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TAYLOR COMPANY TERMS AND CONDITIONS OF SALE

  1. Unless otherwise agreed in a writing signed by authorized representatives of both parties, the sole terms and conditions on which all sales of goods by the Taylor Company, a division of Carrier Commercial Refrigeration Inc. (“Taylor Company”), are made to any third party (the “Buyer”) are as set forth herein. Any different or additional terms proposed by Buyer (including those contained in Buyer’s purchase order or other documents) are excluded, all previous or contemporaneous, oral or written, statements are superseded, and Buyer’s acceptance of the goods shall be deemed acceptance of these Taylor Company Terms and Conditions of Sale. No valid waiver of any term hereof at any time shall be deemed a waiver of any other term at such time or any other time. No change, modification, amendment or waiver of any of the terms hereof shall be binding upon the parties unless made in writing and duly executed by both parties hereto. Taylor Company shall not be bound until it has confirmed Buyer’s order.

  2. Unless otherwise agreed in writing by Taylor Company, prices are stated in U.S. dollars, are subject to change without notice prior to acceptance by Buyer, and do not include taxes, freight or duties of any kind. These are the obligation of Buyer, and imposition of such upon Taylor Company shall entitle Taylor Company to reimbursement from Buyer. Unless otherwise agreed in writing by Taylor Company, payment shall be made in cash, in advance of shipment. If payment is not timely made, Taylor Company shall have the right to charge interest on the unpaid balance, which shall accrue from the due date at a rate, which is the lesser of 2% per month, or the maximum legal rate. Buyer shall indemnify Taylor Company against any and all expenses of collection arising from Buyer’s default.

  3. Unless designated otherwise by Taylor Company, goods are sold FCA Loaded at Taylor Company’s relevant factory or warehouse in the United States (INCOTERMS 2010). Title and risk of loss to any of the goods shall pass to Buyer upon Taylor Company’s tender of the goods to the carrier at Taylor Company’s facility. If Buyer fails to reject any goods in writing, within five (5) days of its receipt of those goods, Buyer shall be irrevocably deemed to have inspected and accepted the goods. Taylor Company shall have the right to ship any portion of the goods included in an order or agreement as a partial shipment.

  4. Taylor Company warrants the goods, which are of Taylor Company’s manufacture, in accordance with the terms of Taylor Company’s applicable written manufacturer's warranty, if any. Where such a written manufacturer's warranty exists, Taylor Company’s obligation to repair or replace as stated in that warranty during the warranty period shall be Buyer’s exclusive remedy and that written manufacturer's warranty IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

  5. Goods in addition to, or different from, that stated herein, and changes in drawings or specifications, shall be subject to Taylor Company’s written approval and the terms of this order or agreement and shall entitle Taylor Company to an adjustment in the contract price and schedule. Buyer may cancel this order or agreement only with Taylor Company’s prior written consent, and upon payment of reasonable cancellation charges. Such charges shall take into account costs and expenses incurred, and purchases or contract commitments made by Taylor Company and all other losses due to the cancellation including a reasonable profit. No goods will be accepted for return without Taylor Company’s prior written authorization. Returned goods may be subject to a restocking charge. Special order and non-stock goods cannot be returned.

  6. Unless specifically agreed in writing, shipment dates quoted are estimates, and Taylor Company does not guarantee a particular date for shipment or delivery of the goods. Taylor Company shall not be deemed to be in default nor shall Taylor Company be liable for any losses, damage or penalties occasioned by late performance, nor for any deviations in performance due to or on account of delays in shipment or delivery of the goods or in the performance of any other act to be performed by Taylor Company under this order or agreement due to any cause to the extent it is beyond Taylor Company’s reasonable control and not occasioned by Taylor Company’s fault or negligence, including but not limited to supplier delays, strikes, lock-outs, industrial disputes, fire, flood, act of God, war, insurrection, vandalism, sabotage, invasion, riot, national emergency, piracy, hijack, acts of terrorism, embargoes or restraints, extreme weather or traffic conditions, temporary closure of roads, epidemic, legislation, regulation, order or other act of any government or governmental agency. In case of such delay, shipments and/or deliveries shall be resumed when delays have ceased to exist.

  7. NOTWITHSTANDING ANYTHING TO THE CONTRACT IN THIS ORDER OR AGREEMENT, TAYLOR COMPANY’S LIABILITY AND BUYER’S SOLE REMEDY UNDER THIS ORDER OR AGREEMENT SHALL BE LIMITED TO REPAIR OR REPLACEMENT (AT TAYLOR COMPANY’S OPTION AND COST) OF THE DEFECTIVE OR NON- FUNCTIONING GOOD OR PART THEREOF. IN NO EVENT SHALL TAYLOR COMPANY’S MAXIMUM LIABILITY UNDER THIS ORDER OR AGREEMENT, REGARDLESS OF CAUSE, EXCEED THE TOTAL AMOUNT PAID BY BUYER TO TAYLOR COMPANY FOR THE GOODS PURSUANT TO THIS ORDER OR AGREEMENT. UNDER NO CIRCUMSTANCES SHALL TAYLOR COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, COLLATERAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOSSES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, LOSS OF USE OF EQUIPMENT, FACILITIES OR PROPERTY, LOSS OF ANTICIPATED SAVINGS OR LOST PROFITS, RECALLS, HARM TO BUSINESS OR BUSINESS REPUTATION OR ECONOMIC DAMAGES, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, NOTWITHSTANDING ANY INDEMNITY OR OTHER PROVISION TO THE CONTRARY, AND REGARDLESS OF WHETHER BUYER HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In addition, in no event shall Taylor Company be liable for any: (i.) failure, damage or repairs due to faulty installation, misapplication, abuse, no or improper servicing, unauthorized alteration or improper operation or use other than as indicated in the relevant operator’s manual, (ii.) failure, damage or repairs due to theft, vandalism, wind, rain, flood, water, lightning, earthquake or any other natural disaster, fire, corrosive environments, insect or rodent infestation, or other casualty, accident or condition beyond Taylor’s reasonable control, (iii.) electricity or fuel costs, or increases in electricity or fuel costs from any reason whatsoever, (iv.) damages resulting from the corrosion, physical or chemical effects of liquids, gases, or other materials used with the goods, (v.) damages resulting from the use of any refrigerant other than that specified for the goods and any cost to replace, refill or dispose of refrigerant, including the cost of refrigerant, (vi.) acts or omissions of Buyer or third parties, or (vii.) labor or other costs incurred for diagnosing, repairing, removing, installing, shipping, servicing or handling of defective goods or replacement goods.

  8. Any suits arising from the performance or nonperformance of this order or agreement, whether based upon contract, negligence, strict liability or otherwise shall be brought within one (1) year from the date the claim arose.

  9. Buyer acknowledges that the goods (and any related data) provided hereunder are subject to the laws and regulations of the United States that govern exports and other international trade controls that may restrict transfers of such items to other countries and parties. Buyer and its employees and agents shall not export, reexport, supply or release such items contrary to the laws and regulations of the United States and other countries relating to export trade, or to any country, entity or other party which is ineligible to receive such items under U.S. laws and regulations, including regulations of the U.S. Department of Commerce or the U.S. Department of the Treasury.

  10. By placing this order or entering into this order or agreement, the parties agree to comply with all applicable laws, regulations, rules and guidelines, including but not limited to those dealing with bribery and the export, re-export, or transfer of goods, software and technology. The failure of a party to abide by the obligations of this section will be deemed a material breach permitting the other party to terminate this order or agreement immediately by written notice to the defaulting party without further obligation and without prejudice to any other remedies that may be available to it.

  11. This order or agreement and any sales or other transactions arising hereunder or related hereto shall be governed by, and construed in accordance with, the laws of the State of Illinois, United States of America (excluding its conflicts of law provisions). The provisions of the U.N. Convention on Contracts for the International Sales of Goods shall not be applicable. A determination that any provision of a resulting agreement is ineffective or unenforceable shall not impair the enforceability of other provisions contained herein.

  12. Buyer shall not assign or in any way transfer or dispose of its rights or obligations under this order or agreement without Taylor Company’s consent in writing, which may be withheld in Taylor Company’s sole discretion. Taylor Company may assign its rights or obligations under this order or agreement to any affiliate of Taylor Company, Carrier Corporation or United Technologies Corporation in its sole discretion.

  13. Buyer shall protect and maintain in confidence these terms and all information contained in this order or agreement along with all current price lists and discount schedules, parts sales, service, repair and installation literature, materials and documents and any other data or information furnished by Taylor Company which may be or is considered by Taylor Company to be of a proprietary nature.

  14. Software License. (a) If Buyer receives any software from Taylor Company with or embedded in a good sold under this order or agreement (“Software”), the Software is licensed, not sold, and the use of the Software will be governed by the end user license agreement provided with the good or Software (“EULA”). If a EULA is not provided with the good or Software, then conditioned upon Buyer’s compliance with this order or agreement (including the limitations set forth below) Taylor Company grants Buyer a personal, non-transferable, non- exclusive, non-sublicensable, limited license to, in accordance with any instructions and documentation provided by Taylor Company: (i) use Software that is embedded within the good solely on that good; and (ii) install Software that is provided with (but not embedded within) the good on a single computer or device for use solely with that good. Buyer acknowledges that the Software is, and may contain, the intellectual property of Taylor Company and that Taylor Company owns all right, title and interest in and to the Software. Taylor Company reserves all rights to the Software except for the rights granted in the EULA or this provision.

    (b) Buyer will not permit or authorize any third party to: (i) disassemble, decipher, decompile, reverse engineer or otherwise attempt to access source code of the Software, except as expressly permitted by applicable law notwithstanding this limitation; (ii) copy, reproduce, modify or create derivative works of the Software; (iii) remove any embedded Software from any product or work around any technical limitations in the Software; (iv) remove any proprietary notices or labels related to the Software that are in the Software or on the product or any packaging; and (v) distribute, rent, lease, lend, transfer, sublicense, disclose or otherwise provide the Software to any third party, except as set forth in the following sentence. If a Buyer is permitted under this order or agreement to resell a good containing embedded Software, Buyer may transfer the Software embedded in the good to a third party, provided that prior to the transfer of the good the third party agrees in writing to abide by all the terms of this provision.

    (c) Unless otherwise indicated in a EULA or other agreement between the parties, Taylor Company provides the Software as-is and without warranty.

  15. The goods and components thereof provided by Taylor Company are “commercial items” as defined in Section 2.101 of the Federal Acquisition Regulations (“FAR”), and the prices of such goods and components thereof are based on Taylor Company’s commercial pricing policies and practices (which do not consider any special requirements of U.S. Government cost principles, FAR Part 31, or any similar procurement regulations). As such, Taylor Company will not agree to provide or certify cost or pricing data, nor will Taylor Company agree to comply with the Cost Accounting Standards (CAS). In addition, no federal government procurement regulations, such as FARs or DFARs, shall apply to this order or agreement except those regulations expressly accepted in writing by Taylor Company.

  16. For the purpose of this section, “Personal Data”, “Processing”, “Consent” (in relation to a data subject), and “Recipients” shall have the meaning ascribed to them in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995, as may be amended from time to time, or any successor to such Directive.

    The Buyer acknowledges and agrees that, in the course of providing the goods contemplated by this order or agreement, Taylor Company will collect, Process, or have collected and Processed, Personal Data related to the Buyer and/or its employees, directors, officers and a agents or representatives appointed by the Buyer to deal with Taylor Company (the aforementioned persons, the “Data Subjects”).

    Such collection and Processing will be made for the following purposes:

    • performance of Taylor Company's obligations under this order or agreement;
    • any other business transaction requested by the Buyer, even if unrelated to this order or agreement;
    • management and improvement of Taylor Company’s and its affiliates’ businesses, goods and services,(including to monitor the quality of goods and services, implement standard sales strategy, consolidate information and provide market intelligence, measure sales force efficiency, develop reports and statistics, solicit survey information, and increase productivity or for training or risk-management purposes;
    • promotion, marketing and provision of information regarding goods provided by Taylor Company or any of its affiliates; and
    • for legal and compliance purposes, including without limitation as may be required by law, to defend a legal claim or right, to prevent or investigate fraud or misconduct, and for anti-money laundering, anti-terrorism activities and screening.

    Taylor Company may share Personal Data with any affiliate of Taylor Company, including their agents, employees having reason to access and process such Personal Data; institutions, sub-contractors, agents or third parties used by Taylor Company or any of its affiliates for the purposes of providing any of the products/services that may from time to time be provided to the Buyer by Taylor Company or any of its affiliates; regulatory, prosecuting and other governmental authorities, courts and litigation counterparties. In the course of sharing Personal Data, Taylor Company may transfer and/or store Personal Data outside of the European Economic Area, including countries that have not been deemed adequate but with appropriate protections in place. Before sharing or allowing to be shared Personal Data with Taylor Company, the Buyer shall procure the Consent of the Data Subject to this Processing.

  1. Rev. 05/03/2016