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TANDEMLOC, Inc.
Policies and Procedures and Limited Warranty |
3006.06a
Terms & Conditions of Sale Including Limited Warranty |
Authorized by:
John DiMartino |
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| Date |
Rev. |
Modification |
| 10/01/2008 |
1.0a |
Re-written |
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| Description of Terms and Conditions: These Terms
and Conditions apply to the purchase, and/or use
of Tandemloc, Inc. (“Tandemloc”) material, supplies, equipment,
drawings, goods and other articles or
accompanying documentation (collectively, “Product”) by the
purchaser (“Customer”) under any
purchase order. Any terms in any Customer purchase order,
acknowledgment or other document that are
in addition to or inconsistent with these Terms and Conditions
are rejected by Tandemloc and will be of
no effect. Customer may assent to and accept these Terms and
Conditions by written acknowledgment, by
conduct or course of dealing, and/or by acceptance of or payment
for the Equipment ordered.
Tandemloc’s failure to object to any term or condition contained
in any communication from Customer
shall not be deemed a waiver of these Terms and Conditions nor
shall such failure be deemed an
acceptance of any term or condition contained in such
communication. These Terms and Conditions may
be amended, modified or superseded only in a written agreement
executed by an authorized representative
of each party. |
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| Right to Cancel: Tandemloc, Inc. may
terminate and rescind all or part of this order in the
event Customer breaches or fails to perform any of its
obligations in any material respect, or in
the event Customer becomes insolvent or proceedings are
instituted by or against Customer
under any provision of any federal or state bankruptcy or
insolvency laws or Customer ceases its
operation. All cancellations will be subject to minimum charge
of 20% of the sales order. The
charge is at the discretion of Tandemloc and will be evaluated
on a case-by-case basis, reflecting
the amount of investment we have in the processing and
production of the product you have
ordered. |
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| Quantity; Price; Payment; Late Fees; Taxes:
Customer agrees to purchase the quantity of the
Product specified in the Order Acknowledgement at the prices
specified therein. All prices are in
U.S. dollars. Customer must notify Tandemloc in writing of any
dispute with invoiced charges
prior to the date when payment for such invoice is due. Absent
such notice, Customer shall be
deemed to have agreed to the charges as invoiced. All past due
amounts will accrue a late fee of
1.5% percent per month or the highest rate allowed by law,
whichever is less. In the event of
delinquency on any account, Customer agrees to pay for all
collection costs, attorneys fees, and
court costs incurred in the collection of such account,
regardless of whether litigation is pursued.
All prices are exclusive of, and Customer shall pay, all
relevant taxes, assessments, surcharges,
levies, or similar items assessed by a governmental body. |
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| Confidential Information: Customer shall
hold in confidence all technical and pricing information
disclosed to Customer. Customer agrees to execute a separate
Confidentiality Agreement if required by Tandemloc. |
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| Intellectual Property: Customer acknowledges that Tandemloc and its licensors own all right,
title, and interest, including all patent, copyright, trade
secret, trademark, moral rights, and other
intellectual property rights in the Product and the proprietary
technology embodied therein. No
title to any intellectual property rights shall pass to
Customer. Customer shall not engage in any
act or omission that would impair Tandemloc’s or its licensors’
intellectual property rights in any
Product. Customer agrees that it shall not reverse engineer,
decompile or take other action to
reproduce or replicate any and all of Tandemloc’s products or
confidential information currently
in its possession or that will be received in its possession
related to the sale nor will the Customer
allow other parties to reverse engineer, decompile, or take
other action to reproduce or replicate
Tandemloc’s products or confidential information. Customer
agrees to execute a separate
Confidentiality Agreement if required by Tandemloc. |
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| Delivery Terms: Tandemloc will ship the
Product as close as reasonably practicable to Customer’s
requested date. Tandemloc shall not be liable for any damage or
penalty arising from delay in delivery. Risk of loss or damage
to any Product shall pass to Customer based on the agreed
shipping items as stated on the order acknowledgement. |
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| Installation: Customer is solely
responsible for installing the Product. Customer agrees to
indemnify and hold harmless Tandemloc, its shareholders,
directors, officers, agents, and employees from any and all
loss, costs, damages or liability including but not limited to
personal injury arising as a result of Product installation. |
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| Security Interest: As collateral security
for all of customer’s payment obligations under these terms and
conditions, Customer hereby grants Tandemloc a first priority
security interest in all Products purchased to the maximum
extent permitted by law. Customer shall, at Tandemloc’s expense,
take all commercially reasonable actions required by Tandemloc
to evidence and perfect such security interest, including
executing and delivering a separate security agreement and UCC-1
financing statement. |
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| Additional Terms: Customer shall not
modify the Product in any way without Tandemloc’s prior written
approval, and Customer shall not authorize any third party to
modify the Product without Tandemloc’s prior written approval.
Customer agrees to abide by Tandemloc’s then-current Product
return policy, as specified to Customer by Tandemloc. |
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| Limited Warranty: In the event that any
product or part thereof sold by TANDEMLOC to Customer is
determined by Tandemloc to be defective within the first twelve
(12) months following purchase, Tandemloc agrees to either
repair or replace said product or part thereof or to refund the
purchase price of said product or part thereof to Customer. This
is a LIMITED warranty, which terminates twelve (12) months
following purchase of said product or part thereof. This
warranty between Customer and Tandemloc represents the entire
agreement between Customer and Tandemloc. All prior or
contemporaneous discussions, representations and/or
understandings are merged into this Warranty and may only be
amended or modified by a writing signed by all parties. |
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| Disclaimers of Other Warranties: No other
form of warranty is extended to cover said Product.
Specifically, Customer and Tandemloc, their successors and
assigns, expressly agree that the remedies provided in this
section are the Customer's exclusive remedies in connection with
the purchase, operation or use of the Product. All other
warranties, including express warranties and the implied
warranties of merchantability and fitness for a particular
purpose are hereby disclaimed. Customer hereby waives all other
warranties, rights and remedies arising by law or otherwise
including, but not limited to, express warranties, the implied
warranty of merchantability and implied warranties arising from
course of performance, course of dealing or usage of trade, and
implied warranty of fitness for a particular purpose. There are
no warranties, which extend beyond the description on the face
hereof. Also, Tandemloc disclaims all liability for incidental
or consequential damages including attorney fees in connection
with said Product. Additionally, Tandemloc hereby disclaims any
of its obligations or liabilities arising from statute,
contract, tort or negligence with regards to said Product. |
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| Force Majeure: Neither party shall be
liable for delays in shipment or other performance due to causes
beyond its reasonable control and without its fault or
negligence, including but not limited to, act of God, acts of
civil or military authority, governmental priorities, strikes,
fires, floods, epidemics, war, riot, delays in transportation or
car shortages, or inability on account of any cause beyond the
reasonable control of the party to obtain necessary materials,
components, or equipment. In any event of any such delay, the
date of shipment or performance shall be extended for a period
equal to the time lost by reason of delay. |
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| Returns: Returns will only be considered
within 10 days after shipment, and only if the product is
unused. Prior to returning, you must obtain a return
authorization form from our sales department, following its
shipping instructions to return the item. Unauthorized returns
will be refused at our receiving dock. A restocking charge of
20% will be applied to all returned goods except those deemed
defective or those which were incorrectly shipped. Custom
Products are not returnable unless deemed defective. Custom
products are those products either built to meet your
application requirements or are items that are not stock items. |
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| Specifications, Drawings and Customer
Responsibilities: Customer agrees to be bound by the
Tandemloc specifications, drawings and Customer
responsibilities, both as set forth on the Tandemloc Website and
as otherwise furnished by Tandemloc. |
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| Down payments: Down payments may be
required and are not refundable. If a down payment is required,
your order will not be processed until the down payment is
received. Lead time begins after receipt of your down payment. |
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| Product Literature Accuracy: While every
attempt is made to give our customers accurate, up to date
information in our website, mistakes are possible and products
change from time to time. Therefore all data is subject to
change without notice. Please confirm any important dimensions
or details that may significantly impact your application.
Please check that you have the latest information prior to
ordering. |
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| Choice of Law: Any dispute about the
interpretation of this Warranty shall be governed by the laws of
the State of North Carolina. |
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| Resolution of Disputes: Customer and
Tandemloc expressly agree that any dispute arising as a result
of the purchase, use or operation of the purchased product or
part thereof shall, upon written notice to the other party, be
resolved through binding arbitration. The location of any such
arbitration shall be Havelock, North Carolina. The substantive
laws of the State of North Carolina shall govern the arbitration
to the extent that they are not in conflict with the then
existing rules of The American Arbitration Association. In no
event shall Tandemloc be liable for incidental or consequential
damages or attorney fees and costs as part of the arbitration
award. The award, decision or filing rendered by the arbitrator
shall be final, and judgment may be entered upon it in
accordance with the applicable law in any court having
appropriate jurisdiction. |
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| Severability: The invalidity or
unenforceability for any reason of any particular provision or
provisions of these Terms and Conditions Including Limited
Warranty shall not affect the other provisions hereof, and the
Terms and Conditions Including Limited Warranty shall be
construed in all respects as if such invalid and unenforceable
provisions were omitted. |
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| Indemnification by Customer: Customer
shall defend, indemnify, and hold Tandemloc, its shareholders,
directors, officers, employees, and agents harmless against all
costs and reasonable expenses (including reasonable attorneys’
fees), damages, and liabilities arising out of any claim by a
third party or one of Customer’s employees, agents, or
contractors for damages relating to personal injury, death,
and/or property damage arising from the use or installation of
the Product, provided that Tandemloc gives Customer (i) prompt
written notice of such claim; (ii) control over the defense and
settlement of such claim; and (iii) proper and full information
and assistance to settle and/or defend such claim.
Notwithstanding the foregoing, Customer shall not settle any
third-party claim against Tandemloc unless such settlement
completely and forever releases Tandemloc with respect thereto
or unless Tandemloc provides its prior written consent to such
settlement. In any action for which Customer provides defense on
behalf of Tandemloc, Tandemloc may participate in such defense
at its own expense using counsel of its choice. |
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| Limitation of Liability: Tandemloc shall
have no liability or obligation to Customer except as provided
in these terms and conditions. In no event shall Tandemloc be
liable to Customer for any incidental, consequential, special,
punitive, exemplary or indirect damages, or for any lost
profits, even if advised of the possibility of the same, however
caused and regardless of theory of liability, whether tort,
contract, or strict liability caused or pertaining in any way to
the Product. In no event shall Tandemloc be liable for damages
relating to personal injury caused by installation of the
Product. In addition, Tandemloc is not the manufacturer of the
equipment which incorporates, utilizes, or works with the
Tandemloc Product. Therefore, Tandemloc shall have no liability
or obligation to Customer with respect to the Equipment, and in
no event shall Tandemloc be liable to Customer for any
incidental, consequential, special, punitive, exemplary or
indirect damages, including personal injury or for any lost
profits, even if advised of the possibility of the same, however
caused and regardless of theory of liability, whether tort,
contract, or strict liability caused or pertaining in any way to
the Equipment. The disclaimers and exclusions contained herein
are independent of any exclusive remedy and shall apply
notwithstanding the failure of such exclusive remedy. The
disclaimers, exclusions and limitations of liability set forth
in these Terms and Conditions form an essential basis of the
bargain between Tandemloc and Customer, and, absent any of such
disclaimers, exclusions or limitations of liability, the
provisions of these Terms and Conditions, including the economic
terms, would be substantially different. |
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