1. Applicability: These Terms and Conditions are an essential part of, and applicable to any sale of, or offer to sell equipment or services (“Products”) by ShockWatch, Inc. (“Seller”). These Terms and Conditions are integral to, and expressly incorporated by reference into, any document or communication issued by Seller with respect to any sale of, or offer to sell, Products. Unless otherwise expressly agreed in writing by Seller, these Terms and Conditions, together with Seller’s order acknowledgment and invoice, constitute the sole terms and conditions with respect to any purchase and sale of Products by Seller to Buyer. Any additional or inconsistent terms and conditions contained in any written expression of acceptance, purchase order, or any other document issued by the purchaser (“Buyer”) of such Products (e.g., a Purchase Order or Sales Acknowledgement) are rejected by Seller. Buyer agrees, acknowledges and consents that Buyer’s competing Terms and Conditions, if any, shall have no force and no effect when a court or other authority of competent jurisdiction makes a legal determination of what contractual terms, conditions and provisions are valid and control the sale of Seller’s Products to Buyer.
THIS IS A LEGAL AGREEMENT. BY PLACING AN ORDER FOR PRODUCTS BUYER IS ACCEPTING AND AGREEING TO THESE TERMS AND CONDITIONS. BUYER REPRESENTS AND WARRANTS THAT BUYER HAS THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS AND CONDITIONS. IF BUYER DOES NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS AND CONDITIONS, BUYER SHOULD NOT PURCHASE THE PRODUCTS.
Seller reserves the right to change these Terms and Conditions at any time. Buyer should review the Terms and Conditions each time prior to making purchases from Seller.
2. Order Acknowledgement; Change Orders: Buyer may submit a written Purchase Order for Products to Seller, but no Purchase Order can create a contract for sale unless and until Seller executes a corresponding Order Acknowledgement that is returned to Buyer agreeing to the essential terms of price and quantity. Seller’s agreement to enter into a contract with Buyer is also expressly conditioned upon Buyer’s acceptance of these Terms and Conditions. Buyer’s Purchase Order together with Seller’s Order Acknowledgement and the agreed applicability of these Terms and Conditions shall result in an agreement (“Agreement”) to enter into a contract between Seller and Buyer with respect to the Products specified in the Order Acknowledgement. All changes to an order must be received by Seller at least ten (10) days before shipment and requires Seller’s written consent in the form of a revised Order Acknowledgment. Seller’s consent to change orders may be given or withheld in Seller’s sole discretion.
3. Delivery: The delivery terms of equipment purchased pursuant to the Agreement shall be designated in Seller’s offer. Insurance for equipment shipped to Buyer, and the cost and risk of loss incurred during shipment, shall be at Buyer’s sole expense and risk.
4. Acceptance of Products: Buyer, or any user receiving shipment on behalf of Buyer, shall inspect all Products immediately upon receipt. Subject to Section 7.A., all Products will be deemed to comply with the terms of the Agreement in all respects and to have been accepted by Buyer as delivered, unless Buyer notifies Seller in writing within thirty (30) days of delivery of any defect, shortage, or other failure to conform to the terms of the Agreement.
5. Deposit; Payments: Buyer agrees to pay a deposit to Seller at the time an order for equipment is delivered and in the amount required by Seller. The deposit will be applied against the purchase price, subject to these Terms and Conditions. Buyer agrees to pay Seller the full amount due as set forth on each Seller’s invoice Buyer receives within thirty (30) days of invoice date, without setoff or deduction. Any amounts outstanding after the stated due date, which is net 30 days of invoice date, will be subject to a 1.5% per month (18% per annum or, if less, the maximum allowed by law) interest charge.
6. Order Cancellations: Unless Buyer orders a custom-made Product (“Custom Product”), Buyer may cancel an order without payment of cancellation charges by providing written notice to Seller no later than ten (10) days before shipment. Seller’s consent is required to cancel any order for Custom Products and to cancel an order less than ten (10) days before the scheduled shipment date. If Buyer cancels a Custom Order, Buyer agrees to pay a cancellation charge in an amount that will be determined by Seller in accordance with the status of the job at the time of cancellation, which will at least 25% or more of the purchase price as determined by Seller, but in no event less then $1,000. A “Custom Order” is any order for equipment that does not involve the sale of stocked pre‐manufactured inventory.
A. Warranty Returns. If a Product fails to conform to Seller’s Specifications (as defined in Section 8.A.), Buyer may return such Product to Seller at any time prior to the Product’s specified expiration date or, if no expiration date is specified, within one year from the date of shipment of such Product from Seller to Buyer. Upon receipt of a Product returned in accordance with this Section 7.A., Seller shall, at Seller’s election, either (1) refund the Purchase Price paid by Buyer for such Product (without interest) or (2) repair and/or replace such Product (or, in the case of services, re-perform such services) at no additional cost to Buyer. Notwithstanding the foregoing, no warranty will apply to, and Buyer may not return, any Product that, after shipment by Seller, has been modified or altered in any way or subjected to any misuse, neglect, or accident. All claims regarding any defect or failure of a Product to conform to Seller’s Specifications shall be deemed waived unconditionally and absolutely unless Seller receives written notice of such claim prior to the Product’s specified expiration date or, if no expiration date is specified, within one year from the date of shipment of such Product from Seller to Buyer.
B. Non-Warranty Returns. Except as provided in Section 7.A., Buyer may return Products only on the following conditions: (1) returned Products must be new and may not be Custom Products; (2) Buyer must notify Seller in writing of the return and ship the Products to Seller or as directed by Seller, at Buyer’s sole expense and risk, so that the returned Products are received by Seller no later than 35 days after Seller’s delivery of the Products to Buyer; (3) on or before the return date, Buyer must pay Seller a restocking charge equal to 15% of the Purchase Price for the returned Products; and (4) Buyer must either return the Products in their original packaging in reusable condition or pay an additional restocking charge as specified by Seller to replace the original packaging. If the Purchase Price for the returned Products has been paid in full prior to the return date, the foregoing charges and any other amounts owed by Buyer to Seller will be deducted from the Purchase Price and the remaining amount will be remitted to Buyer.
C. This section does not affect the warranties under Section 8 below.
8. LIMITATION OF SELLER’S LIABILITY:
A. Seller makes no warranty, expressed or implied, except that the Products sold hereunder shall conform to Seller’s written specifications for such Products as in effect and provided to Buyer by Seller at the time of sale of such Products to Buyer (“Seller’s Specifications”).
B. SELLER’S WARRANTY SET FORTH IN SECTION 8.A. IS EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER WARRANTIES, REPRESENTATIONS, AND COVENANTS, EXPRESS OR IMPLIED, STATUTORY, UNDER COMMON LAW OR OTHERWISE. EXCEPT AS PROVIDED IN SECTION 8.A., SELLER MAKES NO, AND EXPRESSLY DISCLAIMS, AND BUYER HEREBY EXPRESSLY WAIVES, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL WARRANTIES, GUARANTEES, PROMISES, OR REPRESENTATIONS WITH RESPECT TO THE PRODUCTS, WHETHER WRITTEN, ORAL, EXPRESSED, OR IMPLIED, AND WHETHER IN FACT OR BY OPERATION OF LAW, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR ANY WARRANTY OF NON-INFRINGEMENT (INCLUDING PATENT INFRINGEMENT, BOTH DIRECT AND INDIRECT, AND INCLUDING BOTH CONTRIBUTORY AND INDUCING PATENT INFRINGEMENT).
C. NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT OR THESE TERMS AND CONDITIONS, BUYER ASSUMES ALL RISK WHATSOEVER, AND SELLER (AND SELLER’S SHAREHOLDERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, AND OTHER AFFILIATES (COLLECTIVELY, “SELLER’S AFFILIATES”)) SHALL NOT BE LIABLE, FOR ANY LOSS, DAMAGE, OR LIABILITY INCURRED BY BUYER OR BY ANY USER OF ANY PRODUCTS ARISING OUT OF THE USE OF SUCH PRODUCTS, WHETHER SINGLY OR IN CONJUNCTION WITH ANY OTHER EQUIPMENT OR PROCESS, AND WHETHER DUE TO THE NEGLIGENCE OF SELLER OR ANY OTHER PERSON OR ENTITY. THE LIABILITY OF SELLER AND SELLER’S AFFILIATES FOR ANY FAILURE OF A PRODUCT TO CONFORM TO SELLER’S SPECIFICATIONS SHALL BE LIMITED EXCLUSIVELY TO, AT SELLER’S ELECTION, EITHER (1) REFUND OF THE PURCHASE PRICE PAID BY BUYER FOR SUCH PRODUCT (WITHOUT INTEREST) OR (2) REPAIR OR REPLACEMENT OF SUCH PRODUCT (OR, IN THE CASE OF SERVICES, REPERFORMANCE OF SUCH SERVICES). IN THE EVENT A COURT OF COMPETENT JURISDICTION SHOULD RULE THAT SELLER OR ANY OF SELLER’S AFFILIATES IS ANSWERABLE IN DAMAGES NOTWITHSTANDING THE LIMITATION OF LIABILITY SET FORTH HEREIN, THE AGGREGATE AMOUNT OF SUCH DAMAGES FOR WHICH SELLER AND SELLER’S AFFILIATES ARE LIABLE SHALL NOT EXCEED THE TOTAL OF ALL PAYMENTS MADE BY BUYER TO SELLER UNDER THE AGREEMENT WITH RESPECT TO THE RELEVANT PRODUCTS. SELLER AND SELLER’S AFFILIATES SHALL IN NO EVENT BE LIABLE TO BUYER OR ANY OTHER PERSON OR ENTITY FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR FOR DIMINUTION IN VALUE, LOST PROFITS, OR LOST BUSINESS OPPORTUNITY DAMAGES OF ANY NATURE, ARISING OUT OF OR RELATING IN ANY WAY TO THE PERFORMANCE UNDER OR BREACH OF THE AGREEMENT OR THE PURCHASE OR SALE OR USE OF THE PRODUCTS.
D. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, BUYER EXPRESSLY ACKNOWLEDGES THAT SELLER HAS TESTED THE PRODUCTS ONLY AS SET FORTH IN THE SELLER’S SPECIFICATIONS AND NOT FOR USE WITH OR INCORPORATION INTO ANY PARTICULAR APPLICATION, AND BUYER ASSUMES AND BEARS ALL RISK AND RESPONSIBILITY OF DETERMINING THE SUITABILITY OF THE PRODUCTS FOR THE PURPOSE INTENDED BY BUYER OR BUYER’S CUSTOMER. BUYER SHALL NOT MAKE ANY REPRESENTATION TO ANY THIRD PARTY (1) REGARDING THE RELIABILITY OR ACCURACY OF THE PRODUCTS EXCEPT AS EXPRESSLY SET FORTH IN SELLER’S SPECIFICATIONS OR (2) TO THE EFFECT THAT SELLER HAS TESTED THE PRODUCTS FOR THE USE INTENDED BY BUYER OR SUCH THIRD PARTY.
F. BUYER SHALL INDEMNIFY, DEFEND, AND HOLD SELLER AND SELLER’S AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LOSSES, DAMAGES, RESPONSIBILITIES, OBLIGATIONS, LIABILITIES, COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION ATTORNEY FEES, COURT COSTS, COSTS OF ALTERNATIVE DISPUTE RESOLUTION PROCEEDINGS, AND COSTS OF SETTLEMENT) BROUGHT BY ANY PARTY REGARDING PRODUCTS SOLD BY SELLER AND INCORPORATED INTO OTHER ITEMS MANUFACTURED OR SOLD BY BUYER, INCLUDING BUT NOT LIMITED TO ANY CLAIM OF DIRECT OR INDIRECT PATENT INFRINGEMENT.
G. The limitations set forth in this Section 8 shall survive the termination of this Agreement.
9. Patents. Seller shall, at its own expense, defend any suits that may be instituted against the Buyer for alleged infringement of United States patents relating to equipment which Seller manufactures and which is sold pursuant to the Agreement, provided such alleged infringement consists only in the use of such equipment itself and not as a part of any combination with other devices and parts, and provided the Buyer gives Seller immediate notice in writing of any alleged infringement and of the institution of any such suit and permits Seller, through its counsel, to answer the allegation of infringement and to defend such suit, and provided the Buyer gives all information, assistance, and authority required to enable Seller to so answer and defend. In case of a final award of damages in any suit Seller defends pursuant to this Section 9, Seller will pay such award, provided, however, that Seller shall not be responsible for any settlement compromise made without its written consent.
10. Taxes: In addition to the Purchase Price, Buyer is responsible for paying any and all taxes, tariff, duties, or imposts (including sales, use, occupation, or possessor taxes, or export or import tariffs or duties) (collectively, “Taxes”) applicable to Buyer’s purchase of the Products. For shipments to addresses located within the United States, Seller’s invoice shall include Seller’s good faith estimate of any Taxes to be paid by Buyer (unless, prior to the date of shipment, Buyer furnishes Seller with tax-exemption certificates acceptable to the applicable taxing authorities). Buyer shall promptly pay any Tax (including any penalty for non-payment) that is not reflected in the applicable invoice but is later determined to be due. For shipments to addresses located outside the United States, Seller will not be responsible for estimating applicable VAT, PST, HST, GST, and similar Taxes or other charges, and all such Taxes and charges, along with any applicable brokerage fees, will be the sole responsibility of Buyer and due at the time of delivery.
11. Confidential Information: All confidential information, written or oral, provided by Seller to Buyer relating to the Products furnished pursuant to the Agreement is deemed proprietary to Seller, and shall not be reproduced or duplicated by Buyer without the prior written consent of Seller except as provided in this Section 11. Applicable written information will be marked “Confidential” by Seller and any verbal discussions about that information, whether between Seller and Buyer or internally among Buyer’s employees, agents or representatives is considered oral confidential information. Buyer shall prevent the disclosure of any confidential information to any third party, and shall disclose such information only to those employees of Buyer whose function necessitates their knowledge of such information.
12. Governing Law; Venue; Waiver of Jury Trial: THIS AGREEMENT IS GOVERNED IN ITS INTERPRETATION, PERFORMANCE, AND ENFORCEMENT BY THE LAWS OF THE STATE OF TEXAS. Subject to Section 19, Buyer agrees to submit to the non-exclusive jurisdiction of the courts located within the County of Dallas, State of Texas, provided that any lawsuits or other claims brought by Buyer must be brought exclusively within the County of Dallas, State of Texas. Buyer hereby consents and submits to the exclusive in personam jurisdiction of such courts, waive any objection based on forum non conveniens and waive any objection to venue of any action instituted hereunder to the extent that an action is brought in the courts identified above. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BUYER AND SELLER HEREBY IRREVOCABLY AND EXPRESSLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY INDEMNITY, OR ANY OF THE SERVICES TO BE PROVIDED HEREUNDER.
13. Force Majeure: Any delay by Seller in furnishing equipment or services pursuant to the Agreement or in performing any of its obligations hereunder shall be excused and shall not allow the Buyer to terminate the Agreement, nor to delay payment or performance, nor to take any other contractual action, including imposition of liquidated or actual damages, if such failure to perform arises out of causes beyond the reasonable control of Seller. Such causes include, but are not limited to, acts of God or of the public enemy, acts of any foreign or domestic government body in either the sovereign or contractual capacity, war, fires, earthquakes, floods, epidemics, labor disturbances, strikes, freight embargoes, severe weather, mobilization or military call‐up, confiscation, revolt or riot, or delays or defaults of subcontractors. In the event of a delay as described in this Section 13, an appropriate adjustment of the delivery schedule set forth in the Agreement shall be made. In the event the delay described continues for a period of six (6) months or more, Seller may terminate this Agreement without further liability to Seller, subject to any terms hereof that survive termination.
14. Buyer’s Default: If Buyer fails to pay or perform any of its obligations under the Agreement, advises Seller of its intention not to pay or perform any of such obligations, or otherwise appears unable to so pay or perform, Seller may give Buyer written notice of default. If, within ten (10) days of receipt of such notice, Buyer has not corrected such failure to pay or perform or has not otherwise given Seller adequate assurance of payment or performance, Seller may, in its sole discretion, declare the Agreement terminated (subject to the survival of any provisions hereof which survive termination), stop all further performance, and elect either of the following remedies:
A. Hold Buyer liable for (i) all costs committed or incurred by Seller up to the date of termination, (ii) all costs incurred by Seller in connection with or as a result of such termination, (iii) the profit which Seller would have realized on completion of performance (such profit shall be calculated from actual costs incurred plus Seller’s estimated cost to complete its performance of the Agreement (if such computation results in a projected loss, zero profit shall be assumed and no reduction of the sums set forth in (i), (ii), and (iii) shall be made), and (iv) all fees and expenses, including reasonable attorney’s fees, court costs, collection agency fees, incurred by Seller in the collection of this amount. Buyer, upon payment of the assessments set forth above, shall be entitled to possession of any hardware items which are complete on the date of such termination. All incomplete hardware and all data and software shall remain the property of Seller; or
B. Retain all equipment, data and software manufactured as of the date of termination. In such event, Seller’s damages will be difficult or impossible to determine, and in lieu of any actual damages, Buyer shall pay to Seller, as liquidated damages and not as a penalty, a sum equal to ten percent (10%) of the total contract price, plus any and all fees and expenses, including attorney’s fees, incurred by Seller in the collection of such sum.
Nothing in the Agreement or in this Section 14 shall be construed as limiting Seller’s remedies for breach, and Seller may, in addition to the remedies set forth in this Section 14, exercise any and all other rights and pursue any and all other remedies available under applicable law.
15. Assignment: Buyer shall not assign the Agreement or any rights or obligations under the Agreement without the prior written consent of Seller, and no purported assignment by Buyer shall be binding on Seller without such prior consent.
16. Publicity: Buyer shall not make or authorize any news release, advertisement, or other disclosure using Seller’s name without Seller’s prior written approval.
17. Separability: If any portion of these Terms and Conditions is found by any court or other judicial or administrative authority to be unenforceable or otherwise void, the remaining provisions of the Agreement shall not be affected thereby, and shall remain in full force and effect.
18. Waiver: The failure of Seller to insist on the performance of any obligation of Buyer hereunder shall not be construed as a waiver by Seller of such obligation or any other obligation of Buyer hereunder, and the same shall remain an obligation of Buyer.
19. Dispute Resolution: Buyer agrees that, prior to initiating any lawsuit, arbitration or other civil action against Seller for any concerns or problems about the Agreement(s), or for any other reason, Buyer must first:
A. Notify Seller in writing, delivered by certified mail, return receipt requested, or by personal service, of the nature of any claim, error or omission, problem or issue (“Problem”), and briefly describe the Problem in sufficient detail to determine the general nature of the Problem and any damages claimed to have been caused by the Problem. Buyer will then allow Seller thirty (30) days to access the problem and fifteen (15) days to communicate with Buyer to resolve the problem.
B. In the event Seller denies liability for the Problem or Buyer disagrees with Seller’s proposed solution to the Problem, Buyer expressly agrees to participate in good faith in mediation conducted by a mutually acceptable third party in Dallas, Texas, before exercising its rights under Texas law. In the event the parties reach a successful conclusion, in whole or in part, the agreement thereby shall be reduced to writing by the mediator and the parties shall each sign it and it shall be binding upon the parties. Either party may enter the agreement with a court of competent jurisdiction for enforcement if necessary.
C. In the event the parties fail to resolve their dispute by mediation or mediation is not completed within forty-five (45) days of commencement, then Buyer and Seller specifically agree to submit the dispute to binding arbitration in Dallas, Texas, in accordance with the rules of the American Arbitration Association. If the dispute is for less than $25,000, arbitration will be by a single independent arbitrator. If the parties cannot agree on the arbitrator, they agree to let the American Arbitration Association assign an independent arbitrator. If the dispute is in the amount of $25,000 or greater, then arbitration will be by a panel of three arbitrators. When a panel of three arbitrators is used, each of the parties shall name one arbitrator. The third arbitrator shall be selected by the two named arbitrators from the list of the current active members of the American Arbitration Association. The parties agree that discovery shall limited to only those facts and issues needed to resolve the Problem described in Section 19.A. The arbitration shall be binding, final, not appealable, enforceable and in lieu of any right to sue or seek other arbitration in any court or tribunal. Attorney fees and costs may be awarded at the discretion of the arbitrator. In no instance may punitive or exemplary damages be awarded. Any award hereunder shall be construed in strict accordance with Texas law. Notwithstanding the foregoing, either party shall be entitled to apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, permanent injunction or other equitable relief, without breach of this arbitration provision.
20. Complete Agreement: There are no oral agreements between the parties. The Agreement, including these Terms and Conditions, constitutes the entire agreement and understanding of the Buyer and Seller as to the subject matter hereof and shall replace and supersede all prior or contemporaneous agreements, written or oral, as to such subject matter. No addition to or modification of the Agreement or of these Terms and Conditions shall be binding upon Seller unless in writing and signed by an authorized representative of Seller. If Buyer believes that it is entitled or obligated to act in a manner that is contrary to these Terms and Conditions and mandatory law, Buyer agrees to provide Seller with a detailed and substantiated explanation of its reasoning in writing at least thirty (30) days before it acts contrary to the Agreement and these Terms and Conditions, to allow Seller to access whether it may, at its sole discretion, provide an alternative remedy for the situation, though it is under no obligation to do so.
21. Headings: The headings to the foregoing paragraphs are for convenience or reference only and do not form a part of the Agreement and shall not in any way affect the interpretation thereof.
22. Notices: Unless otherwise expressly agreed in writing, all notices and other communications required or permitted to be made under the Agreement shall be in writing (including by facsimile transmission) delivered to the address specified for notices in the Order Acknowledgement or such other address as shall be designated by Buyer or Seller in a written notice to the other party. All such notices shall be deemed to have been given or made upon the earliest to occur of (i) actual receipt by the intended recipient or (ii) (A) if delivered by hand or courier, when signed for by the designated recipient; (B) if delivered by mail, four business days after deposit in the mail, postage prepaid; or (C) if delivered by facsimile when sent and receipt has been confirmed by telephone. Electronic mail (email) shall be allowed only for routine communications and not for any other purpose.
Notices shall be addressed to the following recipient:
5501 LBJ Freeway
Dallas, TX 75240
(214) 630-9625 phone
(214) 638-4512 fax
23. Resale. Purchases of Products are intended for end users and are not authorized for resale, except with the specific authorization of Seller and in accordance with the following terms: (1) Any repurchase of Products is specifically subject to these Terms and Conditions and any re-purchaser shall be bound to these Terms and Conditions to the same extent as if such re-purchaser is a Buyer, (2) The Products have been designed, marketed and sold for use in the United States and Canada. Buyer is responsible for complying with all applicable laws and regulations of the country for which the Products are destined, (3) Buyer shall remain fully liable for the compliance of any re-purchaser with these Terms and Conditions and agrees to indemnify and hold harmless Seller from all damages, losses, costs or expenses incurred by Seller arising in any manner from any act of omission on the part of any of Buyer’s re-purchasers and for any violation by Buyer of this Section 23, (4) Buyer will comply at all times with any and all legal requirements relating to the import or export of Products, (5) Buyer will comply at all times with any and all aspects of the Foreign Corrupt Practices Act of 1977 and (6) Buyer will make no representations or warranties with respect to the Products beyond those made by Seller.