Tenere Customer Order Terms and Conditions
Any quotation and/or Order Acknowledgement (“OA”) provided by Tenere Inc. (“Tenere”) to the buyer/customer identified on the applicable quote document (“Buyer”) related to Buyer’s purchase of the goods (hereinafter collectively the “Goods”) identified on the quote document (the “Quote”) and/or OA is exclusively subject to and governed by the following terms and conditions (“Terms”).
1. TERMS AND ACCEPTANCE
The Quote is valid for a period ending on the earlier of (i) Tenere notifying the Buyer of its withdrawal of the Quote or (ii) the expiration of the Quote Window (the “Quote Expiration Date”). To the extent that Buyer does not execute a purchase order (“PO”) and deliver the executed PO to Tenere on or before the Quote Expiration Date, the Quote shall be deemed terminated. If Buyer does execute and deliver a PO to Tenere on or before the Quote Expiration Date, to the extent that the PO properly complies with the Quote specifics, including properly identifying the applicable prices identified on the Quote for the Goods identified on the PO, the PO shall be deemed accepted by Tenere when Tenere issues Buyer an OA. Buyer shall ensure that no PO issued by the Buyer includes terms and conditions that (i) are inconsistent with or in addition to these Terms or (ii) expand the obligations or exposures of Tenere beyond those obligations or exposures specifically identified in these Terms (collectively, the “Conflicting Terms”). Any Conflicting Terms that are included in any documentation provided by the Buyer, including in a PO, shall be void and be of no force or effect.
2. PAYMENT
Tenere shall invoice Buyer for the purchase price of the Goods identified on the applicable PO at or about the time that Tenere notifies the Buyer that the Goods are available for the Buyer or its shipper to retrieve. Buyer shall pay all invoices within the number of days identified on the “Invoice Payment Timing Days” identified on the Quote from the invoice date or if no Invoice Payment Timing Days is identified on the Quote then within thirty days of the invoice date. If the Buyer’s credit is impaired at any time or Tenere has any reasonable insecurity in Buyer’s ability to timely pay, Tenere may require Buyer to pay the invoice prior to the time that Tenere notifies the Buyer that the Goods are available for the Buyer or its shipper to retrieve, including prior to the time that Tenere begins any production. A late payment charge of 1.5% per month (or the highest rate allowed by law, whichever is lower) will be applied on all invoice amounts not timely paid.
3. PRICE ADJUSTMENT; MODIFICATION OF ORDER
Prices identified on the Quote are based upon Tenere’s ability to continuously operate and the continuous availability of all materials used in the Goods, unless otherwise specified and agreed to in writing by Tenere. Tenere reserves the right to increase the prices identified on the Quote to the extent that (i) production of the Goods involves non-continuous operation, (ii) Tenere can support through documentation or otherwise that Tenere’s materials, energy, labor or other costs related to the Goods individually or in the aggregate increases by more than 3% after the Quotation Date for those Quotes identifying a Quote Window in excess of 60 days, (iii) Buyer requests to modify the quantity, retrieval date, or any requirements or other specifications regarding the Goods (which such modification wont be effective unless and until Tenere provides Buyer with prior written approval of such), (iv) Tenere’s prices for the Goods or components of the Goods increase at any time with respect to any special order Goods or components or Goods or components of the Goods that Buyer mandates Tenere source from one or more specific suppliers or (v) any governmental, legislative or regulatory intervention or enactment, including the imposition of tariffs or similar, increases Tenere’s costs related to the Goods. To the extent that Tenere exercises its rights to increase the applicable prices identified on the Quote consistent with this Section 3, Tenere shall notify Buyer of such in writing (email is acceptable) and Buyer shall then promptly reissue their PO including the increased pricing. Typographic or clerical errors on any Quote, invoice or other documentation provided by Tenere are subject to correction by Tenere.
4. TAXES, DUTIES AND LICENSES
Buyer agrees to pay any and all applicable federal, state and local taxes (domestic and foreign) to which the Goods may be subject, including, without limitation, excise taxes, sales taxes, property tax, value-added taxes and use taxes, duties and license fees.
5. CANCELLATION - ALL SALES ARE FINAL
Buyer may not cancel a PO executed by Buyer or return any non-defective Goods without Tenere’s prior written consent, which may be denied at Tenere’s sole discretion. To the extent that Tenere consents to Buyer cancelling a Buyer executed PO, Tenere shall invoice Buyer for all costs and expenses incurred by Tenere in connection with the cancelled PO, including, but not limited to, the costs of preparing or modifying any equipment for the manufacture of the Goods, the costs of all materials procured by Tenere associated with the Goods (including, but not limited to color concentrate and all excess materials resulting from minimum purchase quantity requirements), as well as the full purchase price of all Goods already produced or already in production as of the effective date of the consented to cancellation. A 15% charge will be added the cancellation invoice.
6. TOOLS AND EQUIPMENT
The tooling prices identified on the Quote include samples for dimensional approval only. To the extent that production samples and/or pilot runs are appropriate or necessary, additional charges for such will apply. Buyer shall not have access to or remove any Buyer provided tooling, dies, jigs, gauges, fixtures, equipment or similar unless and until Buyer has first paid to Tenere all amounts due under the PO’s previously submitted by Buyer, including under these Terms. All non-Buyer provided and all non-Buyer purchased tooling, dies, jigs, gauges, fixtures, equipment or similar shall remain the property of Tenere. To the extent that Buyer requests Tenere to transfer any of the items identified in the prior sentence, then to the extent that Tenere consents to such transfer and before such transfer occurs, which shall be performed at Buyer’s sole cost, Buyer shall pay to Tenere 130% of Tenere’s actual cost for such transferred items. If Buyer paid for Tenere to build a tool and Buyer requests the return of such tool, Tenere reserves the right to charge Buyer an additional charge equal to 30% of the original tool price for such returned tool. All warranties associated with any tooling, dies, jigs, gauges, fixtures, equipment or similar provided by Tenere, if any, shall immediately be void and without any further effect to upon the transfer of such to Buyer. Tenere shall not be responsible and shall have no liability to Buyer or to any third party related to any claims associated with non-conforming Goods to the extent that any such non-conformance was caused in whole or in part by any defective or deficient tooling, dies, jigs, gauges, fixtures, equipment or similar provided to Tenere by Buyer or its agents. To the extent that any Buyer provided or Buyer purchased tooling, dies, jigs, gauges, fixtures, equipment or similar exceed their mold or useful life, then Tenere reserves the right to either (i) require the Buyer to pay for any new necessary tooling, dies, jigs, gauges, fixtures, equipment or similar or (ii) increase the Quote pricing for the applicable Goods.
7. RECEIPT
Unless otherwise specifically identified on the Quote, all prices are FOB Tenere’s shipping bay and do not include any shipping, handling or similar charges, which are the sole responsibility of Buyer. Receipt of the Goods (“Receipt”) shall be deemed to occur when Tenere notifies Buyer that the Goods are available for pickup at Tenere’s shipping bay, and the risk of loss of such Goods shall pass at such time. Title to any Goods in Receipt by Buyer, shall pass to Buyer immediately after Buyer pays Tenere for such Goods.
8. INSPECTION, LIMITED WARRANTY, REMEDY AND LIMITATION OF LIABILITY
Buyer shall promptly inspect the Goods upon Receipt for conformance with the applicable specifications specifically referenced on the Quote or attached to the Quote that Tenere agreed to perform to (the “Specifications”), if any. Tenere warrants that the Goods, to the extent actually manufactured by Tenere for Buyer shall be manufactured in accordance with the Specifications. Buyer shall give Tenere written notice of any alleged Tenere breach of the limited warranty identified in the prior sentence (“Specification Breach Notice”) within 10 days after discovery by Buyer and in no case shall Buyer provide a Specification Breach Notice to Tenere more than 90 days following Buyer’s Receipt of the applicable Goods. If Buyer gives timely written notice to Tenere of any Goods non-conforming to the Specifications and Tenere reasonably determines that such non-conformity was caused solely by Tenere or its agents, then upon Tenere’s receipt of the Specification Breach Notice and receipt of the applicable Goods identified in the Specification Breach Notice, then at Tenere’s sole discretion Tenere may (i) make a refund of the purchase price specifically for the non-conforming Goods that Buyer had already paid to Tenere , (ii) provide repaired or replacement Goods for such that do conform to the Specifications or (iii) offset other amounts owed by Buyer to Tenere with the amount that Buyer had already paid Tenere for the non-conforming Goods. The remedy in the prior sentence shall be Buyer’s exclusive remedy for Tenere’s breach of this Section 8 limited warranty and Tenere provides no warranty with respect to the quality or operational performance of Goods that Tenere manufactured in accordance with any design or other Specification particulars provided by the Buyer. Notwithstanding anything in the Quote, the Terms or under law or equity to the Contrary, in no event will the maximum liability of Tenere to Buyer hereunder, exceed, in the aggregate, the greater of (a) $10,000 or (b) actual amount of payments that Buyer has made to Tenere under the Buyer submitted PO’s related to the non-conforming Goods on the applicable Quote. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, TENERE MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND TENERE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. INDEMNITY
Buyer shall indemnify, save and hold harmless Tenere and its affiliates and their respective officers, directors, employees, agents, successors and assigns from any and all loss, cost, expenses and damages, including reasonable attorneys’ fees, on account of claims, demands, actions and proceedings, concerning the Goods: (a) alleging infringement of intellectual property rights; (b) arising out of any change to, or alteration of the Goods by Buyer or any third party; (c) arising out of Buyer or any third party consolidating the Goods with any other products or materials, (d) involving the use by Buyer or a third party in a manner or application not intended by Tenere; (e) involving any negligence whatsoever on the part of Buyer or any third party or (f) related to Tenere manufacturing the Goods in accordance with the Specifications or any other directions provided by the Buyer.
10. TENERE'S REMEDIES
In the event of any breach or default by Buyer, Tenere may pursue any of the following remedies, each of which is exclusive of, cumulative with and in addition to any other right or remedy available to Tenere in law or equity: (a) terminate or cancel this Quote and any POs issued by Buyer related the Quote, (b) retain any down payment made by Buyer and-or the proceeds of the security interest in the Goods (described below), and apply it to damages hereunder or to the reduction of any other amount owed by Buyer to Tenere, and (c) pursue any other remedies available at law or in equity. If Tenere incurs expenses in attempting to collect any amount owed or to enforce any term or condition of this Quote or these Terms, including, without limitation, court costs, expenses and attorneys’ fees, then Buyer will pay to Tenere, in addition to any other sums owed or relief sought, all such expenses and fees to the fullest extent permitted by law.
11. FORCE MAJEURE
Tenere shall not be liable to Buyer for any damages, costs, expenses or other consequences incurred by Buyer or by any other person or entity, as a result of delay in manufacture of or inability to deliver or accept delivery of any Goods due to circumstances or events beyond Tenere’s reasonable control, including, without limitation, change of or in the interpretation of any laws, strikes, lockouts or other labor problems, transportation delays, unavailability of supplies or materials, floods, earthquakes, fires, explosions, civil disturbances, acts of terrorism, military action or usurped power or actions or failures to act on the part of a governmental authority.
12. INDEPENDENT RELATIONSHIP
The relationship of Tenere and Buyer created pursuant to this Quote is, and is intended to be, that of independent contractors. This Quote does not constitute, nor shall it be construed to constitute, one party as an employee, agent, representative, partner or joint venture partner of the other party for any purpose.
13. SEVERABILITY
If any provision of this Quote is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired, and the parties (or a court) shall use their best efforts to substitute a valid, legal and enforceable provision, which, insofar as practical, implements the purpose of this Quote.
14. CONFIDENTIALITY
The terms of this Quote (including, without limitation, all information concerning the prices of Goods sold or to be sold), all information contained herein, and all the negotiations and communications leading hereto, shall remain confidential and shall not be disclosed by Buyer without the prior written consent of Tenere; provided, that nothing herein will preclude Buyer from disclosing such information, or any part thereof, if such disclosure is required by law or by subpoena or order issued by a court, administrative agency or governmental entity (though Buyer will promptly notify Tenere of any such required disclosure).
15. TECHNICAL INFORMATION
Any sketches, models or samples submitted by Tenere shall remain the confidential property of the “part design originator” to the extent of any changes in design or process made by Tenere, such changes shall remain the confidential property of Tenere. Buyer shall not use or disclose, or permit any other person to use or disclose, any such sketches, models or samples of any design or production techniques revealed thereby of inferable there from, for which they were not the originator.
16. JURISDICTION; DISPUTE RESOLUTION
This Quote and these Terms and any POs related to this Quote received from Buyer shall be governed by and construed in accordance with the laws of the State of Wisconsin, regardless of choice of law principles, and the parties agree to submit to the exclusive jurisdiction of the state and federal courts of Wisconsin for any disputes arising in relation to this Quote, these terms and the POs related to this Quote received from Buyer. Any action brought against Tenere must be commenced within one year of the date of accrual of the cause of action or is shall be barred.
17. ENTIRE AGREEMENT; AMENDMENT AND MODIFICATION
This Quote, these Terms and all POs received from the Buyer (to the extent that they don’t include any Conflicting Terms) represents the entire agreement of the parties with respect to its subject matter. Any and all prior discussions or agreements with respect hereto are merged into and superseded by the terms and conditions of this Quote and the Terms. This Quote and the Terms for which it attaches to may be modified or amended only in writing signed by the parties that expressly refers to this Quote and states an intention to modify or amend it.
18. NON-EXCLUSIVE
This is not an exclusive agreement. Nothing stated in this Quote or the Terms shall limit Tenere or its affiliates in any manner in performing or providing goods or services to any other individual or entity.