITIONS IN SECTION I AND THE ADDITIONAL EXPORT TERMS IN SECTION III, THE ADDITIONAL TERMS IN SECTION III SHALL PREVAIL FOR EXPORT SALES OF TESTEQUITY PRODUCTS.
- Order Acceptance
Customer acknowledges that no order shall be deemed accepted unless and until it is verified and accepted by TestEquity. Customer further consents that submission of its order shall subject customer to the jurisdiction of the federal courts of the U.S. and of the State where acceptance occurred in the U.S.
- Sales Tax and Duties, Import Fees
TestEquity is required to charge federal, state, local tax, applicable duties, and import fees on products, or for providing a valid exemption certificate. Customer assumes responsibility for, and unconditionally guarantees payment or reimbursement of, all applicable taxes, fees, licenses, import duties, and expenses as may be applicable. When placing an order, customer shall indicate which products are tax exempt.
- Payment and Credit Terms
Payment can be made by Visa, MasterCard, Discover or American Express, irrevocable letters of credit or wire transfer. All other payment terms are as set forth in Section I.A.4. Customer agrees to inform TestEquity immediately if it intends to use any import or export financing, or has or will be granting a lien or security interest on its inventory to any third-party.
- Shipping Charges and Freight Policy
All TestEquity export orders are shipped under INCOTERMS® 2010 rules as defined by the International Chamber of Commerce. Unless otherwise stated and agreed, default shipping term is FCA TestEquity shipping location, excluding export customs clearance. Freight is collect from any TestEquity facility. Customer shall be responsible for obtaining insurance. At TestEquity's option, this freight policy may be subject to special terms and conditions for certain export orders. If any item is backordered that qualifies for freight prepayment, that item will be shipped prepaid as customer's exclusive remedy. Title and risk of loss for products shall pass when made available to customer on delivery to carrier in the U.S.; provided that if payment has not been made at the time of shipment, TestEquity shall retain title (but not risk of loss) until payment has been made. If product is damaged in transit, customer's only recourse is to file a claim with the applicable airline, carrier, vessel and/or insurance company; provided, however, that if TestEquity has not received payment in full at the time the product is damaged in transit, customer shall be liable to TestEquity to make payment for the product, and TestEquity shall also, if customer fails to make payment, have the exclusive right to file a claim with the applicable airline, carrier, vessel and/or insurance company.
- Export Controls and Related Regulations
Customer represents and warrants that it is not designated on, or associated with, any party designated on any of the U.S. government restricted parties lists, including without limitation, the U.S. Commerce Department Bureau of Industry and Security ("BIS") Denied Persons List; Entity List or Unverified List; the U.S. Treasury Department Office of Foreign Assets Control ("OFAC") Specially Designated Nationals and Blocked Persons List; or the U.S. State Department Directorate of Defense Trade Controls ("DDTC") Debarred Parties List. Customer shall comply with all applicable U.S. economic sanctions and export control laws and regulations, including without limitation, the regulations administered by OFAC, the Export Administration Regulations administered by BIS, and the International Traffic in Arms Regulations administered by DDTC.
- Foreign Principal Party in Interest; Freight Forwarder and Documentation
It is specifically agreed that customer shall be the foreign principal party in interest and/or that its freight forwarder shall act as customer's agent in such capacity for purposes of the Foreign Trade Regulations or other regulatory purposes, and customer and its freight forwarder are responsible for all routed export transactions documentation, including but not limited to the filing of the required Electronic Export Information/Automated Export System records. At TestEquity's request, customer or its freight forwarder shall provide copies of any export, shipping, or import documentation prepared by customer or its freight forwarder related to sales to customer by TestEquity.
Customer is aware that TestEquity's business practices prohibit bribery and corrupt behavior in any form. Customer agrees that it is an independent contractor and it is and shall remain in compliance with all applicable laws that relate to money laundering, terrorism, commercial or official bribery or dealing with government officials (including the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act). Customer shall not offer or provide anything of value (cash or cash equivalents, gifts, loans, travel, entertainment, or any other similar benefit) either directly or indirectly to any government official for the purpose of influencing any act or decision in connection with the purchase and resale of the products ordered from TestEquity. Customer shall not pay a gratuity, bribe or inducement to any government official, even if it appears customary or consistent with prevailing business practices.
- Dispute Resolution
Actions by TestEquity for non-payment by customer of the purchase price of products sold by TestEquity, or for redress of other breaches by customer of these terms and conditions, may be brought by TestEquity, at its option, before any U.S. or foreign judicial court of competent jurisdiction. At TestEquity's option, disputes between customer and TestEquity, including all claims for non-performance by TestEquity, shall be finally settled by arbitration in State of Delaware, U.S., in accordance with the Commercial Arbitration Rules ("Rules") of the American Arbitration Association, by a single arbitrator appointed in accordance with said Rules, applying these terms and conditions and consistent provisions of the federal and state laws (except conflict of law rules) of the State of Delaware, U.S. The language of the arbitration shall be English.
- Country of Importation and Anti-diversion
Customer represents that it is purchasing products from the U.S. and importing them to the country specified in the customer and TestEquity documentation. Customer agrees that the products will be shipped to the specified destination in compliance with the laws of such destination and the U.S., and that the products will not be directly or indirectly sold, exported, transferred, assigned, used, or otherwise disposed of in a manner which may result in any non-compliance with applicable U.S. laws and regulations relating to the product purchased by customer. Any commodities, technology and software will be exported from the U.S. in accordance with the U.S. Export Administration Regulations and other applicable laws or regulations. Diversion contrary to U.S. law is prohibited. If requested by TestEquity, customer shall provide documentation satisfactory to TestEquity verifying delivery at the designated country. Customer further agrees to inform TestEquity at the time of order of any North American Free Trade Agreement or other special documentation, packaging or product marking or labeling, but TestEquity shall not be responsible for providing any such documentation, packaging, marking or labeling other than such documents that are necessary under U.S. export laws and regulations for export, unless TestEquity expressly agrees to do so.
- Permits, Export, and Import Licenses
Customer shall be responsible for obtaining any licenses or other official authorizations that may be required by the country of importation and/or under the Export Administration Regulations, International Traffic in Arms Regulations, Toxic Substances Control Act, or other applicable laws or regulations.
- Governing Law; Limitations
The rights and obligations of the parties under these terms and conditions shall not be governed by the provisions of the 1980 United Nations Convention of Contracts for the International Sale of Goods or the United Nations Convention on the Limitation Period in the International Sale of Goods. Rather, these terms and conditions shall be governed by the laws of the State of Delaware, U.S., including its provisions of the Uniform Commercial Code, but excluding its conflict of law rules. Notwithstanding the foregoing, any legal action by customer with respect to any transaction must be commenced within one (1) year after the cause of action has arisen.
IV. Additional Terms and Conditions for Rentals and Buyouts of Rentals
- Rental Term
Equipment is rented on a monthly basis with a one month minimum rental term. The Rental Term shall commence on the date TestEquity ships the Equipment to Customer and shall automatically extend on a month‑to‑month basis, upon all the terms and conditions hereof, until the date the Equipment is returned to the possession and control of TestEquity. A five day grace period may be granted for the return of Chambers while all other Equipment is granted a one day grace period.
Customer shall pay TestEquity each month during the Rental Term the monthly rental fee shown on the invoice for each item of Equipment together with all sales, use, and any other governmental taxes or charges imposed thereon. Monthly Rental Fee and any buyout invoice shall be due immediately upon receipt of TestEquity's invoice. All unpaid balances will thereafter be subject to a finance charge at the rate of 1.5% per month.
- Return of Equipment
Customer shall return the Equipment in good operating condition to TestEquity at the end of the Rental Term by prepaid insured shipment to the distribution center designated by TestEquity.
- Ownership; Personal Property; Use
The Equipment shall remain the property of TestEquity and TestEquity retains the title thereto. Customer shall use the Equipment only at the Equipment Location and Customer shall not remove, transfer, alter or modify any item of Equipment without TestEquity's prior written consent. TestEquity may inspect the Equipment at any time. Customer has no purchase rights or purchase options unless they are expressly set forth in writing in advance. Non-compliance with the terms of this agreement voids purchase rights or purchase options, if any, and cancels equity accruals, if any.
- Risk of Loss; Care of Equipment; Insurance
Customer is responsible for the safekeeping of all Equipment, and shall bear the risk of any loss of the Equipment for any reason, and shall insure each item of Equipment against loss or damage for not less than the replacement value of each item and if requested by TestEquity shall provide evidence of such insurance. At TestEquity's option, Customer shall either replace or pay the replacement cost of any item of Equipment which is lost, stolen, destroyed or damaged beyond repair. In the case of damaged Equipment, Customer pays TestEquity the cost of fully restoring the Equipment. Until an item has been repaired, replaced or the replacement cost thereof has been paid by Customer, the Rental Term shall continue and Customer shall continue to pay the monthly rental fee with respect thereto. Any item of non‑expendable Equipment accessories, manuals and the like which is lost, destroyed or damaged or which is not returned to TestEquity will be charged to Customer at full replacement cost plus a $100 processing fee. All Equipment will be delivered to Customer with ownership labels, calibration seals, and anti‑tamper notices affixed, as shall be determined by TestEquity.
- Canadian Income Tax Pursuant to Paragraph 212(I)(D)
If taxes are withheld from a TestEquity rental invoice, TestEquity will increase the rental amount on subsequent invoices to include the amount of the tax.