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1. AGREEMENT: These Terms and Conditions (“Terms and Conditions”) contain the entire and exclusive agreement (“Agreement”) between the Seller and the Buyer. By receipt of goods or services, or by performing hereunder, Buyer agrees to the exclusive application of these Terms and Conditions. If Buyer submitted a purchase order with respect to any goods, services or equipment, parts or any replacements (collectively, “Goods”), these Terms and Conditions shall be deemed a counteroffer. Seller expressly limits and makes expressly conditional any acceptance by Buyer, regardless of its form or substance, of an offer to these Terms and Conditions. Reference to any form or communication of Buyer, including noting Buyer’s Purchase Order on the front side hereof, in an acknowledgement, proposal or otherwise, shall not be deemed to be an acceptance of any terms and conditions therein. Any different or additional terms or conditions in any proposal, acknowledgement form or any other document of Buyer are hereby objected to and superseded in their entirety by these Terms and Conditions. This Agreement will not be subject to any change, modification or rescission without Seller’s written consent. Terms on the front side hereof or under separate cover from Seller supersede any conflicting terms on this reverse side. All clerical errors are subject to correction.
2. PRICES: Prices are for acceptance and shipment and only are firm, if at all, as stated on the front side hereof; however, these Terms and Conditions and prices are subject to change or withdrawal at any time prior to Seller’s order entry. Seller’s obligations are subject to approval of credit terms by Seller’s credit department.
3. TERMS: In absence of a written agreement to the contrary, payment terms are net 30 days after delivery and may require a deposit and/or letter of credit. All terms are subject to credit approval. If more than one separate unit is ordered, payments are to be made pro rata as if each was separately ordered. All payments are to be made per instructions shown on Seller’s invoice. All delinquent sums due shall accrue interest at 1-1/2% per month, or the maximum rate permitted by law, whichever is less. Seller may cancel any accepted purchase orders or deny or delay shipment of any purchase orders if the Buyer becomes delinquent in its payment obligations or breaches any part of these Terms and Conditions.
4. SHIPMENT AND PENALTIES: Goods will be shipped in accordance with the INCOTERM (ICC Incoterms 2010) shown on the front side of this proposal or acknowledgment. If no INCOTERM is so specified, it shall be Ex Works Seller’s Dock. Title and risk of loss will pass at the point of delivery. The shipping schedule is approximate and based on Seller’s current inventory levels and production schedules. The schedule is subject to change and to Seller’s receipt from Buyer of all required payments and information necessary to permit Seller to work continuously. Seller shall have the right to ship any portion of the Goods on the dates specified. The Goods will be sorted, packed, crated and prepared for shipment as agreed and, if shipping is included, shipped by the method and route, all as typically handled by Seller. If Buyer requests special handling, however, any additional related expenses will be borne by the Buyer. If Buyer gives the carrier agent a clean receipt for lost or damaged goods, Buyer does so at its own risk. In case of shortage or damage, Buyer should not accept a shipment unless proper notation is written on the expense bill by the agent. Examine each shipment promptly on arrival. Buyer must examine and accept shipment within five (5) business days, or “acceptance” shall be deemed to have occurred. In case of concealed damage, Buyer must immediately notify the delivery carrier agent in writing, requesting an investigation, thus making a proper record of the facts, then file a damage claim against the delivering company. No penalty clause of any kind, in any specification, document, order, correspondence, or otherwise shall be effective unless specifically approved in writing in advance by Seller.
5. LIMITED WARRANTY/LIMITED LIABILITY: Seller warrants to Buyer that Goods designed and manufactured by it will substantially conform to the specifications. References to Buyer in this Section 5 refer to both Buyer and Buyer’s customer; If Buyer passes this limited warranty to its customer, it must so pass the entirety of this Section 5. Any statement made by Seller regarding performance or capacity of Goods is made in good faith, but such statement is not intended in any way to modify or enlarge the foregoing limited warranty. All Goods will be manufactured in accordance with Seller’s original or last revised specifications as recorded by Seller, unless revised specifications are provided by Buyer and agreed to in writing by Seller at the time of Seller’s entry of Buyer’s order. It is Buyer’s responsibility to supply correct original equipment identification when placing a parts order. Any error made in supplying Goods because of Buyer’s incorrect equipment identification will be Buyer’s responsibility.
The exclusive and sole remedy for any breach of warranty is as follows. Seller will replace or repair, without charge to Buyer, any defective Good which was designed and manufactured by Seller, subject to the return of the Goods at Seller’s request. Seller’s obligation will terminate after ONE YEAR FROM THE DATE THE GOOD IS PLACED IN OPERATION BY BUYER OR EIGHTEEN MONTHS FROM THE DATE OF DELIVERY OF THE GOODS, WHICHEVER OCCURS FIRST. NON-DEFECTIVE GOODS MAY NOT BE RETURNED EXCEPT IF SELLER, IN ITS DISCRETION, PERMITS THE RETURN UNDER SECTION 20 BELOW. SELLER’S WARRANTY OBLIGATIONS ALSO SHALL BE CONDITIONED ON SELLER’S RECEIVING WRITTEN NOTICE OF ANY ALLEGED NON-CONFORMITY WITHIN TEN (10) DAYS AFTER ITS DISCOVERY.
THE FOREGOING SHALL BE BUYER’S EXCLUSIVE REMEDIES. EXCEPT AS WARRANTED IN THIS SECTION 5, THE GOODS ARE SOLD HEREUNDER AS IS, AND NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, WHETHER IN RELATION TO MERCHANTABILITY, HIDDEN DEFECTS, FITNESS FOR PARTICULAR PURPOSE, COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OF TRADE, NONINFRINGEMENT OR OTHERWISE IS GIVEN BY SELLER TO BUYER OR ANY OTHER PARTY. SELLER SHALL NOT UNDER ANY CIRCUMSTANCE BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFIT OR USE OR COST OF CAPITAL OR OF SUBSTITUTE USE OR PERFORMANCE) ARISING OUT OF THE TRANSACTIONS CONTEMPLATED HEREUNDER. UNDER NO CIRCUMSTANCES SHALL SELLER’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO ANY WARRANTY CLAIMS HEREUNDER), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY BUYER TO SELLER FOR THE SHIPMENT IN QUESTION (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN SUCH ACTION). ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT AGAINST SELLER MUST BE COMMENCED WITHIN ONE (1) YEAR FROM THE DATE THE RIGHT, CLAIM, DEMAND OR CAUSE OF ACTION SHALL FIRST OCCUR, OR BE BARRED FOREVER.
THE LIMITED WARRANTY CONTAINED IN THIS SECTION 5 SHALL BE VALID AND REMAIN IN EFFECT ONLY IF: (I) THE GOODS ARE USED, MAINTAINED, INSTALLED AND STORED BY BUYER AS DIRECTED BY ALL APPLICABLE DOCUMENTATION; (II) IF ENFORCEABLE, BUYER HAS PAID SELLER ALL SUMS DUE HEREUNDER; (III) BUYER HAS NOT IN ANY WAY REPAIRED OR MODIFIED THE GOODS; (IV) THE CLAIM IS UNRELATED TO NORMAL WEAR AND TEAR, CORROSION OR EROSION, OR TO ANY GOOD NORMALLY CONSUMED IN OPERATION OR THAT HAS A NORMAL LIFE INHERENTLY SHORTER THAN THE APPLICABLE WARRANTY PERIOD; (V) THE CLAIM IS UNRELATED TO THE FAILURE BY BUYER TO FOLLOW THE MOST CURRENT INSTRUCTIONS ISSUED BY THE SELLER WITH RESPECT TO THE PROPER USE OF THE GOODS; (VI) THE CLAIM IS UNRELATED TO THE NEGLIGENCE OR ACT OF BUYER OR ANY THIRD PARTY; (VII) THERE HAS BEEN NO OPERATION OF THE GOODS UNDER CONDITIONS MORE SEVERE THAN THOSE FOR WHICH THE GOODS WERE DESIGNED; OR (VIII) THE CLAIM IS UNRELATED TO FORCE MAJEURE. WITH RESPECT TO GOODS NOT MANUFACTURED BY SELLER, SELLER PASSES TO BUYER THE WARRANTIES PROVIDED BY THE MANUFACTURER AND BUYER SHALL HAVE BREACH OF WARRANTY RIGHTS ONLY AGAINST SUCH THIRD PARTY MANUFACTURER.
6. INSTALLATION DRAWING: Seller may request that a copy of the proposed equipment installation layout drawing be submitted for review prior to the installation of any Goods. Review may avoid unnecessary field modifications, save time in installation and avoid trouble. Such review will cover only the proposed installation and no attempt will be made to evaluate the general design of Buyer’s total system or any component thereof. Unless written provision is made in this Agreement, there is no charge for this service and Seller assumes no liability whatsoever in respect thereof.
7. INSTALLATION AND FOUNDATIONS: Unless otherwise specifically stated, this Agreement does not include installation services. Seller’s field advisors services may be furnished at regular rates plus per diem and transportation expense. Static and Dynamic loading and installation dimensional detail will be furnished to the Buyer. Seller assumes no responsibility for any damages related to this information.
8. IMPROVEMENTS: If, in Seller’s judgment, improvements can be made in the design, size, material or workmanship of the Goods herein described, Seller reserves the right to make such improvements as part of the design process without additional charge to the Buyer.
9. CHANGE ORDERS: Should Buyer require modifications in the design or construction of Goods which alter the cost of, or delay, or otherwise interrupt progress of the work, Buyer will reimburse Seller for the additional expense and Seller will credit Buyer with any related reduced cost. The changes to the price arising from such modifications shall be agreed on in writing before the modifications are undertaken.
10. INFRINGEMENT: In the event of a determination of intellectual property infringement by final order of a court of competent jurisdiction, unappealed, and Buyer’s use of such Goods is enjoined, Seller will, at its expense and option: (i) procure for Buyer the right to continue to use the Goods or replace same with non-infringing Goods; (ii) modify the Goods so that they become non-infringing, or (iii) remove the Goods and refund to Buyer the purchase price and the transportation and installation cost thereof less the value of Buyer’s reasonable use up to the removal date. Seller will have no responsibility to pay any sum in connection with any settlements of claims made without its prior written consent. The foregoing states Seller’s entire liability and Buyer’s sole and exclusive remedies for infringement by any Goods purchased hereunder. Seller will have no responsibility respecting infringement caused by a third party’s patent or intellectual property right, infringement of any patents issued or intellectual property created after the date hereof or infringement caused by the use or sale of the Goods: (a) for a purpose other than that for which Seller manufactured the same; (b) in combination with other equipment in a system not designed by Seller; (c) manufactured to a design not furnished by Seller. Buyer shall indemnify, defend and hold Seller harmless from and against all claims, damages, losses, judgments, fees, expenses and costs, including attorneys’ fees, as incurred, arising out of or resulting from Buyer’s designs and specifications, integration and assembly, or in any way related to its acts, negligence, breach of this Agreement.
11. DRAWINGS/CONFIDENTIAL INFORMATION:
a. Any drawings, prints and all know how, technical and proprietary and trade secret information (“Confidential Information”) furnished by Seller are furnished only for the use of Buyer (or Buyer’s customers) in installing, operating and maintaining the Goods purchased hereunder; they shall remain Seller property, be kept strictly confidential, used for no other commercial purpose and be returned promptly upon request. Seller’s Confidential Information is considered highly valuable intellectual property, and Buyer may in no way infringe the same. Buyer may not reverse engineer, disassemble or otherwise similarly analyze the Goods.
b. Buyer hereby assigns to Seller, all right, title and interest in and to any discoveries, improvements, enhancements, developments, modifications, creative ideas, works of authorship and inventions (collectively, “Developments”) that relate to the Goods and which are conceived, developed and/or reduced to practice, in whole or in part, by Buyer or its employees. At Seller’s expense, Buyer shall take all actions, sign all documents and make all filings necessary to vest in Seller such ownership. To the extent applicable law prohibits Seller from exclusive ownership of Developments, each party will take all actions necessary to permit a transfer of Developments from Buyer to Seller at the minimum payment permitted by law. In the event applicable law prohibits an assignment or transfer of Developments from Buyer to Seller, Buyer shall grant Seller a perpetual, world-wide, exclusive license to use the Developments for any and all purposes.
c. Buyer recognizes the great value of the publicity and goodwill associated with the Seller Confidential Information which Seller has established in the mind of the purchasing public and acknowledges that such goodwill is exclusively that of Seller. Buyer further recognizes and acknowledges that a breach by Buyer of any of its covenants, agreements or undertakings under this Agreement may cause Seller irreparable damage, which cannot be readily remedied in damages in an action at law, and may, in addition thereto, constitute an infringement of Seller, thereby entitling Seller to equitable remedies, including without limitation, all fees, costs and reasonable attorneys’ fees related thereto. Specifically, in addition to such remedies as may be available at law or under this Agreement, Seller shall have the right, without posting of bond or other security, to an injunction, both temporary and permanent, specific performance and/or other equitable relief. All remedies are cumulative. In the event any action or proceeding shall be instituted by Seller to enforce this Section, Buyer shall waive and not assert any claim or defense that an adequate remedy at law exists.
12. INSTALLATION/OPERATION/MAINTENANCE MANUAL: Machine orders include one (1) CD-ROM Manual. One (1) CD-ROM Manual is shipped with machine orders.
13. TAXES AND PERMITS: Prices do not include any national, state or local taxes or other government charges. Unless otherwise agreed or required by law, Buyer will pay all such taxes and charges. If any government body or similar authority determines that Seller is liable for any taxes, then Buyer shall promptly reimburse Seller for any such liabilities paid by Seller. Buyer shall provide and pay for all required permits and licenses.
14. CANCELLATION: Buyer may cancel an order only on Seller’s prior written approval, in its discretion, and on payment of reasonable charges, including costs, direct expenses and any overhead expense, incurred with the order up to the date of cancellation, including all costs to protect and preserve material including disposition as instructed by Buyer. The minimum cancellation charge in any event will be fifteen percent (15%) of the Agreement price.
15. SUSPENSION/DELAYED SHIPMENT: If production is suspended at Buyer’s request and is not resumed within sixty (60) days after notification of suspension, Seller is entitled to invoice Buyer for all work performed up to the notification of suspension and Buyer agrees to pay in accordance with the above terms. If suspension lasts more than one hundred twenty (120) days, Buyer and Seller will mutually agree on a forward plan. Buyer’s request for deferred delivery or suspension of production may, at Seller’s option, be treated as cancellation of the order for which cancellation charges will be payable and such payment shall be made no later than thirty (30) days after the date of invoice. If delivery as originally scheduled is delayed at the request of the Buyer, Seller will, upon completion, prepare the Goods for shipment, store the Goods on Seller’s premises, and tag the Goods with a weatherproof tag with Buyer’s name identified as the owner and Buyer’s Purchase Order Number. On the original ship date, title and risk of loss will pass to the Buyer, and Seller will invoice Buyer for Goods; payment shall become due in accordance with the agreed payment terms. Buyer understands that as part of Seller’s procedures, Seller’s external audit firm may contact Buyer to validate these terms.
16. LAW AND DISPUTE RESOLUTION:
a. The official language of this Agreement is English. The rights and obligations in this Agreement will be governed by and interpreted in accordance with the substantive laws of the laws of the State of Missouri without giving effect to its conflicts of laws statutes. Neither 1980 U.N. Convention on Contracts for the International Sale of Goods nor the related Convention on the Limitation Period in the International Sale of Goods will be applicable to this Agreement. Any dispute arising from or in connection with this Agreement shall be submitted to the courts servicing the city of St. Louis, Missouri, USA. Buyer waives any objection based on forum non conveniens or any other objection to venue of any such action.
b. At all times, Seller shall have the right to pursue equitable remedies, collection actions and enforcement of judgments against Buyer in any court of competent jurisdiction.
17. PURCHASE ORDER CANCELLATION BY SELLER: Seller may cancel any accepted purchase orders or deny or delay shipment of any purchase orders if the Buyer becomes delinquent in its payment obligation or breaches any part of any purchase order.
18. FORCE MAJEURE: Seller shall not be liable for delay in performance or for non-performance caused by circumstances beyond its control including, but not limited to, acts of God, fire, flood, accident, riot, war, sabotage, strike, labor trouble, terrorism, commercial infeasibility, shortage of materials, or action by any foreign or domestic government; in the event of such delay or non-performance, Seller shall be relieved of all obligations hereunder.
19. SAFETY: The safe installation and operation of the quoted Goods is the sole responsibility of the Buyer and any owner. Buyer must consider all hazard considerations such as, but not limited to, electric area classification, hazards associated with processing the specified material or specific safety standards applicable to the installation site. The Buyer and any owner also must ensure the operating and maintenance personnel coming in contact with the Goods are adequately trained in its safe operation and all associated safety procedures.
20. RETURNS: No Goods may be returned without first obtaining from Seller shipping instructions and a material return authorization. Returned products that Seller elects to accept for credit are subject to a minimum handling charge of fifteen percent (15%) of the net sales price in addition to any transportation charges paid by Seller. All such Goods shall be properly packed to reach Seller without damage. Any cost incurred by Seller to put the returned products in first class condition shall be charged to the Buyer.
21. SECURITY INTEREST: Seller hereby retains and Buyer hereby grants a security interest in the Goods (and proceeds thereof), all of which will remain personal property and will not be considered fixtures to real estate until all amounts due have been paid in full. Buyer agrees to perform all acts that in Seller’s opinion shall be necessary or desirable to protect such security interest. All costs and expenses in connection therewith, including reasonable attorneys’ fees, shall be borne by the Buyer. In addition, Buyer agrees to furnish adequate insurance against loss or damage by fire or other causes during the period between time of shipment and payment in full of all amounts due hereunder.
22. MISCELLANEOUS: (a) None of the provisions of this Agreement shall be deemed to have been waived by any act of or acquiescence on the part of Seller, its agents, subcontractors, or employees, but only by an instrument in writing signed by an authorized representative of Seller. No waiver by Seller of any provisions of this Agreement shall constitute a waiver of any other provision or of the same provision on another occasion. (b) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Buyer may not assign its rights or obligations under this Agreement in any way, including by operation of law, merger or sales of assets, without the prior written consent of Seller. This Agreement supersedes any other agreement, term, condition or arrangement between the parties. (c) If any provision or portion hereof is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions or portions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH. (d) Buyer shall perform its obligations under this Agreement in full compliance with all relevant laws, rules and regulations applicable in connection with the sale, shipment or use of the Goods, including but not limited to the U.S. Foreign Corrupt Practices Act, U.S. export control regulations, export regulations of all U.S. agencies, U.S. embargo regulations export control or anti-bribery laws and any other applicable anti-corruption or anti-bribery act. (e) There are no third-party beneficiaries of this Agreement, and Buyer may grant no rights to its customer against, or that bind or obligate, Seller. (f) Neither Seller nor Buyer shall directly or indirectly induce any employee or agent of the other party to leave the employ of the other, without the other party’s prior written consent. (g) Seller may use subcontractors as it deems necessary. (h) Buyer shall pay all of Seller’s costs and expenses, including reasonable attorneys’ fees and accountants’ fees, incurred in enforcing this Agreement or obtaining damages. (i) In addition to any other rights that Seller has under this Agreement, Seller has the right to set off, at any time against monies due Buyer from Seller, all or any part of the monies due and payable under this Agreement or otherwise, to Seller from Buyer. Buyer has no set off rights.
23. Delivery and Performance Reservation: Fulfillment of contractual obligations, including but not limited to, the delivery time and/or delivery schedules, are subject to influences and impacts by COVID-19 (generally known as coronavirus) related measures and incidents, whether foreseeable or not. Such COVID-19 measure may result in, but shall not be limited to, labor conflicts, in particular strikes and lockouts, serious breakdown in the works, national or international economic hardship and hindrances beyond Seller’s reasonable control. In addition to impacts on TerraSource, such hindrances may also result in late and/or non-conforming delivery on the part of Seller’s sub-suppliers, sub-contractors and other third parties involved in the fulfilment of Seller’s obligations. If hindrances occur which our TerraSource cannot prevent despite using the reasonably required care, the contract fulfillment, including, but not limited to the delivery time and delivery schedules, may be reasonably extended or altered. In the event of Seller’s non-conformance with its contractual obligations due to or related to the foregoing, claims for damages for non-performance as well as for any losses due to such non-conformance are excluded.