General Terms and Conditions (US)
These terms and conditions (“Agreement”) apply to any sale and/or Service and all statements made by Toradex, Inc. in written and oral form. By placing your order for product and/or support services you accept that you are bound to these terms and conditions. If attached to a quotation from Toradex, Inc., these terms and conditions are incorporated into and are a part of that quotation. Any changes, modifications, deletions or provisions differing from these terms and conditions that may be proposed in Customer’s order are rejected unless specifically accepted in writing by Toradex, Inc.
The following terms used herein shall have the meanings ascribed to them below:
“Customer”: shall mean a legal entity or business buying Products from Toradex.
“Toradex”: shall mean Toradex, Inc., a Washington corporation, with an address of 219 1st Ave South, Suite 410, Seattle, WA 98104, USA
“Toradex Product”: shall mean a Toradex Product, excluded any of the following items: Software, parts not installed or added by Toradex in its factory.
“Order Confirmation”: shall mean a formal written acknowledgment sent by Toradex to Customer for Product or Service ordered by Customer.
“Price”: shall mean Price stated in Order Confirmation.
“Product”: shall mean Product described in Order Confirmation which may comprise of Toradex Products and 3rd Party Products.
“3rd Party Products”: shall mean non-Toradex Products.
“Software”: shall mean computer operating systems, applications and middleware.
“Service”: shall mean general service and/or support service in the form of support (service) hours provided by Toradex in accordance with this Agreement.
“Support Package”: shall mean a specified amount of support (service) hours purchased by Customer.
Prices, specifications and dates for delivery referenced in Toradex’s quotations are for information purposes only and shall not be binding on Toradex until all terms have been agreed and Toradex has accepted Customer’s order. Quotations terminate in 10 days, unless a different time period is stated in writing, if not accepted by Customer.
Customer may place orders in writing, through the Internet, by telephone or fax. By submitting an order to Toradex, Customer agrees to be subject to these Terms and Conditions in their entirety. No order, whether or not submitted in response to a quotation by Toradex, shall be binding on Toradex unless Toradex sends an Order Confirmation in writing. Customers should thoroughly verify the Order Confirmation and notify Toradex of any error in writing immediately upon receipt. Otherwise the details stated in the Order Confirmation shall apply to this Agreement.
Toradex may revise and discontinue Products, including 3rd Party Products, at any time without notice. Toradex will ship Product that has a similar functionality and performance of the Product ordered if Products are changed or discontinued.
(i) Response times of the Services provided by Toradex are estimates and may vary according to the accessibility of the Product location. If appropriate, the Services may be provided via telephone or the Internet. The Customer must allow Toradex to examine Product at the Customer’s or Toradex’ premises, at Toradex’ discretion. Toradex retains ownership for any replaced Product or parts resulting from repair. The Customer will be charged by Toradex for any replaced Product or parts that are not returned upon request.
(ii) The following are excluded from Service, if not expressly stated otherwise: items excluded from Warranty, preventative maintenance, work outside local working hours, weekends or on public holidays, changes to configuration, relocation, consumables, batteries, diskettes, removal of viruses, work that is unnecessary in Toradex’ judgment, electrical environment, transfer of data or Software.
(iii) 3rd Party Products will be repaired according to manufacturer or licensor warranty.
6. Support Services
(i) Support services are initiated by the payment of 100% of the Support Package’s price stated in Customer’s invoice.
(ii) The status of a support service is reported by Toradex on a per-request basis. Toradex will document the tasks performed under a Support Services Agreement and the remaining balance of support services available.
(iii) Upon exhaustion of the purchased support services, Toradex will suspend support activities until a new Support Package’s payment is received.
(iv) The payment for support services is final. Support services cannot be cancelled for refund of the unused support. Any support hours remaining after the expiration of a purchased Support Package will be forfeited.
(v) Project related expenses not listed under this Agreement must be pre-approved by Customer and are an added expense. Project materials will be billed at cost plus an 18% materials acquisition fee.
7. Prices and Adjustments/Shipping Costs
(i) Unless specified otherwise in writing, Prices for Products and Services are FOB point of origin. Prices do not include additional costs such as insurance, shipping, handling, export, import or other duties, or any federal, state or local taxes, including sales, use or excise taxes, applicable to the Products and/or Service sold to Customer which taxes may in Toradex’ discretion be added to the sale price or billed separately and which taxes should be paid by Customer, unless Customer provides Toradex with any necessary tax exemption certificate. Prices and any additional costs are as indicated on the Quotation or as stated on the Order Confirmation.
(ii) Prices of Products and Service are subject to change without notice or obligation. Toradex reserves the right to adjust prices of Products and Services as a result of changes to exchange rates, insurance, duties, freight, purchase costs and especially reserves the right to change prices, if exchange rates exceed 2% of change related to the national currency of Switzerland since the sales order was placed.
8. Terms of Payment
(i) Terms of payment are within Toradex’ sole discretion, and unless otherwise agreed to in writing by Toradex, payment of the amount invoiced is due before delivery to Customer and within 10 days of the invoice date without further notification from Toradex. Payment shall be made in US Dollars to Toradex by bank wire transfer (banking fees at Customer’s expense), or by some other prearranged and agree upon payment method. Toradex may suspend deliveries of Product or Service until full payment is received. If Customer fails to pay any payment due hereunder when due, Toradex may recover, in addition to the payment, interest on the outstanding amount at the rate of 1.5 % per month or the maximum interest rate permitted by law, whichever is less. All costs of recovery, including attorney’s fees, shall be payable by the Customer.
(ii) All payments for support services are final. A purchased Support Package cannot be cancelled for refund of the unused support. Any support hours remaining after the expiration of a purchased Support Package will be forfeited.
9. Exclusion of Set-off
Customer shall pay in full and not exercise any rights of set-off or counter-claim against invoices submitted by Toradex.
10. Shipment and Delivery
(i) Shipping and handling are additional, unless otherwise expressly indicated at the time of sale, and all fees shall be paid by Customer. Toradex shall have the right to commission, at Toradex’ own discretion, any shipping company with the shipping of Products. The Order Confirmation indicates the delivery period and the place of delivery. The delivery period is approximate and partial delivery can be made.
(ii) If Customer refuses delivery without Toradex’ prior written approval, Customer must pay all expenses or loss resulting from delivery refusal until Customer accepts delivery. Toradex reserves the right to withdraw from the Agreement in case of delivery refusal.
(iii) Toradex can only be made responsible for failure to deliver if Customer has sent a written reminder not earlier than 2 weeks after the approximate delivery date has expired. Any prior withdrawal from the Agreement by Customer is excluded.
(iv) Any sales packaging which Toradex has to take back shall be sent to Toradex’ address by Customer at Customer’s expense.
(v) IF TORADEX IS IN DEFAULT IT SHALL NOT BE LIABLE FOR ANY DAMAGES FOR LATE PERFORMANCE (INCLUDING LOSSES DUE TO LATE DELIVERY, ACCIDENTAL LOSS OR ACCIDENTAL DAMAGE).
11. Title and Risk of Loss
Title and risk of loss or damage to all Products and Service sold hereunder shall pass from Toradex to Customer upon delivery by Toradex to the carrier. Any claims for loss, damage or misdelivery thereafter shall be filed with the carrier. All Products shall be deemed finally inspected and accepted within 10 days after delivery unless notice of rejection is given in writing to Toradex within such period. Acceptance shall constitute acknowledgment of full performance by Toradex of all obligations under the Agreement except as stated in Section 13 Warranties.
12. Inspection of Product upon Receipt
Customer must inspect Product immediately upon delivery, and if Product or the packages are damaged or missing, Customer must notify Toradex in writing within 7 days, from the date of delivery of Product, otherwise the Customer will be deemed to have accepted Product. Any notice of rejection must also specify the reason(s) why the Product is being returned. Toradex will not accept the return of the Product unless the Product is in its original condition with packaging, including a written statement explaining the reasons for the return and the defects, and proof of purchase. Customer is responsible for risk of loss, shipping and handling fees for returning Product.
13. Warranties and Disclaimer of Warranties
THE FOLLOWING WARRANTIES ARE IN LIEU OF ALL OTHER CONDITIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND OF ANY OTHER CONDITION OR WARRANTY OBLIGATION ON THE PART OF TORADEX WHICH ARE HEREBY DISCLAIMED.
(i) TORADEX WARRANTS TO THE ORIGINIAL CUSTOMER THAT (1) TORADEX PRODUCTS AND SERVICES MEET THE SPECIFICATIONS AT THE TIME OF DELIVERY TO THE CUSTOMER AND THAT (2) TORADEX PRODUCTS WILL BE FREE FROM ANY SUBSTANTIAL DEFECTS IN MATERIAL AND/OR WORKMANSHIP UNDER NORMAL USE DURING THE WARRANTY PERIOD OF ONE YEAR, WHICH BEGINS ON THE DATE OF SHIPMENT BY TORADEX TO CUSTOMER. ANY FURTHER WARRANTY IS EXCLUDED. LIABILITY IS LIMITED AS STIPULATED IN SECTION 14 “LIMITATION OF LIABILITY”.
(ii) Toradex has the exclusive right to determine whether repair or replacement is to be provided to Customer. For this purpose, Toradex has the right to examine Products at the Customer’s or Toradex’ premises, at Toradex’ discretion. Customer shall comply with Toradex’ Return Materials Authorization (“RMA”) procedure for all warranty claims. Customer has the right to claim a reduction of the purchase price, which is equivalent to the decrease in value of the Product, if Toradex fails to repair or replace. The right to cancel the purchase agreement is excluded, unless the decrease in value of the Product is equivalent to the purchase price. Toradex retains ownership of any expanded or replaced component or piece of equipment in case of repair or replacement.
(iii) THE FOLLOWING ARE SPECIFICALLY EXCLUDED AND NOT COVERED BY ANY WARRANTY:
- DEFECTS THAT HAVE NOT BEEN CAUSED BY TORADEX,
- HANDLING ERRORS, INTERVENTION OR MODIFICATION OF THE PRODUCTS BY THE CUSTOMER OR AN UNAUTHORIZED THIRD PARTY;
- DEFECTS WHICH HAVE BEEN CAUSED BY INCORRECT INSTALLATION BY THE CUSTOMER OR A THIRD PARTY ACTING ON THE CUSTOMER’S BEHALF;
- CoMPATIBILITY AND FUNCTIONING WITH OTHER PRODUCTS, UNLESS EXPRESSLY WARRANTED;
- DEFECTS WHICH HAVE BEEN CAUSED BY OUTSIDE INFLUENCES;
- DAMAGE FROM MISUSE, ABUSE OR NEGLECT;
- ROUTINE CLEANING, OR NORMAL COSMETIC AND/OR MECHANICAL WEAR;
- DAMAGE FROM REPAIR OR REPLACEMENT OF WARRANTED PARTS OTHER THAN BY TORADEX;
- THIRD PARTY PRODUCTS FOR WHICH THE RESPECTIVE MANUFACTURER IS RESPONSIBLE;
- SERVICES WHICH HAVE NOT BEEN PERFORMED IN ACCORDANCE WITH THE INSTRUCTIONS;
- PRODUCTS WHICH HAVE AN ALTERED, REMOVED OR ILLEGIBLE SERIAL NUMBER OR OTHER IDENTIFICATION MARKING.
(iv) Toradex and its manufacturers use components or spare parts which are new or equivalent to new and meet the industry standards and practice. Toradex reserves the right to use new or refurbished spare parts and/or components. Spare parts may be new or reconditioned.
(v) TORADEX PROVIDES SERVICE AND SUPPORT SERVICE IN PARTICULAR (INCLUDING SOFTWARE DEVELOPED OR ADAPTED BY TORADEX UNDER A SUPPORT PACKAGE) “AS IS”, AND DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED. TORADEX SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PERSON UNDER ANY LEGAL THEORY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OF ANY CHARACTER ARISING OUT OF TORADEX’S PROVISION OF SUPPORT SERVICES HEREUNDER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, CoMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER CoMMERCIAL DAMAGES OR LOSSES, EVEN IF TORADEX HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. FURTHER, IN NO EVENT SHALL TORADEX’S LIABILITY UNDER THIS PARAGRAPH (v) EXCEED THE SUPPORT PACKAGE FEE PAID BY CUSTOMER.
(vi) FOR SAFETY RECALLS OR OTHER RECALLS NO FURTHER OR EXTENDED WARRANTIES APPLY. LIABILITY IS IN ALL CASES LIMITED AS STIPULATED IN SECTION 14 “LIMITATION OF LIABILITY”. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SoME OR ALL OF THE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS IN THIS AGREEMENT MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
14. Limitation of Liability
(i) TORADEX SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF PROFITS, DATA, BUSINESS, OR GOODWILL, HOWEVER CAUSED AND ON WHATEVER THEORY, WHETHER BASED ON BREACH OF CONTRACT OR WARRANTY, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT OR PRODUCT LIABILITY, THE FAILURE OR ASSERTED FAILURE OF TORADEX TO PERFORM ITS OBLIGATIONS HEREUNDER, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. YOU AGREE THAT FOR ANY LIABILITY RELATING TO THIS AGREEMENT, TORADEX IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AMOUNTS RECEIVED BY TORADEX FROM CUSTOMER FOR THE APPLICABLE PRODUCTS OR SERVICES. PRODUCTS AND SOFTWARE ARE NEITHER DESIGNED NOR INTENDED FOR ANY USE IN HAZARDOUS, DANGEROUS TO LIFE OR POTENTIALLY LIFE-THREATENING ENVIRONMENTS AND IN ANY OTHER AREA WHICH THE FAILURE OF PRODUCTS OR SOFTWARE COULD CREATE A SITUATION WHERE SERIOUS PERSONAL INJURY OR DEATH MAY OCCCUR AND COULD REASONABLY BE FORESEEN AND TORADEX SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PERSON UNDER ANY LEGAL THEORY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OF ANY CHARACTER ARISING OUT OF SUCH USE, HOWEVER CAUSED.
(ii) The provisions of Force Majeure shall remain unaffected. In case of a product liability claim against Toradex, Customer will assist Toradex to defend against such a claim.
15. Intellectual Property (IP)
(i) Toradex retains all IP in Product and Services. In cases of Software developed by Toradex for Customer under a Support Package, Toradex retains all IP and grants a non-exclusive license to use the Software to Customer. Customer notifies Toradex immediately in writing of any suit or proceeding brought against Customer that is based on a claim that use of Product infringes any 3rd party IP and gives Toradex full and complete authority, information and assistance for the defense of such claim. Toradex shall have the option to sole control of the defense and of the negotiations for settlement, if any, of such claim; however, Toradex shall not be obligated to defend any such suit or proceeding. In the event of IP infringement, Toradex may at its expense and option, either recall and exchange or modify Product or appropriately refund Customer. Customer is allowed to litigate, negotiate and settle claims and Customer must assist Toradex at Toradex’ expense in case of litigation that is directly related to Customer’s Product. Customer must immediately notify Toradex of any infringing or unauthorized use of Product or IP in it.
(ii) Toradex shall not be obligated to defend or be liable for costs and damages for
- unauthorized modification of Product or Service;
- 3rd Party Products;
- claims caused by the use of Products in combination with everything not supplied by Toradex.
(iii) Any device driver specifically modified for Customer under any Service agreement will remain the property of Toradex. Toradex will only deliver binary versions of drivers. No source code will be delivered to Customer, unless agreed otherwise.
All Software is provided subject to the license agreement and warranty of the Software licensor. Customer agrees to be bound by such license agreement in addition to these terms. Title to Software remains with the applicable Software licensor.
17. Export and Re-Export Control
Toradex acknowledges that Product may include technology and Software which is subject to US export and re-export control laws and laws of the country where it is delivered to or used. Customer must comply with all these laws. Product may not be sold, leased or transferred to restricted and/or embargoed end users or countries or for a user involved in weapons of mass destruction or genocide without the prior consent of the competent government(s). Customer understands and acknowledges that export and re-export restrictions vary regularly and depending on Product and/or Software and agrees to comply with all applicable laws and regulation of the respective countries.
18. Force Majeure
Toradex is not liable for any delays in performance or for failure to perform, in whole or in part, including delivery or Service caused by circumstances beyond its reasonable control; examples include strikes, terrorist acts, war, transport/supplier/production problems, sabotage, insurrection, riot or other act of civil disobedience, act of a public enemy, judicial action, accident, fire, explosion, exchange fluctuations, governmental or regulatory action and natural disasters. If such circumstances exceed a period of 2 months, this Agreement may be terminated by either party without compensation.
(i) Toradex shall have the right without penalty to terminate this Agreement with immediate written notice if Customer:
- breaches or Toradex reasonably suspects Customer has breached export control laws;
- fails to make any payment when due and payment has not been received within 2 weeks of due date although Toradex has given Customer notice of such default and set Customer an additional term for payment;
(ii) Either party may terminate this Agreement with immediate written notice if the other:
- commits a material or persistent breach of this Agreement and fails to remedy this within 30 days of written notice from the other;
- becomes insolvent or is unable to pay debts as they fall due.
20. Non-Solicitation of Employees and Penalty
FOR A PERIOD OF 24 MONTHS AFTER CUSTOMER’S LAST ORDER, NEITHER CUSTOMER NOR HIS AFFILIATES SHALL HIRE AN EMPLOYEE OF TORADEX. ANY VIOLATION WILL RESULT IN A PENALTY OF ONE ANNUAL SALARY OF THE EMPLOYEE CONCERNED. TORADEX EXPRESSLY RESERVES FURTHER ACTIONS AGAINST CUSTOMER POACHING TORADEX’ EMPLOYEES.
Each party must keep strictly confidential all information received from the other marked as "confidential". The parties do not consider their relationship to be confidential unless otherwise instructed by the other party.
22. Data Protection
Customer data will be held and/or transferred in strict accordance with the applicable data protection laws. Customer agrees that Customer’s personal data can be transferred to a Toradex company outside of the USA to a country which may offer a different level of data protection. Toradex will put sufficient safeguards in place to ensure a corresponding level of data protection.
23. Other Customer Obligations
Customer is responsible for:
- Customer’s own choice of Product and/or Software and its suitability for purpose;
- Customer’s telephone & postal charges when contacting Toradex.
- Customer agrees to provide Toradex with a reasonable amount of cooperation, information, facilities and access to allow Toradex to perform its contractual duties, otherwise Toradex shall not have any obligation to provide any Service or assistance.
- Customer is responsible for all of Customer’s legal and regulatory requirements during Service, such as the backup and confidentiality of all data.
24. Governing Law and Jurisdiction
This Agreement shall be construed and enforced according to the laws of the State of Washington, without regard to principles of conflict of laws. Any disputes under this Agreement shall be exclusively heard in any state or federal court in King County, Washington USA, and Customer consents to exclusive jurisdiction and venue in such courts. The application of the Vienna Convention on Contracts for the International Sale of Goods is excluded.
25. Dispute Resolution
The parties shall attempt to resolve any dispute amicably by mutual agreement. In the event of a dispute arising in relation to this Agreement, or out of this Agreement, and the dispute is not resolved by negotiation, the Customer agrees to submit the dispute to mediation before the Dispute Resolution Center of King County, in Seattle, Washington. Customer further agrees that his and Toradex’ participation in mediation is a condition precedent to any party pursuing any other available remedy in relation to the dispute. Any party to the dispute may give written notice to the other party of his or her desire to commence mediation, and a mediation session must take place within 30 days after the date that such notice is given. The Dispute Resolution Center of King County, in Seattle, Washington, shall appoint an impartial mediator. Customer further agrees to share equally with Toradex the costs of the mediation, which costs will not include costs incurred by a party for representation by counsel at the mediation.
26. Current Policies and Modifications
Customer should review details on Products and Services, current Toradex policies, and notices which can be found at www.toradex.com. Toradex reserves the right to make changes to its polices and these Terms and Conditions at any time, effective upon posting of an updated version to its website at www.toradex.com. Customer is responsible for reviewing this website for any further updates.
27. Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes any and all prior and contemporaneous negotiations, correspondence, understandings and agreements, whether oral or written, regarding the subject matter of this Agreement.
28. Attorneys’ fees
In any court action at law or equity that is brought by one of the parties to this Agreement to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that party may be entitled.
If any provision of this Agreement is found to be invalid or unenforceable to any extent in any context, it shall nevertheless be enforced to the fullest extent allowed by law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected thereby.
30. Assignment and Subcontractors
This Agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors and permitted assigns. Customer may not assign this Agreement without the prior written consent of Toradex. Toradex has the right to subcontract the Services provided under this Agreement.
Any of the provisions of this Agreement may be waived by the party entitled to the benefit thereof. Neither party will be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the waiving party, and then only to the extent specifically set forth in such writing. A waiver with reference to one event will not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event.
32. Section Headings
Section headings contained in this Agreement are included for convenience only and form no part of the agreement between the parties.
Thank you for doing business with Toradex. Details on Products and Services, current Toradex policies, and notices can be found via www.toradex.com. Customer should refer to this website for any further updates.
(T&C US 20130806)