General. The person or entity (hereinafter referred to as “Buyer”) purchasing goods (“Products”) and/or services from Technical Support Inc. (”TSI”) agrees to the following Terms and Conditions set forth herein.
Conflicting Terms. These Terms and Conditions specifically replace all prior agreements between the parties. To the extent the terms herein conflict with the terms of any other agreement between the parties, or the terms of any document provided by Buyer to TSI, the terms herein shall control. In addition, any term or provision contained in any receipt, invoice, purchase order or agreement provided by Buyer to TSI which attempts to:
- limit the ability of TSI to alter, modify or object to the terms or provisions of
- Buyer’s order form, or
- limit Buyer’s liability to TSI
is expressly prohibited and shall be null and void.
Price, Credit Terms, Risk of Loss. Unless a) otherwise agreed in writing by the parties, or b) TSI specifically assumes such risks, Buyer assumes and is responsible for any and all risks associated with: (i) damages to or loss of any Products, resulting from any cause, from and after the time the Products are delivered to the common carrier; and (ii) any delay in transportation and/or delivery, including but not limited to delays associated with any common carrier.
Problems and Claims. Buyer must immediately report, in writing, any problems or claims concerning the quantity or quality of the Products. The problems or claims required to be reported include but are not limited to carrier damage or short counts (which must be reported immediately upon shipment arrival), and any quality issues due to noncompliance with the original specifications (which must be reported immediately upon discovery at the time the cases are opened). TSI shall have the right at any time within 30 days of such report to inspect any and all Products that are the subject of Buyer’s report. If Buyer uses or disposes of any portion of the Products which are the subject of a report by Buyer without the prior written approval of TSI, any and all claims pertaining to that portion of the Products shall be deemed to be waived by Buyer. Buyer is solely responsible and liable for problems resulting from Buyer’s use or warehousing of the Products.
Warranty. Each product manufactured by TSI and delivered under these Terms and Conditions to Buyer is warranted by TSI to be free from defects in workmanship under normal and proper use for a period of one year following its date of delivery. The obligation of TSI under this warranty is limited to repairing or replacing, at TSI’s sole option, free of charge, FOB TSI, any product which is defective and fails within the one year warranty period and is returned to TSI with a written description of the claimed defect. Notwithstanding the above language, there is no warranty for engineering services.
The foregoing warranty will not apply if the product fails to function as a result of any action or inaction by any person or entity other than TSI, including but not limited to abuse, misuse, accident, neglect, unauthorized repair or incorrect installation, failure due to electrostatic discharge, improper or poor engineering design, exceeding environmental specifications of the equipment, failure of electrical power, air conditioning or humidity control or causes other than under ordinary or expected use after delivery.
THE FOREGOING WARRANTIES AND LIMITATIONS ARE THE SOLE AND EXCLUSIVE WARRANTIES AND REMEDIES AND ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY.
IN NO EVENT WILL TSI BE LIABLE FOR (i) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR (ii) ANY DAMAGES RESULTING FROM LOSS OF DATA, FRUSTRATION OF ECONOMIC OR BUSINESS EXPECTATIONS, OR LOSS OF PROFITS, REVENUES OR USE ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS OR SERVICES SOLD OR PROVIDED HEREUNDER, REGARDLESS OF WHETHER TSI HAS BEEN NOTIFIED IN ADVANCE OF SUCH DAMAGES. IN NO EVENT SHALL TSI’S LIABILITY HEREUNDER EXCEED THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES ORDERED BY BUYER FROM TSI.
Indemnification. Buyer agrees that it shall indemnify, defend and hold harmless TSI and its respective officers, directors, employees and agents (collectively, the “Indemnitees”), from and against any and all damages, claims, losses, expenses, costs, obligations and liabilities (including without limitation reasonable attorney’s fees), suffered directly or indirectly by any of the Indemnitees by reason of, or arising out of: (i) any breach of these Terms and Conditions or any other failure by Buyer to perform or fulfill any of its obligations, covenants or agreements with TSI, (ii) the negligence or intentional misconduct of Buyer, or any of Buyer’s employees, agents or contractors; (iii) any failure of Buyer or its employees to comply with any applicable law; or (iv) any litigation, proceeding or claim by any third party relating in any way to the obligations of Buyer to TSI or Buyer’s performance under its agreement(s) with TSI.
Restriction on Hazardous Substances. Unless specifically agreed to in writing TSI makes no warranty, implied or otherwise, that the product produced by it meets any RoHS Directive.
Termination or Cancellation. If, for any reason, Buyer cancels the delivery of product, Buyer will:
(a) Purchase at the full purchase price from TSI all Products previously ordered by Buyer which are currently in production.
(b) Purchase, at cost plus 18%, from TSI all remaining parts and material that were purchased or on order as a result of an order(s) from Buyer and cannot be returned or cancelled. If such parts and material can be returned by TSI to the manufacturer or distributor, Buyer agrees to pay any cancellation or restocking fees incurred by TSI.
(c) Pay TSI a cancellation penalty equal to 10% of the purchase price for the cancelled portion of the order.
Patent Rights. Buyer represents and warrants that it has valid and legal title and ownership of any applicable patent and license rights necessary to manufacture and sell the Products. Buyer will indemnify, defend and hold the Indemnitees harmless against any and all damages, losses, expenses, costs, obligations and liabilities (including without limitation reasonable attorney’s fees), suffered directly or indirectly by any of the Indemnitees by reason of, or arising out of any and all claims or causes of action by any third party that the Products or any part thereof (or any software or hardware engineering services being provided to Buyer at Buyer’s request) infringe upon any United States, International or Canadian patent, copyright, trademark or other proprietary right. Buyer agrees, solely at its own expense, to defend any suit or proceeding brought against TSI which is based in whole or in part on any such claim(s).
Force Majeure. TSI may cancel any order made pursuant to its agreement(s) with Buyer in whole or in part (as to the undelivered portion thereof) or suspend deliveries in whole or in part in the event of unavoidable accident, act of God, fire, sabotage, strikes, lock-outs, terrorism or other labor interferences, riots, insurrection, war, acts of governmental authorities, inability to secure materials, or any other cause beyond the reasonable power or control of TSI.
Tax. Buyer shall be responsible for the payment of any tax of any kind imposed on the Products manufactured or the services provided for Buyer.
Late Payment Penalty. A late payment penalty of 1½% per month (18% per annum) will be charged on all account balances not paid within 30 days after the invoice due date.
Changes. Any change to, or waiver of these Terms and Conditions must be in writing and executed by both parties. Should TSI waive any terms or conditions herein or consent to any modification of any terms or conditions, such waiver shall not have the effect of waiving or modifying any other terms or conditions hereof.
Applicable Law. These Terms and Conditions shall be construed according to the laws of the State of Nebraska. The parties acknowledge and agree that the state courts of Douglas County, Nebraska and the federal courts located in the District of Nebraska shall have exclusive jurisdiction and venue to adjudicate any and all disputes arising out of or in connection with the sale of product or services from TSI to Buyer. The parties consent to the exercise by such courts of personal jurisdiction over them and each party waives any objection it might otherwise have to venue, personal jurisdiction, inconvenience of forum, and any similar or related doctrine.
Costs of Collection. To the extent allowed by applicable law, Buyer agrees to pay all expenses and fees TSI incurs for collection or enforcement hereof, including reasonable attorneys fees.