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TENREHTE TECHNOLOGIES, INC.

STANDARD TERMS AND CONDITIONS OF SALE

  1. Offer and Acceptance

Tenrehte Technologies, Inc. and its subsidiaries (“TENREHTE”) offers to sell and deliver products in accordance with the terms and conditions set forth herein. Acceptance of this offer is expressly limited to such terms. TENREHTE hereby objects to and rejects any additional or different terms proposed by Buyer, including those contained in Buyer’s purchase order, unless TENREHTE expressly agrees to such terms in writing.

  1. Prices and Releases

TENREHTE’s price in effect at the time TENREHTE receives Buyer’s purchase order shall continue to apply if the quantity ordered is released by TENREHTE within three (3) months and shipments are scheduled within six (6) months. Otherwise, TENREHTE’s price in effect on the actual release date for the quantity actually shipped shall apply.

If the price of fuels, metals, raw materials, equipment or other production costs increases significantly, TENREHTE shall have the right and Buyer shall have the obligation to renegotiate the price of all products not yet shipped, and if an agreement is not reached, TENREHTE shall have the right to terminate this contract without liability.

  1. Accuracy of Information

To the extent TENREHTE provides product information, TENREHTE attempts to be as accurate as possible. However, TENREHTE does not warrant the accuracy of product descriptions, product price, product availability or other information on its websites, sales brochures, or other matter as accurate, complete, reliable, current, or error-free. Furthermore, in the event that a product is mistakenly listed at an incorrect price, TENREHTE reserves the right to refuse or cancel any orders placed for such products, regardless of whether the order has been confirmed or Buyer is charged. If Buyer has already been charged for the purchase and Buyer’s order is cancelled, arrangements will be made to issue a credit to Buyer in the amount of the incorrect price.

  1. Title and Delivery

Shipments inside the U.S. shall be delivered FOB TENREHTE’s shipping dock. Shipments outside the U.S. shall be delivered FCA (Incoterms 2000) TENREHTE’s shipping dock. Title and liability for loss or damage shall pass to Buyer upon TENREHTE’s delivery to Buyer’s designated carrier. Any subsequent loss or damage shall not relieve Buyer from its obligations. Buyer shall reimburse TENREHTE for insurance and transportation costs on international shipments and shall be responsible for all import duties, taxes and any other expenses incurred or licenses or clearances required. TENREHTE may deliver products in installments. Delivery dates are estimates. TENREHTE shall not be liable for any damage, losses or expenses incurred by Buyer if TENREHTE fails to meet the estimated delivery dates.

  1. Payment Terms
  1. If TENREHTE extends credit to Buyer, payment terms shall be net thirty (30) days after TENREHTE’s invoice. TENREHTE may change or withdraw credit amounts or payment terms at any time for any reason. If the products are delivered in installments, Buyer shall pay for each installment in accordance with the above payment terms. If Buyer fails to make any payment when due, TENREHTE may suspend or cancel performance under any agreements in which TENREHTE has extended credit to Buyer. TENREHTE’s suspension of performance may result in rescheduling delays. If, in TENREHTE’s judgment, Buyer’s financial condition does not justify the payment terms specified herein, then TENREHTE may terminate this contract unless Buyer immediately pays for all products that have been delivered and pays in advance for all products to be delivered. Termination in accordance with this clause shall not affect TENREHTE’s right to pursue any other available remedies.
  2. Notwithstanding anything to the contrary, if Buyer fails to make any payment when due, TENREHTE will add a service charge at the rate of 1.5% per month (18% per year) or the maximum legal rate, whichever is less, to unpaid invoices from the due date thereof.
  3. Notwithstanding anything to the contrary, if Buyer fails to make any payment when due, TENREHTE will add a service charge at the rate of 1.5% per month (18% per year) or the maximum legal rate, whichever is less, to unpaid invoices from the due date thereof. Buyer acknowledges and agrees that if TENREHTE retains a collection agency or attorney to collect unpaid amounts, TENREHTE may invoice Buyer for, and Buyer will pay, all reasonable costs of collection, including without limitation reasonable attorney's fees.
  4. Buyer may make a direct bank (“wire”) transfer. Wire transfers must be complete before a Buyer’s order can be released. Wire transfers may incur additional administrative costs to process and service the Buyer’s order. Wire transfers may incur additional time to process and service the Buyer’s order.
  5. Notwithstanding anything to the contrary, Buyer’s outside the United States must remit payment in advance using wire transfer or credit card. Wire transfers or credit card payments must be complete before a Buyer’s order can be released. Wire transfers or credit card payments may incur additional administrative costs to process and service the Buyer’s order. Wire transfers or credit card payments may incur additional time to process and service the Buyer’s order.
  6. Notwithstanding anything to the contrary, remittances will be received by a bank simply as clearing agency. The receiving bank has no authority to determine whether or not the amount remitted constitutes payment in full. Remittances marked to indicate payment in full will be deposited by the bank not with standing such markings and such deposit shall not indicate TENREHTE’s acceptance of the remittance as payment in full unless the remittance actually constitutes payment of all sums owed.
  1. Taxes

Prices do not include applicable taxes or duties. Buyer is solely responsible for paying all applicable taxes and duties. TENREHTE will add sales taxes to the sales price where required by applicable law, and Buyer will pay such taxes unless Buyer provides TENREHTE with a duly executed sales tax exemption certificate. If Buyer is required by law to withhold any amount of tax from its payment to TENREHTE, Buyer shall promptly pay such amount to the appropriate tax authority and take all reasonable steps to minimize such withholding tax.

  1. Contingencies

TENREHTE shall not be in breach of this contract and shall not be liable for any non-performance or delay in performance if such non-performance or delay is due to a force majeure event or other circumstances beyond TENREHTE’s reasonable control, including but not limited to, shortages of labor, energy, fuel, machinery or materials, technical or yield failures, war, civil unrest, any government act, law or regulation, including any judicial order or decree, any communication or power failure, labor dispute, natural disaster, fire, flood, earthquake, explosion, terrorist act or Act of God. In the event of a shortage of products, TENREHTE may allocate, at its sole discretion, product production and deliveries.

  1. Warranties and Related Remedies
  1. Subject to clauses 7.5 and 7.6 below, TENREHTE warrants that TENREHTE products will conform either to TENREHTE's published specifications for such product or other mutually agreed upon written specifications signed by an authorized TENREHTE representative. For finished products, TENREHTE warrants that commencing from the date of shipment to Buyer (but in case of resale by an Approved Source other than TENREHTE, commencing not more than three (3) month after original shipment by TENREHTE), and continuing for a period of the longer of (a) one (1) year or (b) the warranty period (if any) expressly set forth as applicable in the warranty card accompanying the product. TENREHTE shall not be liable for any defects that occur in products that are installed more than six (6) months after shipment. Notwithstanding the foregoing, TENREHTE shall not be liable for any defects that are caused by neglect, misuse or mistreatment by an entity other than TENREHTE, including improper installation or testing, or for any products that have been altered or modified in any way by an entity other than TENREHTE. Moreover, TENREHTE shall not be liable for any defects that result from Buyer's design, specifications or instructions for such products. Testing and other quality control techniques are used to the extent TENREHTE deems necessary. Unless mandated by government requirements, TENREHTE does not necessarily test all parameters of each product.
  2. If any TENREHTE products fail to conform to the warranty set forth above, TENREHTE's sole liability shall be at its option to repair or replace such products, or credit Buyer's account for such products. TENREHTE's liability under this warranty shall be limited to products that are returned during the warranty period to the address designated by TENREHTE and that are determined by TENREHTE not to conform to such warranty. If TENREHTE elects to repair or replace such products, TENREHTE shall have a reasonable time to repair such products or provide replacements. Repaired products shall be warranted for the remainder of the original warranty period. Replaced products shall be warranted for a new full warranty period.

Replacement products may be refurbished or contain refurbished materials.

Prior to returning any such product, the Buyer must obtain a Return Materials Authorization (“RMA”) number from TENREHTE. The Buyer is responsible for all freight charges to return any such RMA product to TENREHTE. TENREHTE will not accept any freight collect RMA product shipments.

  1. EXCEPT AS SET FORTH ABOVE, PRODUCTS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” TENREHTE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
  2. Buyer agrees that prior to using or distributing any systems that include TENREHTE products, Buyer will thoroughly test such systems and the functionality of such TENREHTE products as used in such systems. TENREHTE may provide technical, applications or design advice, quality characterization, reliability data or other services. Buyer agrees that providing these services shall not expand or otherwise alter TENREHTE’s warranties, as set forth above, and no additional obligations or liabilities shall arise from TENREHTE providing such services.
  3. Safety-Critical, Military and Automotive Applications

TENREHTE products are not authorized for use in safety-critical applications (such as life support) where a failure of the TENREHTE product would reasonably be expected to cause severe personal injury or death, unless officers of the parties have executed an agreement specifically governing such use. Buyer shall fully indemnify TENREHTE and its representatives against any damages arising out of the unauthorized use of TENREHTE products in such safety-critical applications.

TENREHTE products are neither designed nor intended for use in military/aerospace applications or environments unless the TENREHTE products are specifically designated by TENREHTE as military-grade or certified for aerospace operation. Only products designated by TENREHTE as military-grade meet military specifications. Buyer acknowledges and agrees that any such use of TENREHTE products which TENREHTE has not designated as military-grade is solely at the Buyer’s risk, and that Buyer is solely responsible for compliance with all legal and regulatory requirements in connection with such use.

TENREHTE products are neither designed nor intended for use in automotive applications or environments unless the specific TENREHTE products are designated by TENREHTE as compliant with ISO/TS 16949 requirements. In any case of such use of non-designated products, TENREHTE will not be responsible for any failure to meet ISO/TS 16949 requirements.

Buyer represents that it has all necessary expertise in the safety and regulatory ramifications of its applications, and Buyer acknowledges and agrees that it is solely responsible for compliance with all legal, regulatory and safety-related requirements concerning its products and any use of TENREHTE products in Buyer’s applications, notwithstanding any applications-related information or support that may be provided by TENREHTE.

  1. Notwithstanding anything to the contrary, (i) SOFTWARE PRODUCTS , (ii) EXPERIMENTAL PRODUCTS, (iii) PROTOTYPE PRODUCTS, (iv) DEVELOPMENT PRODUCTS, and (v) PRE-PRODUCTION PRODUCTS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” TENREHTE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH SOFTWARE PRODUCTS AND EXPERIMENTAL AND DEVELOPMENT AND PRE-PRODUCTION PRODUCTS, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
  1. Limitations and Damages Disclaimer
  1. General Limitations

IN NO EVENT SHALL TENREHTE BE LIABLE FOR ANY SPECIAL, COLLATERAL, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS CONTRACT OR THE USE OF THE GOODS PROVIDED HEREUNDER, REGARDLESS OF WHETHER TENREHTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL OR REINSTALLATION, ANCILLARY COSTS TO THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, RETESTING, OUTSIDE COMPUTER TIME, LABOR COSTS, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF USE, LOSS OF DATA, OR BUSINESS INTERRUPTION. NO CLAIM, SUIT OR ACTION SHALL BE BROUGHT AGAINST TENREHTE MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS OCCURRED.

  1. Specific Limitations

IN NO EVENT SHALL TENREHTE’S AGGREGATE LIABILITY FROM ANY WARRANTY, INDEMNITY, OR OTHER OBLIGATION ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT, OR ANY USE OF ANY TENREHTE PRODUCT PROVIDED HEREUNDER, EXCEED THE TOTAL AMOUNT PAID TO TENREHTE FOR THE PARTICULAR UNITS SOLD UNDER THIS CONTRACT WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. THE EXISTENCE OF MORE THAN ONE CLAIM AGAINST THE PARTICULAR UNITS SOLD TO BUYER UNDER THIS CONTRACT SHALL NOT ENLARGE OR EXTEND THIS LIMIT.

  1. BUYER UNDERSTANDS AND AGREES THAT THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THIS CONTRACT AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.
  1. Cancellations and Rescheduling

No cancellation or rescheduling of product by Buyer within thirty (30) days of TENREHTE’s estimated shipping date for such product will be accepted. Any cancellation or rescheduling of product by Buyer more than thirty (30), but less than ninety (90), days before TENREHTE’s estimated shipping date for such product may result in a charge to Buyer. Such charge, if any, shall be reasonably determined by TENREHTE based on factors such as whether the product was manufactured specifically for Buyer, TENREHTE’s ability to change its production schedule within the period of notice provided by Buyer, whether TENREHTE acquired or allocated particular supplies or equipment to meet Buyer’s order and such other factors as reasonably determined by TENREHTE. Orders may be cancelled or rescheduled by Buyer more than ninety (90) days before TENREHTE’s estimated shipping date for such product at Buyer’s discretion and without charge.

  1. Non-waiver of Default

In the event of any default by Buyer, TENREHTE may decline to make further shipments. If TENREHTE elects to continue to make shipments, TENREHTE’s action shall not constitute a waiver of any such default or affect TENREHTE’s legal remedies for any such default.

  1. Governing Law

This contract shall be governed by and interpreted in accordance with the laws of the State of New York, without reference to conflict-of-laws principles. If for any reason a court of competent jurisdiction finds any provision of this contract to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties, and the remainder of this contract will continue in full force and effect. This contract shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, or by the Uniform Computer Information Transactions Act (UCITA). Buyer agrees that non-exclusive jurisdiction for any dispute arising out of or relating to this contract lies within courts located in the State of New York and consents to venue in Monroe County, New York. Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court, and TENREHTE may seek injunctive relief in any United States or foreign court.

  1. Dispute Resolution

The parties hereby agree that all disputes and differences arising from the execution of, or in connection with this contract shall be settled through friendly consultations by both parties.  To this effect, they shall consult and negotiate with each other, in good faith and understanding of their mutual interests, to reach a just and equitable solution satisfactory to both parties.  If the parties do not reach such solution within a period of thirty days after receipt of a notice from one party to the other requesting mediation, or such further period the parties shall agree to in writing, then the disputes or differences shall be settled in accordance with the arbitration provisions hereunder.

Any controversy or claim arising out of or relating to this contract, or the breach thereof, that was not settled after mediation, shall be determined by binding arbitration administered by the American Arbitration Association in accordance with its International Arbitration Rules.

There shall be limited discovery prior to the arbitration hearing as follows:  (a) exchange of witness lists and copies of documentary evidence and documents relating to or arising out of the issues to be arbitrated, (b) depositions of all party witnesses and (c) such other depositions as may be allowed by the arbitrator upon a showing of good cause.  Depositions shall be conducted in accordance with the New York Code of Civil Procedure, the arbitrator shall be required to provide in writing to the parties the basis for the award or order of such arbitrator, and a court reporter shall record all hearings, with such record constituting the official transcript of such proceedings.

The number of arbitrators shall be one. The place of arbitration shall be in Rochester, New York, USA. The arbitration shall be held, and the award shall be rendered, in English.

  1. Export Control
  1. Buyer agrees that unless prior authorization is obtained from the U.S. Department of Commerce, neither Buyer nor its subsidiaries shall export, re-export, or release, directly or indirectly, any technology, software, or software source code (as defined in Part 772 of the Export Administration Regulations of the U.S. Department of Commerce (“EAR”)), received from TENREHTE, or export, re-export, or release, directly or indirectly, any direct product of such technology, software, or software source code (as defined in Part 734 of the EAR), to any destination or country to which the export, re-export or release of the technology, software, software source code, or direct product is prohibited by the EAR. Buyer furnishes the assurances provided herein to TENREHTE in compliance with Part 740 (Technology and Software Under Restriction) of the EAR.
  2. Buyer further agrees to obtain any necessary export license or other documentation prior to the exportation or re-exportation of any product, technical data, software or software source code acquired from TENREHTE under this contract or any direct product of such technical data, software or software source code. Accordingly, Buyer shall not sell, export, re-export, transfer, divert or otherwise dispose of any such product, technical data, software or software source code directly or indirectly to any person, firm, entity, country or countries prohibited by US or applicable non-US laws. Further, Buyer shall give notice of the need to comply with such laws and regulations to any person, firm or entity which it has reason to believe is obtaining any such product, technical data, software or software source code from Buyer with the intention of exportation. Each party shall secure, at its own expense, such licenses and export and import documents as are necessary for each respective party to fulfill its obligations under this contract. If government approvals cannot be obtained, TENREHTE may terminate, cancel or otherwise be excused from performing any obligations it may have under this contract.
  3. Any product export classification made by TENREHTE shall be for TENREHTE’s internal use only and shall not be construed as a representation or warranty regarding the proper export classification for such product or whether an export license or other documentation is required for the exportation of such product. This Section 12 shall survive termination of this contract.
  1. U.S. Government Contracts

If the products are to be used in a U.S. Government contract or subcontract, those mandatory clauses, except as noted below, of the applicable U.S. Government procurement regulations shall be incorporated by reference. Unless otherwise agreed upon in writing, certified cost or pricing data will not be provided and Cost Accounting Standards, Defective Pricing, and Audit requirements will not apply.

  1. Assignment

This contract shall not be assignable by Buyer without TENREHTE’s prior written consent. Any unauthorized assignment shall be null and void.

  1. Restrictions and Notices:
  1. Notwithstanding anything to the contrary, (i) PRE-RELEASE PRODUCTS, (ii) EVALUATION PRODUCTS, (iii) EXPERIMENTAL PRODUCTS, (iv) PROTOTYPE PRODUCTS, (v) DEVELOPMENT PRODUCTS, and (vi) PRE-PRODUCTION PRODUCTS (such items together as the “VALIDATION PRODUCTS”) are provided FOR ENGINEERING DEVELOPMENT, DEMONSTRATION, AND / OR EVALUATION PURPOSES ONLY.
  2. Buyer acknowledges and agrees to all the terms of the additional information and warnings from TENREHTE provided with the VALIDATION PRODUCTS received by Buyer.
  3. Buyer acknowledges and agrees to all the terms of the additional product labels TENREHTE attached to the VALIDATION PRODUCTS received by Buyer.
  4. Notwithstanding anything to the contrary, VALIDATION PRODUCTS are provided prior to compliance testing to safety, immunity, or emissions requirements and/or standards set forth by local governing bodies and are made available solely to allow the Buyer to determine whether such items would be further purchased if offered at a future date by TENREHTE as a finished product. Among other things, Buyer will be responsible to take whatever measures may be required to correct any interference with radio communications, at its own expense, if such measures are necessary.
  5. Buyer assumes all responsibility and liability for proper and safe handling of the VALIDATION PRODUCTS. Further the Buyer is responsible for ensuring that any contacts or interfaces between such items and any human body are designed to be safe and to avoid the risk of electrical shock. Buyer shall only assign technically qualified experts who are familiar with the dangers and application risks associated with handling electrical components, subsystems and systems to use the VALIDATION PRODUCTS, and that such use takes place solely in a controlled environment.
  6. Notwithstanding anything to the contrary, VALIDATION PRODUCTS are Non-Cancelable, Non-Returnable ("NCNR"). Unless otherwise authorized by TENREHTE, all VALIDATION PRODUCTS are Non-Cancellable once the Buyer’s order has been accepted by TENREHTE. Excluding VALIDATION PRODUCTS returned for warranty service, unless otherwise authorized by TENREHTE all VALIDATION PRODUCTS are Non-Returnable, and TENREHTE has no obligation to accept the return of any of any VALIDATION PRODUCTS for whatever reason.
  1. Entire Agreement

This contract constitutes the entire agreement between the parties relating to the sale of the products and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No prior representations or statements relating to the sale of the products made by any TENREHTE representative, which are not stated herein, shall be binding on TENREHTE. No addition to or modification of any provision of this contract shall be binding upon TENREHTE unless made in writing and signed by a duly authorized TENREHTE representative. No course of dealing or trade usage or course of performance shall be relevant to explain or supplement any term in this contract. These terms and conditions shall prevail notwithstanding any different, conflicting or additional terms and conditions that may appear on any purchase order or other writing not expressly incorporated herein, including but not limited to data sheets, application notes and purchase order acknowledgements. The section headings contained in this contract are for reference purposes only and shall not affect in any way the meaning or interpretation of this contract.


20 November 2011
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