Switchback Group Terms and Conditions of Sale
Switchback Group, Inc.’s (“Seller”) Terms and Conditions of Sale apply to all purchases made by Buyer from Seller and all Orders shall be subject only to Seller’s Terms and Conditions unless Seller expressly agrees otherwise in writing.
- CONTRACT FORMATION; OFFER, ACCEPTANCE, EXCLUSIVE TERMS
- Each Proposal submitted to Buyer, together with these Terms and Conditions, is an offer by Seller to that Buyer identified on the Proposal to enter into an agreement for the sale of goods and/or services. Seller’s offer expressly limits acceptance to the terms of Seller’s offer.
- Buyer may accept Seller’s Proposal and be bound by Seller’s Terms and Conditions by submitting to Seller a Purchase Order, Order or other document showing agreement to the Proposal together with these Terms and Conditions. Seller shall then deliver to Buyer an Order Acknowledgment confirming the Agreement and the purchase price. In the event that the Buyer’s Purchase Order, Order or other written response to the Seller’s Proposal is held to be an offer by the Buyer, that offer is expressly rejected and is replaced by the Seller’s Proposal together with these Terms and Conditions.
- The parties understand and agree that the acceptance of the Proposal is limited to these Terms and Conditions and to the Terms that are expressly referenced in the Proposal. No purported acceptance of any Purchase Order, Order, Quotation or otherwise received from Buyer, on terms which modify, supersede, supplement or in any way alter the Proposal and/or these Terms and Conditions shall be binding on Seller and such terms shall be deemed rejected and replaced by the Proposal and these Terms and Conditions unless Buyer’s proffered terms are accepted by Seller in a written instrument signed by an authorized officer of the Seller. Acceptance is limited to these Terms and Conditions and to the Terms that are expressly referenced in the Proposal notwithstanding the delivery of an Acknowledgment by Seller or Buyer’s acceptance of or payment for the goods and services that are the subject of the Proposal.
- If Seller’s Proposal and/or its Terms and Conditions have been issued by Seller in response to an offer made by Buyer, and if any term of the Proposal or the Terms and Conditions are additional to or different from Buyer’s terms and conditions, then the issuance of Seller’s Proposal and/or its Terms and Conditions shall constitute an acceptance of Buyer’s offer, subject to the express condition precedent that Buyer’s assent to such additional or different terms and acknowledge that Seller’s Proposal and its Terms and Condition constitute the entire agreement between Seller and Buyer with respect to the subject matter of Buyer’s offer. Buyer shall be deemed to have acknowledged and assented to Seller’s Proposal and to its Terms and Conditions unless Buyer notifies Seller in writing within ten (10) days of placing an order, which is subject to Seller’s Proposal and its Group’s Terms and Conditions. Buyer agrees that no contract shall exist between Buyer and Seller except as expressly set forth herein.
- In the event of a conflict between the Purchase Order, Order or any prior or contemporaneous document exchanged between Buyer and Seller, the parties understand and agree that the Seller’s Proposal together with these Terms and Condition govern the transaction.
- Definitions. As used in this Agreement, the following terms shall have definitions as follows:
- “Agreement” shall mean to the mutual promises of the Seller to sell, and the Buyer to buy, certain goods and/or services as described in the Proposal and in these Terms and Conditions, Order Acknowledgment and Change Order, if any.
- “Acceptance Date” means the date that the Goods that are the subject of the Agreement are deemed accepted in accordance with Section 8 hereof.
- “Acceptance Test” means the acceptance test pertaining to the goods that are the subject of the Agreement as described in Section 8 hereof.
- “Confidential Information” means any patterns, markers, specifications, know-how, drawings, designs, plans, cost or pricing information, buying habits, customer lists, trade secrets, trade dress, concepts or ideas related to the business of either party to the Agreement, and any information or know-how acquired from such party in connection with this Agreement or the production or delivery of the goods and/or services , including information related to such party’s products, processes or services, research, inventions, marketing, manufacture, purchasing, accounting, engineering, merchandising, selling, customer agreements, samples, prototypes and/or any part thereof.
- “Goods” mean the equipment and services that are the subject of the Proposal.
- Change Requests and Orders. If the parties determine that changes to the Proposal and/or to the Goods are necessary and/or desirable, then such changes shall be evidenced by a Change Order. Such Change Order shall amend the Proposal appropriately to incorporate the agreed upon change and acknowledge the effect, if any, of the change on the Purchase Price, Delivery Date and warranty provisions of this Agreement. All Change Orders shall be signed by an authorized representative from both parties. If any Change Order is not signed by an authorized representative from both parties, then it shall be void and shall have no effect on the terms of the Agreement.
- Proprietary Specifications. To the extent that Seller has provided information, research, designs, specifications, know-how, concepts or ideas derived from, or formulated in connection with, its performance of the Agreement, Buyer acknowledges that such are the property of Seller and that Seller shall be entitled to patent, use or sell the same to any third-party. Buyer also acknowledges that it shall not patent, use or sell any other good to any third party that incorporates specifications and/or designs developed by Seller.
- Purchase Price/Remedy:
- The Purchase Price of the Goods shall be confirmed in Seller’s Acknowledgment delivered to Buyer as referenced in Section 1.B. The Purchase Price is inclusive of all Goods specified in the Proposal and Acknowledgment and shall be paid according to the progress payment schedule outlined at the Proposal.
- In the event of Buyer’s delay or failure to make any of the progress payments indicted on the schedule contained in the Proposal and the Goods have not yet been shipped, then, in addition to any other remedies under this Agreement or available at law, Seller may delay or stop the shipment of the Goods.
- In the event of Buyer’s delay or failure to make any of the progress payments indicated on the schedule contained in the Proposal and the Goods have been shipped, then, in addition to any other remedies under this Agreement or available at law, SELLER SHALL HAVE THE RIGHT TO REMOTELY DISABLE THE OPERATION OF THE GOODS WITHOUT ANY FURTHER NOTICE TO BUYER.
- Buyer acknowledges and agrees that Seller shall not be liable for any incidental, consequential, or special damages of any kind incurred by Buyer (Including loss of profits) due to Seller’s enforcement of rights under this Section 4.
- Taxes. Prices do not include any applicable sales, use, excise, value added, gross receipts, or similar federal, state or local or other governmental taxes imposed on Seller in connection with the sale of goods pursuant to this order. The amount of any such tax which Seller may be required to pay or collect will be on Buyer’s account and will be invoices to Buyer unless Buyer has furnished Seller with an appropriate tax exemption certificate acceptable to the taxing authorities.
- Shipping. The terms relating to shipping and delivery are set forth in the Proposal and are incorporated by reference herein.
- Risk of Loss and Transfer of Title. The risk of loss passes to Buyer upon shipment of goods as specified herein. Title to goods shall pass to Buyer upon receipt of valid final payment as specified in the Proposal.
- Equipment Testing.
- Prior to shipment, the parties shall conduct a pre-shipment test of the Goods at Seller’s Manufacturer’s facility, pursuant to the procedure outlined in the Proposal. Buyer shall have a representative present during the Equipment Test at the Manufacturer’s facility. It is understood that all defects in materials or workmanship which may be identified as a result of said test will be corrected by Seller prior to shipment of the Goods.
- Upon completion of the pre-shipment test, the Buyer shall complete the Seller’s Factory Acceptance Sign-Off Sheet. In the Acceptance Sign-Off Sheet the Buyer’s representative shall: (1) indicate that the Equipment Test did not reveal any defects and the Goods performed in accordance with the Specifications, or (2) identify particular defects in material, workmanship or particular non-conformities with the Specifications.
- Upon signing the Factory Acceptance Sign-Off Sheet, the Buyer’s representative shall direct the Seller, subject to its curing the defects identified by Buyer on the Factory Acceptance Sign-Off Sheet, to promptly prepare the Goods for shipment.
- Upon signing the Factory Acceptance Sign-Off Sheet, Buyer shall conclusively affirm that it has accepted the Goods as that term is defined in R.C. 1302 et seq. (the “Acceptance”).
- Limited Warranty.
- Seller warrants that the Goods have been designed and manufactured so as to conform to the Specifications set forth in the Proposal, Purchase Order and Acknowledgment.
- If, after delivery and for a period of one year thereafter, the Buyer discovers or should have discovered that the Goods are defective in materials or workmanship or if that the Goods are otherwise non-conforming, Buyer must promptly give Seller written notice of all such defects and/or non-conformities. Upon receipt of the written notice, Seller shall promptly notify Buyer of its intentions and preferences to effect repair and/or replacement of the Goods provided that the defects and/or non-conformities were caused by Seller and are not excluded under subparagraph D hereof.
- In the event that the defects and/or non-conformities were caused by Seller, then Seller’s sole obligation under this limited warranty shall be, at its option, the repair or replacement of the Good or any part(s) thereof, at no charge to Buyer.
- Seller’s limited warranty does not cover, and Seller EXPRESSLY DISCLAIMS any defect, failure, deficiency or non-conformity that is: (a) not reported to Seller within a reasonable time after delivery and in no event more than one year after delivery; (b) due to any modification, abuse, misuse, improper storage, unauthorized repair or maintenance of the Good, (c) due to any abnormal condition of temperature, humidity, dirt or improper operation of the Good; (d) due to the application of the product, either intentional or otherwise, in an improper manner; (e) due to normal wear and tear of the product or any part(s) thereof, (f) the result of Buyer’s failure to comply with any contingency set forth in Section 5 of the Proposal.
- Buyer’s remedy shall be limited exclusively to repair and/or replacement of the Good.
- Exclusion of Warranties and Limitation of Damages. Except as provided herein,
THERE ARE NO WARRANTIES MADE BY SELLER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY, THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, IMPLIED WARRANTIES AGAINST DEFECTS IN DESIGN, MATERIALS AND WORKMANSHIP, INFRINGEMENT OR OTHERWISE WHICH EXTEND BEYOND THE DESCRIPTION OF THE GOODS THAT ARE THE SUBJECT OF THE AGREEMENT. BUYER WAIVES ALL OTHER CLAIMS AGAINST SELLER.SELLER’S TOTAL LIABILITY RELATED TO ANY GOOD IS LIMITED TO THE REPAIR OR REPLACEMENT OF SUCH GOOD AND IN NO EVENT SHALL EXCEED THE PURCHASE PRICE OF SUCH GOOD PAID TO SELLER BY BUYER. SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PURCHASE, STORAGE OR USE OF THE GOOD, INCLUDING, BUT NOT LIMITED TO: (A) DAMAGES FOR LOSS OF USE, INCOME OR PROFIT; (B) LOSSES SUSTAINED AS A RESULT OF INJURY (INCLUDING DEATH) TO ANY PERSONS; AND/OR (C) DAMAGES TO PROPERTY, OTHER THAN THE GOOD ITSELF.
- Breach. If either party breaches any covenant, representation, or warranty contained in the Agreement, then the non-breaching party shall be entitled to the remedies available under Article II of the Uniform Commercial Code, as adopted by the jurisdiction under which this Agreement is governed. Notwithstanding anything herein to the contrary, under no circumstances shall Buyer’s damages exceed the Purchase Price.
- Insolvency. Either party may terminate this Agreement immediately upon written notice to the other party if the other party executes an assignment for the benefit of its creditors; or an examiner, administrator, trustee, receiver or similar officer is appointed for any or all of the other party’s assets; or the other party files or has filed against it a petition under bankruptcy or similar laws providing for its reorganization or liquidation; or the other party is adjudged to be insolvent, bankrupt or is otherwise unable pay its debts when due; or an order is made or an effective resolution is passed for the winding-up of the other party; or any distress, execution, sequestration, attachment or other process has been levied or entered upon or sued out in respect of the other party or against any property or asset of the other party.
- Notices. Any notice, consent or request permitted or required by this Agreement must be in writing and (i) personally delivered; or (ii) sent by registered mail, postage prepaid and return receipt requested, or by reputable express delivery service (and delivery shall be deemed to take place when deposited for delivery), in each case to the addresses specified below or (iii) by email with read receipt. Either party may update its address for notices by providing written notice in accordance with this Section this section
If to Seller, to:
Swithchback Group, Inc.
3778 Timberlake Drive
Richfield, Ohio 44286
- Confidential Information.
- Non-Disclosure. The parties hereto each acknowledge that they may receive Confidential Information from the other party in connection with the design and development of the Goods. Each party agrees and covenants that it shall use such Confidential Information solely for the purpose of the design and development of the Goods and strictly in accordance with this Agreement. It shall not at any time disclose, appropriate or use such Confidential Information for its own behalf or on behalf of others, and shall at all times prevent its directors, officers, employees, agents and independent subcontractors, and the directors, officers, employees, agents and independent subcontractors of any of their parent companies, subsidiaries, and/or affiliates, from doing so. The parties also acknowledge that, at all times, each party has retained, and shall continue to retain, complete title to its respective Confidential Information. Each party shall restrict its circulation of any Confidential Information to such persons who necessarily must have access to such Confidential Information in order to perform its respective obligations hereunder with respect to the Equipment designed and developed. Neither party shall make, or permit its directors, officers, employees, agents or independent subcontractors, or the directors, officers, employees, agents or independent subcontractors of any of their parent companies, subsidiaries, and/or affiliates to make, any copies, abstracts, or summaries of any Confidential Information inconsistent with the foregoing permitted use thereof. Upon request or upon termination of this Agreement for any reason whatsoever, each party hereby agrees to promptly return all Confidential Information, including all copies, abstracts, or summaries made, regardless of the form in which embodied and whether or not authorized, to the other party or, at such other party’s election, destroy the same in the presence of an authorized representative of the other party. Each party shall obtain from its key personnel separate undertakings with respect to the restriction of circulation, the making of any copies, abstracts or summaries, and the return, as aforesaid, of any Confidential Information. Each party agrees and covenants to conduct all design, prototyping and sampling activities performed by it only in areas over which it maintains strict and exclusive control of access and security, and to keep all such areas strictly secure against access by any third parties at all times during which any of the Equipment, designs and/or samples or prototypes thereof are present therein. Each party shall cause its respective employees, officers and directors, and shall use its best efforts to cause its respective agents and representatives, to keep confidential and not disclose to any person or entity the terms of this Agreement, without the prior consent of the other party hereto, except where such disclosure is required by federal securities laws or any other applicable law, rule, judgment, court order or decree.
- Injunctive Relief. Each party understands and agrees that any breach of the terms of this Section would result in irreparable injury and damage to the other for which such injured party would have no adequate remedy at law; the parties therefore also agree that, in the event of said breach or any threat of such breach, the injured party shall be entitled, in addition to any other remedies to which it may be entitled at law or in equity, to an immediate injunction and restraining order to prevent such breach and/or threatened breach and/or continued breach by the breaching party and/or any and all persons and/or entities acting for and/or with and/or on behalf of the breaching party, without the necessity of proving its damages.
- Amendment. Seller reserves the right to amend these Terms and Conditions at any time, for any reason, and with or without notice of any kind. Buyer’s purchase the Goods from Seller after Seller makes changes to these Terms and Conditions is deemed to be acceptance of those changes.
- Assignment. Except as otherwise provided, the Agreement, including Seller’s Terms and Conditions shall be binding upon and inure to the benefit of the parties’ successors and lawful assigns.
- Severability. The invalidity of any part of Seller’s Terms and Conditions shall not affect the remaining provisions.
- Limitation of Period for Action on Contract. Parties agree, notwithstanding the applicable statute of limitations prescribed under Ohio law, no action, regardless of form, arising out of any transaction between Buyer and Seller under the Agreement, including these Terms and Conditions may be brought by Buyer more than one year after the delivery of the Goods to the Buyer that are the subject of the Agreement.
- Waiver. The failure of either party to insist upon the performance of any of the terms and conditions of this Agreement or to exercise any right hereunder, shall not be construed as a waiver of the future performance of any such term or condition of the future exercise of such right, and the obligation of the other party with respect to such future performance shall continue in full force. Without limiting the foregoing, any waiver must be in writing and signed by an authorized representative of the waiving party to be enforceable.
- Force Majeure. Neither party shall be liable for a delay in its performance of its obligations and responsibilities under this Agreement due to causes that were unforeseen and beyond its control such as, but not limited to, war, strikes or lockouts, embargo, national emergency, insurrection or riot, acts of the public enemy, fire, flood or other natural disaster, provided that said party has taken reasonable measures to notify the other in writing of the delay and its anticipated duration.
- Entire Agreement. The Proposal, Acknowledgment and these Terms and Conditions, as well as any valid amendments thereto, set forth the entire agreement and understanding among the parties as to the subject matter hereof, and merges and supersedes all prior discussions, agreements, and understandings of every kind that relate to the Agreement.
- Consent to Jurisdiction and Venue. Seller and Buyer agree that any dispute arising in relationship to Seller’s Terms and Conditions or any contract created between them, shall be resolved in the Court of Common Pleas located in Summit County, Ohio, or in the Federal District Court for the Northern District of Ohio, Eastern Division, and that no action shall be filed in any other court pertaining to any dispute arising out of, or connected to the Agreement, including these Terms and Conditions. Seller and Buyer also hereby waive any issues of personal jurisdiction or venue for purposes of carrying out this provision.
- Governing Law. Any issue arising under Seller’s Terms and Conditions, or under any contract based thereon shall be governed by the laws of the State of Ohio.