These terms and conditions of sale (“Terms”) set forth the terms and conditions that apply to all purchases and orders by Buyer and sales by TNS of products and services by means of a purchase order or similar document (“Order”) issued by Buyer to TNS.
THESE STANDARD TERMS AND CONDITIONS OF SALE WILL REMAIN IN FORCE UNTIL A MASTER AGREEMENT IS EXCUTED BY THE PARTIES. THE MASTER AGREEMENT SHALL SUPERSEDE THESE TERMS AND CONDITIONS OF SALE.
- A. “Buyer” means the party listed on the Order and placing the order;
- B. “Incoterms” means an Incoterm as defined by the International Chamber of Commerce in its publication, Incoterms 2010; ICC Official Rules for the Interpretation of Trade Terms.
- C. “Order” means a written or electronically transmitted purchase order from Buyer to TNS for Products that has been accepted by TNS and includes a description of the Products; and
- D. “Products” means the products and/or services requested by Buyer pursuant to the Order.
- E.“Designated Location” means the TNS facility at Unit 5 Keypoint Business Park, Rosemount Industrial Estate, Ballycoolin Road, Dublin 11 Ireland or such other location as TNS indicates in writing to Buyer in advance of delivery or proposed return;
- F. “Specifications” means the manufacturer specifications included with the Product.
- G. TNS” means TNS Connect with its registered office located at Unit 5 Keypoint Business Park, Rosemount Industrial Estate, Ballycoolin Road, Dublin 11 Ireland;
- H. “Terms” means these terms and conditions of sale;
- I. “Quotation” means pricing quotations in writing provided by TNS to the Buyer from time to time, with such quotations being exclusive of value added tax and duties unless otherwise stated and being valid for a period of 5 days after first provided.
2. QUOTATIONS, ORDERS AND TERMS
- 2.1 TNS accepts Orders on these Terms and no others. These Terms set out all of the rights and obligations of the Buyer and TNS. An Order, confirmation or other response or communication from Buyer which contains any additional, different or inconsistent terms will be considered only as an acceptance of the Terms; and such additional, different or inconsistent terms shall not be binding on TNS without TNS’s express written consent.
- 2.2 No Order is binding on TNS until it is accepted by TNS. Acceptance shall occur on the earlier of (i) written confirmation from TNS confirming that the Order has been accepted and (ii) the delivery of the Order. A Quotation or the advertisement of the Products is not an offer to sell but an invitation to the Buyer to order. Once an Order is accepted by TNS it may not be cancelled by the Buyer.
- 2.3 Where the price of the Product is specified online, such price is only valid as of the time of publication and is subject to change until the Order is accepted by TNS.
- 2.4 From time to time certain Products, despite being advertised as available on the TNS website or despite an Order being accepted by TNS, may not in fact be available to TNS for sale to the Buyer. TNS will use all reasonable endeavors to supply all Orders it has accepted however reserves the right to cancel an Order or deliver part only of an Order notwithstanding that TNS has accepted the Order. TNS will inform the Buyer in advance in the event it can only deliver part of an Order and Buyer reserves the right to cancel the Order where the quantity TNS proposes to deliver is over fifty percent (50%) less than the original quantity that TNS accepted on the Order.
- 2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acknowledgement of order, invoice or other document or information issued by TNS shall be subject to correction without any liability on the part of TNS.
- 2.6 Any statement or information including (without limitation) any specification, application, technical advice or other advice given by TNS in respect of the Products prior to, at the time of or after an Order has been placed, is given without responsibility and where the Buyer issues an Order for Products the Buyer expressly warrants to TNS that it has taken and relied upon independent professional advice as to the matters provided for herein (even if as a matter of fact, it has not taken any such advice).
- 2.7 Buyer agrees that it will purchase and pay for the specified minimum Product quantities, if any, as specified on the Quotation.
3. PRICE AND PAYMENT
- 3.1 Buyer agrees to pay the price stipulated in the Quotation or advertised on the TNS website and confirmed by TNS on acknowledgement of the Order. Unless expressly agreed otherwise in writing by TNS, all prices are exclusive of applicable taxes, duties, all storage fees, shipping charges, handling charges, taxes and duties. Unless otherwise expressly agreed in writing by TNS, all Product delivery is based on Incoterms DAP to the Buyer location specified. Delivery charges from TNS to Buyer will be charged for providing delivery. Where TNS expressly agrees in writing to deliver the Products otherwise than on a DAP basis to Buyer agreed location, the Buyer shall be liable to pay TNS additional charges for transport, packing, handling, customs duties and insurance. Additional expenses may, at TNS’s discretion, be invoiced separately and will be subject to these Terms.
- 3.2 TNS will invoice for the Products in advance of delivery and require payment in full prior to delivery. Where TNS expressly agrees in writing that payment does not have to occur in advance of delivery, payment terms are thirty days (30) net from the date on the invoic
- 3.3 The Buyer may not withhold any payment for any reason and may not withhold or apply any set off or counterclaim no matter how it arises.
- 3.4 The Buyer agrees to pay a charge on all amounts past due at a rate of 1.5% per month (18% annually) of the outstanding amount or the maximum lawful rate, whichever is less. If the Buyer fails to make payment when due, TNS reserves the right to suspend performance of delivery of Products.
- 3.5 TNS may demand immediate payment of all outstanding invoices, whether due or not, if any payment for any Order is overdue or if any of the events in section 13(Insolvency/Breach) of these Terms occurs. TNS may without further liability to the Buyer also cancel outstanding Orders and/or further deliveries.
- 3.6 Time for payment shall be of the essence.
- 4.1 TNS shall have no liability for any claim in respect of any defect in the Products which is made after delivery. The Buyer shall be responsible for complying with any legislation or regulation governing the importation of the Products into the country of destination and paying any duties on them. The Buyer or a third party appointed by the Buyer shall be the “importer of record” for the Products and is responsible for all legal obligations arising therefrom.
- 4.2 Dates quoted for delivery of the Products are approximate only and TNS shall not be liable for any early or delay in delivery, however caused.
- 4.3 Unless otherwise expressly agreed in writing by TNS, all Product delivery is based on Incoterms DAP to the Buyer location specified. Delivery charges from TNS to Buyer will be charged for providing delivery.
- 4.4 If the Buyer fails to take delivery of the Products or fails to give TNS adequate delivery instructions at the time stated for delivery then (each a “Failed Delivery Date”), without prejudice to any other right or remedy available to TNS, TNS may at its sole discretion, store the Products until actual delivery and charge Buyer for the reasonable costs including, but not limited to, insurance, storage and finance fee. In the event that TNS cannot successfully deliver within 7 days of the Failed Delivery Date, TNS at its option may rescind the sale of the Products and prior to refunding the Buyer for any amounts paid, may deduct a handling charge for 50% of the price paid together with any other costs incurred by TNS.
- 5.1 The quantity of Products as recorded by TNS upon delivery shall be evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence to the satisfaction of TNS proving the contrary. Any dispute related to the quantity of Products delivered must be notified in writing to TNS within 48 hours of delivery. If notification is not received by TNS within this time period, the Buyer may not raise any claim thereafter.
- 5.2 Any liability of TNS for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or refunding any amount paid by the Buyer for such Products.
6. RISK AND TITLE
- 6.1 Risk of damage to or loss of the Products shall pass to Buyer on the earlier of the time of delivery and the Failed Delivery Date.
- 6.2 Notwithstanding delivery and the passing of risk in the Products, title to the Products will not pass to the Buyer until TNS has received in cash or cleared funds, payment in full of the price of the Products and all other Products agreed to be sold by TNS to Buyer for which payments is then due.
- 6.3 Until title to the Products passes to the Buyer, the Buyer may use or sell the Products in the ordinary course of its business. Until the Products are used or sold, the Buyer must keep them separate from its own property, protected, stored and insured and identified as TNS’s property.
- 6.4 Until such time as the title to the Products passes to the Buyer (and provided the Products are still existence and have not been resold), TNS shall be entitled at any time to require the Buyer to deliver up the Products to TNS, and if Buyer fails to do so forthwith, TNS may go into any place where the Buyer has stored them and retrieve them.
- 6.5 The Buyer may not pledge or use as security any Products where title has not passed to Buyer.
- 7.1 Buyer warrants that all Goods sold are new (unless otherwise notified to the Buyer in writing). TNS is a distributor and not a manufacturer and makes no independent warranties other than those set forth herein.
- 7.2 Except as provided in these terms, all warranties, conditions or other terms implied by law are excluded to the fullest extent permitted by law (including, without limitation, any implied warranty of merchantability, fitness for a particular purpose or any implied warranty arising from course of performance, course of dealing or usage of trade).
- 7.3 Any claim by the Buyer under this Section 7 shall be notified in writing to TNS within seven days from the date of delivery. If delivery is not refused and the Buyer does not notify TNS accordingly, the Buyer shall not be entitled to reject the Products and TNS shall have no liability for such warranty breach.
- 7.4 Where any valid claim in respect of any of the Products under this Section 7 is notified to TNS in accordance with these Terms, TNS shall be entitled to replace such Products free of charge or refund to the Buyer the price of such Products (or proportionate part of the price).
- 8.1 Save as is expressly provided otherwise in these Terms, all sales by TNS to the Buyer are final and no returns will be accepted.
- 8.2 TNS will only accept returns where the Products are faulty or defective, as determined by TNS. Following notification by the Buyer to TNS, TNS will examine the Product to determine whether it is faulty or defective. In the event TNS determines the Product is faulty or defective, the Buyer will be required to issue a return materials authorization number in respect of the Products TNS has determined are eligible for return (“Returns”). All Returns must be in the original packaging. In the event the Buyer delivers Products to TNS which TNS determines are not eligible as Returns, TNS will notify Buyer and the Buyer must arrange collection of such ineligible Products from the TNS Designated Location within 10 days. In the event the Buyer does not arrange collection TNS may in its sole discretion destroy such Products and shall have no liability of any nature to the Buyer or End User.
- 8.3 The Returns must be delivered to the TNS Designated Location. The Buyer will be responsible for freight charges, taxes and all other costs associated with the Returns.
- 9.1 The Buyer shall defend, indemnify and hold harmless TNS, its affiliates and their respective directors, officers, employees, contractors, successors, assigns and agents from any third party allegation or claim based on, or any loss, damage, settlement, cost, expense and any other liability (including but not limited to reasonable attorney fees and expenses) arising out of or related to (i) infringement of any third party’s Intellectual Property Rights (including infringement by any End User) (ii) bodily injury (including death) or damage to any property which arises in relation to End Users use of the Products, and (iii) a breach by the Buyer of the Terms.
- 9.2 TNS shall promptly notify the Buyer of any claim or liability described in this Section 9 for which indemnification is sought (a “Claim”); provided, however, that the failure to give such notice shall not relieve the Buyer of its obligations hereunder except to the extent that the Buyer was actually and materially prejudiced by such failure. The Buyer’s duty to defend is independent of its duty to indemnify. The Buyer will use counsel reasonably acceptable to TNS and TNS will cooperate (at the Buyer’s expense) with the Buyer in the defense. TNS may, at its option and expense, participate and appear with the Buyer in the defense of any Claim that is conducted by the Buyer as set forth herein, but the Buyer will control the defense of any such Claim. The Buyer may not settle any Claim or consent to the entry of any judgment without the prior written approval of TNS, which approval shall not be unreasonably withheld or delayed.
10. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, UNDER NO CIRCUMSTANCES WILL TNS BE LIABLE TO THE BUYER UNDER ANY CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR (EXCEPT FOR BREACH OF CONFIDENTIALITY) CONSEQUENTIAL DAMAGES, OR COSTS, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA, ARISING OUT OF, OR RELATING IN ANY WAY TO, THE SUBJECT MATTER OF THESE TERMS, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION DOES NOT LIMIT ANY PARTY’S LIABILITY FOR BODILY INJURY (INCLUDING DEATH) RESULTING FROM ITS NEGLIGENCE TO THE EXTENT THAT SUCH LIABILITY CANNOT BY LAW BE LIMITED OR EXCLUDED. IN NO EVENT SHALL TNS’S LIABILITY UNDER THESE TERMS OR ANY ORDER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT PAID OR PAYABLE BY THE BUYER TO TNS UNDER THESE TERMS IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. FORCE MAJEURE
Any delay or failure in performance (other than payment obligations) by either party shall be excused if and to the extent caused by an event of force majeure. If there is an event of force majeure, the party delayed or prevented from performing shall promptly notify the other party and use its reasonable efforts to mitigate the effect of the event of force majeure on its performance. An event of force majeure is an event or circumstance which is beyond the control and without the fault or negligence of the party affected, provided that such event or circumstance is limited to the following: (a) riot, war, invasion, act of foreign enemies, hostilities, acts of terrorism, civil war, rebellion, revolution, insurrection of military or usurped power, requisition or compulsory acquisition by any governmental or competent authority, (b) radiation, nuclear disaster, explosion or chemical contamination, (c) earthquakes, floods, fires or other natural disaster, (d) plague, epidemic or the fear of any plague or epidemic, (e) strikes, industrial action or other labor dispute by labor not employed by the affected party or (f) changes in law, regulation or policy of any governmental authority or any act, ruling, decree, announcement or order of any governmental authority.
The Buyer and TNS each represent that it has and will maintain (i) broad form commercial general liability insurance including premises or operations, broad form property damage covering its obligations hereunder for bodily injury and property damage, including all property for which it holds title, and (ii) general workers’ compensation insurance covering its employees, and employer’s liability insurance. All insurance required hereunder shall be carried with insurance companies licensed to do business in the country where operations are maintained. Either party may request a certificate of insurance and upon such request, the other party will provide such certificate of insurance as soon as practicable.
13. INSOLVENCY OR BREACH
- 13.1 If the Buyer commits a breach of any of its obligations under these Terms or otherwise, or becomes insolvent, or enters into a voluntary arrangement with its creditors, has a receiver appointed over the whole or any part of its business or assets or is the subject of any administration order or any petition of bankruptcy, liquidation or winding up or passes a resolution for voluntary winding up (other than for the purpose of a bona fide amalgamation or reconstruction) or anything with a similar effect or if in the reasonable opinion of TNS there are doubts as to the solvency of the Buyer then TNS, acting in its sole discretion, may immediately cancel any Order or suspend any further deliveries of Products without any liability to the Buyer and all money that the Buyer owes to TNS will immediately become due and payable, notwithstanding any prior agreement or arrangement to the contrary.
- 14.1 Should any provision of this Agreement be found to be illegal or unenforceable, the other provisions will nevertheless remain effective and enforceable to the greatest extent permitted by law.
- 14.2 The Buyer may not assign or delegate its rights obligations under these Terms without the other party written consent of TNS; TNS may assign all of its debts and rights to receive payments under these Terms without the Buyer’s consent. These Terms be binding upon successors, representatives and administrators of the parties.
- 14.3 No waiver by TNS or any breach of any of these Terms by the Buyer will operate as a waiver of subsequent breach of the same or any other provision.
- 14.4 Any notice given by either party to the other under these Terms must be in writing and delivered by post, fax or email to the principal place of business of the recipient and will be deemed to be given 2 days after the date it was sent if not acknowledged sooner.
- 14.5 These Terms are the complete, final, and exclusive agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements between them relating to the subject matter hereof. These Terms may not be varied, modified, altered, or amended except in writing and signed by the Buyer and TNS. Notwithstanding the foregoing, these Terms will remain in force only until a master distribution agreement is signed by both parties and covers the same subject matter as these Terms or its related Order.
15 GOVERNING LAW/ JURISDICTION
- 15.1 The formation, existence, construction, performance, validity and all aspects of these Terms shall be governed by the laws of Ireland (excluding Northern Ireland). The Buyer and TNS expressly waive any application of the Convention on International Sale of Goods. If there is a dispute between the parties related to these Terms or any Product, the parties agree that they will first attempt in good faith to resolve the dispute through one senior management member of each party. If they are unable to do so within 30 days after the complaining party’s written notice to the other party, all disputes may be settled under the rules of arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said rules. The arbitration shall take place in Ireland and shall be conducted in English.