Standard Terms and Conditions of Acceptance and Sale
TopDek agrees to provide the products (the “Covered Products”) and the installation and other services ordered by Buyer (the “Services”) in accordance with these Terms and Conditions, which shall be deemed a part of any Purchase Order and shall be incorporated therein by this reference. If Buyer has not otherwise agreed to these Terms and Conditions as a part of a Purchase Order, Buyer’s accepting delivery of the Covered Products or making payment therefore will constitute Buyer’s acknowledgment of its agreement to these Terms and Conditions. To the extent of any conflict or inconsistency between these Terms and Conditions and the terms and conditions set forth in any Buyer purchase order, order confirmation or other document, these Terms and Conditions shall take precedence. If Buyer deems any of these Terms and Conditions not to be acceptable, Buyer’s sole recourse shall be to cancel Buyer’s order by written notice to TopDek within five (5) days of receipt of these Terms and Conditions. Any Purchase Order, these Terms and Conditions, and any attachments hereto shall be collectively referred to herein as the “Agreement.”
2. PAYMENT TERMS
In consideration of the delivery of the Covered Products and/or performance of the Services, Buyer agrees to pay TopDek the purchase price as set forth in the Purchase Order. Payment of such purchase price shall be made in U.S. Currency as and when specified in the Purchase Order. If Buyer believes that any invoice is incorrect, Buyer must notify TopDek in writing within twenty (20) days after receipt of the applicable invoice. If Buyer does not so notify TopDek, Buyer shall be deemed to have waived the right to further dispute the accuracy of the invoice. If at any time TopDek determines that Buyer’s financial condition or credit rating does not justify a sale on credit, TopDek reserves the right to require advance payment, a personal guarantee and/or other security.
3. LATE PAYMENT
All payments not made as and when required hereunder shall bear interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate allowed by law, whichever is less, commencing on the date that the purchase price payment was due pursuant to the terms of the Purchase Order. Delinquent account balances are subject to placement for collection, and Buyer shall pay any reasonable fees and expenses incurred by TopDek for such collection activities including attorneys fees. TopDek reserves the right to cancel or suspend any outstanding orders upon written or electronic notice to Buyer in the event of Buyer’s failure to make timely payment hereunder.
TopDek’s prices do not include any personal property, value-added, sales, excise, VAT, use or other taxes. Buyer shall be liable for all such taxes whether or not invoiced by TopDek. Any sales tax to be collected by TopDek shall be reflected on the Purchase Order and/or invoice.
Delivery will be EXW, TopDek’s facility or other point of origin designated by TopDek. TopDek shall have the right to determine the method of shipment and routing of the Covered Products, unless otherwise agreed in writing. Buyer shall pay all Product shipping and delivery charges, reflected on Buyer’s invoice. TopDek shall not be liable for damages caused by handling or delays in shipping or delivery for any reason whatsoever. Delay in the delivery of any Covered Products here-under shall not relieve Buyer from the obligation to accept and pay for such Covered Products.
TopDek shall have no obligation to perform any installation or other Services except for those specifically identified on the Purchase Order or otherwise agreed in writing by the Parties.
7. EXPRESS LIMITED WARRANTY
TopDek warrants to the Buyer (“Buyer”, for purposes of this Warranty, means only first purchaser of the Covered Products and does not extend to subsequent purchasers) that the Covered Products are free from defects in workmanship and materials at the time of manufacture and for a period of thirty-six (36) months from the date the Covered Products are shipped from TopDek for delivery to the Buyer. The limited warranty provided hereunder is subject to the strict precondition provided that the Covered Products are used and maintained in accordance with all TopDek specifications for preparation, installation and storage, which may be found posted at www.topdek.com. Improper installation and/or repair voids this Warranty in its entirety, without exception.
WHAT THIS LIMITED WARRANTY DOES NOT COVER.
This limited warranty does not cover the installation, labor to install or labor to remove and reinstall the Product onto any surface, nor does it cover adhesion or lamination of the Product to the boat or to any other surface to which the Covered Products are applied. This warranty applies only to material and workmanship of the Covered Products itself. Some fading and/or discoloration of the Covered Products may occur with time; such fading and/or discoloration is not covered by this limited warranty. This limited warranty covers only excessive fading or polymer degradation resulting from defective materials. This warranty specifically EXCLUDES deformation, discoloration or other damage to the Covered Product, and EXCLUDES all other damage or loss, resulting from the Covered Product’s being subjected to temperatures in excess of 165°F (“Max Temp”). Max Temp may occur for example in certain specific installations which result in light amplification at the Covered Products surface due to reflection of sunlight from reflective surfaces or refraction of sunlight through light-transmissive surfaces such as windshields or optically clear structures. Care should be taken to avoid installing the Covered Product in such areas. It is exclusively the Buyer’s responsibility to provide assurance that any particular installation will not exceed the Max Temp. TopDek shall not be responsible for any damage or loss resulting from any application or use of the Covered Product which exceeds the Max Temp. Installations resulting in the Covered Product’s experiencing temperatures in excess of the Max Temp shall void this Warranty in its entirety.
WHAT TOPDEK WILL DO.
Covered Products determined by TopDek to have material and/or workmanship defects will be covered as follows. Products deemed by TopDek to be defective within thirty-six (36) months of shipment to Buyer will be replaced or a refund for the defective product will be provided within (30) thirty days of approved warranty claim and documented. The Buyer will be responsible for all shipping charges for international shipping.
The Buyer shall notify TopDek in writing and include supporting photos within thirty (30) days of the discovery of a defect causing the Covered Products to be noncompliant with this express warranty. Any such notice must be received during the Warranty Period in order to be valid. If TopDek determines that there is a defect causing the Products to be noncompliant with this express warranty during the Warranty Period, TopDek’s sole responsibility under this express warranty shall be either to replace the defective Covered Product or issue a credit in accordance with the terms stated herein.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE EXPRESS WARRANTY SET FORTH IN SECTION 7 ABOVE IS THE SOLE WARRANTY WITH REGARD TO THE PRODUCTS AND SERVICES. TOPDEK EXPRESSLY DISCLAIMS ANY OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS AND SERVICES, INCLUDING BUT NOT LIMITED TO, THEIR QUALITY, PERFORMANCE,MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR CUSTOMER.
9. LIMITATIONS OF LIABILITY
IN NO EVENT SHALL TOPDEK BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THE PRODUCTS, THE SERVICES, THE AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, IRRESPEC-TIVE OF WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT, OR OTHERWISE OR WHETHER TOPDEK HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. TOPDEK’S LIABILITY TO CUSTOMER UNDER ANY LEGAL THEORY SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE APPLICABLE PRODUCTS AND/OR SERVICES SOLD TO CUSTOMER.
10. FORCE MAJEURE
TopDek shall not be liable for any delays in delivery, or for non-delivery or nonperformance in whole or in part, caused by the occurrence of any contingency beyond the reasonable control of either TopDek or its suppliers including but not limited to one or more of the following causes: non-availability or shortage of materials, fire, destruction of plant, strike, labor disputes, epidemic, flood, delay in transportation, war, insurrection, embargo, acts, or demands or requirements of any governmental body. The existence of any such cause or causes of delay shall extend the time of performance to the extent of the resulting delay.
11. CANCELLATIO, COUNTERMAND AND RETURN OF GOODS
Orders accepted by TopDek cannot be canceled or countermanded, or shipments deferred or Product returned, except with the prior written consent of TopDek and upon such terms that may be reasonably established by TopDek.
Buyer shall not disclose any technical or other proprietary information furnished by TopDek or obtained by virtue of Buyer’s dealings with TopDek and shall make all efforts to ensure that such technical or other proprietary information is kept confidential. Title to such technical or other proprietary information disclosed or supplied by TopDek to Buyer shall at all times remain the absolute property of TopDek.
Unless otherwise negotiated, you grant TopDek, or its authorized representatives and contractors, the non-exclusive right to make visual recordings, audio recordings, still im- ages, and/or to otherwise caption material of your use of TopDek Products for reuse of promotional and non-promotional materials. TopDek will make available any material created upon request.
Buyer will defend, indemnify and hold TopDek harmless from and against all damages, losses, claims and expenses, including reasonable attorneys’ fees incurred by TopDek, as a result of any breach by Buyer of the Agreement, or any violation by Buyer of applicable law.
The Agreement may not be assigned or delegated by any party without the prior written consent of the other party. The Agreement may only be amended or modified by a writing duly executed by the parties hereto.
16. SEVERABILITY, WAIVER AND SURVIVAL
In case any provision in or obligation under the Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions or obligations shall not in any way be affected or impaired thereby. The waiver of any provision or condition or the breach of any term will not be a waiver of any subsequent breach of the same or any other term or condition. The Agreement constitutes the complete and final integrated agreement between the parties in regards to the specific terms contained herein. All prior negotiations, discussions and representations are merged into the Agreement. The Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, personal representatives, successors, and assigns. The acknowledgements, covenants and obligations of the parties set forth in the Agreement shall survive the expiration or termination of the Agreement, unless inapplicable by their terms.
17. APPLICABLE LAW
The Agreement shall be interpreted in accordance with the substantive laws of the State of Minnesota, without giving effect to conflict of laws principles. The parties agree that the exclusive venue for any claims or actions arising under or in relation to the Agreement shall be in Washington County, Minnesota, or in United States District Court for the District of Minnesota. The parties hereto consent to the personal jurisdiction of such courts and waive any argument that such a forum is not convenient.