Document
Sales Terms and Conditions
SALES TERMS AND CONDITIONS
1. GENERAL
1.1 The following Terms and Conditions (“Terms”) are applicable to all
sales of apparatuses, instruments, tools, materials, articles,
documentation, software and any other goods (the “Products”) by TOMST
Inc., a Delaware corporation with its registered office located at 251
Little Falls Drive, Wilmington, DE 19808 (“Seller”), and the acceptance
of any order is expressly conditioned upon Buyer’s consent to these
Terms. No interlineations, deletions, modifications or amendments to
these Terms shall be binding on Seller unless agreed to and accepted in
writing by Seller, nor shall Buyer’s terms and conditions have any legal
effect unless accepted by Seller in writing. The initiation of
performance under the contract shall indicate Buyer’s acceptance of
these Terms.
2. PRICE QUOTATION; PRODUCT INFORMATION
2.1 The quotations or tenders are noncommittal and non-binding in
nature. No contract shall arise until a written acknowledgment from
Seller accepting Buyer’s order, is sent by Seller to Buyer. Whether
during the quotation stage or after an order is placed, the Seller may
adjust the agreed prices without prior notice to reflect changes in the
average cost of the Products, services, or activities to be performed by
the Seller, as well as any applicable taxes, assessments, levies,
customs duties, tariffs, or similar charges.
2.2 The weights, dimensions, capacities, performance ratings,
characteristics and other data on Seller’s catalogs, prospectuses,
brochures, plans, drawings, circulars, advertisements, price lists,
website and instructions sheets are mentioned only as general
information. They are only approximate and shall not bind Seller.
3. ORDERS
3.1 All sales are subject to Seller’s written acceptance, and Seller
reserves the right to reject any order at its sole discretion, with or
without reason. Buyer must respond to Seller’s written acceptance within
twenty-four (24) hours of receiving such confirmation if it wishes to
cancel the order. Failure to do so will result in: (i) Buyer waiving its
right to cancel the order and paying the contract price, and (ii) Buyer
being deemed to have accepted these Terms.
4. DELIVERY; DELAYS IN DELIVERY
4.1 Unless otherwise specified by the parties in writing, the Products
are to be delivered “Delivered Duty Paid” at Buyer’s premises (as DDP is
defined by Incoterms 2020).
4.2 Any specific shipping date designated in writing signed by Seller
shall be interpreted as estimated and in no event shall dates be
construed as falling within the meaning of “time is of the essence”.
Seller shall not be responsible for any delays in filling orders, nor
shall it be liable for any loss or damages resulting from such delays
regardless of whether such delays are due to force majeure or otherwise.
4.3 Under no circumstances shall Buyer or Buyer's customers be entitled
to any damages for Seller's failure to ship on time, and Buyer agrees to
indemnify, defend and hold Seller harmless against any costs and
expenses related to any claims for lost profits or other consequential
damages based on Seller's failure to deliver timely.
4.4 If Buyer does not accept or pick up the Products at the date
specified in the order or later agreed to by Seller, the delivery of the
Products shall nevertheless be deemed accepted by Buyer who shall
therefore pay for the Products delivered. The storage of the Products
arranged by Seller will be at the risk and expense of Buyer. At its sole
discretion, Seller may decide to terminate the contract upon written
notice to Buyer and Seller shall be entitled, to the exclusion of any
other remedy for Buyer’s failure to take the Products, to compensation
for the loss it suffered as a result of Buyer’s delay, including any
consequential and indirect loss, as well as any expenses properly
incurred in performing the contract and not covered by payments received
for the Products delivered.
5. PAYMENT
5.1 Unless otherwise specified by the parties in writing, payment for
the Products shall be received by Seller within thirty (30) calendar
days net from the date of the issuance of the invoice for the same
period, by ACH transfer into Seller’s account. In the event Seller feels
insecure concerning payment by Buyer, Seller reserves the right to
require cash or letter of credit payment terms.
5.2 The price does not include any present or future Federal, State or
Local property, sales, use, excise, license, gross receipts or other
taxes or assessments which may be applicable to, imposed upon or result
from this transaction or any services performed in connection with these
Terms and/or the Products. Seller reserves the right to charge Buyer for
any such amounts incurred by Seller on Buyer’s behalf.
5.3 In the event payment is not received when due, interest shall be due
at the rate of one and half percent (1.5%), or the maximum permitted by
law, whichever is lower, on the unpaid portion of the invoice sum for
each period of thirty (30) calendar days or part thereof from the due
date.
5.4 Seller has the right to refuse to deliver the Products or services
if Buyer is past due on any of its debts to Seller.
5.5 Buyer shall pay all of Seller's costs of collection of any amounts
past due, including, but not limited to, attorneys' fees, court costs,
witness fees, travel and lodging.
5.6 Buyer, or its affiliates or assignees, will not be entitled to
suspend its payment obligations to Seller, claim any right to
compensation and/or to offset its payment obligations with any
obligations of Seller to Buyer, with such obligations being those set
forth in these Terms or any other purchase contract between Buyer and
Seller. If Buyer does not fulfill its payment obligations to Seller
completely or within the applicable payment period, Seller will be
entitled to suspend its obligations to Buyer completely and/or not to
perform them. Seller will also be entitled to terminate the contract by
notifying Buyer in writing.
6. SECURITY INTEREST
6.1 In order to protect and secure payment of all debts due and owing
from Buyer and until Seller has been paid in full, Buyer hereby grants
to Seller a security interest in the Products, and all proceeds and all
accounts receivables resulting from the sale of the Products. In
connection therewith, Buyer hereby authorizes Seller to take all
necessary steps to file such financing statements and exhibits with the
proper authorities, including the filing of a UCC-1 financing statement.
6.2 Until Buyer has paid for the Products and services in full, Buyer
shall not pledge, mortgage, encumber, or create or suffer to exist a
security interest in the Products in favor of any person other than
Seller unless written approval of such other security interest is given
by Seller. Additionally, Buyer agrees to keep the Products insured to
their full value until payment is received by Seller. In the event Buyer
sells the Products to a third party before payment in full is received
by Seller, Buyer agrees to secure its security interest in the Products
at the time of sale to its customer in order to protect Seller’s
interests to the greatest extent possible.
7. INSPECTION; RETURNS
7.1 If any damage or defect occurs during shipping, Buyer shall notify
Seller in writing, providing full details, within forty-eight (48) hours
from the date of delivery. Failing such notice, the Products shall be
deemed to have been delivered in good condition and accepted by Buyer.
Acceptance of the returned Products does not imply acknowledgment by
Seller of the reason for the return. The Products returned by Buyer to
Seller will remain at Buyer's risk and Buyer will owe the agreed amounts
until Seller has credited Buyer for these Products. The Products
accepted by Buyer from Seller, which Buyer has put fully or partly into
use, treated, processed or delivered to others will be considered to
conform to the contract.
8. LIMITED WARRANTY
8.1 Seller’s warranty is as set forth in its Limited Warranty. Seller
does not authorize Buyer to provide any other warranties to end users
beyond that granted in Seller’s Limited Warranty. Buyer shall indemnify,
defend and hold Seller and any affiliated companies harmless against any
claims made by third parties based on any representation or warranty
made by Buyer that differs in any way from Seller’s Limited Warranty.
9. INDEMNIFICATION
9.1 Except as otherwise provided for herein, Buyer, on its own behalf,
and behalf of its parent, subsidiary(ies), affiliated and related
companies, and their respective predecessors, past and present officers,
directors, shareholders, agents, employees, legal representatives,
successors and assigns (the “Indemnifying Parties”) assumes liability
for, and shall pay when due, and shall indemnify, reimburse and hold
Seller, and its parent, subsidiary, affiliated and related companies,
and their respective predecessors, past and present officers, directors,
shareholders, agents, employees, legal representatives, successors and
assigns (the “Indemnified Parties”) harmless from and against any and
all Claims (defined below), directly or indirectly relating to or
arising out of the acquisition, use, purchase, shipment, transportation,
delivery, lease or sublease, ownership, operation, possession, control,
storage, return or condition of the Products (regardless of whether the
Products are at the time in the possession of the Indemnifying Parties),
the falsity of any representation or warranty of Buyer, or Buyer’s
failure to comply with these Terms. The foregoing indemnity shall cover,
without limitation, any claim for negligence, gross negligence, or
liability in tort.
9.2 “Claims” means any and all liabilities, losses, damages, actions,
suits, demands, claims of any kind and nature and all costs and expenses
whatsoever to the extent they may be incurred or suffered by the
Indemnified Parties in connection with the Products (including, without
limitation, reasonable attorneys’ fees and expenses), fines, penalties
(and other charges of applicable governmental authorities), damage to or
loss of use of property (including, without limitation, consequential or
special damages to third parties or damages to Buyer’s property), or
bodily injury to or death of any person(s) (including, without
limitation, any agent or employee of Buyer, user of the Products, or any
other person).
10. INTELLECTUAL PROPERTY RIGHTS
10.1 All intellectual property rights to, ownership of, and interest in
all Products, goods, services, programs, works, trademarks, trade names,
logos, distinctive marks, inventions, models, designs, and other
materials created and/or made available by Seller hereunder or within
the framework of the relationship between Buyer and Seller (the
“Intellectual Property”) are vested exclusively in Seller.
10.2 Buyer shall not reproduce, modify, transfer, grant, assign, license
or use the Intellectual Property, except in accordance with these Terms.
10.3 Buyer shall not remove or alter indications concerning the
Intellectual Property rights and concerning the confidential nature of
information from the Products, goods, services, programs, works,
distinctive marks, inventions, designs, models and other materials
created and/or made available by Seller and the Products delivered.
10.4 In the event the Products are produced by Seller in accordance with
specifications submitted by Buyer, Buyer shall indemnify Seller against
all loss, damages, costs and expenses awarded against or incurred by
Seller in connection with or paid or agreed to be paid by Seller in
settlement of any claim for infringement of any patent, copyright,
design, trademark or other industrial or intellectual property rights of
any other person which results from Seller’s use of Buyer’s
specifications.
10.5 Seller makes no warranty concerning the appropriateness of the
Products or services to the purposes for which Buyer or its customer are
acquiring same. Moreover, Seller makes no warranty that the Products or
services, or any other Intellectual Property of Seller, do not infringe
the rights of third parties.
11. CONFIDENTIALITY
11.1 Buyer shall keep in strict confidence all technical or commercial
know-how, specifications, inventions, processes, or initiatives which
are of a confidential nature and have been disclosed to Buyer by Seller,
its employees, agents or subcontractors, and any other confidential
information concerning Seller’s business, the Products and services
which Buyer may obtain. Buyer shall only disclose such confidential
information to those of its employees, agents and subcontractors who
need to know it for the purpose of discharging Seller’s obligations
under the contract, and shall ensure that such employees, agents and
subcontractors comply with the obligations set out in this section as
though they were a party to the contract. Buyer may also disclose such
of Seller's confidential information as is required to be disclosed by
law, any governmental or regulatory authority or by a court of competent
jurisdiction. This section shall survive termination of the contract.
12. FORCE MAJEURE
12.1 Neither party shall be in breach of the contract nor liable for
delay in performing, or failure to perform, any of its obligations under
it if such a delay or failure result from events, circumstances or
causes beyond its reasonable control including but not limited to, Acts
of God, flood, drought, earthquake or other natural disaster; terrorist
attack, civil war, civil commotion or riots, war, threat of or
preparation for war, armed conflict, imposition of sanctions, embargo or
breaking off of diplomatic relations; nuclear, chemical, biological
contamination or sonic boom, epidemic or pandemic; any law or any action
taken by a Government or a public authority including without limitation
imposing an export or import restriction, quota or prohibition, and the
collapse of buildings, fire, explosion or accident (a "Force Majeure
Event").
12.2 Both parties shall use all reasonable effort to mitigate the effect
of a Force Majeure Event on the performance of their obligations. If a
Force Majeure Event prevents, hinders or delays Seller’s performance of
its obligations for a continuous period of more than three (3) months,
Seller may terminate the contract immediately by giving written notice
to Buyer.
13. TERMINATION
13.1 Seller will be entitled to suspend or terminate the contract
unilaterally upon written notice to Buyer, with immediate effect, fully
or in part if:
Buyer has failed, or it is the Seller’s belief that Buyer will fail,
to fulfill one or more of its obligations under these Terms or any
other contracts;Buyer has suspended payments or has sought the protection of the
Bankruptcy Courts;a petition for the involuntary bankruptcy of Buyer has been filed;
Buyer’s property on Seller’s premises has been attached in
execution;a resolution for the dissolution and/or winding up of Buyer has been
adopted;the enterprise operated by Buyer has been fully or partly
transferred to a third party without consent of Seller;Buyer’s disregards any applicable statute, law, ordinance, code,
order, rule, regulation, proclamation or other governmental
requirement.
Seller shall not be liable with respect to Buyer for any damages arising
from suspension or termination of the contract for the aforementioned
reasons.
13.2 If the contract is suspended or terminated, performance of the
contract already received by Buyer and the payment obligations of Buyer
in connection with it will remain. The amounts invoiced by Seller for
Products delivered or work actually performed prior to or upon
termination of the contract will be immediately due and payable after
termination. Buyer agrees to pay any of Seller’s costs, damages,
attorneys’ fees and other expenses associated with Seller’s termination
of any contract with Buyer pursuant to the terms of this section.
Seller’s right of termination shall be without prejudice to any claims
or other rights or remedies which Seller may have against Buyer by
operation of law or otherwise.
14. GOVERNING LAW; JURISDICTION
14.1 These Terms and all transactions between Seller and Buyer are
governed by the laws of the State of Delaware in the United States of
America, without reference to conflict of laws principles. The
application of the United Nations Convention on the International Sale
of Goods is expressly excluded.
14.2 In the event of a dispute arising from or relating to these Terms,
which is not resolved by negotiation between the parties, the parties
hereby agree to exclusive personal jurisdiction in the state and federal
courts located in Chicago, Illinois, in the United States of America.
15. ENTIRE AGREEMENT
15.1 These Terms constitute the sole terms and conditions of the
contract between Buyer and Seller. No other terms, conditions, or
understanding, whether oral or written, shall be binding upon the
Seller, unless hereafter made in writing and signed by Seller's
authorized representative and, in the case of printed matter, also
initialed by such representative next to such printed term or condition.
16. SEVERABILITY
16.1 Should any provision of these Terms be judicially declared
unenforceable, that provision shall be deemed stricken and the remainder
shall continue in full force and effect insofar as it remains a workable
instrument for effectuating the intents and purposes of the parties. The
parties further agree to renegotiate any so severed provision to bring
the same within applicable legal requirements to the greatest extent
possible.
17. ASSIGNMENT
17.1 Buyer shall not assign or transfer these Terms or any related
contract or purchase order without the prior written consent of Seller.
Seller shall expressly be permitted to assign or transfer, without the
prior written consent of Buyer, Seller’s right to receive any or all of
the payment due from Buyer under these Terms.