TEMO USA INC.'S
General terms and conditions 
of the sale of goods

THIS PAGE CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY. THESE TERMS AND CONDITIONS OF SALE REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. 

1.                  Applicability.  

(a)               These terms and conditions of sale (these “Terms”) are the only terms that govern the sale of the goods (the “Goods”) by TEMO USA INC., a Delaware Corporation (the “Seller”) to the buyer named on the reverse side of these Terms or on a Sales Confirmation as defined below (the “Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.

(b)               The accompanying quotation, purchase order, and invoice (the “Sales Confirmation” 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.

2.                  Delivery.  

(a)               Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to an agreed-upon place of delivery (the “Delivery Point”), using Seller’s standard methods for packaging and shipping such Goods.

(b)               Seller uses the services of Isafold Distribution Center, located at 45 Center St, Scarborough, ME 04074 (the “Distribution Center”) for storage and distribution across the U.S. The Distribution Center partners with FedEx, UPS and USPS to deliver the Goods, and Buyer shall get written notice when the Goods have been delivered to the Delivery Point.

(c)               Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. 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.

(d)               If for any reason Buyer fails to accept delivery of any of the Goods on the delivery date at the Delivery Point, or if Seller’s delivery service providers are unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage, and insurance).

(e)               The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. The Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within forty-eight (48) hours of the date when the Goods would in the ordinary course of events have been received. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.

3.                  Shipping Terms; Title and Risk of Loss.

(a)               We will arrange for shipment of the Goods to you.

(b)               Delivery shall be made in accordance with Incoterms® Delivered At Place (DAP)[1] requirements, unless otherwise agreed on the face of the Sales Confirmation.

(c)               The goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished Goods. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.

(d)               Title and risk of loss pass to Buyer upon delivery of the Goods at the Delivery Point.

4.                  Price.

(a)               Buyer shall purchase the Goods from Seller at the price (the “Price”) set forth in Seller’s published price list in force as of the date that Seller accepts Buyer’s purchase order.

(b)               You may be required to pay shipping and handling charges specified on the Sales Confirmation. Shipping and handling charges are reimbursement for the costs we incur in the processing, handling, packing, shipping, and delivery of your order.

(c)               All Prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized in your Sales Confirmation.

5.                  Payment Terms.  

(a)               Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before we accept an order. We accept cash (e.g., during trade shows), wire transfer, credit card (Visa or Mastercard), AMEX, direct debit or ACH for all purchases. Buyer shall make all payments hereunder and in US dollars.

(b)               You represent and warrant that (i) the payment information you supply to us is true, correct, and complete, (ii) you are duly authorized to use such payment method for the purchase, (iii) charges incurred by you will be honored, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted at the time of your order.

6.                  Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by each party.

7.                  Returns and Refunds. Except for any Goods designated as final sale or non-returnable, we will accept a return of the Goods for a refund of your purchase price, less the original shipping and handling costs provided such return is made within fourteen (14) days of delivery with valid proof of purchase and provided such Goods are returned in their original condition. To return Goods, you must email our Returns Department at [email protected] to obtain a Return Merchandise Authorization (“RMA”) number before shipping your product. No returns of any type will be accepted without an RMA number.

You are responsible for all shipping and handling charges on returned items, unless otherwise specified. You bear the risk of loss during shipment. We therefore recommend that you fully insure your return shipment against loss or damage and that you use a carrier that can provide you with proof of delivery for your protection.

Refunds are processed within approximately three (3) business days of our receipt of your merchandise. Your refund will be credited back to the same payment method used to make the original purchase when feasible or by wire transfer. WE OFFER NO REFUNDS ON ANY GOODS DESIGNATED AS NON-RETURNABLE.

For defective returns, please refer to the warranty section.

8.                  Limited Warranty.

THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.

WE WARRANT THAT DURING THE WARRANTY PERIOD, THE GOODS PURCHASED FROM US WILL BE MATERIALLY CONFORM TO THE SPECIFICATIONS PUBLISHED OR PROVIDED TO BUYER WHICH ARE IN EFFECT AS OF THE DATE OF SHIPMENT UNDER THE CORRESPONDING TRANSACTION AND FREE FROM DEFECTS IN MATERIALS.

WE LIMIT THE DURATION AND REMEDIES OF ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE DURATION OF THIS LIMITED WARRANTY.

SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

OUR RESPONSIBILITY FOR DEFECTIVE GOODS IS LIMITED TO REPAIR, REPLACEMENT OR REFUND AS SET FORTH IN THIS WARRANTY STATEMENT. NEITHER ANY PERFORMANCE OR OTHER CONDUCT, NOR ANY ORAL OR WRITTEN INFORMATION, STATEMENT OR ADVICE PROVIDED BY US OR ANY OF OUR DISTRIBUTORS, AGENTS OR EMPLOYEES WILL CREATE A WARRANTY, OR IN ANY WAY INCREASE THE SCOPE OR DURATION OF THIS LIMITED WARRANTY.

(a) Who May Use This Warranty? This limited warranty extends to the original purchaser of Goods and to any subsequent or other owner or transferee of the Good.

(b) What Does This Warranty Cover? This limited warranty covers during the Warranty Period (as defined below) defects in conformity with specifications and materials in Goods purchased.

(c) What Does This Warranty Not Cover? This limited warranty does not cover any damages due to: (i) transportation; (ii) storage; (iii) improper use; (iv) failure to follow the product instructions or to perform any preventive maintenance; (v) modifications; (vi) combination or use with any products, materials, processes, systems or other matter not provided or authorized in writing by TEMO SAS, a company organized under the laws of France; (vii) unauthorized repair; (viii) normal wear and tear; or (ix) external causes such as accidents, abuse, or other actions or events beyond our reasonable control.

(d) What Is the Period of Coverage? This limited warranty starts on the date of the invoice and lasts for two (2) years the “Warranty Period.” The Warranty Period is not extended if we repair or replace a warranted Good. We may change the availability of this limited warranty at our discretion, but any changes will not be retroactive.

(e) What Are Your Remedies Under This Warranty? With respect to any defective Goods during the Warranty Period, we will, in our sole discretion, either repair or replace such Goods (or the defective part) free of charge. We will also pay for shipping and handling fees to return the repaired or replacement product to you.

(f) How Do You Obtain Warranty Service? To obtain warranty service, you must email our Customer Service Department at [email protected] during the Warranty Period to obtain an RMA number. No warranty service will be provided without an RMA number. Our Customer Service Department will guide you through our step-by-step process.

(g) What Can You Do in Case of a Dispute with Us? The informal dispute resolution procedure detailed in Section 18 is available to you if you believe that we have not performed our obligations under this limited warranty or these Terms.

9.                  Limitation of Liability. THE REMEDIES DESCRIBED ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF THIS LIMITED WARRANTY. OUR LIABILITY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE DEFECTIVE GOOD THAT YOU HAVE PURCHASED, NOR WILL WE UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY LOSS OF PRODUCTION, WORK, DATA, USE, BUSINESS, GOODWILL, REPUTATION, REVENUE OR PROFIT, ANY DIMINUTION IN VALUE, COSTS OF REPLACEMENT GOODS, OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

10.              No Waiver. The failure by us to enforce any right or provision of this Agreement will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Seller.

11.              Goods Not for Resale or Export. You represent and warrant that you are buying Goods for your own personal or household use only, and not for resale or export. You further represent and warrant that all purchases are intended for final delivery to locations within the US.

12.              Intellectual Property. TEMO SAS is and will remain the sole and exclusive owner of all intellectual property rights in and to each Good and any related specifications, instructions, documentation or other materials, including, but not limited to, all related copyrights, patents, trademarks and other intellectual property rights, subject only to the limited license agreement. You do not and will not have or acquire any ownership of these intellectual property rights in or to the Goods.

13.              Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller 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 Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller 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.

14.              Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in our performance under this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, (a) acts of God; (b) flood, fire, earthquake, or other potential disasters or catastrophes, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other events beyond the control of the Seller.

15.              Assignment. You will not assign any of your rights or delegate any of your obligations under this Agreement without our prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves you of any of your obligations under this Agreement.

16.              No Third-Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies upon any person other than you.

17.              Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Maine without giving effect to any choice or conflict of law provision or rule (whether of the State of Maine or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Maine.

18.              Dispute Resolution and Binding Arbitration.

(a)               YOU AND TEMO USA INC. ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.

ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT, OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF GOODS, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.

(b)               The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.

(c)               You may elect to pursue your claim in small-claims court rather than arbitration if you provide us with written notice of your intention do so within 60 days of your purchase. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy.

(d)               You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR TEMO USA INC. WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.

If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced.

19.              Notices. All notices, requests, 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 Sales Confirmation 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 or email (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.

20.              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.

[1] Incoterms® logo is a trademark of ICC. Use of these trademarks does not imply association with, approval of, or sponsorship by ICC unless specifically stated above. The Incoterms® Rules are protected by copyright owned by ICC.  Further information on the Incoterm® Rules may be obtained from the ICC website iccwbo.org.