General Terms and Conditions
1. TERMS OF CONTRACT: All orders submitted by the entity (“Buyer”) identified in Ringers Technologies LLC’s (“Seller’s”) quotation or Buyer’s purchase order (“Order”) shall be deemed an offer by Buyer to purchase Seller’s products (“Products”) subject to the express terms of these terms and conditions (the “Terms”), Seller’s quotation, if any, and an order acceptance issued by Seller, if any (the “Agreement”). Additional terms or terms that modify these Terms in any Order are rejected and are null and void for all purposes unless an authorized official of Seller expressly agrees to them in writing. Seller is under no obligation to accept any Order. No Order is binding until Seller issues an order acceptance or delivers the Products.
2. QUOTATIONS, PRICES, TAXES: Written quotes are valid for thirty (30) days, unless otherwise indicated. Prices are per Seller’s price list in effect at the time of the Order. Seller reserves the right to change its prices without notice. Prices do not include packing and preparation for shipment, freight, loading, unloading, carriage, insurance, forwarding fees, similar fees or charges or sales, use, excise, value-added or other similar taxes, duties, charges, or fees (or any related fines, penalties, or interest) (collectively, “Taxes”), now or hereafter enacted, applicable to the Products or this transaction.
3. TITLE, DELIVERY, AND RETURNS: Delivery dates are estimates. Seller shall not be liable to Buyer for any damages, losses or expenses if Seller fails to meet the estimated delivery date. Seller may deliver in installments. All deliveries are made FCA Seller’s facility (INCOTERMS 2010) unless otherwise specified by Seller. Title and risk of loss pass to Buyer upon delivery. Seller determines method and route of shipment unless otherwise agreed. Buyer waives claims for shortages made more than ten (10) days of Buyer’s receipt of shipment. Buyer may return Product (other than no customer specific, private label, or discontinued items) if in re-sellable condition with original packaging within thirty (30) days of delivery. All returns thereafter are subject to a restocking fee equal to thirty percent (30%) of the original invoice price.
4. TERMS OF PAYMENT/SELLER’S SECURITY INTEREST: All payments are due in full on placement of the Order unless credit or other terms are agreed to in writing by Seller. Seller may revoke credit terms in Seller’s sole discretion. If applicable, payments are due from the date when Seller is prepared to make delivery if shipments are delayed by Buyer. Products held for Buyer, shall be held at Buyer’s sole risk and expense. Late payments accrue interest equal to the lesser of 18% per annum or the maximum rate allowed by law compounded monthly. Seller retains a security interest in all Products delivered until paid in full.
5. FORCE MAJEURE: Seller shall not be liable for failure to perform any of its obligations hereunder to the extent performance is prevented due to force majeure. “Force majeure” means causes that are beyond the reasonable control and without the fault or negligence of Seller and that could not have been avoided or prevented by reasonable foresight, planning or implementation of. Such causes shall include but not be limited to acts of God, war (declared or undeclared), acts of terrorism, insurrections, hostilities, strikes or lockouts, riots, fire, storm and interference or hindrance by any governmental authority.
6. SUBSTITUTIONS AND MODIFICATIONS OF PRODUCTS: Seller may modify the design, materials and/or specifications of Products and substitute Products manufactured to such modified designs, materials and/or specifications for those specified herein provided such Products conform to this Agreement.
7. LIMITED WARRANTY: Seller warrants to Buyer (and its customer, if applicable) that, on the date of Buyer’s delivery of the Product to Buyer’s customer (or to the end user, if earlier) and for a period of thirty (30) days (or the minimum period allowed by law) thereafter (“Warranty Period”), the Product will perform substantially in accordance with the specification and documentation. If notified in writing by Buyer of non-conformance during the Warranty Period, Seller will, as Buyer’s sole and exclusive remedy, either repair or replace the Product or refund the purchase price. Buyer agrees to process warranty claims from its customers (or end users, as applicable) to determine if the claim falls within the Warranty Period. Subject to the foregoing, SELLER DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE OR NEED, TITLE, QUIET ENJOYMENT, AND NON-INFRINGEMENT AND ALL WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING OR CUSTOM OF TRADE.
8. LIMITATION OF LIABILITY:
A. SELLER SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, PROMOTIONAL EXPENSES, INJURY TO REPUTATION, OR LOSS OF CUSTOMERS ARISING OUT OF OR RELATED TO THE PRODUCTS OR THIS AGREEMENT, AND BUYER HEREBY WAIVES ANY CLAIM FOR ANY SUCH EXCLUDED FORM OF DAMAGES.
B. BUYER’S AGGREGATE RECOVERY FROM SELLER FOR ANY CLAIM IN ANY WAY ARISING FROM OR RELATED TO THE PRODUCTS OR TO THIS AGREEMENT SHALL NOT EXCEED THE PURCHASE PRICE PAID BY BUYER FOR THE PRODUCTS AT ISSUE IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE AND WHETHER ARISING IN WHOLE OR IN PART FROM THE NEGLIGENCE OF SELLER.
9. CONFIDENTIALITY: Except as otherwise provided in this Agreement, Buyer agrees that any and all information associated with (i) the Products (including but not limited to Seller’s specifications, technical data and pricing), and (ii) Seller or its affiliates that is not otherwise publicly available (“Confidential Information”) that is disclosed to or received by Buyer (a) shall be treated as Seller’s confidential, proprietary, and trade secret information (with Seller reserving all rights to its Confidential Information); (b) shall be held by Buyer in strict confidence, (c) shall be used by Buyer only for purposes of this Agreement, and (d) that no Confidential Information, including without limitation the provisions of this Agreement, shall be disclosed by Buyer without the prior written consent of Seller. Buyer shall safeguard Confidential Information with at least the same degree of care (which shall always be at least a reasonable amount of care) that it uses to safeguard its own confidential, proprietary, and trade secret information.
10. GENERAL PROVISIONS:
10.1 Governing Law/Venue. The validity, performance, and construction of this Agreement shall be governed by the laws of the State of Texas (excluding its conflict of laws rules which would refer to and apply the substantive laws of another jurisdiction). Any suit or proceeding hereunder shall be brought exclusively in state or federal courts located in Harris County, Texas. Each party consents to the personal jurisdiction of the state and federal courts of said county and waives any objection that such courts are an inconvenient forum. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods shall apply to this Agreement.
10.2. Arbitration. If Buyer is not a U.S. entity, any dispute, controversy, or claim arising out of, relating to, or in connection with this Agreement, including with respect to the formation, applicability, breach, termination, invalidity or enforceability thereof, shall be finally settled by the International Arbitration Rules of the International Centre for Dispute Resolution (the “Rules”). The arbitration shall be conducted in English and in accordance with the Rules in effect at the time of the arbitration. The seat of the arbitration shall be Houston, Texas, USA. The arbitration award shall be final and binding on the parties. The parties undertake to carry out any award without delay and waive their right to any form of recourse based on grounds other than those contained in the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 insofar as such waiver can validly be made. Judgment upon the award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets. The parties will treat all matters related to the arbitration, including the request for or existence of any arbitration, as confidential.
10.3 Limitations Period. Any claims or causes of action arising from or relating to the Products or this Agreement must be instituted within one (1) year from the date upon which such claim or cause of action arose or was accrued.
10.4. Severability. If any provision of this Agreement is held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid or unenforceable provision were omitted.
10.5. Compliance with Laws. Each party hereto agrees to comply with all applicable federal, state, and local laws, rules, and regulations in effect in the United States of America and any other country or territory in respect of their activities contemplated by this Agreement, including without limitation the applicable sanctions, exports, re-export, and anticorruption laws.
10.6. Amendment/Entire Agreement. If the parties have entered into a Distribution Agreement, the Distribution Agreement will control over this Agreement. Otherwise, this Agreement constitutes the complete and exclusive statement of the agreement between the parties with regard to the matters set forth herein, and it supersedes all other agreements (other than a Distribution Agreement), proposals, and representations, oral or written, express or implied, with regard thereto. Unless otherwise provided herein, no modifications to this Agreement shall be binding on either party unless made in writing and signed by duly authorized representatives of Seller.