THINKWELL CORPORATION STANDARD TERMS AND CONDITIONS OF SALE
The terms and conditions set forth in this Agreement (the Agreement) govern all sales of Merchandise (as defined herein) by Thinkwell Corporation or any of its affiliates (collectively, Thinkwell). Submission of any order by you (Purchaser) to purchase Merchandise from Thinkwell shall constitute your agreement to the terms and conditions set forth herein. This Agreement constitutes the sole agreement between Thinkwell and the Purchaser relating to the subject matter hereof, except for specific terms and conditions published by Thinkwell and its agreements, amendments or waivers agreed to in writing by the party against whom they are intended to be enforced. Any additional or inconsistent terms appearing on purchase orders, acknowledgements or other documents of Purchaser (except quantity and delivery dates) shall not be binding on Thinkwell, unless Thinkwell has expressly and specifically assented to such terms in writing.
- MERCHANDISE
Merchandise includes all or any portion of the goods described in the Purchaser's purchase orders to Thinkwell and all packaging, instructions and other materials normally included with such merchandise. The Merchandise is a copyrighted work of Thinkwell and may incorporate other valuable intellectual property of Thinkwell, and Purchaser may not copy, distribute, display, modify or otherwise use the Merchandise in violation of Thinkwell's copyright, this agreement, or applicable law.
- BILLING AND PAYMENT
All amounts due from Purchaser to Thinkwell with respect to the Merchandise shall be paid by Purchaser on or before the dates such amounts are due as set forth in Thinkwell's invoice. Unless a set-off or deduction is specifically provided for by Thinkwell in a valid credit memo, Purchaser may not charge back to Thinkwell or make any set-offs or deductions, including but not limited to set-offs or deductions for violations of customer shipping or routing guidelines, anticipated returns deductions or set-offs or deductions for promotional programs. Thinkwell shall process any credit to Purchaser's account in accordance with Thinkwell's standard policies and procedures.
- PURCHASE ORDERS
Orders for merchandise are subject to acceptance and availability.
- RISK OF LOSS
Risk of loss passes to Purchaser upon delivery of merchandise by Thinkwell to a carrier.
- PRICES AND TERMS
Thinkwell's list prices, discounts, promotional programs and other terms are subject to change without notice. Resellers are free to charge any prices they choose for the merchandise. All of the terms and conditions of use of the Thinkwell website applicable to Purchaser must be accepted before an end user can access or use the web-based portions of the Merchandise. To the extent the Merchandise includes software, the terms and conditions of the Thinkwell License Agreement included with the Merchandise shall apply to Purchaser. Purchaser's use of the Merchandise shall constitute Purchaser's agreement with all of the applicable terms and conditions in the foregoing agreements.
- REJECTION
Purchaser may, immediately on receipt of the Merchandise, reject and return to Thinkwell, at Purchaser's risk and expense, and subject to Thinkwell's standard return policies, any Merchandise that is physically damaged. Issues arising out of the intangible content of Merchandise shall not constitute grounds for a damage claim. Purchaser may, within twelve months of the date of the purchase of any Merchandise, reject and return any Merchandise that violates any law, regulation, or court or administrative order, or infringes on any presently existing U.S. patent, trademark, or copyright. Purchaser assumes, and shall bear and pay, all risks and expenses of returning any such Merchandise. If damaged Merchandise is rejected and returned in accordance with this paragraph, Thinkwell will, at its option, repair the damage or replace the Merchandise with substantially similar Merchandise that is undamaged, or will issue a refund if replacement merchandise is not then available.
- CUSTOMER RETURNS
Except for goods sold on a non-returnable basis, subject to the terms of the Thinkwell License Agreement, Purchaser may return, at Purchaser's risk and expense, Merchandise that is unopened and in as-new condition, and otherwise in accordance with Thinkwell's standard practices and procedures and pursuant to any and all terms and conditions set forth on the invoice. Purchaser assumes, and shall bear and pay, all risks and expenses of returning any such Merchandise.
- RECALLS
In the event that the Merchandise is subject to a recall by Thinkwell (which shall be determined in Thinkwell's sole discretion), Thinkwell shall be responsible only for (a) at Thinkwell's election, supplying Purchaser with another edition of the recalled Merchandise in a quantity equal to the quantity recalled from Purchaser or reimbursing Purchaser for the costs paid by Purchaser to Thinkwell for such Merchandise, or (b) reimbursing Purchaser for all reasonable out-of-pocket expenses actually incurred and well-documented by Purchaser in connection with returning the Merchandise to Thinkwell, or, at Thinkwell's election, destroying it, provided that Purchaser provides Thinkwell with certification as to such destruction.
- TAXES
Purchaser, and not Thinkwell, shall be responsible for payment of all applicable sales tax in connection with Purchaser's purchase of the Merchandise. If Purchaser resells any Merchandise, Purchaser shall be responsible for complying with laws and rules of any taxing authority, including without limitation, registration, collecting and paying all applicable tax. Where appropriate, Purchaser shall provide Thinkwell with a duly executed resale certificate indicating that such purchase is for resale and listing Purchaser's sales tax registration number for each state into which Thinkwell's product will be delivered. Thinkwell shall have no liability for any tax required to be billed, collected and/or remitted by Purchaser as a result of sales of product made by Purchaser, and Purchaser shall defend, indemnify and hold harmless Thinkwell against all losses, penalties, interest and expense (including reasonable attorneys' fees) arising out of any claims relating to such liability for taxes.
- CHANGES AND CANCELLATION
Thinkwell may make changes in quantities, case packs, drawings, specifications, delivery schedules, method of shipment and packaging, and may cancel or terminate work on this order for its own convenience, on whole or in part, by written or electronic notice at any time. IN NO EVENT SHALL THINKWELL BE LIABLE TO PURCHASER FOR ANY SPECIAL OR CONSEQUENTIAL LOSSES ARISING OUT OF THINKWELL'S FAILURE OR ALLEGED FAILURE TO FILL ORDERS BY PURCHASER IN WHOLE OR IN PART OR FOR ANY DIRECT DAMAGES IN EXCESS OF THE LIMIT OF LIABILITY SET FORTH IN PARAGRAPH 18. THE FOREGOING EXCLUSION MAY NOT APPLY TO YOU TO THE EXTENT THAT APPLICABLE LAW DOES NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
- FORCE MAJEURE
Neither party shall be deemed in default of its obligations to the other party, except for the obligation to pay for Merchandise received, to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party, provided, that the party interfered with gives the other party written notice thereof within 10 working days of such event or occurrence.
- HOLD HARMLESS
Purchaser shall indemnify and hold Thinkwell harmless from and against any and all loss, damage, cost, charge or expense, including reasonable attorneys' fees, which Thinkwell may suffer or sustain on account of injury to, or death of, any persons, or damage to or loss of property arising out of the performance of this Agreement by Purchaser, its employees, agents or representatives, and/or arising out of the distribution, resale or promotion of the Merchandise by Purchaser.
- OTHER REMEDIES
The exercise of any remedy herein shall be without prejudice to any other right or remedy available to either party.
- PROMOTIONAL PROGRAMS
Purchaser shall comply with the applicable Thinkwell promotional or incentive programs that may from time to time be offered in connection with Purchaser's resale of the merchandise.
- COLLECTION FEES AND ACCELERATION
Purchaser shall be responsible for all attorneys' fees incurred by Thinkwell in collecting its receivables hereunder and for interest on all amounts past due at the rate of 1.5% per month, but not to exceed the maximum rate allowable under law. Thinkwell retains the option to accelerate the entire indebtedness of Purchaser's account if Purchaser is late in making a payment to Thinkwell.
- SOLVENCY
By ordering and accepting delivery of Merchandise, Purchaser represents to Thinkwell that Purchaser is solvent and will make payment in full and when due for such Merchandise in accordance with the Invoice. In the event that Purchaser orders and/or accepts delivery of any Merchandise while insolvent, Purchaser shall immediately return all such Merchandise to Thinkwell, and any and all Merchandise en route to Purchaser at such time shall be returned immediately upon Purchaser's receipt thereof. Events which shall be deemed to establish Purchaser's insolvency include but are not limited to the filing of a bankruptcy petition by or against Purchaser and/or Purchaser's admission of its inability to pay its debts when due.
- CLAIMS
All claims relating to the shipment and/or applicable Invoice and/or Merchandise must be made in writing within 45 days of the date of the Invoice. Any request for proof of delivery must be made within 30 days of the date of the Invoice.
- DISCLAIMER OF WARRANTIES AND INDEMNITIES
THE MERCHANDISE IS PROVIDED ON AN AS IS BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE FULL EXTENT ALLOWED UNDER APPLICABLE LAW, THINKWELL EXPRESSLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THINKWELL'S TOTAL LIABILITY TO YOU FOR ALL LOSSES, DAMAGES, CAUSES OF ACTION OR OTHERWISE WILL NOT BE GREATER THAN THE AMOUNT THAT YOU PAID FOR THE MERCHANDISE GIVING RISE TO THE CAUSE OF ACTION OR LOSS. In the event that Purchaser rightfully rejects merchandise due to bona fide defect or infringement as provided in paragraph 6, Purchaser's sole and exclusive remedy shall be the right of return set forth in paragraph 7.
- SEVERABILITY
In the event that any portion of this Agreement or the application of any such provision to Thinkwell or Purchaser shall be held by a court of competent jurisdiction to be contrary to any state or federal law, or otherwise unenforceable, the remaining provisions of this Agreement shall remain in full force and effect as though such unenforceable provision had not existed.
- JURISDICTION, VENUE AND CHOICE OF LAW
THE STATE COURTS OF THE STATE OF TEXAS, SITTING IN TRAVIS COUNTY AND, IF THE JURISDICTIONAL PREREQUISITES EXIST AT THE TIME, THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, SHALL HAVE THE SOLE AND EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY DISPUTE OR CONTROVERSY ARISING UNDER OR CONCERNING THIS AGREEMENT. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS APPLICABLE TO AGREEMENTS MADE AND FULLY PERFORMED THEREIN.
