Master Terms & Conditions

Thomas Conveyor and Equipment Co. Master Terms and Conditions

TCE’s Business. Thomas Conveyor and Equipment Co., an Illinois corporation, (“TCE”) sells conveyors, lifts, parts, machines, equipment, and other devices, which help its customers move, sort, lift, stack, store, pour, mix, and otherwise handle their products and other materials at their distribution centers, warehouses, manufacturing plants, and other facilities (the “Goods”). TCE also provides and sells services in connection with the Goods (the “Services”), including: (i) recommending particular Goods for its customers’ above purposes, (ii) designing systems consisting of various Goods, such as conveyor systems, to help achieve its customers’ above purposes, and (iii) arranging for installations of Goods. All the Goods sold by TCE are manufactured by third parties (the “Goods Manufacturers”). TCE usually orders the Goods directly from the Goods Manufactures, but occasionally TCE orders the Goods from distributors (the “Goods Distributors”). All the Services sold by TCE to install the Goods are provided by third parties (the “Goods Installers”). TCE does not itself manufacture or install any Goods.
Transactions. Each sale of Goods and each sale of Services by TCE to Customer is referred to herein as a “Transaction”.
Applicable Provisions. These Master Terms and Conditions shall apply to each Transaction. For each Transaction, these Master Terms and Conditions shall be supplemented by “Applicable Provisions”, which shall contain the additional provisions for that particular Transaction, other than the Conflicting Terms (defined below), and consisting of: (i) Customer’s order, quotation, inquiry, or request (“Customer’s Order”), (ii) TCE’s written proposal or quotation with respect to Customer’s Order, (iii) As applicable to the Transaction, Customer’s particular requirements for the Goods and Services, as shown by one or more writings, including email, exchanged between TCE and Customer (“Customer’s Requirements”), including: (A) Customer’s desired or intended uses for the Goods, (B) the dimensions and other specifications pertaining to the Goods, and (C) ductwork, columns, other structures, machinery, obstacles, and corrosive, destructive, and otherwise extreme or severe characteristics of the environment in which the Goods will be operated, and all other conditions and circumstances at the location where the Goods will be operated that might affect the design, selection, installation, operation, or durability of the Goods, (iv) TCE’s designs (the “Designs”), (v) TCE’s drawings (the “Drawings”), (vi) the warranty, if any, provided by the Goods Manufacturer for the Goods (the “Manufacturer’s Warranty”), and (vii) all other writings between TCE and Customer, including email, which show their mutual consent to all the other elements, provisions, terms, and conditions of the Transaction.
Applicable Contract. For each Transaction, these Master Terms and Conditions and the Applicable Provisions for that Transaction are together referred to herein and constitute the “Applicable Contract”. The date of a Transaction and the date of the Applicable Contract for that Transaction shall be the date specified by the Applicable Provisions for that Transaction (the “Effective Date”).
“Customer”, as used herein, shall be whoever is identified by the Applicable Contract as the customer, the buyer, the purchaser, or a similar designation.
Conflicting Terms. As used herein, “Conflicting Terms” means any term, clause, or provision (a) within Customer’s Order, or (b) within any other writing submitted to TCE by Customer or referred to by Customer, or (c) otherwise communicated by Customer to TCE by any method, or (c) of which TCE has actual or constructive notice or knowledge, and (e) which is in addition to, differs from, conflicts with, alters, or contradicts any provision of these Master Terms and Conditions. Notwithstanding the contents of Customer’s Order, the contents of TCE’s proposals or acknowledgment of Customer’s Order, anything else given or received by either party, or either party’s performance of a Transaction: (a) TCE objects to and rejects all the Conflicting Terms, (b) these Master Terms and Conditions shall supersede all the Conflicting Terms, (c) the Conflicting Terms shall not apply to or govern the Transaction and shall not be any part of the Applicable Contract, (d) TCE’s proposals or acknowledgment of Customer’s Order shall constitute TCE’s offer or counter-offer to Customer’s Order, (e) TCE’s acceptance of Customer’s Order or TCE’s offer or counter-offer is expressly made conditional on Customer’s assent to the terms stated within these Master Terms and Conditions that are additional to or different from the Conflicting Provisions, and (f) the terms of these Master Terms and Conditions and the other terms of an Applicable Contract, excluding the Conflicting Terms, are the only terms upon which TCE will accept Customer’s Order and shall become binding on both parties if Customer permits TCE to prepare a Design or Drawings, or absent a Design or Drawings, if Customer permits TCE to deliver the Goods. Customer’s failure to notify TCE immediately if anything in these Master Terms and Conditions is incorrect or is otherwise unacceptable to Customer shall constitute Customer’s acceptance of the Applicable Contract, including these Master Terms and Conditions, and Customer’s withdrawal and rejection of the Conflicting Terms.
Integration and Entire Agreement. As used herein, a “party” means and refers to TCE or Customer, and “parties” means and refers to TCE and Customer. Each Applicable Contract shall constitute a separate agreement between the parties. For each Transaction: (a) the Applicable Contract alone shall contain and shall constitute the final, entire, complete, and exclusive statement of the parties’ agreement, terms, provisions, understanding, and arrangement regarding that Transaction, (b) the Applicable Contract shall supersede all prior and contemporaneous negotiations, representations, and other agreements, if any, of any kind, whether electronic, written, or oral, between the parties regarding that Transaction, (c) no action or conduct by or for either party, including any order, quotation, request, proposal, acknowledgment, sale, manufacture, delivery, acceptance, rejection, installation, or use of any Goods or any Services, is intended by either party as its agreement or consent to any term or clause other than those expressly set forth within the Applicable Contract, and (d) the Applicable Contract may not be explained or supplemented by the parties’ course of dealing, the parties’ course of performance, by usage of trade, or by industry custom.
Timing and Accuracy of Customer’s Requirements. Customer must completely and accurately disclose all of Customer’s Requirements to TCE before the parties enter into the Applicable Contract and the Applicable Contract must show that the parties reached an agreement regarding Customer’s Requirements that Customer timely disclosed to TCE (the “Agreed Customer Requirements”). TCE may assume, without inquiry or investigation, that the Agreed Customer Requirements are complete, accurate, and suitable for Customer’s purposes. Customer alone shall be responsible for the completeness, accuracy, and suitability of Customer’s Requirements. TCE shall not be responsible for any adverse result involving the Goods or Services due to Customer’s failure to completely, accurately, and timely disclose Customer’s Requirements to TCE, or if the Agreed Customer Requirements are incomplete, inaccurate, or not suitable for Customer’s purposes, whether or not TCE knew or should have known otherwise and even if TCE communicated erroneous suggestions or erroneous advice to Customer regarding Customer’s Requirements. The foregoing adverse results include the incorrect, inadequate, or unsuccessful selection, Design, Drawing, test, manufacture, delivery, installation, function, performance, or operation of the Goods or the Services, and maintenance, repair, or failure of the Goods other than as expected.
Designs, Drawings, and Selection of Goods. Whenever an Applicable Contract requires TCE to prepare one or more Designs or Drawings, or to select the Goods for Customer, TCE shall create the Designs and Drawings and TCE shall select the Goods in substantial conformance with the Agreed Customer Requirements. TCE shall deliver the Designs and Drawings to Customer for Customer’s approval before the manufacture of the Goods commences. Customer shall have the time provided by the Applicable Contract, or absent any such provision 30 days after TCE delivers the Designs and Drawings to Customer, to notify TCE that the Designs and Drawings do, or do not, substantially conform with the Agreed Customer Requirements (the “Approval Deadline”). Customer may not disapprove Designs or Drawings, including dimensions drawn to scale, that substantially conform with the Agreed Customer Requirements. Absent Customer’s notice of its disapproval to TCE by the Approval Deadline, or if Customer disapproves Designs or Drawings that substantially conform with the Agreed Customer Requirements, TCE may at its discretion: (a) proceed to complete the Transaction using the Designs and Drawings that TCE delivered to Customer, or (b) cancel the Transaction and retain all the amounts Customer paid to TCE, and within 10 days thereafter Customer shall pay TCE all the other unpaid amounts then due under the Applicable Contract.
Changes. Customer may not, without TCE’s consent: (a) change the Agreed Customer Requirements, (b) require any change to a Design or Drawing which substantially conforms with the Agreed Customer Requirements, or (c) require any change to a Design or Drawing that does not substantially conform with the Agreed Customer Requirements, but which Customer did not disapprove by the Approval Deadline. TCE may grant or deny its consent at TCE’s discretion, and TCE may condition its consent on Customer’s acceptance of TCE’s additional charges for the changes, including increased prices for the Goods and the Services, and charges for labor, administration, overhead, storage, and handling (“Additional Charges”), and a delayed completion of the Transaction.
Substitutions. TCE may make changes, including substitutions and revisions, to the Agreed Customer Requirements, Designs, Drawings, Goods, Goods Manufacturers, Goods Distributors, and Goods Installers, provided the changes do not materially and adversely delay completion of the Transaction, prevent the Goods from substantially fulfilling the Agreed Customer Requirements, or cause any Additional Charges.
Factory Acceptance Test. If a Transaction includes the manufacture of Goods pursuant to the Agreed Customer Requirements, Designs, or Drawings (the “Manufacture Requirements”), which TCE determines requires testing before delivery, TCE shall notify Customer when the Goods are manufactured and at a mutually agreed date and time the parties will conduct a test of the Goods at the Goods Manufacturer’s facility to confirm whether the Goods function substantially in accordance with the Manufacture Requirements (the “Factory Acceptance Test”). The cost for the Factory Acceptance Test charged by the Goods Manufacturer shall be included in the Applicable Contract. Customer shall pay all its costs to attend the Factory Acceptance Test and the fees of third parties Customer hires in connection with the Factory Acceptance Test. If a Factory Acceptance Test shows that the Goods do not perform substantially in accordance with the Manufacture Requirements, TCE shall have a reasonable time to correct the deficiencies, and at Customer’s election within 10 days thereafter the parties shall conduct “Additional Testing” as follows: (a) the parties shall schedule one or more additional Factory Acceptance Tests as provided above, (b) TCE shall send Customer a video demonstrating the Goods’ performance (“Demonstration Video”), or (c) TCE shall send Customer notes stating the observations by TCE or the Goods Manufacturer of the Goods’ performance (“Observation Notes”). Within 10 days thereafter Customer shall in writing to TCE either acknowledge that the Goods perform substantially in accordance withe Manufacture Requirements or inform TCE of the Goods’ deficiencies. If necessary, the parties shall conduct Additional Testing until the Goods perform substantially in accordance with the Manufacture Requirements (“Successful Factory Test”). Customer may not disapprove an initial Factory Acceptance Test or Additional Testing that shows or indicates a Successful Factory Test. TCE will not cause delivery or installation of the Goods until a Successful Factory Test has occurred and Customer acknowledges the success. TCE shall be discharged from all of its further obligations under the Transaction, including its obligations to cause the delivery and installation of the Goods if: (i) Customer does not cooperate to schedule, or Customer does not attend, the initial Factory Acceptance Test or each additional Factory Acceptance Test if required and if Customer elected to conduct them, (ii) Customer does not timely elect to conduct the Additional Testing, if required, (iii) Customer does not timely acknowledge the success of a Factory Acceptance Test, or (iv) Customer disapproves a Successful Factory Test. Thereafter: (1) TCE may place the Goods with a carrier for delivery to Customer as otherwise provided by these Master Terms and Conditions, (2) Customer shall accept the delivery, (3) within 10 days after the delivery Customer shall pay TCE the Shipping Charges (defined below) and the remaining balance due under the Applicable Contract, (4) TCE’s warranties shall all be null and void, and (5) TCE shall have no further obligations to Customer for the Transaction.
Delivery and Title. TCE alone shall select the method and carrier to deliver the Goods to Customer. Whether or not an Applicable Contract includes installation Services, all Goods shall be delivered to Customer F.O.B. at the facility of the Goods Manufacturer or the Goods Distributor, as applicable. The date, time, and occurrence of a delivery of Goods to Customer shall be the date and time at which the Goods are tendered to the carrier at the facility of the Goods Manufacturer or the Goods Distributor, as applicable. Title to the Goods shall pass to Customer at the date and time of the delivery. Except as provided by an Applicable Contract, Customer shall pay TCE the carrier’s shipping charges plus TCE’s then customary charges for administration and overhead (the “Shipping Charges”) within 10 days after TCE sends its Shipping Charges invoice to Customer. TCE shall have no responsibility or liability for any: (a) delivery delay occurring on or after the time of the delivery, whether or not caused by the carrier, and (b) any loss of or damage to the Goods: (1) caused by improper packing or improper handling of the Goods for the delivery, or (2) occurring on or after the time of the delivery, unless caused by the Goods Installer. The records and testimony of the carrier shall conclusively resolve any dispute between the parties regarding the occurrence of a delivery, including the date and time.
Customer’s Installation Obligations. If a Transaction includes Services to install the Goods, by the time of the installation Customer shall do the following (“Customer’s Installation Obligations”): Customer shall place the Goods as close as possible to the location for the installation, and Customer shall furnish the Goods Installer with compressed air, utilities, forklift trucks, personnel lifts, and all other equipment and items of which Customer was notified before the installation that the Goods Installer requires to complete the installation. If Customer fails to timely and fully perform Customer’s Installation Obligations, the date and time for the installation shall be extended until Customer is ready, willing, and able to timely and fully perform Customer’s Installation Obligations, but subject to the work schedules of TCE, the Goods Installer, and other third parties, and on TCE’s demand Customer shall pay TCE Additional Charges for the extension of time. Except as otherwise provided by an Applicable Contract, TCE’s price quotations for installations shall be based on installations occurring Monday through Friday, excluding holidays, during the Goods Installer’s customary work hours (“Straight Time”). On TCE’s demand, Customer shall pay TCE Additional Charges for installations of Goods that occur other than during Straight Time due to Customer’s request, Customer’s failure to fully and timely perform all of Customer’s Installation Obligations, or any other act or omission of Customer or any third party other than the Goods Installer.
Goods Operation Requirements. Customer shall at all times operate the Goods as follows (“Goods Operation Requirements”): (a) Customer shall operate the Goods only in the environment and under all the other conditions that are disclosed by the Agreed Customer Requirements, and (b) Customer shall provide sufficient electricity, sufficient compressed air, and all other utilities for the Goods as required by the Applicable Contract or as TCE, the Goods Manufacturer, or the Goods Distributor inform Customer before delivery of the Goods.
Maintenance and Repair. After the Goods are delivered, Customer shall be obliged to properly maintain and repair the Goods at Customer’s sole expense, but if the Goods Installer damages any Goods TCE shall within a reasonable time repair or replace those Goods, which shall be Customer’s sole remedy.
Suspension of Performance and Termination. (a) If any payment that Customer owes TCE under an Applicable Contract is past due, TCE may at its discretion and on notice to Customer: (i) suspend the performance of TCE, the Goods Manufacturer, the Goods Distributor, and the Goods Installer until Customer pays TCE the past due amount and Additional Charges due to the suspension, plus the additional time TCE requires to adjust and coordinate the work schedules of TCE, the Goods Manufacturer, the Goods Distributor, the Goods Installer, TCE’s other vendors and contractors, and other third parties (the “Suspension Period”), or (ii) TCE may terminate the Transaction concerning the Applicable Contract and retain the amounts Customer previously paid to TCE for that Transaction, and within 10 days thereafter Customer shall pay TCE all the other unpaid amounts then due under the Applicable Contract. (b) Customer may not terminate a Transaction or an Applicable Contract except as provided by the Cancellation provisions of these Master Terms and Conditions.
Force Majeure. Other than during the Suspension Period, TCE’s time to perform a Transaction, if delayed beyond the completion deadline for that Transaction (the “Transaction Deadline”) due to force majeure, i.e., circumstances not caused by TCE and beyond TCE’s control, including delays caused by Customer, the Goods Manufacturer, the Goods Installer, a party’s other vendors or other contractors, other third parties, fire, weather, an earthquake, any other act of God, and any other event or occurrence, shall be reasonably extended until force majeure ends, plus the additional time TCE requires to adjust and coordinate the work schedules of TCE, the Goods Manufacturer, the Goods Distributor, the Goods Installer, TCE’s other vendors and contractors, and other third parties (the “Force Majeure Extension Period”). If Customer or Customer’s vendors or other contractors caused the delay, on TCE’s demand Customer shall pay TCE Additional Charges for the delay. Circumstances beyond Customer’s control shall not excuse or delay Customer’s performance of its obligations under these Master Terms and Conditions, under any Applicable Provisions, or with respect to any Transaction.
Cancellation.

Cancellation Due to TCE’s Noncompletion. If TCE fails to deliver or install the Goods (as applicable) in the Required Goods Condition (defined below) within 120 days after the Suspension Period or the Force Majeure Extension Period ends or within 120 days after the Transaction Deadline for a reason other than the Suspension Period or force majeure (“TCE’s Noncompletion”), Customer may cancel the Transaction by notice to TCE during the 14 day period starting on the 121st day of the delay (the “Transaction Cancellation Period”). Upon Customer’s cancellation of a Transaction within the Transaction Cancellation Period, as Customer’s exclusive remedy: (a) TCE shall refund to Customer the lesser of Customer’s actual damages or the amount Customer paid to TCE under the Applicable Contract, or (b) if Customer has not then paid TCE, Customer shall not owe TCE any amount for the Transaction and TCE shall not owe Customer any amount for Customer’s damages. If Customer does not cancel a Transaction within the Transaction Cancellation Period, TCE’s time to perform shall additionally extend until TCE is able to perform the Transaction under the circumstances, including adjusting and coordinating the work schedules of TCE, the Goods Manufacturer, the Goods Installer, TCE’s other vendors and contractors, and other third parties (the “Additional Extension”). If TCE does not deliver or install the Goods (as applicable) in the Required Goods Condition (defined below) within 30 days after the end of the Additional Extension, Customer may thereafter cancel the Transaction for TCE’s Noncompletion, and Customer’s exclusive remedies shall be the remedies provided above for Customer’s cancellation within the Transaction Cancellation Period.
Cancellation Other than For TCE’s Noncompletion. If Customer cancels a Transaction other than for TCE’s Noncompletion: (i) TCE may retain all the amounts that Customer has then paid TCE, (ii) within 10 days after Customer’s cancellation Customer shall pay TCE the unpaid amounts due under the Applicable Contract at the time of Customer’s cancellation, and (iii) TCE shall have no further obligations to Customer for the Transaction. (iv) If, at the time of Customer’s cancellation the Goods are partially or fully manufactured, TCE may at its discretion, use the Goods for whatever purpose TCE desires, discard the Goods, or place the Goods in their then current condition with a carrier for delivery to Customer as otherwise provided by these Master Terms and Conditions, and: (A) Customer shall accept the delivery, (B) within 10 days after the delivery Customer shall pay TCE the Shipping Charges, and (C) TCE’s warranties shall all be null and void.

TCE’s Marketing Materials. The contents of TCE’s brochures, website, other marketing materials, demonstrations, oral promises or oral representations by TCE personnel made at any time, and samples (one or more of which is “TCE’s Marketing Materials”) shall not be part of an Applicable Contract and shall not create any representation or warranty by TCE concerning the Goods or the Services, notwithstanding anything to the contrary that is part of TCE’s Marketing Materials.

Warranties. TCE makes only the following warranties regarding the Goods and the Services:

Design and Drawing Warranties. TCE warrants to Customer that TCE is the author or owner of the Designs and Drawings and TCE has no actual knowledge or actual notice that the Designs and Drawings infringe on a third party’s copyrights or trade secret rights. **TCE does not warrant to Customer that the Designs and Drawings do not infringe on a third party’s patent.**
Required Goods Condition. (i) If a Factory Acceptance Test is part of an Applicable Contract, TCE warrants to Customer that the Goods shall be delivered in the same condition as existed when the Successful Factory Test occurred (the “Required Goods Condition”). (ii) If a Factory Acceptance Test is not part of an Applicable Contract, TCE warrants to Customer that: (A) the Goods shall substantially conform with the Agreed Customer Requirements, and (B) the Goods shall be in good condition at the time of delivery (also, the “Required Goods Condition”). (iii)**The records and testimony of the Goods Manufacturer or the Goods Distributor, as applicable, shall conclusively resolve any dispute between the parties regarding the condition, types, and quantities of the Goods at the time of delivery.**
No Other Goods Warranties.**TCE makes no warranty regarding the Goods except as provided by these warranty provisions, including: (i) no warranty concerning the existence, scope, and duration of the Manufacturer’s Warranty, (ii) no other express warranty, (iii) no other implied warranty of fitness for a particular purpose, (iv) no other warranty of merchantability, and (v) no warranty of infringement.**
Installation Warranty. TCE warrants to Customer that the installation of the Goods shall be reasonably workmanlike. **TCE makes no other warranty regarding the Services to install the Goods.**

Safety Equipment. TCE shall furnish the Goods only with the safety devices, if any, specified and supplied by the Goods Manufacturer. **TCE does not warrant that these safety devices, if any, are sufficient or suitable for Customer’s purposes and TCE does not warrant that these safety devices, if any, will comply with all the requirements of: (a) local, state, and federal laws, regulations, rules, ordinances, or codes, or (b) insurance rules, codes, or requirements.**
Required Acceptance. If the Goods are delivered in the Required Goods Condition, Customer must accept the Goods and Customer may not reject the Goods or revoke its acceptance of the Goods. If a Transaction includes the installation of Goods, Customer may not reject the installation or revoke its acceptance of the installation if the installation was reasonably workmanlike.
Payment. Customer shall pay TCE as provided by the Applicable Contract, and absent any payment provision in the Applicable Contract, as follows: (a) within 30 days after delivery of the Goods in the Required Goods Condition, if the Applicable Contract does not include installation Services, or (b) if the Applicable Contract includes installation Services and if the Goods are delivered in the Required Goods Condition, within 30 days after TCE informs Customer that the Goods are installed. Customer hereby authorizes TCE to charge any of Customer’s credit cards for any past-due amount that Customer owes TCE. Customer may not withhold or reduce any payment that Customer owes TCE under an Applicable Contract for TCE’s breach of a different Applicable Contract.
Taxes. Customer shall remit to TCE payment of all sales and excise taxes and similar government charges pertaining to the Goods and the Services. If Customer is exempt from paying such taxes, Customer must deliver the appropriate exemption certificate to TCE when Customer first sends Customer’s Order to TCE for the Goods or Services to avoid Customer’s obligation to remit the payment of such taxes to TCE.

Customer’s Permitted Warranty Remedies. The following remedies constitute “Customer’s Permitted Warranty Remedies”. (a) If the Good are delivered in the Required Goods Condition, Customer’s exclusive remedy for malfunctions of the Goods shall only be as provided by the Manufacturer’s Warranty, if any. (b) Customer’s remedies for TCE’s breach of its warranties shall be exclusively as follows: (i) If Customer claims that the Goods are not delivered in the Required Goods Condition, or if Customer claims that TCE breached any of its other warranties, TCE shall have a reasonable time to investigate and cure the breach, provided that Customer notifies TCE of the breach within 28 days after delivery of the Goods, or within 28 days after installation of the Goods if installation Services are part of the Applicable Contract. Customer shall comply with TCE’s requests for Customer’s cooperation in connection with TCE’s investigation of the breach, including permitting TCE, the Goods Manufacturer, or their agents or contractors to: (1) inspect the Goods and Customer’s facility, (2) inspect and photocopy Customer’s records and remove those copies from Customer’s facility, and (3) interview Customer’s employees. (c) If the breach exists and if within a reasonable time after Customer’s timely notice of the breach TCE refuses or is unable to cure its breach: (i) TCE shall refund to Customer the lesser of Customer’s actual damages or the amount Customer paid to TCE under the Applicable Contract (and TCE’s refund shall be zero if Customer did not pay any amount to TCE), (ii) Customer shall not be obliged to pay TCE any unpaid amount for the Applicable Contract, and (iii) the parties shall not be required to further perform the Transaction. (iv) If the Goods were delivered or installed, TCE may at its discretion: (1) remove the Goods from Customer’s facility, at which time title to the Goods shall belong to TCE, or (2) abandon the Goods at Customer’s facility, with title to the Goods remaining with Customer. (d) Customer may not withhold any payment to TCE unless and until TCE refuses or is unable to cure its breach of an Applicable Contract.
Additionally Nullifying and Voiding TCE’s Warranties. In addition to the other provisions of these Master Terms and Conditions under TCE’s warranties become null and void, TCE’s warranties shall also all become null and void if: (i) Customer does not fully comply with all of the Goods Operation Requirements, (ii) Customer does not properly maintain or repair the Goods, (iii) Customer begins to fix any defect in the Goods before giving TCE notice of the defect and a reasonable opportunity to: (1) investigate the defect, (2) determine whether the defect constitutes a breach of the Manufacturer’s Warranty or any of TCE’s warranties, and, (3) cure the defect if it constitutes a breach of TCE’s warranty or notify the Goods Manufacturer if the defect constitutes a breach of the Manufacturer’s Warranty, (iv) Customer begins to fix any improper installation of the Goods done by the Goods Installer before giving TCE notice of the defect and an opportunity to cure the improper installation, or (v) Customer does not comply with TCE’s requests for Customer’s cooperation in connection with TCE’s investigation of Customer’s breach of its warranty claim. If TCE’s warranties become null and void, Customer shall have no claim or remedy against TCE or the Goods Installer for any breach of TCE’s warranties, for any other defect to the Goods, or for any improper installation of the Goods.
Customer’s Other Damages for TCE’s Breach. If TCE breaches an Applicable Contract other than as provided by these Master Terms and Conditions, as Customer’s exclusive remedy TCE shall refund to Customer the lesser of Customer’s actual damages or the amount Customer paid to TCE, which shall be zero if Customer did not pay any amount to TCE.
Customer’s Waivers. One or more of the following constitute “Customer’s Waivers”:

Customer waives all claims and all rights of contribution and subrogation against the Goods Manufacturer, and Customer releases and shall not sue the Goods Manufacturer for: (i) defects in the Goods other than for the Goods Manufacturer’s breach of the Manufacturer’s Warranty, or (ii) damages and remedies other than as provided by the Manufacturer’s Warranty.
Customer waives all claims and all rights of contribution and subrogation against TCE, and Customer releases and shall not sue TCE for the Goods Manufacturer’s breach of the Manufacturer’s Warranty.
Customer waives all claims and all rights of subrogation and contribution, and Customer releases and shall not sue TCE, the Goods Manufacturer, the Goods Distributor, or the Goods Installer for:

Any consequence from Customer’s failure to fully, completely, and timely disclose Customer’s Requirements to TCE.
Any consequence if the Agreed Customer Requirements are inaccurate, incomplete, or not suitable for Customer’s purposes.
Customer’s incidental and consequential damages, including Customer’s direct and indirect lost profits, regardless of how caused or occurring, and all other losses and damages for which TCE, the Goods Manufacturer, the Goods Distributor, or the Goods Installer are not responsible or liable under these Master Terms and Conditions.
Remedies and damages other than those expressly provided by these Master Terms and Conditions.
Any warranty that has become null and void under these Master Terms and Conditions.
Any consequence from Customer’s failure to: (1) fully and properly perform all of Customer’s Installation Obligations or all the Goods Operation Requirements, or (2) properly maintain and repair the Goods.
All matters, events, occurrences, acts, or omissions that constitute any of Customer’s Indemnities (defined below).

Indemnity.

Customer shall forever defend, indemnify, and hold harmless TCE and TCE’s shareholders, directors, officers, employees, agents, the Goods Manufacturer, the Goods Distributor, the Goods Installer, and TCE’s other vendors, suppliers, and contractors (one or more of whom are the “TCE Indemnified Parties”), for any of the following (“Customer’s Indemnities”):

all physical injuries (including death), all misplaced, stolen, and damaged Goods and other property, all delays, and all other events and occurrences caused by: (1) any latent or obvious condition at Customer’s facility, (ii) any act or omission of Customer, or (iii) any act or omission of a third party other than the act or omission of a TCE Indemnified Party that does not comprise any of Customer’s Waivers.
All claims, matters, acts, omissions, events, or occurrences that comprise any of Customer’s Waivers.

Customer shall, immediately upon TCE’s demand, reimburse TCE and the TCE Indemnified Parties for all costs and expenses that TCE or any of the TCE Indemnified Parties incur in connection with any of Customer’s Indemnities, including the fees of their attorneys, consultants, experts, and contractors, the wages and salaries of their employees, and expenses for travel, meals, and lodging.

Ownership and Use of the Designs, Drawings, and Customer’s Requirements. TCE shall forever retain ownership of all rights to the Designs and the Drawings, including all copyrights. TCE may utilize, for any purpose that TCE desires at its discretion, the Designs, the Drawings, and any information disclosed to TCE by Customer, including the Agreed Customer Requirements. Customer shall not use or disclose the Designs or the Drawings except as necessary to operate, maintain, or repair the Goods. If Customer uses or discloses any Design or Drawing for any other purpose, as TCE’s liquidated damages Customer shall, on TCE’s demand, pay TCE an amount equal to TCE’s costs to create that Design and that Drawing, including TCE’s overhead, plus an additional 30 percent of TCE’s costs, and Customer shall return all copies of those Designs and Drawings to TCE upon TCE’s demand. TCE’s accountant shall determine TCE’s costs, which shall be conclusively binding on Customer other than errors of addition, subtraction, multiplication, and division. TCE may also obtain an injunction to prevent Customer’s use or disclosure of Designs and Drawings contrary to these Master Terms and Conditions and to recover possession of Designs and Drawings from Customer that Customer refuses to return to TCE contrary to these Master Terms and Conditions.
Discretion. The discretion of TCE or the Goods Manufacturer means each of their sole and subjective discretion, and Customer waives all claims that any exercise of their discretion is unreasonable or not in good faith.
Effect of Termination and Rescission. A party’s termination or cancellation of a Transaction as permitted by these Master Terms and Conditions shall also terminate and rescind the Applicable Contract, but only for those rights and obligations which, under these Master Terms and Conditions do not continue after the termination. A party may not rescind an Applicable Contract unless the party is permitted by these Master Terms and Conditions to terminate or cancel the Transaction. A party’s rescission of an Applicable Contract shall terminate the Transaction but shall not affect the parties’ respective rights and obligations which, under these Master Terms and Conditions, continue after the termination.

Enforcement. All amounts that Customer owes TCE which are past due under any Applicable Contract shall earn simple interest at the monthly rate of 1.5 percent or the highest lawful rate, whichever is lower. In all lawsuits to enforce or interpret any Applicable Contract, including these Master Terms and Conditions: (a) the parties shall submit to the exclusive jurisdiction and the exclusive venue of the courts in DuPage County, Illinois, except to enforce any order of such court, and the parties waive all claims that such jurisdiction and venue is unreasonable or inconvenient, (b) the parties waive all rights to a jury trial, and (iii) if TCE is the prevailing party, Customer shall pay TCE’s costs and expenses, including the fees of TCE’s attorneys, experts, consultants, and vendors. (c) In the foregoing lawsuits, TCE shall not pay the fees of Customer’s attorneys, experts, consultants, vendors, or Customer’s other costs or expenses, even if Customer is the prevailing party.
Notice. Notices given under or concerning a Transaction or any Applicable Contract shall not cause any time period under the Applicable Contract to commence, shall not be binding on the recipient, and shall not require any action by or response from the recipient unless in writing and delivered to the recipient by commercial courier; fax; email, or registered or certified mail, return receipt requested, to the parties at their offices designated by the Applicable Contract and if no such designation, to any of their offices in the United States, or to such other street or email address or fax number as from time to time directed in a notice by a party to the other party. Delivery shall be deemed to have occurred at the date and time of actual receipt or at the date and time at which a party refuses to accept the delivery, whichever applies. If a party has moved without delivering notice of its new street or email address or fax number to the other party, delivery shall be effective at the date and time of the attempted delivery. The dates and times of delivery, attempted delivery, or refused delivery shall be as shown by the records of the courier, the sender’s email record, the fax transmittal, or the United States Post Office, as applicable. Delivery shall not be deemed to have been made or refused if a recipient party’s fax or email is inoperable.
Severability and Modification. If a court or agency, following the conclusion of all appeals, if any, determines that any provision of an Applicable Contract, including any provision of these Master Terms and Conditions, is null, void or unenforceable, the balance thereof shall nevertheless remain enforceable, such invalidity shall not affect any other provision thereof that can be given effect without the invalid provision, and to that end, the parties intend that the provisions thereof are and shall be severable. Following the conclusion of all appeals, if any, the parties shall, if and to the extent possible, modify the null, void, or unenforceable provision retroactive to the Effective Date and consistent with the final court or agency determination so that the provision shall become valid and enforceable while remaining as similar as possible to the original, or a party may petition the court to so modify the Applicable Contract, including these Master Terms and Conditions. Otherwise, an Applicable Contract, including these Master Terms and Conditions, may not be modified except by a writing signed or acknowledged in writing by the parties. The conduct of a party or any third party acting for or on behalf of a party different from an Applicable Contract, including these Master Terms and Conditions, shall not thereby modify the Applicable Contract, including these Master Terms and Conditions. A party’s failure or forbearance to require the other party’s compliance with an Applicable Contract, including these Master Terms and Conditions, whether or not occurring on multiple occasions, shall not thereby modify the Applicable Contract, including these Master Terms and Conditions, shall not excuse the other party’s future compliance, and shall apply only to the specific instance of failure or forbearance.
Third Party Beneficiaries. Except as otherwise provided by these Master Terms and Conditions with respect to the Goods Manufacturers, the Goods Distributors, the Goods Installers, and the other TCE Indemnified Parties, the Applicable Contracts shall be solely for the benefit of TCE and Customer and there shall be no third party beneficiary of any Applicable Contract.
Reliance. When entering into and performing an Applicable Contract neither party shall rely on any oral or written statement, representation, warranty, or promise that is not expressly set forth or referred to within that Applicable Contract or within any document that is not attached to or expressly referred to by that Applicable Contract, and the parties also shall not rely on any Conflicting Term. The parties release and waive all claims, and shall not sue each other, for fraud-in-the-inducement or otherwise, with respect to any statement, representation, warranty, promise, or document concerning an Applicable Contract on which the parties have hereby agreed to refrain from relying, including the Conflicting Terms.
No Additional Rights or Obligations. Nothing within an Applicable Contract is or will be intended by the parties to impose or create, by implication or otherwise, any right, requirement, duty, or obligation on any party, of any kind or nature whatsoever, which is not expressly set forth or referred to within that Applicable Contract. Notwithstanding the foregoing, the Conflicting Terms shall not impose or create, by implication or otherwise, any right, requirement, duty, or obligation on any party, of any kind or nature whatsoever.
Waiver of Contrary Claims. The parties waive all claims contrary to the provisions of the Applicable Contract, and the parties waive all claims arising under any Conflicting Term.
Assignment. Either party may assign its rights under one or more Applicable Contracts to a third party on notice to the other party. Either party may assign its obligations under one or more Applicable Contracts to a third party only with the other party’s consent, which the other party shall not unreasonably withhold, delay, or condition.
Interpretation. The parties intend that interpretation of each Applicable Contract, including these Master Terms and Conditions, shall be derived only from the provisions thereof, without resort to course of dealing, usage of trade, course of performance, or any other extrinsic evidence, and shall not be construed in favor of or against either party. Whenever appropriate under the circumstances, within each Applicable Contract, including these Master Terms and Conditions, including the definition of any term: (a) the plural of any word shall mean the singular; (b) the singular of any word shall mean the plural; (c) “and” shall mean “or”; (d) “or” shall mean “and”; (e) “an”, “any”, or “each” shall mean one, more than one, or all; (f) “all” shall mean any, one, or more than one; (g) words referring to persons or entities shall include associations, cooperatives, corporations, firms, general and limited partnerships, limited liability companies, natural persons, public agencies, sole proprietors, trusts, and all other entities and enterprises; (h) the words “such as”, “include,” “including,” and similar words shall be construed as if followed by the phrase “without limitation” or a similar phrase; (i) use of the masculine, feminine, or neuter gender shall include each of the other genders.
Headings. The section headings in these Master Terms and Conditions are included only for convenience and for reference purposes and are not intended to affect the interpretation of any Applicable Contract, including these Master Terms and Conditions, or to have any substantive meaning.

Rev 4/1/20