Terms and Conditions
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1. Applicability
- These terms and conditions (these “Terms“) are the only terms which govern the sale of the products (“Products“) described in the indicative offer letter ofApril20, 2020 (the “Offer Letter”) by inveox Inc., a Delaware corporation (“Seller“) to the above-named buyer (“Buyer“). Notwithstanding anything herein to the contrary, the Offer Letter or if any other written contract signed by both parties is in existence covering the sale of the Products covered here by that expressly states it is to prevail over these Terms, the terms and conditions of said Offer Letter or contract shall prevail to the extent they are inconsistent with these Terms. These Terms shall apply to all agreements to be entered into by the parties hereto in the future unless otherwise agreed in writing by the parties hereto.
- The accompanying Offer Letter and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
2. Delivery.
- The Products will be delivered within a reasonable time,as determined by the Seller,after signing the Offer Letter and subject to availability of finished Products to Seller. Seller shall not be liable for any delays, loss or damage in transit.
- Unless otherwise agreed in writing by the parties, the agreed terms of delivery shall be as set forth in Section 5 below (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Products. Buyer shall take delivery of the Products on the date of Seller’s written notice that the Products have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Products at the Delivery Point.
- Seller may,in its sole discretion,without liability or penalty,make partial shipments of Products to Buyer.Each shipment will constitute a separate sale,and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
- If for any reason Buyer fails to accept delivery of any of the Products on the date fixed pursuant to Seller’s notice that the Products have been delivered at the Delivery Point,or if Seller is unable to deliver the Products at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3. Non-Delivery.
- The quantity of any installment of Products as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
- The Seller shall not be liable for any non-delivery of Products (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within five(5) days of the date when the Products would in the ordinary course of events have been received
- (c) Anyliability of Seller for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.
4. Quantity.
If Seller delivers to Buyer a quantity of Products of up to 25% more or less than the quantity set forth in the Sales Confirmation,Buyer shall not be entitled to object to or reject the Products or any portion of them by reason of the surplus or shortfall and shall pay for such Products the price set forth in the Sales Confirmation adjusted pro rata.
5. Shipping Terms.
Delivery shall be made FOB Beijing.
6. Title and Risk of Loss.
Title and risk of loss passes to Buyer upon delivery of the Products at the Delivery Point. As collateral security for the payment of the purchase price of the Products,Buyer hereby grants to Seller a lien on and security interest in and to all of the right,title and interest of Buyer in,to and under the Products,wherever located,and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.The security interest granted under this provision constitutes a purchase money security interest under the Delaware Uniform Commercial Code.
7. Reference Customer
The Buyer shall permit the Seller to use his name and to use the company logo irrespective of the medium for purposes of customer information and advertisement, unless there are important reasons to the contrary.
8. Amendment and Modification.
These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
9. Inspection and Rejection of Nonconforming Products
- Buyer shall inspect the Products within five (5) days of receipt (“Inspection Period”). Buyer will be deemed to haveaccepted the Products unless it notifies Seller in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as required by Seller.”Non conforming Products”means only the following:(i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
- If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to Seller’s designated facility. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Buyer’s shipment of Nonconforming Products, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Products to the Delivery Point.
- Buyer acknowledges and agrees that the remedies set forth in Section 8(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided under Section 8(b),all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under this Agreement to Seller.
10. Price.
- Buyer shall purchase the Products from Seller at the price(s)(the”Price(s)”) set forth in the Offer Letter.If the Prices should be increased by Seller before delivery of the Products to a carrier for shipment to Buyer,then these Terms shall be construed as if the increased prices were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased prices.
- All Prices are exclusive of all sales,use and excise taxes,and any other similar taxes,duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or calculated with reference to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
11. PaymentTerms.
- Buyer shall pay all invoiced amounts due to Seller on receipt of Seller’s invoice.Buyer shall make all payments hereunder by wire transfer in immediately available funds and in US dollars. Buyer shall make such payments in advance of shipment of the Products by Seller.
- Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products if Buyer fails to pay any amounts when due hereunder and such failure continues for five (5) days following written notice thereof.
- Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy orothe rwise.
12. Limited Warranty.
- Seller warrants to Buyer that for a period of 12 months from the date of shipment of the Products(“Warranty Period”),that such Products will materially conform to the specifications set forth in the Offer Letter, if any.
- EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATIONS; ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. SELLER DOES NOT MAKE ANY REPRESENTATION OR ASSUME ANY LIABILITY IN RELATION TO OBTAINING ANY REGULATORY (INCLUDING THOSE OF THE U.S. FOOD AND DRUG ADMINISTRATION OR ANY OTHER FEDERAL, STATE, LOCAL OR FOREIGN REGULATORY AUTHORITY OR GOVERNMENTAL BODY OR AGENCY)APPROVALS,AUTHORIZATIONS,CERTIFICATIONS,PERMITS OR OTHER REQUIREMENT RELATING TO THE PRODUCTS.
- Products manufactured by a third party(“Third Party Product”)may constitute,contain,be contained in,incorporated into, attached to or packaged together with, the Products. Third Party Products are not covered by the warranty in Section 11(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
- The Seller shall not be liable for a breach of the warranty set forth in Section 11(a) unless: (i) Buyer gives written notice of the defect,reasonably described,to Seller within five(5) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Products and Buyer (if requested to do so by Seller) returns such Products to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Products are defective.
- The Seller shall not be liable for a breach of the warranty set forth in Section 11(a) if: (i) Buyer makes any further use of such Products after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage,installation,commissioning,use or maintenance of the Products; or (iii)Buyer alters or repairs such Products without the prior written consent of Seller.
- Subject to Section 11(d) and Section 11(e) above,with respect to any such Products during the Warranty Period,Seller shall, in its sole discretion, either: (i) repair or replace such Products (or the defective part) or (ii) credit or refund the price of such Products at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Products to Seller.
- (g) THE REMEDIES SET FORTH IN SECTION 11(F) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION11(A).
13. Limitation of Liability; Indemnification.
- IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT,WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HERE UNDER.
- The limitation of liability set forth in Section 12(b)above shall not apply to(i)liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting directly from Seller’s acts or omissions.
- Buyer agrees to indemnify and hold Seller harmless from all claims, expenses, losses and liability of any nature whatsoever arising out of Buyer’s handling and/or use of the Products.Buyer agrees to indemnify and hold Seller harmless for itspresent and future suppliers, agents, owners, shareholders and employees, as the case may be, for and against any and all losses, damages and expenses, including legal fees and other costs of defending any action that Seller may sustain or which may occur as a result of any claim of negligence of contract or other claims or theories of law by itself, its officers, agents, or employees,its customers or other persons,whether direct or indirect in connection with the unsafe,improper or illegal use, or an unintended use of any Product.
14. Insurance.
During the term of this Agreement and for a period of one year there after,Buyer shall,at its own expense,maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $5 million and such other insurance policies reasonably adequate for the use of the Products in connection with Buyer’sbusiness, with financially sound and reputable insurers. Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name Seller as an additional insured. Buyer shall provide Seller with five days’ advance written notice in the event of a cancellation or material change in Buyer’s insurance policy. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Seller’s insurers and Seller.
15. Compliance withLaw.
Buyer shall comply with all applicable laws, regulations and ordinances that may apply to the Products, including in connection with the use of the Products. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Buyer.Buyer assumes all responsibility for ensuring all legal requirement associated with importation of the Products into the United States are satisfied. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties, including but not limited to safeguard measures, quotas, or trade remedy measures on the Products.
16. Termination.
- In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect up on written notice to Buyer,if Buyer:(i)fails to pay any amount when due under this Agreement;(ii)has not otherwise performed or complied with any of these Terms,in whole or in part; or(iii)becomes insolvent,files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy,receivership,reorganization or assignment for the benefit of creditors.
- Seller may terminate this Agreement with or without cause within seven (7) days from the date of the Indicative Order.
17. Waiver.
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed,as a waiver thereof.No single or partial exercise of any right,remedy,power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18. Confidential Information.
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed,as a waiver thereof.No single or partial exercise of any right,remedy,power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
19. Force Majeure.
The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including,without limitation,acts of God,flood,fire,earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest,national emergency,revolution,insurrection,epidemic,lockouts,strikes or other labor disputes(whether or not relating to either party’s workforce),or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
20. Assignment.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
21. Relationship of theParties.
The relationship between the parties is that of independent contractors.Nothing contained in this Agreement shall be construedas creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
22. No Third-PartyBeneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing here in, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
23. Governing Law.
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware.
24. Submission to Jurisdiction.
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of State of Texas in each case located in the City of Houston, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
25. WAIVER OF JURYTRIAL.
BUYER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). BUYER (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF BUYER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT BUYER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
26. Notices.
All notices,request,consents,claims,demands,waivers and other communications hereunder(each,a”Notice“)shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested,postage prepaid). Except as otherwise provided in this Agreement,a Notice is effective only(a)upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
27. Severability.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
28. Survival.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.
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