SALES TERMS FOR Texas Laser Cutting, LLC
- General Terms. These sales terms (“Terms”) shall govern all sales of Products and Services to Buyer by Texas Laser Cutting, LLC., its affiliates, subsidiaries, and/or divisions, (collectively, “TLC”), unless other terms are specified in TLC’s quotation or sales order acknowledgment or unless otherwise agreed by TLC in writing. All sales are expressly limited to these Terms and are conditional on Buyer’s assent to these Terms. Buyer’s assent to these Terms shall be deemed given upon the occurrence of any of the following: (a) Buyer’s failure to object to these Terms in writing within three (3) days from the date of its receipt of them, (ii) Buyer’s issuance of a purchase order, or (iii) Buyer’s acceptance of delivery of Products or Services. TLC expressly objects to any additional or different terms proposed by Buyer, unless expressly agreed to in writing by TLC. For the purposes of these Terms and unless stated otherwise, “Products” shall mean the products manufactured by TLC. TLC may modify these terms at any time without prior notice provided that no such modification shall apply to any order for Products or Services which has been accepted r to the modification(s). The latest version of the Terms will be posted on TLC website www.TexasLaserCutting.com/termsandconditions, and Buyer should review these Terms prior to purchasing any Products or Services. No contract will be deemed to be formed until the TLC sales order acknowledgment has been sent to Buyer, and all orders are subject to TLC’s ability to obtain, on appropriate terms and within a reasonable amount of time, any export or import license or permit required by applicable law or regulation. TLC shall have the right to cancel any order at any time for failure of Buyer to agree to these Terms or for any material breach by Buyer of these Terms.
- Prices, Taxes and Payment Terms. Each quotation or proposal is valid for fourteen (14) days, unless specified otherwise. For all other sales, the prices shall be the prices in effect on the date of the TLC sales order acknowledgement. Prices include ground freight prepaid to Buyer’s place of business. For sales to Buyers outside the continental United States, prices are exclusive of any freight, packing or insurance charges and any customs, sales, use, value-added, property or similar taxes, tariffs or duties unless specified otherwise by TLC. If Buyer claims a tax or other exemption or direct payment permit, Buyer will provide a valid exemption certificate or permit and indemnify, defend and hold TLC harmless from any taxes, costs and penalties arising from the same. For Services performed on a time and expense basis, charges shall include time and expenses incurred in the previous calendar month. For Services performed on a fixed-price basis, charges shall include the price of major deliverables substantially completed in the previous calendar month. Payment terms for all Products and Services that exceed $10,000 dollars require 50% down payment. All invoices shall be deemed accurate unless Buyer advises TLC in writing of an error within 10 days following receipt. If Buyer advises TLC of an error, (I) any amounts corrected by TLC shall be paid within 14 days of correction or within 30 days of the due date, whichever is later, and (ii) all other amounts shall be paid by Buyer by the due date. If Buyer requires TLC to use a specific system or tool to process regular business transactions (e.g. invoices, shipment notifications, purchase orders), TLC may charge Buyer for any transaction, setup or subscription fees charged to use the system or tool. Partial shipments will be invoiced and are payable as they occur in accordance with these Terms. All payments shall be made in United States Dollars. If, in the judgment of TLC, the financial condition of Buyer at any time prior to delivery does not justify the payment by TLC, TLC may require payment in advance or suspend or cancel any outstanding order. TLC may suspend work or cancel any outstanding order if Buyer fails to make a payment when due and until such payment is made and may impose a late charge equal to the lesser of 1.5% per month or the highest applicable rate allowed by law on all amounts not paid when due. TLC shall not be liable for any liquidated or other damages if TLC suspends work due to the Buyer’s late payment or credit issues. If an order is cancelled because of credit issues or late payments, TLC shall be entitled to receive a sum equal to 25% of the order price (the “Cancellation Charges”). Delays in delivery or non-conformities in any installments shall not relieve Buyer of its obligation to pay any remaining installments. Any payment made by Buyer may be applied to amounts due before being applied to current orders, at TLC’s sole discretion. Notwithstanding the foregoing, Buyer’s failure to pay amounts due shall be deemed a material breach of these Terms, and any acceptance by TLC of late payments shall not be deemed a waiver of such breach. To the extent allowed by law, TLC shall be entitled to recover all costs incurred in collecting amounts due from Buyer, including without limitation legal fees, disbursements and other costs.
- Delivery, Documentation and Disclosure of Information. Delivery dates are approximate, based upon prompt receipt of all necessary information from Buyer and constitute neither a contractual obligation nor a representation to the Buyer. If drawing approval is required, drawings must be returned on schedule to maintain estimated shipping dates. TLC shall pack and ship Products according to its standard procedure, and all shipments shall be sent to Buyer using the TLC standard freight forwarder or carrier. Buyer shall pay for any increased costs due to special packing, shipment (including freight forwarders or carriers required by Buyer) or insurance requests, as well as any detention or demurrage charges. Seller reserves the right to make partial shipments of the Products and/or to ship Products early unless otherwise stipulated in Buyer’s purchase order. Unless otherwise stated in the TLC sales order acknowledgment, the shipping terms are as stated herein. For Products shipped to addresses within the continental United States, title and risk of loss or damage shall pass to Buyer upon delivery to Buyer’s place of business. For
Products shipped to addresses outside the continental United States, title and risk of loss or damage shall pass to Buyer at the TLC facilities upon delivery to the freight forwarder or carrier. Buyer must unpack and examine Products immediately and, if damage is discovered, notify TLC within three (3) business days of delivery. In any event, acceptance shall be deemed to have occurred no later than fifteen (15) days after shipment. Buyer may return standard products, with TLC’s prior written approval, up to 90 (days) after the original invoice date (the “Purchase Date”) if they are new in their original packaging, were stored properly, and have never been installed. A restocking fee of 25% of the product price if the product is returned less than forty-five (45) days after the Purchase Date, and 50% if returned between forty-five to ninety (45 – 90) days after the Purchase Date, will apply to each returned product. Returns are not possible ninety (90) days after the Purchase Date, or for customized products. Any information, suggestions or ideas transmitted by Buyer to TLC in connection with performance hereunder shall not be regarded as proprietary or confidential, unless identified in writing by Buyer and acknowledged in writing by TLC.
- Intellectual Property. Buyer shall not challenge the validity of any TLC intellectual property, including without limitation any trademarks, service marks, trade dress, patents, copyrights, trade secrets or licenses. Buyer acknowledges that TLC intellectual property is the sole property of TLC. By sale of Products or Services to Buyer, TLC does not transfer any TLC intellectual property rights (including without limitation rights to designs or other work product). Buyer shall not remove or alter any trademarks, service marks or trade dress that identify TLC, nor use any trademarks, service marks, trade dress or any other intellectual property that, in the sole discretion of TLC, is confusingly similar to those of TLC.
- Product Warranty and Services Commitment. TLC warrants to Buyer that Products are free from defects in material and workmanship for one (1) year after shipment for all TLC Products, including. This warranty is conditioned upon proper storage and shall be void in its entirety if Buyer modifies Products without prior written consent to and subsequent approval of any such modifications by TLC or uses Products for any applications that require product listing or qualification not specifically included in the TLC written quotation or proposal. If any Product fails to conform to this warranty, Buyer properly notifies TLC of such failure and Buyer returns the Product to TLC facilities (unless another location is agreed upon by TLC) for diagnosis (and pays all expenses for such return), TLC shall correct any such failure by, at its sole discretion, either repairing any defective or damaged Product part(s) or making available any necessary replacement part(s) or Product(s). TLC will pay the freight to return the Product to the Buyer (Carriage Paid To (CPT) customer’s place of business). If TLC is unable or unwilling to repair or replace, TLC and Buyer shall negotiate an equitable resolution such as a prorated refund or credit to the Buyer’s account. Any Product repair or upgrade shall be covered by this warranty for the longer of one (1) year from date of repair or the remainder of the original warranty period. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS WARRANTY SHALL BE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED (INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF PERFORMANCE OR DEALING OR USAGE OF TRADE), EXCEPT WARRANTY OF TITLE AND AGAINST PATENT INFRINGEMENT.
- Limitation of Liability, Indemnity and Insurance. In no event, whether as a result of breach of contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, shall TLC be liable to Buyer or Buyer’s insurers for any loss or damage for an amount (I) exceeding the contract price or (ii) if Buyer places multiple order(s) under the contract, the price of each particular order for all claims arising from or related to that order, and any liability shall terminate upon the expiration of the warranty period. No claim, regardless of form, arising from these Terms may be brought by Buyer more than one (1) year from the date such claim accrues. In no event, whether as a result of breach of contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, shall TLC be liable for any special, consequential, incidental, liquidated or punitive damages, including without limitation any loss of profit or revenues, loss of use of Products or associated equipment, damage to associated equipment, cost of capital, cost of substitute products, facilities, services or replacement power, downtime costs or claims of Buyer’s customers for such damages. TLC shall not be liable for any claims or losses resulting from any unauthorized access to Products. Buyer shall indemnify, defend and hold harmless TLC and all related parties from and against any claims, demands, causes of action, losses, costs and expenses, including without limitation legal fees and other costs, arising directly or indirectly from the acts or omissions of Buyer, its officers, employees, agents or representatives, including without limitation (i) Buyer’s modification or integration of any Product, (ii) Buyer’s specifications, (iii) Buyer’s relay settings, which may or may not be based on relay setting examples or guides from TLC, (iv) any changes made by Buyer or others related to design documents produced by TLC, (v) any unauthorized use or reuse of the designs, drawings and specifications furnished by TLC.
- Patent Indemnity. TLC shall defend any action brought against Buyer based on a claim that any Product as provided by TLC infringes any United States patent, and TLC shall pay any award or settlement recovered against Buyer in any such action and shall reimburse Buyer for reasonable costs incurred by Buyer in the defense of any such action, provided that Buyer gives TLC prompt notice of such action, reasonable assistance in the defense thereof and full opportunity to control all aspects thereof, including settlement, and does not take any position adverse to TLC in connection with such action. In the event such Product is held to constitute infringement and use of the Product is enjoined (or TLC foresees a substantial risk of such event), TLC shall, at its sole discretion, exchange the Product with a non-infringing Product, acquire the right for Buyer to continue using it, modify it so that it becomes non-infringing or repurchase it from Buyer for a fair portion of the original price. TLC shall not be liable for damages that arise after TLC offers one of the foregoing remedies in good faith. TLC shall not be liable for any patent infringement claim arising from any custom Product, modification of any Product, integration of any Product not as intended by TLC, or integration of any Product with any non-TLC product, and Buyer shall fully indemnify, defend and hold harmless TLC and all related parties from and against any such patent infringement claim.
- Transfer to End-User Other Than Buyer. Prior to resale of
any Product, Buyer shall obtain written authorization from TLC for any such resale. To obtain such authorization, Buyer shall provide TLC, initially and on an ongoing basis, with complete and accurate end-user data for each Product. Buyer shall provide the end-user of each Product with all product notices, warnings, instructions, recommendations, bulletins and similar materials provided directly or indirectly by TLC. In the event Buyer transfers to a third party any Product or any right or interest therein, Buyer shall indemnify, defend and hold harmless TLC and all related parties from and against any claims against TLC in excess of any TLC obligations under these Terms by such transferee or any other party. Any assignment or transfer of any Product without prior written authorization from TLC shall void the TLC warranty. Buyer acknowledges that all commodities (collectively “Items”) provided by TLC are subject to US export jurisdiction and agrees to comply with all applicable import and export laws, rules and regulations regarding the transfer of any such Items, including but not limited to, the US Export Administration Regulations 15 C.F.R. Parts 730-774. Buyer shall obtain prior authorization from the U.S. Department of Commerce or any other applicable government entities prior to the export, reexport, transfer, diversion or disclosure any Items provided hereunder, or any direct product thereof, to any destination, end-use or end-user which is restricted or prohibited by US or other applicable laws. Buyer also agrees to comply with US anti-boycott laws and regulations when exporting Items. Buyer warrants that the shipping information is true and accurate to the best of their knowledge. The attempted assignment or transfer by Buyer of these Terms or any rights or duties hereunder without prior written consent of TLC shall not relieve Buyer of any obligations to TLC.
- Contract Variations. If Buyer requires approval of drawings,
such approval must be received by TLC no later than ten (10) working days after submittal of drawings by TLC to Buyer. Buyer’s failure to comply with this requirement may result in additional costs and delays, which shall be Buyer’s sole responsibility. Where Buyer’s specifications lack sufficient detail, TLC reserves the right to design Products in accordance with good commercial practice, as determined at the sole discretion of TLC. Changes in scope or modification of Services will result in the contract amount and schedule being equitably adjusted. TLC is not obligated to proceed with any change until both parties agree upon such change in writing. TLC shall be entitled to an equitable adjustment in the price and schedule in the event of any changes in the law or engineering standards impacting TLC’s obligations or performance under this Agreement. Any order may be terminated by Buyer upon written notice and payment of Cancellation Charges. Any order delayed at Buyer’s request shall be subject to the prices and Terms in effect at the time of release of such delay. Any such order delayed beyond a reasonable period (as determined in TLC’s sole discretion) shall be treated as a Buyer’s termination and will be subject to Cancellation Charges equal to 25% of the order price. When Products are ready for shipment and shipment cannot be made due to Buyer’s request, TLC shall submit an invoice for such Products payable upon receipt thereof and shall store such Products on Buyer’s behalf. In such event, title and risk of loss shall pass to Buyer upon moving such Products to storage, and all expenses incurred by TLC in connection with such storage, including without limitation demurrage, cost of preparation for storage, storage charges, insurance (if TLC chooses, at its sole discretion, to purchase such insurance) and handling charges, shall be payable by Buyer upon submission of invoices by TLC.
- Governing Law and Dispute Resolution. The laws of the State of Texas, USA, excluding conflict of laws principles, shall govern these Terms. The parties reject any applicability of the United Nations Convention on Contracts for the International Sale of Goods. Any controversy or claim arising out of or relating to these Terms, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the arbitration award may be entered in any court of competent jurisdiction. Arbitration shall be held in Dallas, Texas, or another location agreed upon by the parties, and shall be conducted in English. The prevailing party to any dispute shall be entitled to recover legal fees and other costs (including without limitation arbitration fees, disbursements, and collection costs).
11. Miscellaneous. These Terms, including the TLC sales order acknowledgement, and TLC Terms and Conditions constitute the entire agreement between TLC and Buyer, and supersede any prior or contemporaneous verbal or written agreements, negotiations, commitments, representations or correspondence between the parties, including without limitation any terms on any purchase order form. TLC rejects any representation, express or implied warranty, course of performance or dealing, trade usage or any different or additional terms not set forth herein. TLC reserves the right to modify or revoke any quote or order to comply with applicable laws and market conditions. Any notice pursuant to these Terms shall be deemed given when sent by registered mail, certified mail (return receipt requested), or overnight delivery to an authorized officer at the address listed on the TLC sales order acknowledgment or, if no such address is provided, at the registered headquarters of the other party, or when mailed to TxLaserCutting@gmail.com (receipt confirmed). All rights and duties hereunder shall be for the sole and exclusive benefit of Buyer and TLC, and not for the benefit of any other party. TLC may perform its obligations hereunder personally, or through one or more of its affiliates, although TLC shall nonetheless be solely responsible for the performance. TLC may assign or novate its rights and obligations under the Contract, in whole or in part, to any of its affiliates or may assign accounts receivable to any party without Buyer’s consent. Buyer agrees to execute any documents necessary to complete Seller’s assignment or novation. TLC may subcontract portions of the work so long as TLC remains responsible for the work. Buyer shall notify TLC immediately upon any change in ownership of more than fifty percent (50%) of Buyer’s voting rights or of any controlling interest in Buyer. No failure or delay by either party in exercising any right or remedy or insisting upon strict compliance by the other party with any obligation in these Terms, shall constitute a waiver of any right thereafter to demand exact compliance with these Terms. The invalidity, in whole or part, of any provision in these Terms shall not affect the remainder of such provision or any other provision and, where possible, shall be replaced by a valid provision that effects as close as possible the intent of the invalid provision. Neither party shall be liable for failure to perform or delay in performance of any obligation under these Terms (except payment of amounts already due and owing) where such failure or delay results from any event beyond its reasonable control.
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