LEGAL POLICIES

THRIL INC.

Terms and Conditions OF SALE

  1. Applicability.
    • These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Product”) by Thril Inc. (“Thril”) to the Dealer or Distributor listed on the attached Dealer or Distributor Agreement, as the case may be (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Product covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
    • The accompanying Dealer or Distributor Agreement, as the case may be, and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
  2. Delivery.
    • The goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished Product. Thril shall not be liable for any delays, loss or damage in transit.
    • Unless otherwise agreed in writing by the parties, Thril shall deliver the Product to Buyer’s principal place of business (the “Delivery Point”) using Thril’s standard methods for packaging and shipping such Product. Buyer shall take delivery of the Product upon delivery to the Delivery Point. Buyer will be invoiced for all shipping charges to Buyer’s location from the Delivery Point. Orders will be shipped by common ground carriers, unless other arrangements are agreed upon. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Product at the Delivery Point.
    • Thril may, without liability or penalty, make partial shipments of Product to Buyer, unless Buyer instructs otherwise. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
    • If for any reason Buyer fails to accept delivery of any of the Product on the date fixed pursuant to Thril’s notice that the Product have been delivered at the Delivery Point, or if Thril is unable to deliver the Product at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Product shall pass to Buyer; (ii) the Product shall be deemed to have been delivered; and (iii) Thril, at its option, may store the Product until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
  3. Non-Delivery.
    • The quantity of any installment of Product as recorded by Thril on dispatch from Thril’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
    • Thril shall not be liable for any non-delivery of Product (even if caused by Thril’s negligence) unless Buyer gives written notice to Thril of the non-delivery within five (5) days of the date when the Product would in the ordinary course of events have been received.
    • Any liability of Thril for non-delivery of the Product shall be limited to replacing the Product within a reasonable time or adjusting the invoice respecting such Product to reflect the actual quantity delivered.
  4. BuyerTitle and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Product at the Delivery Point. As collateral security for the payment of the purchase price of the Product, Buyer hereby grants to Thril a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Product, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Pennsylvania Uniform Commercial Code.
  5. Product Changes. Thril reserves the right to modify, make changes to the Product or Product specifications at any time, in its sole discretion with or without prior notice, without incurring any obligation with respect thereof. In addition, Thril reserves the right to discontinue Product at any time.
  6. Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
  7. Inspection and Rejection of Nonconforming Product.
    • Buyer shall inspect the Product upon receipt (“Inspection Period”). Buyer will be deemed to have accepted the Product unless it notifies Thril in writing of any Nonconforming Product during the Inspection Period and furnishes such written evidence or other documentation as required by Thril. “Nonconforming Product” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
    • If Buyer timely notifies Thril of any Nonconforming Product or Defective, Thril shall, in its sole discretion, (i) replace such Nonconforming Product or Defective with conforming Product, or (ii) credit or refund the Price for such Nonconforming Product, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at Thril’s expense and risk of loss, any Nonconforming Product to Thril’s facility located at Quakertown, Pennsylvania. If Thril exercises its option to replace Nonconforming Product, Thril shall, after receiving Buyer’s shipment of Nonconforming Product, ship to Buyer, at Thril’s expense and risk of loss, the replaced Product to the Delivery Point.
    • Buyer acknowledges and agrees that the remedies set forth in Section 7(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Product. Except as provided under Section 7(b), all sales of Product to Buyer are made on a one-way basis and Buyer has no right to return Product purchased under this Agreement to Thril.
    • If Buyer elects to return Product that is neither Nonconforming Product nor a breach of Section 10(a) (Warranty), then Buyer shall ship the Product, at Buyer’s expense and risk of loss, plus a 20% restocking fee, to Thril’s facility located at Quakertown, Pennsylvania. All returns require a Return Merchandise Authorization prior to returning the products to Thril Inc.
  8. Price. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Thril’s income, revenues, gross receipts, personnel or real or personal property or other assets.
  9. Payment Terms.
    • Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Thril for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Thril does not waive by the exercise of any rights hereunder), Thril shall be entitled to suspend the delivery of any Product if Buyer fails to pay any amounts when due hereunder.
    • Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Thril, whether relating to Thril’s breach, bankruptcy or otherwise.
  10. Limited Warranty.
    • Thril warrants to Buyer and its customers and end-users that for the lifetime of the Product (“Warranty Period”), that such Product will be free from material defects in design, materials and workmanship and will substantially conform to industry standards. The warranty excludes defects resulting from: (i) normal wear, tear or deterioration, (ii) accident, corrosion or other external cause, (iii) abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Thril, (iv) repairs or modifications not authorised by Thril, (v) Product reconstructed, repaired, or altered by persons other than Thril or its authorized representative, and (vi) Product used with any third-party product or hardware that has not been previously approved in writing by Thril.
    • EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 10(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
    • Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Product. Third Party Products are not covered by the warranty in Section 11(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
    • Thril shall not be liable for a breach of the warranty set forth in Section 10(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Thril within thirty (30) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Thril is given a reasonable opportunity after receiving the notice to examine such Product and Buyer (if requested to do so by Thril) returns such Product to Thril’s place of business at Thril’s cost for the examination to take place there; and (iii) Thril reasonably verifies Buyer’s claim that the Product are defective.
    • Thril shall not be liable for a breach of the warranty set forth in Section 10(a) if: (i) Buyer makes any further use of such Product after giving such notice; (ii) the defect arises because Buyer failed to follow Thril’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Product; or (iii) Buyer alters or repairs such Product without the prior written consent of Thril.
    • Subject to Section 10(d) and Section 10(e) above, with respect to any such Product during the Warranty Period, Thril shall, in its sole discretion, either: (i) repair or replace such Product (or the defective part) or (ii) credit or refund the price of such Product at the pro rata contract rate provided that, if Thril so requests, Buyer shall, at Thril’s expense, return such Product to Thril. All returns shall be subject to a 20% restocking fee at Buyer’s expense.
    • THE REMEDIES SET FORTH IN SECTION 10(F) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10A).
  11. Limitation of Liability.
    • IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY BODILY INJURY, DEATH, PROPERTY DAMAGE, LOSS OF USE, REVENUE OR PROFIT, OR DAMAGES OF ANY NATURE OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    • IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCT SOLD HEREUNDER.
  12. Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Product under this Agreement or any resale of the Product by Buyer. Buyer assumes all responsibility for shipments of Product requiring any government import clearance. Thril may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Product.
  13. Term; Termination. The Agreement shall commence when signed by both parties and shall continue for a period of 1 year. In addition to any remedies that may be provided under these Terms, Thril may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
  14. Waiver. No waiver by Thril of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Thril. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  15. Confidential Information. All non-public, confidential or proprietary information of Thril, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Thril to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Thril in writing. Upon Thril’s request, Buyer shall promptly return all documents and other materials received from Thril. Thril shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
  16. Intellectual Property Rights. Buyer acknowledges and agrees that any and all of Thril’s intellectual property rights, expressly including any rights related to patents, trademarks, copyrights, software, development, or other rights, are the sole and exclusive property of Thril or its licensors. Buyer shall not acquire any ownership interest in any of Thril’s Intellectual Property Rights under this Agreement. Buyer shall use Thril’s Intellectual Property Rights solely for purposes of reselling the Product under this Agreement and only in accordance with this Agreement and the instructions of Thril
  17. Force Majeure. Thril shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Thril including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of one hundred eighty (180) days, Buyer shall be entitled to give notice in writing to Thril to terminate this Agreement.
  18. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Thril. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
  19. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
  20. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
  21. Governing Law. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Pennsylvania or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania.
  22. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the County of Bucks, Pennsylvania, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
  23. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Dealer or Distributor Agreement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
  24. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  25. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information Governing Law, Submission to Jurisdiction/Arbitration and Survival.