These Terms and Conditions of Sale ("Terms") govern the sale of Products and Services by GiMiTEC, CO.,LTD. (“GiMiTEC”) to the customer identified on the Quote and any and all of such customer’s affiliate(s) (individually and collectively referred to as “Customer”). "Product" means any equipment, hardware or consumables sold under these Terms. "Services" means any services sold under these Terms. “Quote” means the final sales quotation issued by GiMiTEC to Customer accompanying these Terms.
These Terms constitute the final and complete contract between GiMiTEC and Customer with respect the Products and Services purchased by Customer and listed in the Quote. These Terms will be deemed accepted (a) upon Customer’s failure to object to the Terms prior to tendering any payment for or issuing a verbal or written purchase order for the Products or Services identified in the Quote (in either case, the “Purchase Order”); or (b) upon written consent from Customer. The terms and conditions herein contained and any additional “Supplement to Sales Agreement” shall constitute the only agreement between the Seller and the Buyer. Any terms and conditions originating with the Buyer are hereby expressly rejected and shall not become part of the contract between the Buyer and the Seller unless specifically accepted in writing by a duly authorized officer of the Seller. The Seller’s quotation is made subject to prior sales to third parties. In any event, said quotation will become void if not accepted by the Buyer within 30 days from the date of the offer. Seller reserves the right to hold shipment of telephone or oral orders until written confirmation has been received from Buyer. Buyer assumes full responsibility for inaccurate or incomplete date supplied on special orders.
GiMiTEC, in its sole discretion, may refuse to accept any Purchase Order or portion thereof for any reason including, without limitation, any of the following circumstances: (i) the Purchase Order lists a product no longer available or with specifications different from those contained in the Quote; (ii) the Purchase Order contains any term or condition that is inconsistent with the Quote or these Terms; or (iii) if, upon verification of Customer’s credit, GiMiTEC believes in good faith that Customer is not creditworthy. These Terms supersede any other agreement between the Customer and GiMiTEC with regard to the Products and Services identified in the Quote, including, without limitation, any conflicting terms or conditions on the Customer’s Purchase Order.
1. SALE, DELIVERY, BUSINESS POLICIES AND OTHER TERMS
a. The Products and Services identified in the Quote are subject to availability and offered by GiMiTEC on a first‐come‐first‐serve‐basis.
b. Unless otherwise specified on the Quote, the price set forth in the Quote will be valid for thirty (30) days following the date of the Quote.
c. All prices are firm for the effective period of the Quote. Prices do not include any sales, use, excise, property or other such taxes, or duties, that may be levied on the transaction by local, provincial, federal or foreign governments. Any taxes/duties Seller is required to collect from the Buyer will be added to the invoice or billed separately to the Buyer.
d. GiMiTEC reserves the right to make partial deliveries. Unless otherwise specified in the Quote, GiMiTEC will have the discretion to either invoice an entire Purchase Order when the first Product on such order is shipped (even though the first delivery may be partial), or invoice the Customer separately for each partial delivery.
e. GiMiTEC will use reasonable efforts to ship the Product(s) or provide the Services in accordance with the quoted delivery dates. However, all delivery dates are estimates. GiMiTEC also reserves the right to deliver in advance of estimated delivery date. GiMiTEC accepts no liability of any losses for general, special or consequential damages arising out of delays in delivery.
f. The shipping amount quoted is for the shipping address specified on the sales quote. In the event that the Customer changes the shipping destination after completion of the sale, GiMiTEC reserves the right to increase the shipping charges to cover additional costs and administrative activities incurred, which GiMiTEC will bill for separately. Customer is obligated to pay these additional expenses immediately.
g. All Purchase Orders are subject to acceptance by GiMiTEC at its sole discretion. All prices are subject to change without notice at any time and are based in part on the applicability of Terms and Conditions set forth herein. Should the Buyer desire other or different terms, the prices may be adjusted accordingly. Seller reserves the right to cancel Buyer’s order in the event that (a) any government price regulation, schedule or ceiling prescribes a price lower than Seller’s price as established in the order acknowledgment or in any way prevents Seller from purchasing or otherwise acquiring any commodity or service necessary to the performance of the order, or in any way prevents Seller from adjusting its prices when the cost of any such commodity or service is increased, and (b), in the event any major change in economic conditions renders Seller’s performance unprofitable.
h. Customer may cancel a Purchase Order by contacting GiMiTEC’ customer support by email (email@example.com) or by phone (+8428 66858 363) within 48 hours immediately following GiMiTEC’s receipt of Purchase Order, provided that GiMiTEC has not packaged or shipped the Product. Please note that if the Product has been packaged or shipped, Purchase Order cannot be canceled.
i. Purchase Order and related Product(s) title transfer (“Title Transfer”) are governed by the applicable trade term (as defined in Incoterms 2000) specified on the Quote or agreed to by GiMiTEC. In the event the trade term on the Quote is left blank or not otherwise specifically agreed to by GiMiTEC, the trade term shall be F.O.B. origin and title, liability and risk of loss shall transfer to Customer when the Product(s) leaves GiMiTEC’s shipping point, notwithstanding any laws, regulations, treaties or conventions to the contrary.
j. Unless otherwise specified on the Quote, any tax, duty, custom or other fee imposed by any governmental authority on this transaction shall be paid by Customer in addition to the prices quoted or invoiced. In the event that GiMiTEC prepays any such tax, fee, or charge, at the time of sale or thereafter, Customer shall reimburse GiMiTEC in full within ten (10) days of receipt of the invoice.
k. Unless otherwise specified on the Quote, prices exclude packaging, shipping, installation, refurbishment, repair and/or maintenance activities, costs and fees.
l. GiMiTEC may at its sole discretion elect to keep any non‐refundable deposits issued by Customer in the event a Purchase Order is cancelled. All cancellations of Purchaser Orders shall be made in writing.
m. Unless the Quote specifies a “30 Day Money Back Guarantee” for a Product, Customer’s acceptance of a Product (“Product Acceptance”) shall occur concurrently with Title Transfer. In the event the Quote specifies a 30 Day Money Back Guarantee for a Product, the Product Acceptance shall occur upon the earlier of (i) 30 days immediately following Customer’s receipt of the Product, or (ii) 45 days from the date GiMiTEC ships the Product. Upon Product Acceptance the sale shall be final.
n. Payment terms are stated in the Quote. GiMiTEC may discontinue performance if Customer fails to pay any amount due, or fails to perform under this or any other GiMiTEC agreement if, after ten (10) days written notice, the failure has not been cured. An interest charge of 1% per month, or the maximum allowable by law, will be added to delinquent invoices. Payment of any late charge will not cure or excuse any default by Customer, and GiMiTEC’s acceptance of such late charge will not be deemed a waiver by GiMiTEC of any default by Customer. Customer will be responsible for reasonable fees incurred by GiMiTEC for collecting any overdue payments, including reasonable attorneys’ fees.
o. GiMiTEC reserves the right to require C.O.D. payment terms from Customer and refuse to sell any Products or Services to Customer until all prior overdue accounts are paid in full.
p. GiMiTEC may use the Customer’s contact information, including email address, for marketing purposes. Customer can opt out of GiMiTEC’s marketing promotions at any time by sending an email to firstname.lastname@example.org.
2. INTELLECTUAL PROPERTY
a. The applicable manufacturer of each Product retains all right, title and interest in and to all intellectual property, including but not limited to any patents, copyrights, trademarks, software, trade names or the like, associated with the Product(s) (“Technology”). No transfer of ownership or title in the Technology is made by the sale of such Product(s) to Customer or any third party. The sale of any Product will not be construed as granting to Customer any license or other right to (a) apparatus, software, or circuits in which the Product(s) or parts thereof may be used, (b) a process or machine in connection with which they may be used, or (c) the process for their manufacture. Customer is solely responsible for obtaining the requisite software license(s) from the equipment manufacturer(s) or qualified agent.
b. Any and all modifications, enhancements, improvements, error corrections and bug fixes made by Customer with respect to a Product shall be the sole and exclusive property of the applicable manufacturer of such Product.
c. Customer shall not reverse engineer, reverse compile or reverse assemble the Product(s) or software contained therein, in whole or in part, without the consent of the applicable manufacturer(s).
d. Any projected production figures and performance data are estimates based on Seller’s understanding of routinely available facilities, operator skill, and other specified factors affecting production, and do not constitute a guarantee of production. The Seller makes no claims concerning the suitability of its products with regard to the Buyer's current or future requirements. It is the sole responsibility of the Buyer to evaluate the product to the Buyer's satisfaction under actual service conditions prior to product purchase.
3. PRODUCT WARRANTIES
a. UNLESS OTHERWISE SPECIFIED IN THE QUOTE, ALL PRODUCTS AND SERVICES ARE SOLD “AS IS”. THE AFOREMENTIONED NOTWITHSTANDING, ANY AND ALL PRODUCTS SOLD TO OR SHIPPED TO CUSTOMER LOCATED OUTSIDE OF THE UNITED STATES ARE SOLD “AS IS” REGARDLESS OF TERMS SPECIFIED IN THE QUOTE.
b. In the event the Quote specifies a 30 Day Money Back Guarantee for Product, Customer shall have the right to return the applicable Product(s) for a refund or credit, as elected by Customer, by notifying GiMiTEC in writing prior to the date of Product Acceptance and returning the Product(s) no later than fifteen (15) days thereafter. A restocking fee equal to 15% of the Quote price will be applied for such returns, unless GiMiTEC at its sole discretion determines that Product’s operating condition or features differ significantly from the Quote and related GiMiTEC.com item detail web page. Such restocking fee shall be deducted from the refund paid to the customer, or if the customer has not yet paid for the Product, the customer shall remit such restocking fee to GiMiTEC immediately upon request. Unless otherwise agreed to in writing by GiMiTEC, Customer shall be responsible for all packaging and shipping charges for Product(s) returned pursuant to this Section 3.b. This 30 Day Money Back Guarantee is null and void if (a) the Product has been modified by the Customer, (b) any repairs have been attempted or completed by either the Customer or another third party, (c) the Product has not been subject to proper maintenance, or (d) the Product has been misused or abused in any way.
c. In the event the Quote specifies a warranty period for the Product backed directly by the Product manufacturer (a “Manufacturer Warranty”), Customer shall work directly with such manufacturer to resolve all warranty issues in accordance with the terms and conditions of the Manufacturer Warranty. GiMiTEC makes no representations or warranties regarding any Manufacturer Warranty and disclaims all liability which may arise from the performance or non‐performance of a Manufacturer Warranty.
d. For Products that are specifically sold with a 180 day warranty, the following terms apply in addition to the terms and conditions found elsewhere in the Terms. The 180 day warranty covers the costs of parts and labor for any defects in the Product discovered during normal and routine use by the original Customer. This warranty is non‐transferable and does not apply to any Product that is shipped outside of the continental Vietnam or any equipment purchased by resellers. The warranty period begins on the date the Product is received by the Customer and is only valid if the equipment has been paid in full or the customer is in compliance with GiMiTEC’s previously approved payment terms. Customer shall notify GiMiTEC in writing prior to the conclusion of the warranty period of any issues with the Product. Warranty coverage does not include any consumable items. In the event warranty service is needed, GiMiTEC shall at its sole discretion (1) send a technician to repair the Product, (2) have the Product shipped to a GiMiTEC location and perform the repair work at its own facility, or (3) deliver a replacement piece of equipment of equal or greater functionality to the Customer. GiMiTEC shall have no liability for any lost data, lost productivity or down time, lost income, consequential or punitive damages, or any other liability related to the Product requiring repair. GiMiTEC shall retain any parts that are replaced during the repair process. This warranty is null and void if (a) the Product has been modified by the Customer, (b) any repairs have been attempted or completed by either the Customer or another third party, (c) the Product has not been subject to proper maintenance, or (d) the Product has been misused or abused in any way. A requested service call during the warranty period that does not result in a finding of any issue with the Product will be billed to the Customer at GiMiTEC’s normal rates for time and travel expenses. The failure of GiMiTEC to enforce any provision of this warranty shall not be deemed a waiver or limitation of GiMiTEC’s right to subsequently enforce and compel strict compliance with every provision of the warranty.
e. In the event the Quote specifies a warranty period for the Product backed directly by GiMiTEC other than as specifically noted above, Customer shall notify GiMiTEC in writing prior to the conclusion of the warranty period and resolve any Product defect or non‐conformance issues directly with GiMiTEC. GiMiTEC will, at its sole discretion, repair the affected Product or replace it with a comparable product. If GiMiTEC determines in its discretion that a Product must be returned to GiMiTEC for repair or replacement, Customer agrees to return such Product no later than fifteen (15) days following such determination. GiMiTEC shall pay the expenses for packaging and shipping to Customer any repaired or replaced Product. Unless GiMiTEC agrees otherwise, Customer shall pay the expenses for packaging and shipping to GiMiTEC any Product retuned for service or replacement pursuant to this Section 3.e. All Product warranties given by GiMiTEC will expire at the end of the warranty period and will not be revised or extended upon the repair or replacement of the Product to which the warranty pertains.
f. The aforementioned notwithstanding, in the event Customer assumes responsibility for packaging or shipping the Product(s) and/or for picking‐up the Product(s), GiMiTEC shall not be responsible for any damages to Product(s) that GiMiTEC at its sole discretion deems were incurred during packaging or shipping to Product.
g. THE WARRANTIES IN THESE TERMS ARE EXCLUSIVE AND GiMiTEC MAKES NO OTHER WARRANTIES EXPRESS OR IMPLIED HEREUNDER. GiMiTEC SPECIFICALLY DISCLAIMS (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON‐INFRINGEMENT WITH RESPECT TO THE PRODUCT. IN NO EVENT SHALL GiMiTEC BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF GiMiTEC HAS BEEN ADVISED OF THE POSSIBILITY OF
4. INDEMNIFICATION; LIMITATION OF LIABILITY
a. Customer shall indemnify, protect and hold harmless GiMiTEC, its agents, subcontractors, servants, attorneys, successors and assigns, from and against all losses, liens, damages, liability, injuries, actions, causes of action, judgments, claims, demands, costs and expenses of every nature (including investigation costs and expenses, settlement costs, and attorneys’ fees and expenses)(collectively, “Claims”), arising out of the use, condition or operation of the Product, regardless of where, how and by whom operated.
b. Customer shall indemnify, protect and hold harmless GiMiTEC, its agents, subcontractors, servants, attorneys, successors and assigns, from and against all Claims which arise out of, result from, or are attributable to the misappropriation of any patent, copyright, trade secret, trademark or other intellectual property by Customer or its employees, subcontractors, consultants, representatives, and agents or from Customer’s sale or use of any Product in any patented machine or process.
c. Seller disclaims any and all liability for intellectual property infringement, including any consequential, indirect, incidental or special damages.
d. GiMiTEC’s LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY UNDER OR FOR BREACH OF THESE TERMS SHALL BE LIMITED TO THE AMOUNT OF THE PURCHASE PRICE OF THE PRODUCT(S). IN NO EVENT SHALL GiMiTEC BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY CUSTOMER.
In the event Customer (i) files or has filed against it a petition in bankruptcy or a petition seeking reorganization, arrangement, or other relief under the bankruptcy laws of any sovereign entity or subdivision thereof; (ii) fails to pay its bills when due or becomes insolvent, (iii) makes a general assignment for the benefit of creditors; or (iv) has a receiver appointed for it, GiMiTEC may, at its option and without prejudice to any other of its rights or remedies provided herein or by law, terminate any Purchase Order and refuse to make future deliveries. Any failure by the Customer to make any payment hereunder shall constitute material breach by Customer, and Customer shall forfeit any payments made prior to termination.
a. Time is of the essence.
b. These Terms shall be interpreted pursuant to the internal laws of the HCMc, without giving effect to the principles of conflict of laws. Each of the parties hereby irrevocably and unconditionally agrees to the exclusive jurisdiction of any state or federal court located in HCMc, Vietnam for any actions, suits or proceedings arising out of or relating to these Terms and the transactions contemplated hereby (and the parties each agree not to commence any action, suit or proceeding relating thereto except in such courts and not to plead or claim that any such court is an inconvenient or otherwise improper or inappropriate forum).
c. The Quote is a material part of these Terms and is incorporated herein and made a part hereof.
d. If either party institutes any arbitration, action or proceeding to enforce these Terms or any provision hereof, or for damages by reason of any alleged breach of these Terms or of any provision hereof, or for a declaration of rights hereunder, then the prevailing party in any such arbitration, action or proceeding shall be entitled to receive from the other party all costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by the prevailing party in connection with such action or proceeding.
e. Any and all notices or other communications required or permitted by these Terms or by law to be served on or given by either GiMiTEC or Customer to the other will be in writing and will be mailed by registered or certified mail, postage prepaid, or sent by hand, telex or facsimile transmission to the parties hereto at their respective addresses specified in the Quote, subject to the right of either party to change its address by written notice.
f. These Terms and the Quote contain the entire agreement between the parties and all prior and contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein. No modification, amendment, discharge or change of these Terms (including without limitation Customer’s additional or different terms and conditions) shall be valid unless the same is mutually agreed to in writing.
g. These Terms shall be binding upon and inure to the benefit and/or burden of and be enforceable by the parties hereto and their respective legal representatives, successors and assigns. No waiver of any right hereunder shall be effective unless in writing and signed by the party against whom enforcement is sought. No delay or omission in the exercise of any right or remedy shall impair such right or remedy or be construed as a waiver. A consent to or approval of any act shall not be deemed to waive or render unnecessary consent to or approval of any other or subsequent act.
h. To the extent that any provision or a portion of any provision of these Terms is determined to be illegal or unenforceable, the remainder of these Terms will remain in full force and effect.
i. GiMiTEC may assign or transfer any of its rights or obligations under these Terms upon notice in connection with a merger, reorganization, transfer, sale of assets or product lines, demerger or spin‐off transaction or change of control or ownership of GiMiTEC, or it’s permitted successive assignees or transferees.
j. In the event of a conflict between a Quote and these Terms, the Quote shall control.
Nov 2016 | Sale Division/GiMiTEC