Tessy Plastics Corp. and our subsidiaries and affiliates (“Tessy,” “we,” “us,” or “our”) respect your preferences concerning the treatment of personal information that we may collect (“Personal Information”). This Policy informs you how we collect and use your Personal Information, how you can control its use, and describes our practices regarding information collected from the different Tessy sites that may link or refer to this Policy (such as www.tessy.com and our other websites, computer or mobile software applications, social media pages or HTML-formatted e-mail messages), as well as through offline sales and marketing activities, such as trade shows (collectively, the “Channels”).
2. Visitors and Customers
3. Sensitive Information
You agree not to send us, and not to share with us, any sensitive Personal Information (e.g., social security numbers, driver’s license numbers, information related to racial or ethnic origin, political opinions, religion or other beliefs, health, criminal background or trade union membership).
4. Links to Third Parties
5. Personal and Other Information We Collect
Through your interaction with and use of the Channels, Tessy may collect Personal Information, which is information that identifies an individual or relates to an identifiable individual. Personal Information may include, but is not limited to, the name, physical address, telephone number, email address, or company affiliation and associated interests of you or another person.
In addition to Personal Information, Tessy may also collect other information through your interaction with, and use of, the Channels and non-Tessy websites, which does not reveal your specific identity or does not directly relate to an individual (“Other Information”). Other Information may include, but is not limited to, browser and device information, data collected through automated electronic interactions, application usage data, demographic information, geographic or geolocation information, statistical and aggregated information.
Statistical or aggregated information does not directly identify a specific person, but it may be derived from Personal Information. For example, we may aggregate Personal Information to calculate the percentage of users in a particular zip code.
In some instances, we may combine Other Information with Personal Information, such as combining a precise geographical location with your name. If we combine Other Information with Personal Information, we will treat the combined information as Personal Information.
6. How We Use and Share Information
6.1 Personal Information
Tessy uses and shares the Personal Information we collect (unless otherwise restricted by applicable law), to perform the following activities:
(a) Engage in Transactions. We may use Personal Information to engage in transactions with you.
(b) Process Transactions. We may use Personal Information along with financial, credit card, and payment information to process your transactions; and
(c) Provide Support or Other Services. We may use your Personal Information to provide you support or other services you have ordered, as well as product updates, product patches and fixes and other similar operational communications.
(e) Provide Tessy Online Communities. Some Channels may permit you to: participate in interactive discussions; create a profile; post comments, opportunities or other content; communicate directly with another user; or otherwise engage in networking activities. Some of these services may be moderated and all may be accessed for technical reasons. Tessy does not control the content that users post to these forums or social networks. You should carefully consider whether you wish to submit Personal Information to these forums or social networks and whether you wish to make your profile available to other users, and you should tailor any content you submit appropriately. You should also review any additional terms and conditions that may govern your use of these Channels. To manage or remove your Personal Information from any of our online communities, please submit a request through our contact page. If we are not able to remove your Personal Information, we will let you know.
(g) Post Testimonials. We may post testimonials on our Channels that may contain Personal Information. Prior to posting a testimonial, we will obtain your consent to use your name and testimonial. If you wish to update or delete your testimonial, please submit a request through our contact page, and be sure to include your name, testimonial location, and contact information.
(h) Select Content, Improve Quality and Facilitate Use of the Channels. Tessy may use your Personal Information to help create and personalize content on our Channels, facilitate your use of the Channels (for example, to facilitate navigation and the login process, avoid duplicate data entry, enhance security, keep track of shopping cart additions and preserve order information between sessions), improve quality, track marketing campaign responsiveness (including online advertising and e-mail marketing), and evaluate page response rates.
(i) Provide various Tessy Communities, such as Partners, with Relevant Product Alerts and Updates. If you sign up for an Tessy community or program, Tessy may provide you information regarding your expressed interests, such as new product releases, service offerings, alerts, updates, prices, terms, special offers and associated campaigns.
(j) Joint Sales or Product Promotions. Tessy and its partners may engage in joint sales or joint product or service promotions. Such promotions will reference the partners involved. Both Tessy and the partner(s) will have access to that information, and either Tessy or our partners may provide you the sales or product or service promotion information. Each party will be responsible for managing its own use of the Personal Information collected for the joint sale or joint product or service promotion. We recommend you review the privacy policies of these partners to address any questions you have regarding their handling of your information.
(k) Contact a Referral/“Tell a Friend”. If you elect to use our referral service to inform a friend about our products or services, we will ask you for the friend’s contact information. Tessy will then send your friend a one-time contact related to your referral request. Tessy uses the Personal Information you provide in this situation solely for the purpose of sending the one-time contact and tracking the success of our referral program. Your friend may contact Tessy through our inquiry form to be removed from the referral program.
(l) Improve Products, Services, and Experiences. Tessy may use your Personal Information to evaluate and improve our products, services, marketing, and customer relationships.
(m) Communicate with You about a Conference, Trade Show or Event. We or our partners may communicate with you about a conference, trade show or other event in which we may promote our products or services. This may include information about the event’s content, logistics, payment, updates, and any additional meetings, special demonstrations or other customer facilitation that we may provide related to your event registration. After the event, Tessy may contact you about the event and related products and services, and may share information about your attendance with your company. Where legally permitted, Tessy will also allow designated partners or conference sponsors to send you up to two communications related to your event attendance. Please note that our partners or conference sponsors may directly request your Personal Information at their conference booths or presentations. You should review their privacy policies to learn how they use Personal Information.
(n) Obtain Third Party Services. We may also share Personal Information with third parties who provide services to Tessy, such as credit card processing services, order fulfillment, analytics, event / campaign management, web site management, information technology and related infrastructure provision, customer service, e-mail delivery, auditing, and other similar services. When we share Personal Information with third party service providers, we require that they use your Personal Information only for the purpose of providing services to us and subject to terms consistent with this Policy.
(o) Protect our Employees, Sites, Facilities, and Operations. Tessy may disclose your Personal Information as we believe to be necessary or appropriate to protect the health and safety of our employees and visitors, our physical and online operations, our property, rights, and privacy, and/or that of our affiliates, you or others. If you visit our offices, you may be photographed or videotaped as part of maintaining the security of our facilities. Facility security photography will be treated as sensitive information and will only be used for security and investigation purposes.
(p) Comply with Legal Requirements and Corporate Transactions. Tessy may disclose your Personal Information as we believe to be necessary or appropriate: (i) under applicable law, including laws outside your country of residence; (ii) to comply with legal process, including legal warrants and seizure orders issued by courts; (iii) to respond to requests from public and government authorities, including public and government authorities outside your country of residence; (iv) to enforce our terms and conditions; and (v) to allow us to pursue available remedies or limit the damages that we may sustain. Additionally, in the event of a reorganization, merger, sale, joint venture, assignment, transfer or other disposition of all or any portion of our business, assets or stock (including in connection with any bankruptcy or similar proceedings), we may transfer the Personal Information we have collected to the relevant third party.
6.2 Other Information
We may use, transfer, and disclose Other Information we collect for any purpose, except where applicable law requires otherwise. If we are required to treat Other Information as Personal Information under applicable law, then we will only use it in the same way that we are permitted to use and disclose Personal Information.
7. How We Collect Information
7.1 Collection Methods
Tessy and our third party service providers may collect both Personal Information and Other Information from a variety of sources that generally fall into the following categories:
(a) Direct Interactions. This category is based on your use of and interaction with us through the Channels and other activities, such as account creation, submission of registrations and forms, badge scanning at trade shows, or sales inquiries and transactions.
(b) Publicly Available Data / Data from Third Parties. This category is based on automated interactions on non-Tessy websites, or other data you may have made publicly available, such as social media posts, or data provided by third party sources, such as third party marketing opt-in lists, or data aggregators.
(c) Automated Interactions. This category is based on the use of technologies such as electronic communication protocols, cookies, embedded URLs or pixels, or widgets, buttons and tools.
7.2 Automated Collection Methods
Although Tessy’s use of automated interactions may change over time as technology evolves, the following descriptions are designed to provide you with additional detail about Tessy’s current approach to information collected from automated interactions.
(a) Electronic Communications Protocols. As is true when you visit most websites and apps, Tessy may automatically receive information from you as part of the communication connection itself, which often consists of network routing information (where you came from), equipment information (browser type), your IP address (which may identify your general geographic location or company), and date and time.
(b) Tracking. Tessy may also automatically receive and record information about your interaction with the Channels, such as clickstream information (when each Tessy webpage was visited and how much time was spent on the page), or general geo-location data.
(c) Cookies. Tessy’s server may query your browser to see if there are “cookies” previously set by our electronic Channels. A cookie is a small piece of information sent by a Web server to store on a Web browser so it can later be read back from that browser. Cookies may collect information, including a unique identifier, user preferences, profile information, membership information, and general usage and volume statistical information. Cookies may also be used to collect individualized web site use data, provide electronic Channel personalization, or conduct and measure the effectiveness of advertising in accordance with this Policy. Some cookies may remain on users’ computers after they leave the Website. While the majority are set to expire within 1-24 months of your last visit to the website that set the cookie, others may not expire because of their nature, such as cookies that remember opt-out preferences.
(d) Your Control of Cookies. Your browser may provide you with information and control over cookies. You can set your browser to alert you when a cookie is being used, and accept or reject the cookie. You can also set your browser to refuse all cookies or accept only cookies returned to the originating servers. Customers can generally disable the cookie feature on their browser without affecting their ability to use the site, except in some cases where cookies are used as an essential security feature necessary for transaction completion. Cookies, however, are important to the proper functioning of a site, and disabling them may degrade your experience and interfere with web site features and customizations.
(e) Third Party Cookies. Tessy may engage one or more third party service providers to track and analyze both individualized usage and volume statistical information from interactions with electronic Channels. The service provider(s) may set cookies on behalf of Tessy. Tessy also may use other third party cookies to provide advertising and personalization services in accordance with this Policy, and to track the performance of Tessy advertisements on their websites and Tessy e-mails.
(f) Managing Cookie Preferences: You may access or change your cookie preferences at any time. If you have any problems using this cookie preference mechanism, please submit a request through our contact page.
(g) Flash Cookies. We may use Flash cookies, also known as “local shared objects,” on our electronic Channels that employ Flash technology. Flash cookies are used to remember the site’s settings to personalize the look and feel of the site. Like normal cookies, Flash cookies are represented as small files on your computer. One method of preventing Flash cookies from being placed is to adjust your preferences in the Macromedia Website Privacy Settings Panel at macromedia.com.
(h) Embedded URLs. We may use a tracking technique that employs embedded URLs to allow use of the electronic Channels without cookies. Embedded URLs allow limited information to follow you as you navigate the electronic Channels, but are not associated with Personal Information and are not used beyond the session.
(i) Embedded Pixels and Similar Technologies: On the electronic Channels, Tessy and its service providers may use embedded pixel technologies for the purposes of identifying unique user visits (as opposed to aggregate hits), and for advertising purposes. In addition, embedded pixels or other technologies may be used in e-mails and our online display advertising to provide information on when the e-mail or ad was opened to track marketing campaign responsiveness; information collected using these technologies may be associated with the recipient’s e-mail address.
(k) Physical Location. We may collect the physical location of your device and use it to provide you with personalized location-based services or content. In some instances, you may be permitted to allow or deny such use of your device’s location, but if you choose to deny such use, we may not be able to provide you with the applicable personalized services or content.
8. Registration, Preferences, and Opt-Out
Tessy may allow you to establish a registration profile for marketing communications at www.tessy.com or another one of our Channels. You may use the profile to customize and control your preferences for receiving electronic information, including any feature that we might implement for opting into (or out of) communities, newsletters and general interest areas. You may return to the registration profile to change your elections or modify your profile by logging into your user account. Please login as usual and follow the prompts to update your profile.
8.2 Preferences and Opt-Out
(a) E-mail Marketing. Tessy might implement a feature that enables you to opt out of marketing communications. Such feature, if implemented, may enable you to opt out of e-mail marketing by modifying your online profile as described above or by using our general unsubscribe automated link that is included in Tessy marketing e-mails. If you have any problems using any of these opt-out mechanisms, please submit a request through our contact page.
(b) Unavailability of General Opt-out. Some non-marketing communications may not be subject to general opt-out, such as communications related to product download, sales transactions, software updates and other support related information, patches and fixes, conferences or events for which you have registered, disclosures to comply with legal requirements, and (where permitted by law) quality assurance surveys. Some additional communications with partners may also not be subject to general-opt out, including product alerts, updates, contractual marketing and sales materials, and other notices related to partner status.
(c) Cookies and Do Not Track Preferences. Tessy might implement a feature that enables you to opt out of cookies that are not required to enable core site functionality. Tessy uses its cookies preferences tool to processes Internet advertising and tracking preferences, but does not process any other Do Not Track signals. If such feature is implemented, once you have set your cookie preferences, Tessy will follow the specific choices you made there. Please remember that if you delete your cookies, or use a different browser or computer, you will need to set your cookies preferences again. If such feature is implemented, you may access or change your cookie preferences at any time. If you have any problems using any such cookie preference mechanism, please submit a request through our contact page.
(d) Tessy might implement a feature that enables you to opt out of personalized (non-anonymized) website analytics. If such feature is implemented, you may access or change your website analytics preferences at any time. If you have any problems using any such website analytics preference mechanism, please submit a request through our contact page.
(e) Information-Sharing Choices. Tessy only shares Personal Information with selected companies after providing users the ability to make choices about the sharing, or as otherwise described in this Policy. There are limitations to opting out of such sharing in the case of: (i) joint sales or joint events; (ii) where the customer has requested follow-up which involves Tessy partners; (iii) where third parties are required to accomplish the transaction or perform the service; and (iv) where required by law.
(f) Third Party Permission-Based Lists. On occasion, Tessy may use third-party lists to send communications about Tessy products and services. These lists, which might be maintained by third parties, include users eligible under applicable law to receive e-mails from interested companies such as Tessy. When we use such lists, the communications will include mechanisms to opt out of receiving Tessy marketing communications. If you have trouble opting out, or if you wish to make us aware of any issues related to a third-party mailing, please submit a request through our contact page.
9. For California Residents
Under California Civil Code Section 1798.83 (also known as Information-Sharing Disclosure, Shine the Light), if you are a California resident and your business relationship with Tessy is primarily for personal, family, or household purposes, you may request certain data regarding Tessy’s disclosure, if any, of Personal Information to third parties for the third-parties’ direct marketing purposes. To make such a request, please submit a request through our contact page; you may make such a request up to once per calendar year. In accordance with California Civil Code Section 1798.83, we will provide you, by e-mail, a list of the categories of Personal Information disclosed to third parties for their direct marketing purposes during the immediately preceding calendar year, along with the third parties’ names and addresses and any other information required by California Civil Code Section 1798.83.
10. Access, Correction, and Profile Updates
You may request to review, correct, update, suppress, or otherwise modify any of your Personal Information that you have previously provided to us through the Channels, or object to the use or processing of such Personal Information by us. You have the ability to update your Tessy profile and related Personal Information at any time. To change this information, please submit a request through our contact page, or write to us at the following address:
Tessy Plastics Corporation
700 Visions Drive
Skaneateles, NY 13152
Attn: Sarah Groom
In your request, please make clear what Personal Information you would like to have changed or whether you would like to have your Personal Information that you have provided to us suppressed from our database.
While the majority of questions and issues related to access can be handled quickly, complex requests may take more research and time. In such cases, issues will be addressed, or we will use our best efforts to contact you regarding the nature of the problem and appropriate next steps, within thirty (30) days.
11. Retention and Deletion
Tessy will retain your Personal Information for as long as your account is active; as needed to provide you with products or services; as needed for the purposes outlined in this Policy or at the time of collection; as necessary to comply with our legal obligations (e.g., to honor opt-outs), resolve disputes, and enforce our agreements; to the extent permitted by any agreements in place between you and Tessy; or to the extent permitted by law.
At the end of the retention period, Tessy will delete your Personal Information in a manner designed to ensure that it cannot be reconstructed or read.
Tessy may use some third parties to administer a limited set of Tessy advertisements on third party electronic channels. No Personal Information will be provided to the advertisers as part of this process, but aggregate profile information or Other Information, such as user community or implied or inferred interests may be used in the selection of advertising to make sure that it has relevance to the user. Some banner ads may contain embedded pixels that may write and read cookies or return session connection information that allows advertisers to better determine how many individual users have clicked on the ad banner.
Tessy may also use advertising technologies and participate in advertising technology networks that collect Other Information from Tessy and non-Tessy websites, as well as from other sources, to show you Tessy-related advertisements on Tessy’s own and third-party websites. These advertisements may be tailored to your perceived interests using retargeting and behavioral advertising technologies, a set of practices collectively referred to as “Interest Based Advertising” in this Policy. Any retargeted or behavioral advertisements served to your browser will contain information on or near it that informs you about the advertising technology partner and how to opt-out of viewing such advertisements. You also may opt out by visiting the Interest Based Advertising portion of this Policy. Opting-out does not mean that you will stop receiving ads from Tessy. It means that you still stop receiving ads from Tessy that have been targeted to you based on your visits and browsing activity across websites over time.
Cookie-based tools that allow you to opt-out of Interest Based Advertising prevent Tessy and other participating advertising technology companies from serving interest-related ads to you on behalf of Tessy. They will only work only on the Internet browser on which they are deposited, and they will only function only if your browser is set to accept third-party cookies. These cookie-based opt-out tools may not be as reliable where (e.g., certain mobile devices and operating systems) cookies are sometimes automatically disabled or removed. If you delete cookies, change browsers, computers or use another operating system, you will need to opt-out again.
Note that this Section pertains only to advertising to market Tessy products and services performed on Tessy’s behalf.
The security of your Personal Information is very important to us. We use physical, electronic, and administrative safeguards that are designed to protect your Personal Information from loss, misuse and unauthorized access, disclosure, alteration and destruction.
For any credit card-based transactions, Tessy uses standard security protocols and mechanisms to exchange the transmission of sensitive data such as credit card details. When you enter sensitive Personal Information such as your credit card number on our site, we encrypt it using secure socket layer (SSL) technology.
In the event that your Personal Information is acquired, or is reasonably believed to have been acquired, by an unauthorized person and applicable law requires notification, Tessy will notify you by e-mail, fax, or U.S. mail. Tessy will give you notice promptly, consistent with the reasonable needs of law enforcement or Tessy to determine the scope of the breach and to investigate and restore the integrity of the data system.
14. Cross Border Transfers/Storage
Tessy offers its products and services on a worldwide basis and might rely upon the services or facilities of affiliates located in the United States and other countries. Pease note that your Personal Information may be transferred, accessed and stored globally as necessary for the uses stated above in accordance with this Policy. You’re hereby consenting to the transfer of information to countries outside of your country of residence, which may have different data protection rules than those of your country.
15. Your Ideas and Suggestions
If you have any intellectual property (including, without limitation, concepts, ideas, inventions, works of authorship, information, suggestions or proposed product or service improvements) that you would like to present to Tessy, you must not submit such intellectual property to us unless you and Tessy have first signed a written agreement regarding the disclosure of such intellectual property to Tessy. If you do disclose any such intellectual property to Tessy absent such a written agreement, your disclosure will be deemed your agreement to grant Tessy a worldwide, irrevocable, perpetual, sub-licensable, assignable, royalty-free, non-exclusive license to use such intellectual property for any purpose and in any way without compensating you. Such license will be effective upon such disclosure. Notwithstanding the foregoing, to the extent that the terms of this Section conflict with the terms of any Customer Agreement, the terms of the Customer Agreement shall control.
16. Policy Updates
We may update this Policy from time to time. We will post a notice in this Section of this Policy, notifying users when it is updated. Created: August 24, 2017.
TERMS & CONDITIONS OF SALE
The following terms and conditions apply to all sales of goods and services (collectively, “Products”) by Tessy Plastics Corp. (“TESSY”, “we”, “us” or “our”), to you (the “Customer”), and constitutes the final, complete and exclusive agreement (“Agreement”) between you and TESSY relating to the subject matter hereof and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, promises and other communications, whether oral or written, relating to such subject matter (including, without limitation, any “Terms and Conditions of Purchase” published by Customer), unless otherwise specifically agreed to in a writing signed by TESSY’s authorized representative. Any term or condition in any order, confirmation, or other document furnished by Customer at any time, which is in any way inconsistent with or in addition to the terms and conditions set forth herein, is hereby expressly rejected, and TESSY’s acceptance of any order of Customer is expressly made in reliance of Customer’s assent to all terms and conditions hereof. Customer’s acceptance of delivery of any Products constitutes Customer’s acceptance of these terms and conditions.
The prices applicable to the Products shall be as quoted by TESSY to Customer and are subject to change. Unless otherwise specified, prices quoted for Products are in US Dollars. Stenographic and clerical errors are subject to correction. A quotation is not a contractual offer and any order resulting from a quotation is subject to approval and acceptance by TESSY. Prices listed or quoted do not include any present or future sales, use, excise or similar taxes, duties or other governmental charges, which will be added where applicable and paid for by Customer, unless you provide us with a tax exemption certificate acceptable to the appropriate taxing authorities and presented at or before the time of purchase. No sales tax refunds will be given at any time for any reason. Any taxes paid by TESSY on Customer’s behalf shall be reimbursed by Customer upon demand.
3. Purchase Order Process
Customer shall place orders for the Products to be purchased hereunder by submitting one or more purchase orders to TESSY. Each such purchase order is intended for convenience only and shall state the descriptions and quantities of Products being ordered and the requested shipments dates for such Products. In no event shall any terms and conditions set forth on a purchase order submitted by Customer other than the terms and conditions set forth herein, including, without limitation, any preprinted terms and conditions of Customer, be binding on TESSY. In addition, no purchase order shall be binding on TESSY until TESSY has accepted such purchase order by written acknowledgement or by shipment of the Products applicable to such purchase order. Orders for the purchase of Products when made by the Customer shall be considered irrevocable for such Customer.
4. Payment Terms
Unless otherwise agreed to by TESSY in writing, payment terms shall be net thirty (30) days from the date of invoice. If shipments are delayed by Customer, invoices may be rendered on the date(s) TESSY is prepared to make shipment(s). Any Product held as a result of Customer’s inability or refusal to accept delivery is at the risk and expense of Customer. Interest at the rate of one and one-half percent (1 1/2%) per month (not to exceed the maximum interest allowable by law) shall be paid on the unpaid balance of any invoice not paid by Customer within thirty (30) days of the due date thereof. Such interest shall be in addition to the purchase price hereunder. In the event TESSY engages a collection agency or commences a legal action or suit to collect the purchase price or any part thereof, Customer shall, in addition to the full purchase price including interest, be liable for all costs and expenses of such legal action or suit (including reasonable attorney’s fees).
In addition, TESSY reserves the right to require COD payment terms from any customer whose account is overdue for a period of more than 45 days or who has an unsatisfactory credit or payment record. TESSY may also refuse to sell to any person until overdue accounts are paid in full.
5. Shipping Point & Transportation
Shipment/delivery dates are approximate and are determined from the date of TESSY’s acceptance of an order. All Products will be shipped F.O.B. TESSY’s point of shipment. Title and risk of loss shall pass to Customer upon delivery of Product(s) by TESSY to the carrier for shipment to the Customer, notwithstanding any prepayment of shipping charges by TESSY, if so required by the carrier. All shipment costs shall be paid by Customer, and if prepaid by TESSY, the amount thereof shall be reimbursed to TESSY.
TESSY will make every effort to deliver the Products hereunder in accordance with the requested delivery date, provided that TESSY shall not be liable for any delay in delivery due to causes beyond our reasonable control, such as acts of God, acts of the government, strikes, war, delays of carriers, or inability to obtain necessary material or manufacturing facilities. TESSY shall not be liable for any damages or penalties whatsoever whether direct or indirect, special, incidental or consequential, resulting from our failure or the failure of our suppliers to perform or delay in performing unless otherwise agreed in writing by an authorized officer. Customer agrees that any delay in delivery shall not affect the validity of any orders or these terms and conditions. TESSY reserves the right to deliver the Products in installments unless expressly prohibited in the applicable purchase order. Installment deliveries will be invoiced by TESSY at time of shipment unless otherwise agreed in writing by TESSY. Delay in any installment delivery shall not relieve Customer of its obligation to accept all remaining installment deliveries pursuant to a purchase order.
7. Changes to Orders
Unless otherwise agreed to by TESSY in writing, changes in materials, supplies, labor and/or changes made at the request of Customer shall be at the expense of Customer. Changes or alterations made by Customer or made by TESSY (over its recommendation against the same) shall be at Customer’s sole risk and responsibility. TESSY reserves the right to make changes to the design and composition of its Products which in its judgment do not materially change the nature or quality of the Products.
8. Cancellation of Orders
Due to the specialized nature of the Products, orders may be cancelled only with our written consent and upon payment of reasonable cancellation charges, including TESSY’s actual out of pocket costs, overhead and anticipated profit (as determined by us). Partial cancellation of an order may result in adjustment of prices for the balance of the order.
Customer’s right to reject any Products supplied hereunder is conditioned upon Customer giving TESSY a written notice of rejection setting forth the basis thereof within ten (10) days after delivery of the Products to Customer. Failure to give such notice within such time constitutes acceptance of such Products. Products may be returned only when authorized by us in writing, and then only on such terms as TESSY may specify. All returned Products shall be returned with shipping prepaid.
10. Limited Warranties; Disclaimers
(a) TESSY represents and warrants that the Products delivered by TESSY to Customer shall: (i) conform to agreed-upon specifications for the Product(s), to the extent any specifications were made part of an order; and (ii) be free from faulty workmanship and defective materials. The foregoing warranties shall be limited to a [ninety (90) day/ one (1) year] period commencing on the date of shipment of the applicable Product(s) (the “Warranty Period”) provided (i) the Products have been properly cared for (i.e. the Products have not been subject to misuse, neglect, misapplication, etc.) and used in accordance with TESSY’s instructions, if any, (ii) the Products have not been tampered with or modified without TESSY’s prior written approval, and (iii) Customer promptly notifies TESSY in writing of any warranty claim during the Warranty Period. In the event any Product fails to meet either or both of the foregoing warranties, TESSY’s sole obligation, in TESSY’s sole discretion, shall be to either replace or repair the non-conforming Product. The foregoing warranties provided by TESSY in this Section 10 are the only warranties provided by TESSY with respect to the Product(s) sold hereunder, and may be modified or amended only by a written instrument signed by TESSY. Customer’s remedies and TESSY’s aggregate liability with respect to the warranties provided by TESSY in this Section 10 are set forth in and limited by this Section 10 and Section 11 below.
(b) TESSY’s warranties above do not apply to Products not manufactured by TESSY and do not apply to components furnished by third parties. In addition, such warranties shall be for the sole benefit of the original customer only and are not assignable unless otherwise agreed to in writing by TESSY. TESSY shall not be liable for any claim if alterations have been made to the Products by the Customer or others without TESSY’s written consent. Any components furnished by third parties are warranted only to the extent of the original manufacturer’s warranty to TESSY and then only if such original manufacturer’s warranty is assignable to Customer.
(c) THE EXPRESS WARRANTIES OF TESSY STATED IN SECTION 10(a) ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TESSY’S WARRANTY OBLIGATIONS AND CUSTOMER’S REMEDIES ARE SOLELY AND EXCLUSIVELY AS STATED IN THIS SECTION 10. Any sample or literature exhibited to Customer was to illustrate the type of good and/or service and not an affirmation that the Product will conform. No employee or representative of TESSY has authority to bind TESSY to any representation, affirmation or warranty not specifically included herein.
11. Limitation of Liability
Notwithstanding anything to the contrary contained in this Agreement, TESSY’s aggregate liability in connection with the sale or use of Product(s) hereunder, regardless of the form of action giving rise to such liability (whether in contract, tort or otherwise), shall not exceed the aggregate purchase price for Products paid by Customer to TESSY pursuant to an applicable order. TESSY shall not be liable for any extraordinary, exemplary, special, indirect, consequential or incidental damages of any kind, including without limitation, lost profits, even if TESSY has been advised of the possibility of such damages. Except as provided in Section 10(a) above, and subject to the limitations set forth in Sections 10 and 11 hereof, TESSY shall not be liable for any claims of third parties relating to any use of the Products, and Customer will defend TESSY and hold TESSY harmless against all losses, liabilities, damages, claims and expenses, including, reasonable attorneys’ fees arising out of or in connection with the use or sale of Products by Customer or Customer’s employees, agents, customers, or contractors. THE FOREGOING STATES THE ENTIRE LIABILITY OF TESSY WITH REGARD TO THIS AGREEMENT AND TESSY’S SALE OF PRODUCT(S) HEREUNDER. THE LIMITATIONS CONTAINED IN SECTIONS 10 AND 11 ARE A FUNDAMENTAL PART OF THE BASIS OF TESSY’S BARGAIN HEREUNDER, AND TESSY WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS.
12. Special Products; Warranty & Indemnification by Customer
“Special Products” are those Products manufactured or furnished by TESSY in accordance with drawings, samples or manufacturing specifications designated by Customer or its customers. All Special Products must be accepted by Customer within thirty (30) days of manufacture; after thirty (30) days, TESSY may invoke a storage charge of 1% per month (12%) per annum on the purchase price. Customer hereby represents and warrants to TESSY that any Special Product(s), when built to Customer’s specifications, do not and will not infringe any rights of any third party, of any kind or nature. Customer shall indemnify, defend and hold harmless TESSY from all claims of any nature asserted or brought against TESSY resulting from a breach of Customer’s warranty hereunder. TESSY may retain as its own property any special tools or fixtures used in manufacturing Special Products.
13. Retained Security Interest
Until such time as the entire purchase price of the Products have been paid, Customer hereby grants to TESSY a first priority purchase money security interest in the Products supplied pursuant to the terms hereof. The rights and remedies of TESSY, as a secured party with respect to the Products shall be governed by the Uniform Commercial Code, or equivalent statute(s) of the State in which the Products are located. Customer authorizes TESSY to execute and record on behalf of Customer such financing statements and other instruments as TESSY may deem necessary to perfect or protect its security interest in the Products.
Notices may be delivered by overnight courier or fax, with proof of delivery, or by United States mail, registered or certified mail, with postage prepaid, in each case addressed to the party being notified at such party’s address referred to on the face of this Agreement, or at such other address as such party shall have notified the other party in writing.
15. Not Transferable
This Agreement is not transferable or assignable by Customer either directly or by operation of law without the prior written consent of TESSY.
Paragraph headings are for convenience only and shall not be construed to define or limit the operative provisions of this Agreement.
No amendment, change to or modification of this Agreement, or any schedules or attachments hereto, shall be valid unless the same shall be in writing and signed by the party or parties to be charged therewith.
18. Applicable Law
The rights and duties of the parties shall be governed by the laws of the State of New York. The federal and state courts located within Onondaga County, New York shall have exclusive jurisdiction to determine any and all actions and proceedings relating to or arising from this Agreement and the sale of Product(s) hereunder and each party hereby irrevocably consents to the personal and subject matter jurisdiction of such courts with respect thereto.
In the event any provision or provisions herein, or parts thereof, shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired and shall remain in full force and effect.