Tolteq Group, LLC
GENERAL TERMS AND CONDITIONS OF SALE
Acceptance of any order by Tolteq Group, LLC (“Seller”) is expressly made conditional on Buyer’s assent to the terms and conditions set forth herein. In the event that any of the terms or conditions of any purchase order, order confirmation or other communication of Buyer or Seller conflict with any of the terms and conditions set forth herein, these terms and conditions shall govern, and Seller hereby gives notice of its objection to any additional or different terms or conditions in any purchase order, order confirmation or communication from Buyer.
1. ACCEPTANCE OF ORDERS – All orders are subject to acceptance by Seller at its place of shipment, and Seller reserves the right to accept or reject any order. Possession of a price list does not constitute an offer to sell. Seller reserves the right to discontinue the manufacture or sale of any product at any time.
2. SHIPMENTS – Quoted shipping dates are based on estimates at the time of quotation. Seller will use its commercially reasonable efforts to meet such shipping dates, but Seller shall not be liable for any direct or indirect costs or damages, including without limitation incidental or consequential damages, resulting from late deliveries. Shipping terms will be FOB Seller’s warehouse.
For orders with indefinite delivery dates, Seller shall have the right to manufacture or procure the goods covered thereby and hold such goods for Buyer’s account pending receipt of definite shipping instructions. Except as expressly provided otherwise herein, Buyer agrees to purchase, and will be charged for, all material ordered.
3. PRICE – All prices are subject to change without notice. The price charged will be the price in effect at the time of shipment. Should any governmental action or request prevent Seller from implementing any price or continuing any price already in effect, Seller may cancel Buyer’s order or any part thereof.
4. CREDIT – Approval of Buyer’s credit is required prior to any shipment. If Buyer’s credit is unsatisfactory to Seller at any time for any reason or no reason at all, Seller reserves the right to suspend further deliveries, to require payment in advance, and/or to take such other actions as Seller determines in its sole discretion are advisable.
5. TERMS OF PAYMENT –
(a) Payment terms shall be as stated on individual invoices to Buyer. Invoices are payable in U.S. dollars only, unless otherwise expressly noted on the invoice. To earn cash discounts, payments must be received by the actual discount due date. Actual discount due date and net due date are based on “calendar days” from the invoice date. Cash discounts apply only to the net purchase price for goods and do not apply to any other invoice charges, including without limitation any applicable charges for packaging, handling or transportation.
(b) If any amount is not paid when due, Seller shall have the right, in addition to any other remedy available to it, to charge interest on such overdue amount at a rate equal to the lesser of 1.5% per month or the maximum rate permitted by law. In addition, if it becomes necessary to place Buyer’s account with an attorney or other agency for collection, Buyer shall be responsible for all costs and expenses, including reasonable attorneys’ and/or collection fees, incurred by Seller in connection therewith.
(c) ALL PAYMENTS, WHETHER UNDER THE STANDARD PAYMENT TERMS OR OTHERWISE, SHALL BE CONSIDERED RECEIVED BY SELLER AS FOLLOWS:
(i) FOR PAYMENTS BY CHECK, WHEN THE CHECK IS RECEIVED AT SELLER’S DESIGNATED PAYMENT LOCATION AND
(ii) FOR PAYMENTS BY ELECTRONIC FUNDS TRANSFER, THE BUSINESS DAY IMMEDIATELY PRECEDING THE DAY ON WHICH THE FUNDS ARE IMMEDIATELY AVAILABLE TO SELLER.
If Buyer (i) becomes insolvent or otherwise unable to pay its debts as they become due, files or has filed against it a petition in bankruptcy, makes any assignment for the benefit of creditors, or has a receiver or trustee appointed for it or its property, (ii) takes action to liquidate or otherwise cease doing business as a going concern, (iii) undergoes a change in ownership, (iv) sells or otherwise transfers a substantial portion of its assets, (v) fails to provide adequate assurance or security for credit extended, or (vi) takes any other action that Seller determines in its sole discretion adversely impacts the conditions under which credit was extended, then all amounts outstanding from Buyer hereunder shall at Seller’s option become immediately due and payable.
6. TAXES, DUTIES, IMPORT/EXPORT AND OTHER FEES – All prices and fees charged by Seller hereunder are exclusive of taxes, duties, import/export fees and any other fees. Buyer shall pay all taxes whether currently or hereafter applicable to, assessed upon or arising out of the transactions and relationships contemplated by these terms, including without limitation occupation, property, excise, withholding, sales, ad valorem, use or VAT taxes imposed upon Buyer. In addition, Buyer shall pay all duties and import/export and other fees applicable to, assessed upon or arising out of the transactions and relationships contemplated by these terms.
7. FREIGHT – Unless specified in writing to the contrary by Seller, freight will be paid by Buyer. Seller reserves the right to ship orders at the most economical rate. If Buyer requests special packaging, handling and/or transportation, any additional cost(s) incurred shall also be charged to Buyer on the invoice. In the event of any general freight increase or any governmental ruling or regulation that results in increased freight costs, Seller may increase its price without any advance notice to reflect such additional costs. The increased price shall apply to all goods shipped on or after the effective date of such increase, ruling or regulation.
8. RISK OF LOSS; DELIVERY – All shipments of goods hereunder shall be F.O.B. Seller’s place of shipment. Title to, and the risk of any damage to or loss or shortage of, such goods shall pass to Buyer upon delivery of such goods by Seller to the carrier. Any claims for loss or damage should be filed by Buyer with the carrier in writing immediately upon receipt of the goods and should be supported by an inspection report or signed delivery receipt noting such loss or damage. In no event shall Seller be liable for damage or loss to a shipment caused by any carrier.
9. RESTRICTIONS – Buyer acknowledges that Seller has invested a lot of time, energy and capital in order to develop its goods and that the goods contain Seller’s proprietary information, design, material and know how. Buyer agrees that it will protect Seller’s proprietary rights in the goods and will not, nor will it allow a third party to decompile, disassemble, reverse engineer, modify or create derivative works of the goods.
10. LICENSES –
(a) From Seller to Buyer. Any software or firmware, either stand alone or contained within the goods, will be licensed to Buyer and not sold. Title to and ownership of the software, firmware, documentation, works and any improved, updated, modified or additional parts thereof, and all copyright, patent, trade secret and other intellectual property rights embodied in the goods, firmware and/or software shall at all times remain the property of Seller or Seller’s licensors. Seller grants Buyer the license and use rights to applicable software or firmware and related documentation as set forth in the Tolteq Group, LLC End User License Agreement (the “EULA”). All software must be acquired via electronic download from Seller’s website or Seller’s authorized website. Buyer must agree to all the terms and conditions set forth in the EULA prior to the initiation of the distribution of the applicable software to Buyer. The EULA is available for review on Seller’s website.
(b) From Buyer to Seller. By using the goods that contain software and firmware, in accordance with the EULA, Buyer grants to Seller a worldwide, non-transferable, non-exclusive, royalty-free license to use, collect, store, reproduce, aggregate, adapt, modify, publish and distribute any Buyer data that is generated, stored and/or transmitted to Seller by the goods and/or software or firmware when the goods and/or software or firmware contained within the goods are connected to the Internet or the goods are returned to Seller for servicing.
11. WARRANTY; LIABILITY DISCLAIMER; EXCLUSION; REMEDY – Seller expressly warrants and agrees for a period of one year after Buyer accepts the goods hereunder, all goods covered by these terms will substantially conform to Seller’s specifications, drawings, samples and other written materials and descriptions and will be free from defects in design, material and workmanship, normal wear and tear and abnormal abuse, neglect or breakage is excepted.
THE ABOVE WRITTEN WARRANTY REFERENCED ABOVE AND HEREBY INCORPORATED HEREIN IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, ORAL OR WRITTEN, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN NO EVENT SHALL SELLER BE RESPONSIBLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OF ANY KIND.
Seller’s warranty obligation hereunder shall be null and void should it be determined by Seller that Buyer or a third party has made any modifications, alterations or repairs to the goods or that Buyer has reversed engineered or decompiled the goods or that the required scheduled maintenance on the goods has not been performed as specified in the owner’s manual provided by Seller. Additionally, Seller’s warranty obligation hereunder shall be null and void should it be determined by Seller that the goods have been serviced (maintenance or repair) negligently OR by a third party.
Seller’s entire liability and Buyer’s exclusive remedy under any express warranty contained herein is, at Seller’s option, either the (i) return of the payment that was made by Buyer to Seller for such item; or (ii) repair or replacement of the goods which do not meet the warranty contained in this section. Any repair or replacement of goods shall be warranted for the remainder of the original warranty period or 30 days, whichever is longer.
12. RETURN OF GOODS – Goods may not be returned without the prior approval of an authorized Seller representative. Only products identified as “standard” on the applicable product data sheets and/or Seller’s website in effect at the time such return is requested will be considered for return. All returned goods must arrive at the point of return designated by Seller in salable condition before any credit will be issued.
13. CHANGE ORDERS – Orders may be revised or canceled by Buyer prior to the following dates only, and only with Seller’s prior consent:
Prior to loading at the place of shipment.
Prior to customization.
Standard Products are as defined in applicable product data sheets and/or Seller’s website in effect at the time such revision or cancellation is requested. Customized Products will be considered on a case by case basis and identified on a custom quotation.
14. PAYMENT OF UNDISPUTED INVOICES – Buyer shall pay any undisputed invoices regardless of any dispute that may exist as to other delivered or undelivered goods. With respect to any disputed invoice, Buyer shall pay all amounts not in dispute. Buyer expressly waives the right to assert any offset or counterclaim with respect to amounts due under any invoice issued by Seller hereunder.
15. FORCE MAJEURE – Seller shall not be liable for delays or failure to perform hereunder for any cause beyond Seller’s reasonable control, including without limitation: fire, flood or other casualty or Act of God; strikes, lockouts or other labor trouble; shortage of labor, materials, fuel, or production facilities; equipment or other production failures; delay or interruptions in transportation; war, blockades, sanctions or embargoes; and legal restrictions or actions of any governmental authority.
16. CHANGE IN TERMS AND CONDITIONS OF SALE – These terms and conditions set forth the entire agreement between Seller and Buyer and supersede any and all prior representations, agreements or understandings, whether oral or written, relative to the goods delivered hereunder. No course of dealing or usage of trade shall be relevant to supplement or explain any of these terms or conditions. No modification or waiver of any of these terms and conditions shall be effective unless made in writing and signed by Seller. These terms and conditions supersede, and shall not be supplemented by, the terms of any purchase order, order confirmation or other communication of Buyer in connection with the purchase of goods from Seller. In the absence of Buyer’s written acceptance of these terms and conditions, the acceptance by Buyer of any goods delivered hereunder shall constitute acceptance of these terms and conditions.
17. EXPORT CONTROLS AND SANCTIONS – Buyer agrees that it is responsible for compliance with all applicable United States export control laws and regulations and will not export, re-export or transfer the goods and/or software to any entity or person within any country that is subject to United States export controls or economic sanctions without obtaining prior authorization from the United States Government. The list of countries subject to United States economic sanctions or embargoes may change from time to time but currently includes Cuba, Iran, North Korea, Republic of the Sudan (North Sudan) and Syria. Buyer agrees that it will not export, re-export, or transfer the goods and/or software to entities or persons that are ineligible under United States law to receive such items, including but not limited to, any person or entity on the United States Treasury Department’s List of Specially Designated Nationals and Blocked Persons or on the United States Commerce Department’s Denied Persons List, Entity List or Unverified List. (See www.bis.doc.gov/complianceandenforcement/liststocheck.htm for access to these restricted party lists.) Buyer further agrees that the goods and/or software will not be used in any activities or facilities that involve end-uses prohibited by the United States Government, including the design, development, production, stockpiling or use of missiles or nuclear, chemical or biological weapons. In addition, the goods and/or software may not be used in any facilities used to process nuclear or source material; heavy water production; separation of isotopes for source and special nuclear material; fabrication of nuclear reactor fuel containing plutonium; or unsafeguarded nuclear facilities. Buyer and Buyer’s freight forwarder will be responsible for any failure to comply with applicable United States export requirements.
18. DISPUTE RESOLUTION BY BINDING ARBITRATION – Any controversy or claim arising out of or relating to this contract and/or the purchase, sale, or use of any product and/or service furnished by Seller shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules including the Optional Rules for Emergency Measures of Protection, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
The damage award in any arbitration may not exceed the total amount paid by Buyer to Seller for the goods and/or services at issue and shall not include an award of consequential or punitive damages.
Each party shall bear its own costs and expenses and an equal share of the arbitrators’ and administrative fees of arbitration. Notwithstanding the foregoing, should Seller successfully compel arbitration under these terms and conditions, Buyer shall pay Seller’s reasonable and necessary costs and attorneys’ fees incurred in compelling arbitration.
The place of arbitration shall be Travis or Williamson County, Texas, U.S.A. and the language of the arbitration shall be English.
The parties acknowledge that these terms and conditions evidence a transaction involving interstate commerce. The United States Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to this arbitration clause and these terms and conditions.
Except as may be required by law or to enter a judgment on an arbitration award, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
Although the parties agree that compulsory and binding arbitration shall be the exclusive means of dispute resolution, judicial review of any arbitration decision or proceeding (other than entry or enforcement of an arbitration award/judgment) or of any matter arising under these terms and conditions, whether or not submitted to the binding arbitration process required by these terms and conditions, shall be brought solely in the federal or state courts of Williamson or Travis County, Texas.
19. GENERAL – No agreement by Seller to supply goods to Buyer may be assigned or transferred (by operation of law or otherwise) by Buyer without the prior written consent of Seller, and any purported assignment made without such consent shall be null and void. For this purpose, an assignment shall include the sale or other transfer of a controlling interest in the stock or other equity of Buyer and any merger of Buyer with or into another entity. These terms and conditions shall inure to the benefit of and be binding upon Seller and Buyer and their permitted successors and assigns.
Seller may terminate any agreement to supply goods to Buyer immediately in the event that Buyer becomes insolvent or otherwise unable to pay its debts as they become due, is declared insolvent or bankrupt, files or has filed against it a petition in bankruptcy, makes any assignment or trust mortgage for the benefit of creditors, or has a receiver, guardian, conservator, trustee in bankruptcy, or similar official appointed by a court of competent jurisdiction to take charge of all or any part of its property.
All agreements by Seller to supply goods to Buyer shall be governed by and construed in accordance with the laws of the state of Texas, without giving effect to its conflicts of law provisions and without regard to the United Nations Convention on Contracts for the International Sale of Goods.