JP General Terms & Conditions
1. Definitions (Japan)
Customer: a legal entity buying Products from Toradex.
Toradex: Toradex AG, Altsagenstrasse 5, CH-6048 Horw, Switzerland.
Toradex Product: a Toradex Product, excluded any of the following items: Software, parts not installed or added by Toradex in its factory.
Order Confirmation: formal written acknowledgement sent by Toradex for Product ordered by Customer.
Price: stated in Order Confirmation.
Product: as described in Order Confirmation, may comprise Toradex Products and 3rd Party Products.
3rd Party Products: non Toradex Products.
Software: computer operating systems, applications or middleware.
Service Agreement: as described in Order Confirmation
Service: means general service and support carried out by Toradex in accordance with this Agreement.
Support Package: contains a specified amount of support service hours purchased by Customer.
These Terms and Conditions govern any sale, Service and all statements made by Toradex in written and oral form. Toradex must confirm each modification to this Agreement in writing. Any other Terms and Conditions are excluded.
Quotations are only legally binding during the period that they state and only if they are in writing. The period is 10 days if unstated.
Customer may place orders in writing, through the Internet, by telephone or fax. Orders are only binding on Toradex if Toradex sends an Order Confirmation in writing. Customers should thoroughly verify the Order Confirmation and inform Toradex of any error in writing immediately. Otherwise the details stated in the Order Confirmation will apply to this Agreement.
5. Volume Orders
Customer may place a volume order comprising several partial deliveries and specified call-off time frames. Volume orders are valid only during the period specified.
6. Call-off Obligation and Penalty
(i) Customer is bound to call-off the specified amount of Products within the applicable call-off time frames.
(ii) Any failure of Customer to perform this call-off obligation will result in a penalty in the amount of the non-purchased products and, additionally, in a default interest rate of 9 % per annum.
Toradex reserves the right to change Products, incl. 3rd Party Products, at any time. Toradex guarantees Customer at least equal functionality and performance if Products are changed.
(i) Response times of the Services provided by Toradex are estimates and may vary according to the accessibility of the Product location. If appropriate, Service 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. The ownership for any replaced Product or parts resulting from repair passes over to Toradex. 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 explicitly stated in the Service Agreement:
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, unnecessary work in Toradex’ judgment, electrical environment, transfer of data or Software.
(iii) 3rd Party Products will be repaired according to manufacturer or licensor warranty. Parts not critical to Product function may not be serviced within Service Agreement time period.
9. Support Services in Particular
(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 Services Agreement is activated. Any support hours remaining after the expiration of a purchased Support Package will be forfeited.
(iv) 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.
10. Prices and Adjustments/Shipping Costs
(i) Prices for Products and Services are net prices and exclude any additional costs like insurance, shipping cost, tax, etc. Prices and any additional costs are as indicated on the Quotation or as stated on the Order Confirmation.
(ii) Toradex reserves the right to adjust prices of Products and Services as a result of changes to exchange rates, insurance, duties, freight and purchase costs.
(iii) Toradex especially reserves the right to adapt prices for Products and Services if exchange rates exceed 2% of change related to the national currency of Toradex’ domicile since the sales order was placed.
11. Payment Terms
(i) Payment in advance via bank wire transfer in Euros (Customer accepts all charges) of Product or Service is due before delivery to Customer and within 10 days of the invoice date without further notification from Toradex. Toradex may suspend deliveries of Product or Service until full payment is received. In case of late payment, the statutory interest rate will apply on the outstanding amount. All costs of recovery shall be payable by the Customer.
(ii) The payment for support services is 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.
12. Limitation of Compensation
Compensation (“Verrechnung”) by Customer against Toradex’ receivables is subject to Toradex’ approval.
(i) 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 contract 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 contract by Customer is excluded.
The risk of the loss of the goods passes to Customer on delivery. Any packaging that is apparently missing or damaged should be noted on the waybill prior to signing it.
The Customer must inspect Product upon reception. If any visible defects or non-conformity appear during this inspection, Customer must notify Toradex in writing within 7 days. Once this period is elapsed, the Customer will have accepted Product. If Toradex agrees to the return of Product, Product must be in its original condition with packaging, including a return note and proof of purchase. Return costs will be paid by the Customer.
(i) Toradex warrants Customer that Toradex Products and Services meet the specifications and the usual industrial standards and practices wherever applicable, at the time of delivery. Any further warranty is excluded.
(ii) Toradex’ possibilities determine exclusively Customer’s right to repair or replacement. For this purpose, Toradex has the right to examine Products and/or Services at the Customer’s or Toradex’ premises, at Toradex’ discretion. Customer has the right to claim a reduction of the purchase price, which is equivalent to the decrease in value of the Product and/or Service (“Minderung”) if Toradex fails to repair or replace. The right to cancel the purchase agreement (“Wandelung”) is excluded, unless the decrease in value of the Product and/or Service is equivalent to the purchase price. The ownership of any expanded or replaced component or piece of equipment in case of repair or replacement passes over to Toradex. Customer shall comply with Toradex’ standard Return Materials Authorization (“RMA”) procedure for all warranty claims.
(iii) Toradex does not provide any warranty for defects that have not been caused by Toradex, in particular not for:
• 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;
• Fitness of the Products for any particular purpose;
• Third party products for which the respective manufacturer is responsible;
• Services which have been performed in accordance with the instructions.
(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.
17. Limitation of Liability
(i) Toradex’ liability for direct and indirect damage shall be limited to gross negligence and willful misconduct. Any other liability of Toradex is excluded.
(ii) The provisions of Force Majeure shall remain unaffected. Claims under the terms of the Swiss product liability law will not be affected by the above limitation of liability. In case of a product liability claim against Toradex, Customer will assist Toradex to defend against such a claim.
18. Intellectual Property (IP)
(i) Toradex retains all of Toradex’ IP in Product. Toradex indemnifies Customer from all costs and liabilities from any claim that use of Product infringes any 3rd party IP. In the event of IP infringement, Toradex may 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 does not indemnify Customer 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 a Support Services Agreement will remain the property of Toradex. Toradex will only deliver binary versions of drivers. No source code will be delivered to Customer.
Software not owned by Toradex is supplied as subject to license and warranty of the Software licensor. Toradex encloses the Software license that Customer requires with the Product, where necessary; Customer must comply with that license.
20. Export Control
Toradex acknowledges that Product may include technology and Software which is subject to Swiss 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 Swiss government. Customer understands and acknowledges that Swiss restrictions vary regularly and depending on Product, therefore Customer must refer to the current Swiss regulations.
21. Force Majeure
Toradex is not liable for delays in performance including delivery or Service caused by circumstances beyond its reasonable control and will be entitled to a time extension for performance; examples include strikes, terrorist acts, war, transport/supplier/production problems, 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 may terminate this Agreement with immediate written notice if Customer:
• breaches or Toradex suspects Customer has breached export control laws;
• does not pay and payment has not been received within 2 weeks although Toradex has given Customer notice of such default and set Customer an additional term for payment ("Nachfrist");
(ii) Either party may terminate 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.
23. Solicitation of Employees and Penalty
Customer recognizes that Toradex has a substantial investment in its people. Customer agrees that it will not solicit any of Toradex’ employees during a period of 24 months after Customer’s last order. 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.
25. 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 Switzerland or the E.U. 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.
26. Other Customer Obligations
Customer is responsible for:
• Customer’s own choice of Product and its suitability for purpose;
• Customer’s telephone & postal charges when contacting Toradex.
Toradex must be provided by Customer with a reasonable amount of cooperation, information, facilities and access to allow Toradex the performance of contractual duties, failing of which 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 back up and confidentiality of all data.
27. Governing Law and Jurisdiction
This Agreement is governed by Swiss law. The exclusive court jurisdiction of the courts of Lucerne (Luzern-Land) will apply to this Agreement. The Vienna Convention on Contracts for the International Sale of Goods is excluded.
Toradex reserves the right to alter or update these Terms and Conditions at any time and from time-to-time, effective upon posting of an updated version to Toradex’ website www.toradex.com. Customer is responsible for regularly reviewing the Terms and Conditions.
Details on Products and Service Agreements, current Toradex policies, and notices can be found via www.toradex.com. Customer should refer to this website for any further updates.
Thank you for doing business with Toradex.