TERMS AND CONDITIONS
This Terms and Conditions of Sale (“Agreement” or “Terms of Sale”) contains the terms and conditions that apply to your (“Buyer”) purchase from Tech Trade Global, LLC, an Ohio limited liability company (“Seller”) of the Goods sold by Seller pursuant to this Agreement, and Buyer agrees to be bound by and accepts these terms and conditions. These terms and conditions are subject to change without prior written notice at any time, at Seller’s sole discretion.
“Seller” is an independent supplier and re-seller of certain IT hardware from numerous manufacturers and has the meaning set forth above.
“Goods” means the products that Seller sells to Buyer or ships on behalf of Buyer.
“Buyer” means the person, company or other party who orders Goods from the Seller.
“Price” means the price quoted on the date the order is accepted by Seller.
2. PURCHASE AND SALE
When Buyer places a purchase order with Seller and Seller accepts the Buyer’s purchase order by either issuing an Order Confirmation and/or by shipping and invoicing the order, Buyer and Seller agree the purchase order, the Order Confirmation or invoice, any manufacturer disclosure/disclaimer, the Credit Application, the personal or individual guarantee, and the following terms and conditions are the exclusive terms and conditions governing the sale and purchase transaction between Buyer and Seller. All of these documents together or separately comprise the Agreement between Buyer and Seller and may be referred to as the “Terms of Sale”.
In entering into the Agreement, Buyer acknowledges that it has not relied on any verbal representations of the Seller with respect to the subject matter of this Agreement, and Buyer unconditionally waives any right it may have to claim damages for and/or to rescind the Agreement as a result of any alleged representations. Any samples, drawings, descriptive matter, specifications and advertising issued by Seller and any descriptions or illustrations contained in Seller’s catalogues or brochures, if any, are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Agreement and this is not a sale by sample. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Seller shall be subject to correction without any liability on the part of the Seller.
3. PRICE OF THE GOODS
The Price for the Goods shall be that amount as set forth in the Order Confirmation and/or by shipping and invoicing the order. The Price is exclusive of all duties and taxes and shall be paid in accordance with the Seller’s payment terms. Buyer is solely responsible for and shall pay any and all duties and taxes, and Seller is and never shall be responsible for payment of duties or taxes. If Seller mistakenly pays or is charged for any duties or taxes, Buyer shall reimburse Seller. Seller reserves the right to change or alter the Price as the situation demands and as Seller may deem necessary. In the event Buyer requests Seller to purchase a manufacturer’s service or warranty contract on Goods purchased from Seller, Seller may require Buyer to prepay any and all such costs of the manufacturer’s warranty before any Goods are shipped. Such payment is not refundable under any circumstances. A manufacturer, in the manufacturer’s sole discretion, may choose not to honor the warranty contract on Goods purchased from Seller because Seller is not a member of the manufacturer’s authorized reseller program.
Any dates quoted for delivery of the Goods are approximate only and Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Seller shall be entitled to deliver the Goods in installments. Where the Goods are delivered in installments, each delivery shall constitute a separate agreement and failure by the Seller to deliver any one or more of the installments in accordance the Agreement or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to treat the Agreement as a whole as repudiated. Failure by Seller to deliver one or more installments shall not alter the agreement between Buyer and Seller with respect to Goods previously delivered or undelivered.
5. TERMS OF PAYMENT
Buyer shall make payment of all amounts due Seller on the terms specified on the Invoice. Buyer and Seller agree to the terms of payment as specified in this Agreement and the Invoice. Any disputes over the terms of the Invoice must be in writing and received by Seller within seven days from the date of the Invoice. In the event of a conflict between this Agreement and the Invoice, the Invoice terms shall take precedence. Buyer shall owe to and pay to Seller the full amount due for the Goods until such Goods are returned to Seller pursuant to the terms Agreement in the same condition in which the Goods were shipped. If Buyer fails to make any payment within the terms specified, then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Agreement or suspend any further deliveries to the Buyer and require the immediate return to the Seller of all Goods agreed to be sold by the Seller to the Buyer in which legal title has not passed to the Buyer in accordance with this Agreement. Buyer understands and agrees that Buyer shall reimburse to the Seller on demand the Seller’s costs or expenses in recovering such Goods, and that Seller may apply any payment made by Buyer for such Goods or any other goods purchased by Buyer from Seller in any manner that Seller deems fit. Buyer agrees to pay Seller interest on any and all amounts not received within the terms specified, and in the case of judgment against Buyer by Seller (both pre- and post-judgment interest) on the amount unpaid at the rate of 1.5% per month or the maximum amount allowed by law from the date that such payment was due, and Seller, in addition to any other rights or remedies available to the Seller, shall be entitled to recover from Buyer all costs, charges and expenses incurred by the Seller in recovering amounts owed by Buyer and reasonable attorneys’ fees and costs. Buyer agrees that all amounts due Seller under this Agreement and the Invoice are payable without any right of set-off and free from any counterclaim, defense based on dealings between the Parties, or withholding or deduction or of any kind.
Buyer (or if the Goods are drop-shipped to a third party at the request of Buyer, then such third party) shall notify Seller in writing within five days of delivery, regardless of whether delivery is accepted or refused, of any shortfall in the quantities of Goods shipped to Buyer (or such third-party) or any defect, damage or discrepancy in the condition of the Goods shipped to Buyer (or such third-party), with such notice being, in the case of damage, other than on a delivery note. If such written notice is not received from Buyer (or such third party) within the five days, the Goods are accepted by Buyer and full payment for the Goods is due to Seller from Buyer. After five days from the date of delivery, Seller shall be deemed to have supplied the Goods in accordance with the these Terms of Sale, and Seller shall have no liability to the Buyer (or any third party) in respect of any claim of shortfall or damage, and Buyer (and any third party) shall have no claim against the Seller with respect to any alleged shortfall or damage. Buyer is responsible to provide shipping address. Seller shall not be liable for incorrect shipping address. Changes made to a shipping address after goods are shipped will result in a minimum charge of $50.00. Goods are considered shipped when a tracking number is created.
Defective product may be replaced within 30 calendar days from the date the product was shipped. Seller offers advanced replacements on DOA Goods. Non-defective products may be returned only on a case-by-case basis, as determined by Seller in its sole discretion. Authorized returns may exclude special order items and are subject to Seller’s approval.
Seller ships all new product in the unopened original packaging of the Manufacturer with part numbers and serial numbers on the package label, if applicable. If Buyer receives a product from Seller that a Manufacturer states in writing has not been produced under the authority or approval of the branded Manufacturer, Seller will replace the product at no charge. Buyer acknowledges and agrees that since the product was sourced and purchased outside a Manufacturer’s authorized channel, a Manufacturer, a Manufacturer’s sales representative, or a Manufacturer’s partner may take steps to disrupt the sale in an attempt to preserve the Manufacturer’s price structure in the local market. The Manufacturer may refuse to honor new or existing warranty contracts. Seller is not responsible nor has any liability should Manufacturer refuse to honor a warranty contract for any reason and under no circumstances is Seller a part of or party to any dispute between Buyer and Buyer’s customer and Manufacturer.
Returns Procedures. If Buyer wishes to return a product, Buyer shall request in writing and receive from Seller a Return Merchandise Authorization Number (“RMA”) within 30 calendar days from the date of the shipping date. In such written request, Buyer shall provide the specific reason for the return of each product by serial number requested to be returned. Seller may determine in its sole discretion whether to accept requests for a product return made more than 30 calendar days from the shipping date. An RMA number is valid for a period of 14 calendar days from the date that the RMA has been approved and issued by Seller. All returns shall be received by Seller from Buyer within 15 calendar days from the date that the RMA is issued by Seller. Returned products received more than 15 calendar days from the date that the RMA was issued by Seller may not be accepted by Seller. Products returned to Seller without an authorized RMA number may be accepted by Seller but no credit is required to be given to Buyer. Until such time that the product is received and accepted by Seller pursuant to an authorized RMA, Buyer shall owe to and pay to Seller the full amount due for the product plus any and all accrued interest from the date of the Invoice. For all RMA requests or product returns, a restocking fee of 25% may be charged to Buyer as determined in the sole discretion of Seller.
Shipping Instructions. Buyer is solely responsible for shipping and payment of any shipping costs including insurance for all products returned to Seller. Buyer shall use carriers that provide proof of delivery and insurance for the entire value of the shipment. Buyer is responsible for all risk of loss for the return during shipment. The RMA shall be prominently displayed on the shipping label on boxes containing any returned product, and all returned items shall be 100% complete, in resalable condition (manufacturer’s seals intact), and shall include the original packaging material, manuals, blank warranty cards, and other accessories provided by the manufacturer. If a product does not meet all of the terms in the previous sentence, Seller may in its sole and absolute discretion reject any portion of or all the returned production or choose to impose additional charges against the Buyer.
8. CREDIT APPLICATION AND INDIVIDUAL GUARANTEE
If payment for Goods ordered by Buyer from Seller is not paid in full before shipping, Seller must receive from Buyer a completed and signed Credit Application and approve such application before any product will be shipped. If Seller is unable to obtain sufficient credit insurance on Buyer, Seller may require Buyer to sign a personal or individual guarantee. The Credit Application includes an Individual Guarantee to be signed by an officer of Buyer for the total amount of credit extended to Buyer. The signed Credit Application, signed Individual Guarantee, the Buyer’s purchase order, the Seller’s Order Confirmation or invoice, any manufacturer disclosure/disclaimer, and these Terms of Sale are the exclusive terms and conditions governing the sale and purchase transaction between Buyer and Seller. Buyer further agrees that upon Seller’s request, Seller shall retain a security interest in all products sold by Seller to the Buyer, and to all of the Seller’s Goods now or hereafter acquired by Buyer and to any proceeds thereof until the purchase price has been paid in full, and Buyer agrees to execute any financing statements or other documents as the Seller may request in order to protect the Seller’s security interest.
If payment for Goods ordered by Buyer from Seller is paid in full before shipping, Seller must receive from Buyer a signed Credit Application with only Section A and Section B completed before any Goods will be shipped by Seller.
Seller is not an authorized reseller of the products. Seller is an independent reseller only. If Buyer is an authorized seller or reseller for any manufacturer and Buyer chooses to purchase such manufacturer’s product from Seller, any dispute between Buyer and manufacturer of the product is solely between Buyer and manufacturer. If Buyer is not an authorized seller or reseller for any manufacturer and Buyer chooses to purchase any manufacturer’s product from Seller, any dispute between Buyer and manufacturer of the product is solely between Buyer and manufacturer. Under no circumstances is Seller a part of or party to any dispute between Buyer and any manufacturer. Products sold by Seller are not manufactured by Seller.
The products may be covered by a manufacturer’s warranty, service, or support policy (if present). If such warranty is present, Seller on date of shipping assigns and passes to Buyer any such warranty of the manufacturer. Buyer agrees, accepts, and acknowledges that Buyer shall have recourse only against the manufacturer of such products under such warranties and only against the manufacturer. If requested by the Buyer in writing, Seller may be able to purchase a manufacturer’s warranty, service, and support policy. In the event Buyer makes such a request and Seller is able to purchase a manufacturer’s warranty, service, and support policy, then Buyer hereby agrees to prepay Seller the full cost of such purchase. Any amount paid by buyer to Seller for such warranty, service, or support policy in not refundable in any circumstances.
Seller does not give any warranty or representation and it is not a condition of the Agreement that the Goods have been sold to the Buyer with the consent, whether express or implied, of the brand owner or that the owner of any intellectual property rights in or relating to the Goods has consented to their import into the USA or export from the USA or that the manufacturer of the Goods will comply with any guarantee which it generally makes available, whether due to the Goods not having been so sold, imported or exported or otherwise.
10. LIMITED WARRANTY
As described above in Section 7, entitled Returns, Seller offers a 30 day advanced replacement limited warranty from the date of shipping on products purchased from Seller. Should a product fail to operate under the manufacturer’s specified operating environment within 30 days from the date of shipment, Seller will provide a replacement in exchange for the defective product.
EXCEPT AS SPECIFICALLY STATED HEREIN, SELLER SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY PRODUCT PURCHASED BY BUYER FROM SELLER, INCLUDING AND WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
SELLER SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTY OR REPRESENTATION OF ANY KIND, AS TO ANY PRODUCT PURCHASED BY BUYER FROM SELLER UNDER THIS AGREEMENT. SELLER AND ITS SUPPLIERS DISCLAIM AND EXCLUDE ANY AND ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR ANY PARTICULAR PURPOSE,AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. THE PRODUCTS PROVIDED WILL BE FURNISHED “AS-IS” AND WITH ALL FAULTS, AND SELLER DOES NOT WARRANT THAT ANY PRODUCT WILL SATISFY BUYER’S REQUIREMENTS OR BE WITHOUT DEFECT.
11. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER’S AGGREGATE LIABILITY FOR DAMAGES RELATED TO THE PRODUCT OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION, SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID TO THE SELLER BY THE BUYER FOR THE PRODUCT OR THE PURCHASE PRICE OF THE PRODUCT SOLD, WHICHEVER IS LOWER. IN NO EVENT WILL SELLER OR ITS AGENTS OR REPRESENTATIVES BE LIABLE TO BUYER OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR INFORMATION, LOST PROFITS, REVENUES OR EXPECTED SAVINGS, OR BUSINESS INTERRUPTIONS, OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY AND WHETHER OR NOT SELLER HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH CLAIMS OR DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT.
Buyer agrees to defend, indemnify and hold Seller, its subsidiaries, affiliates, officers, directors, agents and employees harmless from any claim, demand, damages, costs and expenses (including reasonable attorneys’ fees), arising from any third party claim against Seller due to or arising out of or relating to any facts pertaining to the Goods or the transactions contemplated by this Agreement.
13. TITLE; RISK OF LOSS
All costs of shipping will be determined by Seller and Buyer prior to shipment and stated on Seller’s quote.
Seller will use information received from the Buyer to arrange for shipment of ordered product to Buyer or Buyer’s customer, (“end-user”), Free on Board (F.O.B.) shipping point, meaning title to the product and risk of loss passes to the Buyer upon delivery to the carrier. Seller will advise Buyer of estimated shipping dates, but Seller will, under no circumstances, be responsible for delays in delivery, and associated damages, due to events beyond Seller’s reasonable control, including without limitation, acts of God or public enemy, acts of federal, state or local government, fire, floods, civil disobedience, strikes, lockouts, and freight embargoes.
14. GOVERNING LAW AND JURISDICTION
This Agreement and the transactions contemplated by this Agreement shall be governed by the laws of the State of Ohio, without regard to conflicts of law principles. Specifically, the validity, interpretation, and performance of this agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Any dispute arising out of or relating to this Agreement or any product purchased or sold pursuant to this Agreement shall be brought only in the Court of Common Pleas of Cuyahoga County, Ohio. Each Party submits to the personal jurisdiction of such court and irrevocably waives any objection to venue in such court. Buyer understands and agrees, and Buyer, on behalf of itself and its successors and assigns or any other person claiming by or through Buyer, expressly waives any right to assert or otherwise bring any legal action, based upon any legal theory including contract, tort, equity or otherwise, against Seller more than one year after the date of the shipping of the product.
In the event of any dispute arising out of or relating to this Agreement, the parties shall seek to settle the dispute via direct discussions. If a dispute cannot be settled through direct discussions, the parties agree to first endeavor to settle the dispute via voluntary non-binding mediation, before resorting to arbitration. A mediator will be selected by voluntary agreement of both parties, or in the event both parties cannot agree on a mediator, a mediator will be selected in accordance with the rules of the American Arbitration Association. The mediation shall be held in Cleveland, Ohio. Each party shall bear its own costs and expenses and an equal share of the administrative and other fees associated with the mediation. Any dispute that remains unresolved following mediation shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The place of arbitration shall be Cleveland, Ohio. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator(s) shall award to the prevailing party, if any, as determined by the arbitrator(s), all of its costs and fees. “Costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys’ fees. In rendering the award, the arbitrator(s) shall determine the rights and obligations of the parties according to the substantive and procedural laws of the State of Ohio.
If any provision contained in this agreement is or becomes invalid, illegal, or unenforceable in whole or in part, such invalidity, illegality, or unenforceability shall not affect the remaining provisions and portions of this agreement, and the invalid, illegal, or unenforceable provision shall be deemed modified so as to have the most similar result that is valid and enforceable under applicable Ohio law.
The failure of either party to require performance by the other party of any provision of this agreement shall not affect in any way the first party’s right to require such performance at any time thereafter. Any waiver by either party of a breach of any provision in this agreement shall not be taken or held by the other party to be a continuing waiver of that provision unless such waiver is made in writing.
17. ENTIRE AGREEMENT
These Terms of Sale, the Buyer’s purchase order, Seller’s Order Confirmation or invoice, manufacturer disclosure/disclaimer, the Credit Application, and the individual guarantee are the exclusive terms and conditions governing the sale and purchase transaction between Buyer and Seller and shall not be modified in any way except by a writing signed by both Seller and Buyer. These Terms of Sale supersede all prior or contemporaneous proposals, oral or written, understandings, representations, conditions, warranties, and all other communications between Seller and Buyer relating to the subject matter hereof. The Agreement may not be explained or supplemented by any prior course of dealings or trade by custom or usage or conditions of purchase proposed by Buyer.