Standard Terms and Conditions of Acceptance and Sale
1. CONTROLLING TERMS AND CONDITIONS
The Seller objects to, and shall not be bound by any term or condition on the Buyer’s order that is different from or in addition to the Seller’s terms and conditions. Any additional or different terms or conditions proposed by the Buyer are hereby expressly rejected whether or not contained in any of the Buyer’s business forms or website, whether or not required as ‘click through’ acceptance or EDI system. No terms, conditions, description, price, quantity, specifications or delivery schedule shall be changed, and no agreement or understanding in addition to or different from the terms and conditions stated herein shall be binding upon the Seller without written authority from the Seller’s authorized representative.
All pricing will be as set out in the Agreement. Prices are in U.S. Dollars, unless agreed otherwise in writing between Buyer and TopDek prior to acceptance of the order by TopDek, and do not include any taxes, duties or similar levies, now or hereafter enacted, applicable to the Products or any other expenses. TopDek will add taxes, duties and similar levies to the sales price where TopDek is required by law to pay or collect them and these will be paid by Buyer together with the price.
Payment is required in advance of shipping unless otherwise agreed by TopDek in writing prior to acknowledgement. All payments shall be made to the designated TopDek address or bank account, in U.S. Dollars.
In the event of any failure by Buyer to timely pay any amounts due, or any other default by Buyer, TopDek shall have the right to refuse performance and/or delivery of any Products or services until payments are brought current. TopDek may suspend, delay or cancel any Order, credit, delivery or any other performance by TopDek. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under the Agreement or at law.
4. INSPECTION AND ACCEPTANCE
Buyer must notify Seller of any products that do not conform to the terms applicable to their sale within fifteen days of delivery, and must afford the Seller a reasonable opportunity to inspect such products and cure any non-conformity. Failure to provide notice within such fifteen-day period shall be deemed acceptance by the Buyer. Returns must be made in accordance with the Seller’s return policies in effect.
5. FORCE MAJEURE
The Seller shall not be liable for failure to make any delivery hereunder caused by or resulting from events or circumstances beyond Seller’s reasonable control, including strikes, fires, floods, wars, riots, loss, destruction or unavailability of raw material, non availability of transportation facilities, disruption of utilities, delays of carrier, embargoes, accidents, restrictions imposed by any government or government authority. The time of the Seller to make delivery hereunder shall be extended during any period in which such delivery shall be prevented or delayed by reason of any of the foregoing causes, provided that if any delivery hereunder be so prevented or delayed for more than two (2) months either party shall have the right to cancel this Order with respect to such delivery by written notice to the other. Seller may, during any period of shortage due to any of the above circumstances, allocate its available supply of products, services, and resources among itself and its customers in such manner as Seller, in its sole judgment, deems fair and equitable and/or eliminate any/all quantities of product(s) affected from this contract without liability.
6. LIMITED WARRANTY AND DISCLAIMER
TopDek provides the Products subject to the applicable TopDek Limited Warranty for the Product available at www.topdek.com. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH THEREIN, TOPDEK AND EACH OF ITS SUPPLIERS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, AND NON INFRINGEMENT. TOPDEK AND ITS SUPPLIERS MAKE NO WARRANTY THAT THE PRODUCTS WILL MEET BUYER’S REQUIREMENTS. TOPDEK SHALL NOT BE LIABLE FOR, AND BUYER ASSUMES ALL RISK OF, ANY ADVICE OR FAILURE TO PROVIDE ADVICE BY TOPDEK TO BUYER REGARDING THE PRODUCTS.
7. LIMITATION OF LIABILITY
(a) TOPDEK SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF REPUTATION, LOSS OF GOODWILL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SALE OF ANY PRODUCTS OR SERVICES BY TOPDEK OR THE USE THEREOF WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY – EVEN IF TOPDEK HAS BEEN ADVISED, OR IS AWARE, OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF BUYER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. TOPDEK’S AGGREGATE AND CUMULATIVE LIABILITY TOWARDS BUYER SHALL NOT EXCEED THE PRICE PAID BY BUYER FOR THE PRODUCTS INVOLVED IN THE LOSS.
(b) Any lawsuit by Buyer for damages must be brought by Buyer within one (1) year of the date the claim was or reasonably should have been discovered. Any claims that have been brought or filed not in accordance with the preceding sentence are null and void.
(c) The limitations and exclusions set forth above in this Section 7 shall apply only to the extent permitted by applicable mandatory law.
(a) BUYER AGREES TO DEFEND, INDEMNIFY AND HOLD SELLER, ITS AFFILIATES, SUCCESSORS AND ASSIGNS, OFFICERS, PARTNERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, INDEPENDENT CONTRACTORS AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, ACTIONS, LOSSES, DAMAGES, DEMANDS, SUITS, (INCLUDING DAMAGE TO PROPERTY AND PERSONAL INJURY) AND EXPENSES (INCLUDING LOSSES FROM SETTLEMENT AND REASONABLE COURTS COSTS AND ATTORNEY’S FEES) ARISING OUT OF OR RELATING IN ANY WAY OR ALLEGED TO BE CAUSED BY ANY OF THE: (I) BUYER’S USE OR MISUSE OF THE PRODUCTS; (II) INSTALLATION, MAINTENANCE AND/OR REMOVAL OF PRODUCTS; (III) BUYER’S BREACH OF THESE TERMS AND CONDITIONS; (IV) ANY CLAIMS OR ACTIONS FOR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS; (V) BUYER’S NEGLIGENCE OR WILLFUL MISCONDUCT; (VI) BUYER’S VIOLATION OR ALLEGED VIOLATION OF ANY FEDERAL, STATE, COUNTY OR LOCAL LAWS OR REGULATION, INCLUDING WITHOUT LIMITATION, THE LAWS AND REGULATIONS GOVERNING PRODUCT SAFETY, LABELING, PACKAGING AND LABOR PRACTICES.
(b) BUYER HEREBY WAIVES AND RELEASES TOPDEK FROM ALL RIGHTS OF CONTRIBUTION OR INDEMNITY TO WHICH IT MAY OTHERWISE BE ENTITLED.
9. ATTORNEY FEES
In the event of a legal action or other proceeding arising under this Agreement or a dispute regarding any alleged breach, default, claim, or misrepresentation arising out of this Agreement, whether or not a lawsuit or other proceeding is filed, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, whether incurred before suit, during suit, or at the appellate level. The prevailing party shall also be entitled to recover any attorneys’ fees and costs incurred in litigating the entitlement to attorneys’ fees and costs, as well as in determining or quantifying the amount of attorneys’ fees and costs due to it.
10. ENTIRE AGREEMENT
Entire Agreement. This order contains the entire agreement between the parties and supersedes any prior oral or written agreements or communications between them relating to the subject matter hereof.
11. CHOICE OF LAW
This Order shall be governed by and construed in accordance with the laws of the State of Minnesota without regard to conflicts of laws. Any controversy or claim arising out of or relating to this Order shall be submitted to arbitration in Stillwater, Minnesota in accordance with the Commercial Arbitration Rules of the American Arbitration Association.
Buyer unconditionally accepts these Terms and Conditions by placing an order for the Product with TopDek. If Buyer does not fully agree with these Terms and Conditions, they shall not place an order with TopDek unless and until alternate terms and conditions are agreed between TopDek and Buyer, in writing. In such situations, these Terms and Conditions shall remain in full force and effect unless they are in conflict with the alternative terms and conditions.