THE SALE OF PRODUCTS AND SERVICES (“PRODUCTS”) BY TRU-TRONICS INTERNATIONAL ARE SUBJECT TO AND CONDITIONED UPON THE UNCONDITIONAL ACCEPTANCE, BY THE PURCHASER (HEREINAFTER REFERRED TO AS “CUSTOMER”), OF ALL OF THE WITHIN PROVISIONS (HEREINAFTER REFERRED TO AS “AGREEMENT”). CUSTOMER AGREES AND PREPRESENTS THAT ANY ADDITIONAL TERMS OR CONDITIONS THAT CONFLICT OR CONTRADICT THIS AGREEMENT IN ANY PURCHASE ORDER, DOCUMENT, OR ANY OTHER COMMUNICATION ARE NULL AND VOID AND UNENFORCEABLE. CUSTOMER FURTHER EXPRESSLY AGREES THAT TRU-TRONICS INTERNATIONAL’S SIMPLE FAILURE TO OBJECT TO CONFLICTING OR ADDITIONAL TERMS WILL NOT CHANGE OR ADD TO THE TERMS OF THIS AGREEMENT AND THAT THE ONLY WAY THAT THIS AGREEMENT MAY BE MODIFIED IS BY THE EXPRESS WRITTEN AGREEMENT OF AN AUTHORIZED AGENT OF TRU-TRONICS INTERNATIONAL..
1. ORDERS. All Orders are subject to acceptance by Tru-Tronics International. No Order is effective unless and until it is accepted by Tru-Tronics International. Tru-Tronics International reserves the right to allocate the sale of Products among its customers as it sees fit.
2. PRICES. Tru-Tronics International’s quoted prices will be honored for thirty (30) days after the date stated on the quote, unless another date is expressly stated in its quote. Tru-Tronics International may increase prices if Tru-Tronics International’s costs increase or if there are other circumstances beyond Tru-Tronics International’s reasonable control. Prices contained in quotes are for Products only and do not include any other charges or fees that might apply, such as, by way of example, taxes, impositions, tariffs, shipping charges, and duities imposed by any government authority. Customer is solely responsible for any and all additional charges or fees that might apply.
3. TERMS OF PAYMENT. Payment of the total invoice amount, without offset or deduction, is due thirty (30) days from the invoice date. On any past due invoice, Tru-Tronics International will charge Customer interest of one and one half percent (1.5%) per month from the day payment becomes late up to the date payment is received. Customer is also responsible for paying all reasonable attorney’s fees and collection costs incurred by Tru-Tronics International in collecting on any past due amounts owed by Customer. Tru-Tronics International may, at its sole discretion, apply payments to any of Customer’s accounts.
4. DELIVERY AND TITLE. Customer is responsible for all shipping costs and any applicable surcharges. Title and risk of loss pass to Customer upon delivery of the Products by Tru-Tronics International to the carrier. Tru-Tronics International’s delivery dates are estimates only and Tru-Tronics International is not liable for delays in delivery. Tru-Tronics International reserves the right to make partial shipments and Customer will accept delivery and pay for the Products delivered. A delayed delivery of any part of an Order does not entitle Customer to cancel other deliveries or Orders.
5. ACCEPTANCE OF PRODUCTS AND RETURNS. Customer must notify Tru-Tronics International in writing of any damage, shortage, or other discrepancy respecting the Products within two (2) days after delivery to the Customer. After the second (2nd) day has passed without such written notification being given to Tru-Tronics International by Customer, Customer is conclusively deemed to have accepted the Products as is, and may not revoke acceptance. Customer may not return Products to Tru-Tronics International without first obtaining, from Tru-Tronics International, a Return Material Authorization (“RMA”) specifically authorizing the return of specified Products. Tru-Tronics International has the sole and unfettered discretion to determine whether to issue Customer an RMA. In the event Customer obtains an RMA from Tru-Tronics International, Customer must return Products described in the RMA to Tru-Tronics International in the original manufacturer’s shipping cartons or equivalent. Customer must return Products described in the RMA to Tru-Tronics International freight prepaid, and in accordance with any and all instructions as specified in the Tru-Tronics International RMA. Customer must pay any and all restocking charges to Tru-Tronics International without first having obtained, from Tru-Tronics, an RMA, Tru-Tronics International, at its sole discretion, will either return all such Products to Customer freight collect, or will notify Customer that it is holding Products for Customer’s account at Customer’s expense.
6. NCNR PRODUCTS. Orders for Products that are special, custom, value-added items, or products specifically identified by Tru-Tronics International as non-standard are designated “non-cancelable and non-returnable” (hereinafter referred to as “NCNR”). Customer understands that such Products are not commonly held in stock by Tru-Tronics International and that such Products might be unique, or difficult for Tru-Tronics International to obtain, and, as such, Tru-Tronics International is undertaking to specially procure such Products for Customer. For this reason, Customer may not cancel or reschedule orders for NCNR Products without Tru-Tronics International’s express written consent, which shall not be unreasonably withheld. NCNR Products may not be returned to Tru-Tronics International by Customer under any circumstances unless Tru-Tronics International first issues Customer an RMA authorizing the return of the specific Products. Tru-Tronics, International has the sole and unfettered discretion to determine whether or not, under the circumstances, to issue an RMA to Customer for the return of NCNR Products, and Customer understands that, for the reasons stated above, Tru-Troniics International does not typically issue an RMA for NCNR products absent some compelling circumstances. In the event Customer obtains an RMA from Tru-Tronics International for the return of NCNR Products, Customer must return the NCNR Products described in the RMA to Tru-Tronics International in the original shipping cartons or equivalent. Customer must return NCNR Products described in the RMA to Tru-Tronics International freight prepaid, and in accordance with any and all instructions as specified in the Tru-Tronics International RMA. Customer must pay any and all restocking and other charges to Tru-Tronics International. In the event Customer returns any NCNR Products to Tru-Tronics International without first having obtained, from Tru-Tronics, an RMA, Tru-Tronics International, at its sole discretion, will either return all such NCNR Products to Customer freight collect, or will notify Customer that it is holding such NCNR Products for Customer’s account at Customer’s expense.
7. TRU-TRONICS INTERNATIONAL’S LIMITED WARRANTY. Tru-Tronics International will transfer to Customer any Product warranties and indemnities authorized by the manufacturer, including any transferable warranties and indemnities for intellectual property infringement. Tru-Tronics International warrants the Products will conform to the manufacturer’s specifications. Value-added work performed by Tru-Tronics International on Products will conform to Customer’s specifications. Tru-Tronics International MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED. Tru-Tronics International MAKES NO WARRANTY OF MERCHANTABILITY, FITNESS FOR PURPOSE OR NON-INFRINGEMENT. If products do not meet manufacturer’s specifications or if value-added work by Tru-Tronics International does not meet Customer’s specifications, Tru-Tronics International will in its sole discretion, either: (1) Repair the Products at no cost to the Customer, (2) Replace the Products at no cost to Customer; or (3) Refund Customer’s purchase price. Customer must return Products to Tru-Tronics International, along with acceptable proof of purchase, within thirty (30) days from date of delivery, freight charges prepaid. The limited warranty, as stated in this paragraph, will not apply, and will become null and void, if Tru-Tronics International does not receive, from Customer, the Products, along with acceptable proof of purchase, within thirty (30) days from the date of delivery.
8. LIMITATION OF LIABILITY. TRU-TRONICS INTERNATIONAL IS NOT LIABLE FOR, AND CUSTOMER IS NOT ENITITLED TO, ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SUCH AS, BY WAY OF EXAMPLE, LOSS OF PROFITS OR REVENUE, LOSS OF DATA, LOSS OF USE, REWORK, MANUFACTURING EXPENSE, INJURY TO REPUTATION, OR LOSS OF BUSINESS. CUSTOMER’S RECOVERY FROM TRU-TRONICS INTERNATIONAL FOR ANY DIRECT DAMAGES WILL NOT EXCEED THE PRICE OF THE PRODUCT AT ISSUE. CUSTOMER WILL INDEMNIFY, DEFEND AND HOLD TRU-TRONICS INTERNATIONAL HARMLESS FROM ANY CLAIMS BASED ON: (1) TRU-TRONICS INTERNATIONAL’S COMPLIANCE WITH CUSTOMER’S DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS, (2) MODIFICATION OF ANY PRODUCTS BY ANYONE OTHER THAN BY TRU-TRONICS INTERNATIONAL, OR (3) USE IN COMBINATION WITH OTHER PRODUCTS.
9. FORCES BEYOND BY TRU-TRONICS INTERNATIONAL’S CONTROL. Tru-Tronics International is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond its reasonable control, (for example: acts of God, acts of omissions of the Customer, man-made or natural disasters, acts of war, epidemic or medical crises, materials shortages, strikes, acts of terrorism, delays in transportation, or inability to obtain labor or materials through its regular sources).
10. USE OF PRODUCTS. Products are not authorized for use in critical safety or other applications where a failure may reasonably be expected to result in personal injury, loss of life, or catastrophic property damage. If Customer uses or sells the Products for use in any such applications, Customer acknowledges that such use or sale is at Customer’s sole risk. Customer will indemnify, defend and hold Tru-Tronics International and the Product manufacturer harmless from and against any and all liabilities and costs arising out of or in connection with such unauthorized use.
11. EXPORT/IMPORT. Certain Products sold by Tru-Tronics International and other related technology and documentation may be subject to export control laws, regulations and orders of the United States and the export or import control laws and regulations of other countries. Customer will not directly or indirectly export or divert any Products and/or other related technology and/or documentation to any third party or country where such export or transmission is restricted or prohibited by law. Customer agrees Customer is responsible for complying with all applicable laws. Customer is likewise responsible for obtaining any license to export, re-export, or import as may be required by law and for bearing any cost associated with obtaining same.
12. PRODUCT INFORMATION. Product information, including information related to Product specifications, export/import control classifications, uses or conformance with legal or other requirements, is obtained by Tru-Tronics International from its suppliers or other sources. Such information is provided by Tru-Tronics International to Customer on an “AS IS” basis. Tru-Tronics International makes no representation as to the accuracy or completeness of the Product information, and disclaims all representations, warranties and liabilities under any theory with respect to the Product information, including any implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Tru-Tronics International strongly recommends Customer independently validate any Product Information before using or acting on such information. All Product information is subject to change without notice. Tru-Tronics International is not responsible for typographical or other errors or omissions in Product information.
a. Tru-Tronics International and Customer expressly agree that this Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of Nevada without reference to the State of Nevada’s conflict of laws principles. All procedural and substantive laws of the State of Nevada shall govern the construction and interpretation of this Agreement. In the event that Tru-Tronics International, or Customer, or both should desire to initiate any legal action or litigation relating in any way to this Agreement or its terms, Tru-Tronics International and Customer each fully consent to the jurisdiction and service of process of the State Courts of the State of Nevada in Clark County Nevada for such purpose. Tru-Tronics International and Customer further agree that, in the event that either or both desire(s) to initiate any legal action or litigation relating in any way to this Agreement or its terms, such legal action or litigation will be commenced and maintained solely in the State Courts of the State of Nevada in Clark County Nevada, and not in any other court, unless the State Courts of the State of Nevada in Clark County Nevada determine that they lack jurisdiction over the parties or the dispute at issue. Tru-Tronics International and Customer each agree that they will not in any way object to the jurisdiction of the State Courts of the State of Nevada in Clark County Nevada in the event that any legal action or litigation is initiated by either or both of them in the State Courts of the State of Nevada in Clark County Nevada. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement.
b. Customer may not assign this Agreement without the prior written consent of Tru-Tronics International. Tru-Tronics International or its affiliates may perform the obligations under this Agreement. This Agreement is binding on successors and assigns.
c. This Agreement contains the entire agreement of the parties. This Agreement can only be modified or altered if done in writing and signed by authorized representatives of both Tru-Tronics International and Customer.
d. Tru-Tronics International and Customer are each separate and independent entities and, as such, agree that this agreement does not in any way establish a joint venture or partnership between Tru-Tronics International and Customer.
e. Statements or advice (technical or otherwise) if given without charge, are an accommodation to Customer and Tru-Tronics International has no responsibility or liability for the content or use of such statements or advice.
f. Tru-Tronics International’s failure to object to any document, communication, or act of Customer will not be deemed a waiver of any of these terms and conditions of this Agreement.
g. If it is determined that any of the terms or conditions in this Agreement are, for any reason, not legally enforceable, any and all of the remaining terms or conditions in the Agreement will remain in full force and effect.
h. Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights, trademarks and/or user licenses.
i. Customer and Tru-Tronics International will comply with applicable laws and regulations.