1. Agreement. Unless otherwise agreed in a written document signed by a vice president of Thompson Machinery Commerce Corporation (“Thompson Machinery”), these Terms and Conditions of Sales and Service (“Terms”) govern the purchase of goods (including, but not limited to, new and used equipment, trucks, attachments, components, technology, and parts) (“Goods”) and services (“Services”) from Thompson Machinery by any individual or entity that purchases such Goods or Services from Thompson Machinery (“Customer”). The placing of an order with Thompson Machinery, the completion of an online transaction with Thompson Machinery, Customer’s acceptance of any quote, proposal, or other document issued by Thompson Machinery with respect to the Goods or Services, or the receipt or acceptance of Goods or Services by Customer constitutes Customer’s acceptance of these Terms exactly as written. Thompson Machinery hereby rejects t he terms of any purchase order or other document submitted by Customer unless the document is signed by a vice president of Thompson Machinery. The supply of Goods or Services by Thompson Machinery to Customer shall not constitute acceptance by Thompson Machinery of the terms of any purchase order or other document submitted by Customer.
2. Order and Delivery of Goods or Services. Customer agrees that your order is an offer to buy, under and in accordance with these Terms of Sale, all Goods and Services listed in your order. All orders must be accepted by Thompson Machinery before Thompson Machinery is obligated to sell the Goods and Services to you. Thompson Machinery may choose not to accept any orders in its sole discretion. After Thompson Machinery receives Customer’s order, Customer will receive an email that confirms receipt of the order and includes details relating to the order (the “Order Confirmation”). Acceptance of the order will not take place unless and until yo u have received the Order Confirmation; provided, that the Order is still subject to cancellation as provided in this Agreement. Upon issuance of the Order Confirmation, these terms and conditions will be the contract of sale for the order . All orders for Goods and/or Services are subject to credit approval and final acceptance by Thompson Machinery in its sole discretion. Customer shall have no right to cancel purchase orders for Goods once a purchase order is issued to Thompson Machinery, nor shall Customer have the right to cancel an online purchase once the order is placed. Some parts may be returnable to Thompson Machinery in accordance with Thompson Machinery’s then current parts return policy. Customer acknowledges that estimated delivery dates for Goods are estimates only; actual delivery dates depend on a variety of factors, including, but not limited to, the production schedules of manufacturers. Thompson Machinery will use commercially reasonable efforts to meet estimated d elivery dates and shall keep Customer advised of the status of its delivery, but Thompson Machinery shall have no liability for any loss associated with delay in the delivery of Goods. In addition, Thompson Machinery shall have no liability for any delay in performance of Services or delivery of Goods caused by any circumstances beyond its reasonable control, including, but not limited to, delays caused by acts of God, acts of war or terrorism, fire or other casualty, storms or adverse weather, epidemics, strikes, labor shortages or disturbances, shortages of materials, restraints or delays affecting carriers, manufacturer delays, theft or vandalism, transport and handling accidents, or revisions to laws, regulations or governmental requirements.
3. Pricing. All prices posted are subject to change without notice. The price charged for a Good and/or Service will be the price reasonably determined by Thompson Machinery to be in effect at the time the order is placed and will be s et forth in your Order Confirmation. Unless otherwise specified by Thompson Machinery, the price for new parts shall be Thompson Machinery’s list price for such parts on the date the parts are ordered; the price for a new machine shall be Thompson Machinery’s list price for such machine on the date the machine ships from the factory; and the labor rates for Services shall be Thompson Machinery’s standard labor rates for the applicable type of Service (field rates, shop rates, or specialty rates, as applicable) in effect at the time the Services are performed. Pricing for future orders is subject to change without notice. Customer will promptly pay to Thompson Machinery any taxes that Thompson Machinery is required to collect with respect to the purchase of Goods and/or Services, including, but not limited to, value added, personal property, sales, use and similar taxes (“Taxes”). For any Taxes from which Customer claims exemption, Customer shall provide Thompson Machinery with properly completed exemption certificates and any documentation needed to validate the exemption prior to the purchase of the applicable Goods and/or Services. If Customer fails to provide an appropriate exemption certificate and supporting documentation, as determined by Thompson Machinery, Customer will remain liable for all such Taxes and will indemnify Thompson Machinery for any liability related to the same. Title to purchased Goods shall pass to Customer upon payment in full for the Goods. Risk of loss for purchased Goods is FOB Thompson Machinery’s site, unless purchased Goods are shipped to Customer directly from the manufacturer, in which case risk of loss is FOB factory. Any claims for shortages, damages, or delays in shipping must be made by Customer directly to the carrier.
4. Payment TermsFor Thompson Machinery Open Credit Accounts: For Customers with an open credit account with Thompson Machinery who are purchasing pursuant to such open credit account, machine sales pay ments are due upon delivery, and all other payments are due Net 30 unless otherwise negotiated with an authorized Thompson Machinery representative. For Customers who do not have an open credit account with Thompson Machinery, payment is due either in advance or upon delivery of Goods or completion of Services. For Customers who are purchasing Goods or Services online, payment may be made by credit card at the time of purchase or as otherwise specified by Thompson Machinery from time to time. Thompson Machinery may, in its sole discretion, at any time: (a) revoke credit; (b) modify terms and conditions of credit; (c) require payment in advance; (d) withhold Goods, completed Services or scheduled Services until receipt of payment; and/or (e) assess a credit card processing fee. If Customer fails to pay for Goods and/or Services as and when due, Customer shall pay a late charge of 1.5% of the invoice balance each month until charges are paid in full, and Customer shall pay Thompson Machi nery all reasonable attorneys’ fees and collection costs incurred by Thompson Machinery. In addition to any other right of set-off or recoupment Thompson Machinery has under applicable law, Customer agrees that, with respect to any amounts due from Customer or Customer's affiliates to Thompson Machinery or Thompson Machinery's affiliates, Thompson Machinery and its affiliates may set-off such amounts against any amounts owing to Customer or Customer's affiliates. If Customer requests customization of equipment, Customer agrees to pay all parts and labor costs Thompson Machinery incurs in customizing the equipment, regardless of whether or not Customer completes the purchase of the customized equipment. Customer must pick up its equipment from Thompson Machinery’s facility within two (2) business days after notification from Thompson Machinery of completion of Services. If Customer’s equipment is not picked up within two business days after such notification, Customer will be liable f or storage charges of up to $300.00 per day from the date of completion of Services until Customer’s equipment is picked up. To the extent permitted by applicable law, including, but not limited to, A.R.S. § 33-1023, Thompson Machinery may sell Customer’s equipment if such equipment remains in Thompson Machinery’s possession after 30 days and any amounts owed remain unpaid.
For Credit Card Transactions: Upon receipt of the order, Thompson Machinery will confirm to its reasonable satisfaction that Customer has the credit available to pay for the order and a hold will be placed against Customer’s credit card in the amount of the order before issuance of the Order Confirmation. Thompson Machinery will receive full payment at the time of the issuance of the Shipping Confirmation by collection of the funds through the applicable credit card. Thompson Machinery accepts the forms of payment listed on this Site for all purchases. All credit card processing is performed by a third-par ty processor. Customer acknowledges that the credit card and related financial information Customer provides in connection with the order will be provided to such third-party processor, and Customer expressly authorizes and grants Thompson Machinery permission to share such information, which may include, but not be limited to, credit card and any other personal information Customer provides in connection with the order. Customer represents, warrants and agrees that (i) the credit card or payment information supplied in connection with the order is true, correct and complete, (ii) Customer is duly authorized to use such credit card or other authorized form of payment for the purchase, (iii) charges incurred by Customer will be honored, as applicable, by Customer’s credit card company or the company supporting Customer’s payment, and (iv) Customer will pay the amount set forth in the Shipping Confirmation, as well as all applicable Taxes and shipping charges (as the same may adjusted i n accordance with Section 3(a) above).
5. Shipments; Delivery; Title and Risk of Loss. Customer’s order may be fulfilled through the shipment or delivery of the Goods from Thompson Machinery. The number of days quoted for shipping in this Site refers to the transit time only. Additional time is required for processing orders. Customer will pay all shipping charges applicable to Customer’s order. Title and risk of loss will pass to Customer (a) in the case of shipment, upon delivery of the Goods to the shipping address listed in the Shipping Confirmation, and, (b) in the case of pick up at the Thompson Machinery location listed in the Shipping Confirmation or otherwise agreed to by the Thompson Machinery, upon delivery of the Good(s) to Customer or Customer’s representative at such location. Shipping and delivery dates are estimates only and cannot be guaranteed. Thompson Machinery is not liable for any delays in shipments.
6. Warranties.WARRANTY DISCLAIMER. Except for the express warranties set forth in this Section 6, Thompson Machinery makes no warranty, express or implied, oral or written, with respect to any Goods or Services, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, or title, whether arising by law, course of dealing, usage or trade, or otherwise. To the maximum extent permitted by law, all such warranties are hereby disclaimed by Thompson Machinery and waived by Customer. Notwithstanding anything herein to the contrary, Thompson Machinery makes no representations and warranties related to, and none of the warranties set forth in this Section 6 shall apply to fire suppression systems or the installation, removal, maintenance, or servicing of the same.(a) New Goods. If Customer is purchasing new Goods from Thompson Machinery, Customer acknowledges that (i) Thompson Machinery is not the manufacturer of the Goods; (ii) if the Goods include a manufacturer’s warranty, Thompson Machiner y will pass through to Customer the manufacturer’s warranty to the extent permitted by the terms of such warranty; and (iii) the manufacturer’s warranty will be subject to all conditions, exclusions, and exclusive remedies set forth therein. In certain circumstances, Customer may have the option of purchasing an equipment protection plan or extended service coverage (each, an “Extended Protection Product”); if such an Extended Protection Product is available and is purchased by Customer at the time of sale, the Extended Protection Product will be subject to all conditions and exclusions included in such Extended Protection Product.(b) Used Goods. If Customer is purchasing used machinery, parts, or equipment, said used machinery, parts, and equipment are sold “as is”, “where is”, and “with all faults”. Thompson Machinery makes no warranty or representation as to its condition, fitness for any particular purpose, merchantability, or any other warranty, express or implied. Customer is acquiring the used machinery, parts, or equipment based solely on the Customer’s own independent investigations and inspections and not in reliance upon any information provided by Thompson Machinery.(c) Services. If Customer is purchasing Services from Thompson Machinery, Thompson Machinery warrants that its Services will be completed in a good and workmanlike manner, with such service warranty extending for a period of twelve (12) months from completion of the original Services. In the event of a breach of the foregoing service warranty, Thompson Machinery shall, in its sole discretion, either (a) use commercially reasonable efforts to cure such breach; or (b) credit or refund the price of any defective Services. The foregoing remedies shall be Customer’s sole and exclusive remedies for any breach of Thompson Machinery’s service warranty. If Thompson Machinery performs a repair pursuant to its service warranty, the warranty period remains twelve (12) months from completion of the o riginal Services; the twelve (12) month service warranty period does not start over with the repair. If the replacement parts used by Thompson Machinery in connection with the provision of Services include a manufacturer's warranty, Thompson Machinery will pass such warranty through to Customer to the extent permitted by the terms of the manufacturer’s warranty. Thompson Machinery’s service warranty will be voided in the event of any of the following: misuse or abuse of Goods by Customer, subsequent repairs performed by Customer or vendors other than Thompson Machinery, use beyond ordinary wear and tear, failure to maintain and operate Goods in accordance with the maintenance and operations manual of the manufacturer (including, but not limited to, use of fluids that do not meet the manufacturer’s standards or failure to maintain fluid levels recommended by the manufacturer) or damage due to theft, vandalism or casualty.
7. Indemnification. Each party agrees to defend, indemnif y, and hold harmless the other party for, from and against any third party claims related to the Goods or Services to the extent such third party claims (including, but not limited to claims related to the death or injury of any person(s) or damage to or destruction of any real or personal property) are caused by the indemnifying party’s negligent or more culpable acts or omissions, subject to the limitations set forth in Section 7 below. To the fullest extent permitted by law, Customer agrees to defend, indemnify, and hold harmless Thompson Machinery, its affiliates and subsidiaries, and all of their respective owners, directors, officers, managers, employees, agents, and representatives for, from and against any and all liabilities, claims, actions, suits, damages, losses, and expenses (including, but not limited to, reasonable attorneys’ fees, expert witness fees, costs and expenses) that are caused by, arising from or related in any way to fire suppression systems (including, but n ot limited to losses related to the death or injury of any person(s) or damage to or destruction of any real or personal property).
8. Liability Limitation. In no event shall either party be liable, whether based in contract, warranty, indemnity, tort, strict liability, or any other theory of law or equity, for any special, incidental, indirect, punitive, exemplary or consequential damages, including, but not limited to, lost profits, loss of use of property or equipment, downtime, loss of third party contracts, or lost production, regardless of whether or not such party was advised of the possibility of such damages. In addition, Thompson Machinery's maximum aggregate liability (whether in contract, warranty, indemnity, tort, strict liability or any other theory of law or equity) for damages or loss, howsoever arising or caused, shall in no event exceed the amount Customer paid to Thompson Machinery for the Goods or Services to which the liability relates. The parties recogn ize that the pricing associated with Goods and Services reflects this allocation of risk and is the basis of the bargain between the parties. The foregoing limitations shall be valid and enforceable, notwithstanding any alleged failure of essential purpose of the limited remedies set forth herein.
9. Privacy Statement. Customer consents to the collection, use, retention and disclosure of information by Thompson Machinery and its parent, subsidiary and affiliated entities (collectively, “Thompson Machinery Entities”) in accordance with Thompson Machinery’s Privacy Statement, and agrees that such information may be accessed by the Thompson Machinery Entities and their partners and manufacturers with a legitimate business reason to access it, as well as third parties who may process such information on their behalf.
10. Product Information. If Caterpillar equipment that is purchased, owned or rented by Customer is equipped with Product Link or other equipment monitoring technology, data concerning the equipment, its condition and its operation (“Telematics Information”) is being transmitted to Caterpillar, its affiliates, the Thompson Machinery Entities and/or other Caterpillar dealers to better serve Customer and to improve Caterpillar products and services. Telematics Information being transmitted may include machine serial number, machine location, and other machine data including, but not limited to, fault codes, emissions data, fuel usage, service meter hours, software and hardware version numbers and installed attachments. The Telematics Information will be collected, used, retained and disclosed in accordance with the Caterpillar Data Governance Statement, which is posted at https://www.caterpillar.com/en/legal-notices/data-governance-statement.html (as such statement may be revised from time to time) (“Statement”). Customer consents to the collection, use, retention and disclosure of the Telematics Information in accordance with the Statement and agrees that the Telematics Information may be accessed by Caterpillar, its partners, its affiliates, its subsidiaries, the Thompson Machinery Entities and/or other dealers with a legitimate business reason to access it, as well as third parties who may process the Telematics Information on their behalf. As set forth in the Statement, Caterpillar may use Telematics Information in combination with information about Customer. Customer further acknowledges and agrees that Telematics Information may be made available to subsequent owners of equipment. If Customer does not want Telematics Information transmitted as described above, Customer can request documentation to opt out of the transmission of such information by sending an email to firstname.lastname@example.org.
11. Choice of Law; Waiver of Jury Trial. These Terms shall be governed by and construed in accordance with the laws of the State of Tennessee without giving effect to conflict of law provisions. The parties agree that exclusive jurisdiction and venue for any proceeding at law or in equity will be in the state or federal courts located in Rutherford County, Tennessee. Each party knowingly, voluntarily, irrevocably, and unconditionally waives its right to a jury trial of any claim or cause of action based on or arising out of the purchase of Goods or Services from Thompson Machinery (including, but not limited to, contract, tort, breach of duty, and all other common law and statutory claims). Each party (a) understands that this is a waiver of an important legal right, and (b) acknowledges having had a reasonable opportunity to discuss this waiver and its effects with legal counsel.
12. General Provisions. Customer may not assign Customer’s rights or obligations hereunder without Thompson Machinery's prior written consent, and any such attempted assignment will be void. No amendment or modification of these Terms shall be effective unless it is set forth in a written document signed by a vi ce president of Thompson Machinery. If any provision in these Terms is found to be invalid, unlawful or unenforceable, the remaining provisions in these Terms shall remain in full force and effect. A party’s waiver of any breach will not constitute a waiver of any different or subsequent breach. No employment, agency, joint venture, or similar arrangement is created or intended between Customer and Thompson Machinery. Any rule of construction requiring that ambiguities be resolved against the drafting party shall not apply to the interpretation of these Terms. Thompson Machinery retains ownership of all records relating to Goods and Services provided to Customer (“Records”) and may disclose the Records pursuant to a court order or in the event disclosure of the Records becomes part of Thompson Machinery’s defense in a legal matter. Thompson Machinery is an EEO/Affirmative Action Employer. Customer warrants that the invoiced Goods or Services will be used for business or agricultural pu rposes and not for personal, family or household purposes.