Terms of Sale for Customers Outside North america

A. Definitions. Capitalized terms in this Terms of Sale have the following meanings:

1. “Buyer” means the Person (as defined below) named after the words “Bill To”, “Invoice To”, “Sell To” or any similar designation on the letter, invoice, confirmation or quotation associated with these Terms of Sale, or otherwise identified as the Buyer.
   
   
2. “Goods” means any and all products which TRA (as defined below) supplies pursuant to or in connection with the Buyer’s purchase order and the contract for the sale and purchase of TRA products.
   
   
3. “Order Documentation” is, collectively, all of the written evidence of a contract between TRA (as defined below) and Buyer.
   
   
4. “Person” means any natural person, firm, business organization or corporation.
   
   
5. “TRA” means Thomson Research Associates (Europe), a division of Kroy Wools Limited, a company organized and existing under the laws of the United Kingdom.

1. Terms of Purchase.

1. Unless otherwise expressly agreed to in writing by TRA and Buyer, these Terms of Sale shall apply to all tenders, offers, quotations, orders, acceptances, deliveries and contracts (collectively, “Order Documentation”) relating to the supply of Goods by TRA to Buyer. 
   
   
2. These Terms of Sale supercede any and all prior or subsequent Order Documentation unless such Order Documentation is signed by an authorized agent of TRA and Buyer and specifically by its own terms amends or supercedes the provisions of these Terms of Sale.  TRA and Buyer agree that (1) these Terms of Sale and any invoice with respect to the Goods constitute the entire agreement between the parties with respect to the purchase and sale of such Goods; and (2) the documents described in clause (1) of this Paragraph 1 operate as the final, complete and exclusive terms of the agreement between TRA and Buyer with respect to the purchase and sale of the Goods.  TRA expressly objects to any acknowledgment of these Terms of Sale or of any particular sale of any particular Goods, or any other provision in any other Order Documentation which states terms and conditions additional to or different from these Terms of Sale, without TRA’s express written consent, and such additional or different terms shall not be a part of the agreement between TRA and Buyer with respect to the Goods.
   
   
3. Each order shall be deemed to be an offer by Buyer to purchase products subject to these Terms of Sale.
   
   
4. No order which has been accepted by TRA may be cancelled by Buyer except with the written consent of TRA and terms that Buyer shall indemnify TRA against all loss (including, but not limited to, loss of profit), costs (including, but not limited to, the cost of labor, overhead, and materials used or purchased), damages, charges and expenses incurred by TRA as a result of such cancellation

2. Prices.

1. The purchase price of the Goods as indicated on TRA’s invoice shall include TRA’s costs, import duties, and shipping charges on the Goods, where applicable, to any one address specified in writing by Buyer and agreed to by TRA prior to delivery. The rate of all duties, exchange rates or other levies or charges applicable to the sale and/or delivery of the Goods to Buyer shall be the rate in effect at the time of transfer of title to Buyer.  The price as indicated on the invoice shall not include applicable sales or use taxes for any state, county, parish or municipality into which the Goods are to be shipped.  Any taxes shall, if applicable to the Goods, be added to the invoice price of the Goods unless Buyer furnishes to or files with TRA one or more valid resale exemption certificates or statements of tax exemption.
   
   
2. TRA reserves the right to change the prices at which the Goods are offered at any time and from time to time. 

3. Payment.

Payment for the Goods shall be made not later than thirty (30) days after the date of invoice. If Buyer fails to make any payment for any Goods on the due date then (without prejudice to TRA’s other rights and remedies) TRA may automatically charge Buyer interest (both before and after judgment) on the unpaid amount at the rate of the lesser of (a) 10% per year or (b) the maximum rate, if any, allowable under applicable law, without any prior notice of default by TRA being necessary.

4. Default.

If any payment is not made when due, TRA shall be entitled, without prejudice to any other rights that TRA has at law, in equity or by statute, to suspend or cancel, upon written notice to Buyer, any or all contracts for products not yet delivered as well as any other contracts being executed at that time, without assuming any liability nor having any obligation to pay any compensation to Buyer. Suspension or cancellation of any such contract shall not release, discharge or otherwise affect the obligation of Buyer to pay for any Goods delivered to Buyer under such contract prior to the time when suspension or cancellation took effect. Buyer agrees to pay all of TRA’s collection costs.

5. Financial Condition.

If TRA reasonably believes that Buyer’s financial condition is unsatisfactory or impaired, TRA may defer shipments, accelerate due dates on any or all amounts owed, and/or require cash on delivery or other security for payment or take any other action permitted by law.

6. Delivery.

1. The terms of delivery stated by TRA in the Order Documentation are non-binding estimates only and a delay in delivery shall not entitle Buyer to claim compensation for damages.
   
   
2. TRA shall not be liable for any loss (including, but not limited to, loss of profit and incidental or consequential damages), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods, whether or not caused by TRA’s negligence.
   
   
3. TRA shall not be liable for any non-performance or delay in delivery due in whole or in part to an event of force majeure, including, but not limited to, accidents, shortage of raw materials and equipment, setbacks in production, shortage of workers, strikes, lockouts, trade disputes, government measures, political events, war, fire, disaster at sea, contagious diseases, quarantine, insurrections, acts of God and all other causes which may hinder the production and supply of TRA products and which cannot reasonably be controlled by TRA.

7. Property.

Notwithstanding delivery and the passing of risk and solely for the purpose of securing payment of all monies due or to become due to TRA by the Buyer on any account in the event of the buyer entering into liquidation or having a winding-up order made against it by a receiver or receiver and manager being appointed or its assets or income or any part thereof in the event of the Buyer being an individual or individuals he or either of them committing any act of bankruptcy, or having any bankruptcy petition presented against him or either of them:

1. The property in the Goods shall remain in TRA until payment in full has been made to TRA by the Buyer for the Goods and all other sums due to the Seller at the date of delivery of the Goods.
   
   
2. Where full payment has not been made to the TRA and the Buyer used the Goods in his manufacturing process or incorporates the Goods with other products the property in the Goods shall be retained by TRA in so far as such Goods are identifiable.
   
   
3. Until such payment is made the Buyer shall hold all Goods and materials the property in which is vested in TRA on a fiduciary basis only and in any of the events specified above the Buyer shall store such Goods and materials so as to be clearly identifiable as to the property of TRA.

8. Shipping.

Unless otherwise agreed to in writing by TRA and Buyer prior to shipment, all Goods shall be shipped Ex Works TRA’s nearest warehouse, with TRA contracting for common carriage at Buyer’s sole risk and expense. TRA may in its sole discretion employ any rail, truck, air or other freight carrier licensed or purporting to be licensed to carry goods for hire at the place of shipment to the place determined in accordance with Paragraph 2 of this Agreement for delivery.

9. Transfer of Title and Risk of Loss.

Ownership of the Goods, and all associated risks, responsibilities and liabilities shall pass from TRA to Buyer when TRA makes the Goods available to a common carrier, unless otherwise expressly agreed to in writing by TRA prior to shipment of the Goods.  TRA has no responsibility for the actions or failure to act of any common carrier.  Buyer shall have complete responsibility for all expense and risk of loss from and after the time and place TRA makes the Goods available to a common carrier.  In the case where the buyer holds the Goods on consignment, ownership transfers from TRA to the Buyer when the goods are shipped from the consignment warehouse.

10. Inspection.

1. The Goods delivered to Buyer shall be subject to Buyer's inspection and approval at the place of delivery and at Buyer's cost and expense. If, upon inspection of the Goods, Buyer determines that such Goods are not in conformity with the specifications of such Goods or are defective or may reasonably be considered to have been in damaged condition when shipped or if Buyer has not received the quality or quantity of the Goods specified in the shipping documentation or other Order Documentation, Buyer shall so notify TRA in writing by certified mail, return receipt requested within fifteen (15) days from the date of delivery or when Buyer learns or reasonably should have learned about the claim.  If Buyer does not so notify TRA, any claims based upon such non-conformity, defect or other claim based on the quality or quantity of the Goods shall be deemed to have been waived by Buyer, and Buyer shall be deemed to have inspected and approved the Goods. Buyer hereby accepts as true and correct the measurements taken by TRA at the shipping point of the Goods of weights, volumes and sizes and further agrees that such measurements shall be binding on Buyer and shall not subject to dispute by Buyer.
   
   
2. Buyer shall not return any Goods to TRA without TRA’s prior, written consent.  Buyer shall make any return of Goods to TRA in accordance with TRA’s policies and procedures for returning products and obtaining credit, which may include charges for restocking, return shipping and the like.  Goods must be returned in the original packaging or must be repackaged at Buyer’s expense to the satisfaction of TRA.

11. Limited Warranty.

1. TRA warrants that the Goods sold to Buyer shall conform to TRA's written specifications for such products as published by TRA from time to time. This warranty is in lieu of any and all other warranties and/or conditions, expressed or implied, statutory or otherwise, including but not limited to warranties and/or conditions of merchantability or fitness for any particular purpose.
   
   
2. The warranty set forth in subparagraph (a) of this Paragraph 10 is valid for two years from the date of manufacture as indicated on the product container.
   
   
3. Buyer shall notify TRA of any claim for breach of warranty in writing by certified mail, return receipt requested within fifteen (15) days from the date when Buyer learns or reasonably should have learned of such breach.  If Buyer does not so notify TRA, any claims based upon such breach of warranty shall be deemed to have been waived by Buyer.

12. Samples.

Any samples supplied to Buyer by TRA are supplied solely for informational purposes and in no way impose any expressed or implied conditions or warranties as to the quality, description, color, fitness or merchantable quality of the Goods subsequently delivered to Buyer.

13. Information.

All information, instructions or recommendations given with respect to the Goods by TRA, that is or are in addition to TRA's written specifications, are given in good faith and are based on TRA’s general experience in the belief that they are correct. Such information, instructions or recommendations shall not be deemed or construed to be a warranty on the Goods, nor does TRA warrant the correctness, accuracy, reliability or completeness of such information, instructions or recommendations. TRA shall have no responsibility whatsoever for any injury, loss, liability, damage, costs, expenses, claims or demands suffered by Buyer or any third party through the use of such information or by following such instructions and recommendations.

14. Products at Risk of Buyer.

In accepting the Goods, Buyer shall be deemed to have declared itself familiar with the nature, hazards and use of the Goods and their containers and shall assume all risk and liability resulting from, or in any way connected with, their possession, transportation, handling, storage, use (whether used alone or in combination with any other products) or their suitability for any particular purpose.

15. Limitation of Liability.

TRA'S LIABILITY FOR ANY CLAIM, WHETHER ARISING IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED THE PURCHASE PRICE OF THE GOOD(S) WITH RESPECT TO WHICH SUCH CLAIM IS MADE, TOGETHER WITH THE DELIVERY CHARGES PAID THEREON TO DESTINATION BY BUYER. TRA SHALL NOT BE LIABLE TO BUYER FOR LOSS OF PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF WHETHER BUYER HAS NOTIFIED TRA OF SUCH DAMAGES.

16. Buyer’s Remedy.

BUYER’S SOLE AND EXCLUSIVE REMEDY FOR TRA’S BREACH OF ANY CONTRACT SUBJECT TO THESE TERMS AND CONDITIONS SHALL, AT TRA’S OPTION, BE:

1. REIMBURSEMENT TO BUYER OF THE PURCHASE PRICE ALLOCABLE TO NON-CONFORMING, RETURNED GOODS; OR
   
   
2. REPLACEMENT OF NON-CONFORMING GOODS.

SUCH REMEDY SHALL BE IN LIEU OF ALL OTHER REMEDIES AT LAW OR EQUITY.

17. Indemnity.

Buyer indemnifies and holds TRA harmless from and against any and all claims, losses, liabilities, costs and expenses, including reasonable attorneys’ fees, that TRA may suffer or incur on account of any damage to property or injury or death of persons (including Buyer’s employees) arising out of Buyer’s possession, transportation, handling, storage, use, sale, and/or disposal of the Goods and manufactured articles containing the Goods, even if the harm is or is alleged to have arisen from TRA’s negligence.

18. Further Indemnity.

If TRA responds to an emergency involving Goods sold subject to these Terms of Sale by TRA to Buyer where Buyer has a legal responsibility to respond to such emergency, Buyer agrees to accept the actions of TRA, its subsidiaries, affiliated and/or associated companies, their employees, directors and agents and to indemnify and hold them harmless from and against all losses, damages, injuries, liabilities, actions, claims, proceedings, costs and expenses (including reasonable legal costs) resulting from their actions at the emergency except to the extent caused by their willful misconduct or gross negligence.

19. Compliance with Laws.

Buyer shall comply with all applicable federal, state, provincial and/or local laws, rules and regulations concerning the transportation, storage, use, sale and/or disposal of the Goods.

20. Trademarks.

Buyer shall enter into a trademark licensing agreement with TRA prior to using TRA’s Ultra-Fresh^® trademark.  TRA shall not be responsible for any liability associated with the use of claims and/or end-uses of its Ultra-Fresh Goods if same have not been approved by the appropriate regulatory authority.

21. Relationship of the Parties.

Nothing in these Terms of Sale or in the other Order Documentation shall be construed to constitute either of TRA or Buyer as a partner, joint venturer, agent, employees or affiliate of the other, it being intended that the Buyer and TRA shall remain independent contractors. 

22. No Waiver.

The waiver by TRA of any breach or failure by TRA to enforce any of the terms or conditions contained herein shall not in any way affect, limit or prevent TRA's right thereafter to enforce and compel strict compliance with each and every term or condition contained herein.

23. Severability.

If any provision of these Terms of Sale is held invalid, such invalidity shall not affect the validity or application of the other provisions of these Terms of Sale.

24. Amendment.

These Terms of Sale may only be amended in writing under the signature of TRA, and TRA reserves the right to make changes to these Terms of Sale.  Upon written notice to Buyer, the revised terms and conditions shall bind Buyer as if set out herein.  TRA does not accept any clauses printed on letters, invoices, statements, order forms, or similar documents of Buyer.

25. Notices.

All notices or other communications required or desired to be made in connection with Goods provided under the Order Documentation shall be in writing and delivered by hand or sent by certified mail, return receipt requested, or sent by facsimile transmission as follows:

If to TRA: 

Thomson Research Associates (Europe)

A Division of Kroy Wools Limited

Units 3/3A

Spinksmire Mills

Huddersfield Road

Meltham, Holmfirth

West Yorkshire

ENGLAND

HD9 4AN

Facsimile:  +44 01484 854671

If to Buyer:

To buyer’s address of record.

26. Governing Law.

The formation, construction, performance, validity and all aspects of the Order Documentation (including these Terms of Sale) is governed by the Uniform Commercial Code as enacted by the Commonwealth of Kentucky without regard to such Commonwealth’s rules governing conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply.

27. Venue and Jurisdiction.

Any dispute arising out of the Order Documentation shall be heard, at TRA’s option, either by a court of law in the State of Delaware or by the appropriate court of law in Buyer’s state; and the parties hereby submit to the jurisdiction of the court so chosen by TRA. 

28. Buyer’s Acceptance of Terms of Sale.

IN ADDITION TO AND WITHOUT REGARD TO ANY SIGNATURE OR OTHER FORM OF ACCEPTANCE, BUYER’S AGREEMENT TO THE TERMS AND CONDITIONS OF THESE TERMS OF SALE SHALL BE EVIDENCED BY BUYER’S SUBMISSION OF ONE OR MORE PURCHASE ORDERS FOR GOODS UNDER OR WITH RESPECT TO THESE TERMS OF SALE, AND/OR ACCEPTANCE OF OR PAYMENT FOR THE GOODS OR BUYER’S FAILURE TO OBJECT TO THE TERMS STATED HEREIN WITHIN A REASONABLE TIME AFTER BUYER’S RECEIPT OF THESE TERMS OF SALE.