Terms of Service
1. GENERAL. In consideration of FOAMTECH Ltd. (“FOAMTECH”) agreeing to sell any of its goods or materials (“goods”) or services to any purchaser thereof (“Buyer”), Buyer and FOAMTECH (“parties”) agree that the following terms of service (“Terms of Service”) shall apply to any such purchase and sale of goods or services, and are incorporated by reference into any quote, confirmation or invoice issued by FOAMTECH. Any term or condition in any purchase order or other document issued by Buyer that differs from or is contrary to these Terms of Service is ineffective and void unless expressly agreed to in a writing signed by an authorized representative of FOAMTECH. All orders are subject to acceptance by FOAMTECH. If these Terms of Service shall be deemed to be an offer by FOAMTECH, any acceptance by Buyer is limited to acceptance of the express terms hereof. All sales are upon the terms herein, whether pursuant to Buyer’s written or oral request.
2. QUOTES. A quote issued by FOAMTECH for foam materials or foam fabrication to be performed by FOAMTECH is premised upon FOAMTECH’s interpretation of Buyer’s written plans and specifications. FOAMTECH makes no representation as to the accuracy of such interpretation. Buyer accepts all responsibility for determining the materials and services required and for evaluating and testing materials for suitability. A quote issued by FOAMTECH is non-transferable. Quotes are based on various market factors and various considerations and may not by used by any other buyer, person on entity without the express written consent of FOAMTECH Ltd. A quote issued by us is not an offer to sell. A purchase order responding to a quote must be placed and accepted within thirty (30) days of the quote for the price to apply. Notwithstanding, FOAMTECH reserves the right to withdraw or amend a quote, and to adjust the stated prices, upon written notice to Buyer.
3. INVOICES. Buyer agrees to make prompt payment of all invoices, unless payment is to be made in advance, in which case Buyer understands that no goods will be delivered and no services performed until FOAMTECH has recieved advance payment. If, in FOAMTECH’s judgment, reasonable doubt exists as to Buyer’s financial responsibility, or if Buyer is past due in payment of any amount owing to FOAMTECH, FOAMTECH reserves the right, without liability and without prejudice to any other remedies, to suspend its performance and decline to deliver any goods until FOAMTECH receives payment (whether or not due), or adequate assurance of such payment. If an invoice is not paid when due, Buyer agrees to pay a late payment charge on the past due balance, computed at the rate of 2% per month (15% annual percentage rate) or the maximum legal rate, whichever is lower. If an invoice is not paid when due, Buyer agrees to pay all costs of collection (including reasonable attorney’s fees) incurred by FOAMTECH. All payments required by these Terms and Conditions are exclusive of all governmental taxes, all of which Buyer is responsible for and will pay in full.
4. RISK OF LOSS. Goods are sold FOB at FOAMTECH’s place of business. Buyer assumes responsibility for all costs of transporting goods and/or damages incurred in transportation. If FOAMTECH assists Buyer in this regard, the parties agree that such assistance is gratuitous, and we shall have no obligation or liability arising therefrom. Risk of loss passes to Buyer when we delivers the goods to Buyer at FOAMTECH’s place of business.
5. INSPECTION AND ACCEPTANCE. Buyer shall inspect all goods upon arrival and shall notify FOAMTECH in writing, within five ( 5 ) business days of arrival, of any over-shipment, shortage or failure to conform to specifications. All notifications shall be accompanied by packing slips, inspection reports, and any documents supporting Buyer’s claim. All returns must be authorized by FOAMTECH.
6. INTELLECTUAL PROPERTY. FOAMTECH and Buyer will not knowingly infringe on the intellectual property rights of others. If either FOAMTECH or Buyer becomes aware of a potential infringement regarding Buyer’s goods it shall promptly inform the other. FOAMTECH assumes no liability for patent infringements regarding specifications Buyer provides to FOAMTECH or regarding materials provided by FOAMTECH Ltd’s suppliers.
7. CLAIMS/WARRANTIES. The quality of goods shall be judged solely on FOAMTECH’s adherence to Buyer’s specifications. FOAMTECH’s only obligation shall be to replace or accept for credit goods not complying with Buyer’s specifications. FOAMTECH shall not be obligated to replace or accept for credit goods meeting Buyer’s specifications regardless of the performance of the goods and/or their functionality as used by Buyer.No claim of any kind, whether as to goods delivered or for non-delivery of goods, shall be greater in amount than the purchase price of the goods in respect to which such claim is made; and in no event shall claim be made for indirect, special or consequential damages (including loss of revenue or profits) whether or not FOAMTECH was apprised of the possibility of such damages.
8. RETURNS. All returned goods must be approved in writing by FOAMTECH. Purchaser may not return any product without Seller’s consent. Returned goods shipments must be prepaid. Returned goods must be unused and packed in a protective manner similar to original shipment from FOAMTECH. Goods approved by FOAMTECH for return must be received by FOAMTECH within ten (10) days.
9. INDEMNIFICATION. Buyer agrees to defend, indemnify and hold FOAMTECH and FOAMTECH’s suppliers harmless from and against any and all claims, liabilities, expenses (including reasonable attorney’s fees) or losses for any alleged patent, copyright, or trademark infringement, or any claim based on product liability, or breach of warranty, including but not limited to liability for injury, sickness, death and property damage, arising out of or relating to any manufacture or sale of goods by FOAMTECH Ltd in compliance with Buyer’s specifications.
10. MOLDS/TOOLS. All molds, tools and equipment (“tooling”) for goods, whether paid for by Buyer or FOAMTECH, embody trade secret and proprietary technology of FOAMTECH and such tooling shall be used solely by FOAMTECH Ltd. Tooling used for goods cannot be removed from FOAMTECH’s facilities and no information pertaining to the use, size, design, etc. thereof will be made available to Buyer before, during, or after the completion of any order. The design and production technique of any tooling for goods shall remain the property of FOAMTECH. Tooling will be considered obsolete if no orders have been received for production for two (2) years and FOAMTECH shall have no responsibility for the continued existence or availability of tooling after such period. FOAMTECH shall not be obligated to notify Buyer of the expiration of said two (2) year period.
11. GOVERNING LAW / ATTORNEYS FEES: These Terms of Service shall be governed by the laws (without regard to conflict of laws provisions). The parties agree that any action or proceeding to enforce or arising out of this Agreement shall be commenced only. The parties consent to such jurisdiction, agree that venue will be proper in such courts and waive any objections based upon Forum Non Conveniens. Purchaser shall reimburse Seller for all reasonable attorneys’ fees and collection costs incurred by Seller to enforce its rights against Purchaser under these Terms and Conditions.
12. CANCELLATION OR ASSIGNMENT. Unshipped orders, order modifications and/or cancellations must be confirmed in writing to Seller and are subject to a cancellation charge. Cancellation of unshipped orders for custom made goods will be reviewed for costs incurred up to the date of the written notice and Buyer will be notified of the related cancellation charges, which will include the cost of any inventories on hand, work in progress, and all other reasonable costs incurred by Seller. Orders cannot be assigned without the written consent of Seller and will be reviewed on a case by case basis.
13. MISCELLANEOUS. (A) Waiver. Failure by either party to enforce any of its rights herein shall not be construed as a waiver of such party’s rights thereafter to enforce any of such rights. (B) Severability. If any one or more of the provisions hereof shall be held to be invalid, illegal or unenforceable, the remaining provisions shall be unimpaired and will continue in full force and effect, and the invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable provision, which, being valid, legal and enforceable, comes closest to the intention of the parties. (C) Headings. Headings are for reference only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. (D) Entire Agreement. These Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all previous understandings, representations, proposals, and discussions, whether oral or written, between the parties concerning the subject matter hereof. (E) Force Majeure. Neither party shall be liable for damages for any delay or failure to perform resulting from causes beyond its reasonable control such as labor strikes, fire, explosion, flood, riots, acts of war, acts of terrorism, rebellion, sabotage, acts of God, or inability to procure raw materials; such excuse from performance shall extend so long as the force majeure event continues to delay or impair the party’s performance. (F) Assignment. Buyer may not assign any contract between FOAMTECH and Buyer. (G) Payment of Undisputed Invoices. All invoices rendered by FOAMTECH covering goods not in dispute shall be paid by Buyer regardless of disputes relating to other invoices or other delivered or undelivered goods. As to any disputed invoices, Buyer waives the right to assert offsets. (H) Survival of Obligations. All of the obligations and provisions contained herein shall survive termination of the purchase contract.
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Web: www.foamtechchina.com Email: firstname.lastname@example.org Address: No. 699 Yuyang Road, Songjiang District, Shanghai City 201600 China