GENERAL TERMS AND CONDITIONS OF SALE

1.0 GENERAL

The Terms and Conditions of Sale (“Terms”) herein exclusively govern the current or quoted transaction of sale (“Sale”) between 21st Century Solutions, Ltd. DBA GoKeyless LLC. (“Seller”) and the “Buyer” (as identified in the attached quotation, sales order acknowledgement or invoice) and constitute the entire “Agreement” between the two parties. These Terms shall equally be binding upon the quotation, sale, and invoicing by Seller of hardware, software and including hosted, cloud-based services (“Products”). Any other services provided by Seller to Buyer such as site inspections or installation shall be governed by additive agreement(s). All Sales are subject to Seller’s approval.

These Terms supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the Sale. These Terms shall also supersede any conflicting terms and conditions contained in the Buyer’s purchasing documents, web portals or forms unless specifically agreed to in writing by an authorized representative of the Seller prior to shipment of Products. Failure by Seller to identify such conflicting terms and conditions shall not constitute a waiver of these Terms, or any part thereof.

Receipt of any Products by the Buyer in this Sale shall constitute Buyer’s full and unreserved agreement of these Terms.

The Seller is a reseller and distributor of Products from third party manufacturers (“Manufacturers”) and as such has no direct control over Product’s delivery time, features, quality, warranty, end of life and support and alike.

Furthermore, due to the technical nature of some of the Products, software may be included with or in the Products. Buyer agrees to be bound by and abide by any license, service levels, and/or usage agreement(s) provided by or imposed by the Manufacturers and authors of the software provided. This agreement to software terms applies equally to software that runs on a computer device locally (on-premise), embedded in a purpose built device or is hosted by a cloud service.

If Buyer is further reselling Products to another party (“End User”) then Buyer agrees to contractually bind and cause End User to abide by the Terms herein and including those of any Manufacturers and software authors of the Products.

ALTHOUGH THE SELLER HAS TAKEN REASONABLE STEPS TO PROVIDE ACCURATE INFORMATION WITH REGARDS TO THE PRODUCTS, THE SELLER SHALL NOT BE RESPONSIBLE FOR THE ACCURACY OF INFORMATION PROVIDED, NOR DOES THE SELLER WARRANT THAT THE INFORMATION IS UP TO DATE. IN THE EVENT OF ANY DISCREPANCY, THE BUYER SHALL CONSIDER THE INFORMATION THE MANUFACTURER PROVIDES ON ITS WEBSITE OR LITERATURE TO BE ACCURATE.

2.0 SCOPE OF SUPPLY

Buyer acknowledges that the Products in this Sale were selected solely by the Buyer in terms of quantity, type, features and certifications to meet Buyer’s requirements, as well as to comply with the requirements of the codes and standards imposed by the jurisdiction in which Products are installed including but not limited to Fire, Electrical and Building.

3.0 PRICE

The price(s) for the Products shall be those in effect for Buyer with Seller at the start of the Sale, unless previously agreed to in writing by an authorized representative of the Seller.

Unless specifically indicated by the Seller, prices are in United States Dollars and do not include shipping, municipal, county, state or federal taxes or duties. Buyer may provide up to date written tax exemption certificates from relevant tax authorities if applicable, from time to time.

4.0 CHANGES & CANCELLATIONS

Once in progress, any changes to the Sale requested by Buyer including delivery, quantities, and Products must be in writing and Seller shall make a revised quotation to Buyer reflecting the changes requested. Only upon Buyer’s written acceptance of Seller’s revised quotation shall the Sale in progress be changed.

Cancellations of the Sale by Buyer, or cancellation of any part of a Sale by Buyer, once in progress shall be subject to approval by Seller on a case-by-case basis at Seller’s sole discretion. Any Sale with Product that has been customized or modified in any way solely for Buyer shall not be cancelable at all.

5.0 DELIVERY

Seller shall cause delivery of the Products to the designated location indicated by Buyer in the Sale documents, on an FOB Origin basis per Incoterms 2020. The Origin shall be either Seller’s warehouse or it’s Manufacturers warehouse. Seller reserves the right to select a preferred transportation carrier (“Carrier”) unless previously agreed to with Buyer in writing by an authorized representative.

Title to and risk of loss of Products shall pass to Buyer once Products are placed with the Carrier. Buyer acknowledges that the only recourse for delays, damage, lost shipments and alike is with the Carrier, and that Buyer can optionally purchase insurance from the Carrier, prior to delivery through Seller to cover such risks.

Seller shall make best efforts to cause the Products in this Sale to be placed with the Carrier by the date requested by Buyer. Seller reserves the right to ship Products over multiple shipments and from multiple locations. If some or all of Products in this Sale are shipped from Manufacturer’s warehouse, Seller will inform Buyer of any schedule changes due to Manufacturer.

Seller cannot store delivered Products on behalf of Buyer under any circumstances.

6.0 PAYMENT

Payment by Buyer shall be made to Seller in accordance with the payment terms in effect between the Buyer and Seller at the time of this Sale. Buyer acknowledges that payment terms given by Seller may change from time to time, from order to order, including prior to delivery, depending on past payment performance of Buyer and/or business factors.

Invoices that remain unpaid by Buyer after the due date shall accrue monthly compounded interest of 1.5%, or the maximum amount permitted by law. Buyer fully agrees to pay such interest charges. Failure to pay Seller’s invoices in accordance with payment terms shall be considered a Breach of this Agreement.

All invoice disputes must be submitted to Seller in writing within seven (7) business days following the date of any such invoice. Thereafter, Buyer waives all rights it may have to dispute the validity or amount of such invoice.

For amounts owing on delivered Products, Buyer hereby irrevocably grants Seller a security interest in the Products and authorizes Seller at any time and from time to time to file in any Uniform Commercial Code (UCC) jurisdiction financing statements and amendments thereto that perfect the Seller’s security interest in the Products delivered in this Sale. Buyer agrees to assist Seller with any UCC filings at no cost.

For amounts owing on delivered Products which have been installed, Seller reserves the right to file a Mechanics Lien against the property in which Products have been installed.

Seller and its Manufacturers reserve the right to discontinue any technical support, repairs, spare parts sales, updates to Products, access to on premise or hosted cloud software services and alike for Buyer’s Breach of this Agreement. In particular, non-payment of recurring subscription payments for software provided through a hosted cloud service will be considered a Breach and result in termination of access to the software.

7.0 POST SALE SUPPORT

Due to the technical nature of certain Products, help desk style assistance may be required by Buyer or End User following delivery. Seller may provide some limited support to Buyer or End User as a courtesy; however, Buyer acknowledges that this support shall be provided principally by the Manufacturer of the Products in accordance with their own service levels and policies which may include fees for telephone or on-site support.

8.0 WARRANTY

Seller distributes Products it purchases from manufacturers. Seller assigns and transfers any manufacturer’s warranties to Buyer and/or End User. The Manufacturer’s warranties of the Products shall be found in published information shipped with the Products, on the Manufacturers web site or as otherwise published by the Manufacturer.

8.1 RETURN & REPAIR

At Seller’s discretion and subject to Seller’s Return Material Authorization (“RMA”) process, with Buyer’s account being in good standing and current, and all written proof of the Sale from Buyer being submitted:

(a) During warranty period, with prior written approval of Seller, Buyer may return any fully paid Product for credit to Buyer’s account, less a 25% restocking fee on Products returned, less any invoiced shipping charges, if it is returned within sixty (60) days of original delivery, is not a customized or configured Product, is unused and in the original unopened packaging and without added markings. Buyer is responsible for the freight costs for returning Products on an FOB Seller’s warehouse shipping terms. Credit shall not be issued for any returned Products that do not meet the foregoing criteria and will be returned to Buyer at Buyer’s cost.

(b) During warranty period, Product that is defective out of the box or found to be defective during normal use by the Manufacturer’s technical support representatives during help desk support discussions with Buyer and/or End User, may be returned to Seller for replacement or repair on an FOB Seller’s warehouse basis. Buyer is responsible for any labor involved at the location of the Products to perform this replacement.

9.0 TRADEMARKS

Seller’s trademarks appearing on its website or literature relating to the ”GoKeyless” mark are the exclusive property of the Seller and shall not be used by Buyer without the prior written approval of the Seller. Trademarks for the Manufacturers that Seller distributes that may also appear on Seller’s website or literature are the exclusive property of the respective Manufacturer and shall not be used without Manufacturer’s express approval.

10.0 LIMITATION OF LIABILITY

OTHER THAN THE ASSIGNED MANUFACTURER’S WARRANTIES, SELLER MAKES NO REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESS OR IMPLIED, OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. IN NO CASE SHALL SELLER BE LIABLE TO ANYONE FOR ANY PUNITIVE, CONSEQUENTIAL, SPECIAL, DIRECT OR INCIDENTAL DAMAGES FOR BREACH OF THIS OR ANY OTHER REPRESENTATION, INTELLECTUAL PROPERTY INFRINGEMENT, WARRANTY OR CONDITION, EXPRESS OR IMPLIED, OR UPON ANY OTHER BASIS OF LIABILITY WHATSOEVER. SELLER DOES NOT REPRESENT OR WARRANT THAT THE PRODUCTS PROVIDE PERFECT SECURITY OR CANNOT BE COMPROMISED. SELLER SHALL HAVE NO LIABILITY FOR ANY PERSONAL INJURY, PROPERTY DAMAGE OR OTHER LOSS INCLUDING BUT WITHOUT LIMITATION, LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, COSTS OF REPLACEMENT PRODUCTS, LOSS OR DAMAGE TO DATA ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS OR THE SITE IN WHICH THEY ARE INSTALLED BASED ON ANY CLAIM AT ALL. HOWEVER, IF SELLER IS HELD LIABLE WHETHER DIRECTLY OR INDIRECTLY FOR ANY LOSS OR DAMAGE WITH RESPECT TO THE PRODUCTS, REGARDLESS OF CAUSE OF ORIGIN, ITS MAXIMUM LIABILITY SHALL NOT IN ANY CASE EXCEED THE AGGREGATE PRICE OF THE PRODUCTS INCLUDED IN THIS SALE. THIS AMOUNT SHALL BE THE COMPLETE AND EXCLUSIVE REMEDY AGAINST SELLER.

11.0 FORCE MAJEURE

SELLER SHALL NOT BE RESPONSIBLE FOR ANY LOSS, DIRECT OR CONSEQUENTIAL DAMAGES INCURRED BY BUYER OR END USER RESULTING FROM A DELAY OR FAILURE WITH RESPECT TO THE PRODUCTS ARISING FROM FIRES, FLOODS, WEATHER EVENTS, CLOUD HOSTING SERVICES AVAILABILITY, LABOR TROUBLES OF ANY KIND, FAILURE OF MANUFACTURER’S OPERATIONS OR SERVICE, ACTS OF GOD, PANDEMICS, ACTS OF BUYER OR ANYTHING REASONABLY BEYOND SELLER’S CONTROL.

12.0 BREACH

Seller may terminate or suspend the Sale if there is a material breach (“Breach”) of these Terms by Buyer and Buyer fails to commence a cure within ten (10) calendar days after receipt of written notice from Seller.

In the event of a Breach for unpaid invoices by Buyer, Seller may initiate collection processes. Buyer agrees to pay all related collection fees incurred by Seller including but not limited to agency fees, court costs, and attorney fees.

13.0 VENUE & JURISTICTION

These Terms and any disputes or claims arising out of or related to this Sale shall be governed by, and construed and enforced in accordance with, the laws of the State of Ohio, without regard to conflict of law principles. In the event of any such dispute, Buyer irrevocably consents to exclusive jurisdiction and venue in the courts located in the State of Ohio, County of Montgomery. Buyer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Sale must be filed within one year after such claim or cause of action arose or be forever barred.

14.0 INDEMNIFICATION

Buyer agrees to defend, indemnify and hold harmless the Seller, its affiliates, licensors, and Manufacturers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any suits, claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of this Sale brought by Buyer, End-User or any other third party.

15.0 ASSIGNMENT

Neither Party shall assign any of the rights and obligations of this Agreement or any part thereof to any successor or assignee without the prior written approval from the other Party, which shall not unreasonably be withheld.

16.0 WAIVER & SEVERABILITY

No waiver by the Seller of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition. Any failure of the Seller to assert a right or provision under these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.

17.0 PRIVACY Seller’s privacy policy may be found on-line at https://www.gokeyless.com/privacy-policy/

 

 

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