TERMS & CONDITIONS
These terms and conditions of sale which appear on all invoices are the terms and conditions upon which LINK-TEL INC. (“LINK-TEL”) make all sales. LINK-TEL will not accept any other terms and conditions of sale, unless Buyer and LINK-TEL have executed a written agreement which specifically modifies, supersedes and/or replaces these terms and conditions. Acceptance of all purchase orders is expressly made conditional upon Buyer’s assent, expressed or implied, to the terms and conditions set forth herein without modification or addition.
1. ACCEPTANCE OF PURCHASE ORDERS
Buyer’s acceptance of these terms and conditions shall be indicated by any of the following, whichever first occurs: (a) Buyer’s making of an offer to purchase Product from LINK-TEL; (b) Buyer’s written acknowledgment hereof; (c) Buyer’s acceptance of any shipment of any part of the items specified for delivery (the “Products”); or (d) any other act or expression of acceptance by Buyer. LINK-TEL’s acceptance is expressly limited to these terms and conditions in their entirety without addition, modification or exception, and any term, condition or proposals hereafter submitted by Buyer (whether oral or in writing) which is inconsistent with or in addition to these terms and conditions is objected to and is hereby rejected by LINK-TEL. LINK-TEL’s silence or failure to respond to any such subsequent or different term, condition or proposal shall not be deemed to be LINK-TEL’s acceptance or approval thereof.
2. Delivery, Shipping and Lost Items
The purchaser hereby acknowledges and agrees that LINK-TEL shall not be liable or responsible for lost, held, or damaged products/orders/shipments/ once turned over to a Common Carrier, including drop shipments. The purchaser further acknowledges it is aware of, and had an opportunity to purchase insurance from the Common Carrier prior to the Order being delivered to the Common Carrier. The Purchaser agrees that LINK-TEL shall not be responsible for failed deliveries or errors of the Common Carrier or incorrect shipping information. The purchaser acknowledges that shipping provided by a Common Carrier is a transaction completely separate and apart from this transaction shipping issues shall in no way effect the terms and conditions of the purchase between the Purchaser and LINK-TEL. LINK-TEL warrants that it will use its best efforts and will perform its due diligence in conjunction with the purchaser to locate the lost or held shipment. The purchaser agrees that if it should fail to disclose an amount for shipment declaration on the Purchase Order or if it fails to meet the value of the underlying invoice issued by LINK-TEL, the purchaser shall remain solely responsible for the timely payment of the outstanding invoice and warrants that it will not stop or interfere with full payment of the invoice in any way. Purchase acknowledges that any attempt to stop or interfere with timely payment for a lost or held shipment shall be a material breach of contract and breach of warranty.
International: For all international transactions, also in accordance with above statements, LINK-TEL assumes no responsibility for charges related to customs clearance in the country of delivery, customs duties, VAT or any other charges or taxes within the country designated for delivery by the Buyer. Title shall pass to the Buyer upon delivery to the Buyer or Buyer’s representative at LINK-TEL’s logistics center.
Delivery is subject to the payment provisions set forth herein and to LINK-TEL’s receipt of all necessary information and documentation from Buyer including all import certificates, exemption and/or resale certificates, licenses and other documents as may be required from Buyer for export of the Product. Buyer shall promptly notify LINK-TEL, in no event later than five (5) business days after delivery, of any claimed shortages or rejection as to any delivery. Such notice shall be in writing and shall be reasonably detailed, stating the grounds for any such rejection. Failure to give any such notice within such time shall be deemed an acceptance in full of any such delivery. LINK-TEL shall not be liable for any shipment delays beyond the reasonable control of LINK-TEL which affect LINK-TEL or any of LINK-TEL’s suppliers, including, but not limited to, delays caused by unavailability or shortages of Products from LINK-TEL’s suppliers; natural disasters, acts of war; acts or omissions of Buyer; fire, strike, riot, or governmental interference; unavailability or shortage of materials, labor, fuel or power through normal commercial channels at customary and reasonable rates; failure or destruction of plant or equipment arising from any cause whatsoever; or transport failures.
3. PRICE AND PAYMENT
Buyer shall bear all applicable federal, state, municipal and other government taxes (such as sales, use and similar taxes), as well as import or customs duties, license fees and any other similar charges, however designated or levied on the sale or delivery of the Products or measured by the purchase price paid for the Products. LINK-TEL’s prices set forth on the front side of the invoice do not include such taxes, fees and charges. Exemption certificates must be presented to LINK-TEL prior to shipment if they are to be honored.
Payment Terms: Unless otherwise specified, the payment terms are COD. All payments made with credit card will be assessed a fee of 3.5% of the total invoice. Payments made via PayPal will be assessed a fee of 4% of the total invoice. LINK-TEL, at its discretion, may require reasonable advance assurances of payment through irrevocable bank letters of credit or otherwise. All unpaid invoices shall bear interest at an amount equal to 1-1/2% of the outstanding balance per month (or the maximum rate of interest allowed to be contracted for by law, whichever is less), commencing upon the date payment is due. Buyer’s failure to make timely payment may result in such action as commencement of proceedings for collection, revocation of credit, stoppage of shipment, delay or cessation of future deliveries, repossession of unpaid delivered goods and termination of any one or more sales agreements. Notwithstanding any “net” payment provisions specified on the invoice, LINK-TEL shall have no continuing obligation to deliver Products on credit, and any credit approval may be withdrawn by LINK-TEL at any time and without prior notice. LINK-TEL retains (and Buyer grants to LINK-TEL by submitting a purchase order) a security interest in the Products to secure payment in full and compliance with these terms and conditions of sale. Buyer agrees to execute any additional documents necessary to perfect such security interest.
Collections: In the event the sales invoice shall be placed by LINK-TEL in the hands of an attorney or collection agency for the purpose of collection, with or without litigation, or for the purpose of enforcing LINK-TEL’s security interest in the Products, the Buyer agrees to pay any and all costs associated with such placement, including, without limitation, attorney’s fees and costs incurred prior to, during, or subsequent to trial, and including, without limitation, collection, bankruptcy, or other creditor’s rights proceedings.
Currency: If a sale is to occur, or the Product is to be shipped, outside of the United States, Buyer acknowledges and agrees that the amount due LINK-TEL is contracted in U.S. Dollars and that payment in U.S. Dollars is of the essence. Any payment by Buyer in local currency or the receipt by LINK-TEL of local currency as a consequence of enforcement procedures against Buyer will be deemed an authorization for LINK-TEL to use that local currency to purchase U.S. Dollars or, if such purchase is prohibited by local law, an authorization to purchase appropriate bonds or other instruments and export them from the Buyer’s country in order to convert the currency into U.S. Dollars and apply the proceeds to the payment of any amounts owed to LINK-TEL by Buyer. Any deficiency as a result of conversion of payment into U.S. Dollars shall be the responsibility of Buyer.
Any return of the Products purchased hereunder, whether for stock balancing purposes or because such Products are claimed to be defective, shall be governed by LINK-TEL’s Product Return policies in effect on the date of the invoice, or as otherwise provided by LINK-TEL to Buyer in writing. LINK-TEL’s Product Return policies are as follows:
DOA/DEFECTIVE PRODUCTS are returned for REPLACEMENT ONLY with the same product/model at LINK-TEL’s sole discretion within 30 days of original invoice date. Deviations from this policy may result in a 25% Returns Processing Service Charge. Defective product must be in original factory carton with all original packing materials.
NON-DEFECTIVE RETURNS ARE SUBJECT TO A 25% RE-STOCKING FEE and such returns will be for store credit or refund at LINK-TEL’s sole discretion within 30 days of original invoice date .
Customer is responsible for shipping charges LINK-TEL’s warehouse for all products being shipped for return, exchange or replacement. Products exchanged or replaced will be shipped by LINK-TEL to Customer, at LINK-TEL expense, using the same shipping method as was used by Customer to ship the original products back to LINK-TEL. If the carrier selected by Customer is not used by LINK-TEL, a comparable shipping method will be selected. Customer is responsible for all risk of loss and damage to products being shipped for return, exchange or replacement. Please fully insure return shipment in case of loss or damage. Please use a carrier that is able to provide you with proof of delivery such as UPS, Federal Express or Airborne Express. This is for your protection as well as to ensure quick action on your return.
Return privileges vary by manufacturer. Please contact LINK-TEL via e-mail at [email protected] for details. Please send the RMA request to [email protected] to obtain a Return Merchandise Authorization (RMA) before shipping product back to LINK-TEL. This will expedite and help ensure the proper action or credit upon processing. In order to expedite a return, please have the following information on hand when requesting an RMA number: Customer number, invoice number, serial number, reason for return, action to take (replacement/repair/credit) and whether the box has been opened or is manufacturer sealed.
Please return all products 100% complete including all original manufacturer boxes with the UPC code and packing materials, all manuals, blank warranty cards, accessories and any other documentation included with the original shipment. RMA approval is contingent upon, among other things, the products being 100% complete.
Returns will not be accepted at our warehouse without a valid Return Merchandise Authorization (RMA) number. RMA numbers will expire after 7 days. Any return we receive without an RMA number will be documented and returned to you.
Returns processing may take up to 5 business days from the time your return is received.
LINK-TEL reserves the right to modify or eliminate such policies at any time. Although LINK-TEL’s policies may permit Buyer to return Products claimed to be defective under certain circumstances, LINK-TEL makes no representations or warranties of any kind with respect to the Products. LINK-TEL HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. LINK-TEL WILL NOT BE LIABLE FOR ANY DAMAGE, LOSS, COST OR EXPENSE FOR BREACH OF WARRANTY. The right to return defective Products, as previously described, shall constitute LINK-TEL’s sole liability and Buyer’s exclusive remedy in connection with any claim of any kind relating to the quality, condition or performance of any Product, whether such claim is based upon principles of contract, warranty, negligence or other tort, breach of any statutory duty, principles of indemnity or contribution, the failure of any limited or exclusive remedy to achieve its essential purpose, or otherwise. In the event LINK-TEL issues a return authorization to Buyer allowing Buyer to return Product to LINK-TEL, Buyer will deliver the Product to LINK-TEL’s address in the United States, if so required by LINK-TEL, and Buyer shall bear all applicable federal, state, municipal and other government taxes (such as sales, use and similar taxes) as well as import or customs duties, license fees and similar charges, however designated or levied, on any replacement Product to be shipped by LINK-TEL to Buyer.
Support, Subscription, and License: Including but not limited to, digital products and non physical products are non returnable non refundable.
5. LIMITATION OF LIABILITY
LINK-TEL shall not be liable under any circumstances for any special, consequential, incidental, PUNITIVE or exemplary damages arising out of or in any way connected with the agreement to sell Product to Buyer or the Product, including, but not limited to, damages for lost profits, loss of use, lost data or for any damages or sums paid by Buyer to third parties, even if LINK-TEL has been advised of THE possibility of such damages. The foregoing limitation of liability shall apply whether any claim is based upon principles of contract, warranty, negligence or other tort, breach of any statutory duty, principles of indemnity or contribution, the failure of any limited or exclusive remedy to achieve its essential purpose, or otherwise.
These terms and conditions shall constitute the final, complete and exclusive agreement of the parties with respect to all sales by LINK-TEL to Buyer and shall supersede all prior offers, negotiations, understandings and agreements. Unless Buyer and LINK-TEL have executed a written agreement which specifically modifies, supersedes and/or replaces these terms and conditions, it is expressly agreed that no prior or contemporaneous agreement or understanding, whether written or oral, shall contradict, modify, supplement or explain these terms and conditions. No additional or different terms or conditions, whether material or immaterial, shall become a part of any sales agreement unless expressly accepted in writing by an authorized officer of LINK-TEL in the United States. Any waiver by LINK-TEL of one or more of these terms and conditions or any defaults hereunder shall not constitute a waiver of the remaining terms and conditions or of any future defaults. No failure or delay by either party in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of its rights. Any provision of these terms and conditions that is prohibited or unenforceable under the laws of the State of North Carolina shall be ineffective to the extent of such prohibition or unenforceability, without impairing or invalidating the remaining provisions of these terms and conditions. All sales agreements shall be deemed made in, and shall be governed by, the laws of the State of North Carolina. The venue for any disputes arising out of any sales agreement shall be, at LINK-TEL’s sole and exclusive option, Wake County, North Carolina. ALL SALES TRANSACTIONS EXCLUDE THE APPLICATION OF THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.
a)Link warrants to the Purchaser that its uses its best efforts and available methods for procuring authentic products which satisfy OEM specifications for purposes of fulfilling all of its Purchase Orders. However, The Purchaser and LINK-TEL both acknowledge that there are limited resources available to LINK-TEL to detect certain counterfeit or modified products sold in the marketplace. Therefore, the purchaser agrees that it shall indemnify and hold harmless LINK-TEL against claims arising out of issues related to authenticity. LINK-TEL expressly waives any and all liability to claims, damages, liabilities, costs and expenses (including attorney fees) arising out of counterfeit, stolen or modified products to the furthest extent under the law. Immediate Coverage for Serial Numbers and Products Activation Keys Only LINK-TEL warrants that all serial numbers and Product Activation Keys, software support and license numbers for products purchased from LINK-TEL are clean and uncovered, unless otherwise agreed upon. LINK-TEL shall provide record of said warranty and attached it to each invoice and/or shipment unless otherwise agreed upon. Record may also requested and provided by LINK-TEL at a later date should an issue arise. Therefore, the purchaser agrees that it shall indemnify and hold harmless LINK-TEL against claims arising out of issues related to covered serials or PAKs.
b) Buyer acknowledges, represents and warrants that it currently complies with, and at all times shall comply with, and shall not act to contravene, relevant laws, codes, and regulations applicable to the purchase and sale of Products under these terms and conditions. Buyer further acknowledges and agrees that the goods, software, and technology subject to these terms and conditions are subject to the export control laws and regulations of the United States, including, but not limited to, the Export Administration Regulations (“EAR”), and sanctions regimes of the U.S. Department of Treasury, Office of Foreign Asset Controls. Buyer shall not, without prior U.S. government authorization, export, reexport, or transfer any goods, software, or technology subject to these terms and conditions, either directly or indirectly, to any country subject to a U.S. trade embargo or to any resident or national of any such country, or to any person or entity listed on the “Entity List” or “Denied Persons List” maintained by the U.S. Department of Commerce or the list of “Specifically Designated Nationals and Blocked Persons” maintained by the U.S. Department of Treasury. In addition, any goods, software or technology subject to these terms and conditions may not be exported, re-exported, or transferred to an end-user engaged in activities related to weapons of mass destruction. Such activities include, but are not necessarily limited to, activities related to: (1) the design, development, production, or use of nuclear materials, nuclear facilities, or nuclear weapons; (2) the design, development, production, or use of missiles or support of missiles projects; and (3) the design, development, production, or use of chemical or biological weapons.
c) Buyer recognizes that some Product sales are limited to a specified territory and shall not sell Products outside that territory. Such sales may constitute copyright or trademark infringement. Products purchased by Buyer may also be subject to additional usage restrictions or authorizations imposed by the Product manufacturer or publisher. Buyer is responsible for ensuring compliance with any such restrictions or authorizations.
- Default. In the event the Purchaser defaults on the payment obligations contained herein, the customer agrees LINK-TEL shall be entitled to recover the determined amount plus interest at the contractual rate of 18% APR, plus costs to collect the outstanding balance including reasonable attorneys fee from the purchaser.
- Indemnity. Each party to this transaction agrees to hold the other party, its parent, its subsidiaries, and other officers, directors, employees and agents harmless from and against any and all damages, liabilities, cost and expenses (including reasonable attorney’s fees) arising by virtue of a breach of its own representations or warranties made under this Agreement or arising out of breach of any material provision of this Agreement.
- Venue and Personal Jurisdiction. In the event of a dispute arising out of the purchase and transaction described herein, the Purchaser and LINK-TEL hereby consents to personal jurisdiction in the State of North Carolina and agrees that Wake County, North Carolina shall be the exclusive designated venue for any and all disputes arising under this Agreement.
- Force Majeure. Neither party will be liable or in default under this Agreement for any Force Majeure Event. The time for performance of a party hereunder shall be extended commensurate with the duration of the Force Majeure Event;
- Modification; Waiver; Scope of Agreement. This Agreement constitutes the entire agreement between LINK-TEL and Purchaser with respect to, and supersedes all other arguments relating to, the subject matter contained herein. This agreement can be changed only by a written instrument signed by both parties. A party’s waiver of enforcement of any of the terms or conditions of this Agreement will be effective only if in writing;
- Severability. If any portion of this Agreement is rendered invalid or otherwise enforceable, then the remainder of this Agreement will continue in full force and effect unless such continuance will deprive one of the parties a substantial benefit this Agreement is intended to provide or frustrate the main purpose of this Agreement. In such event, the parties shall use commercially reasonable efforts to replace the invalid or unenforceable provision with a provision that, to the extent permitted by North Carolina laws and regulations, achieves the purposes intend under the invalid or unenforceable provision.
- Notices. All notices, requests, demands, consents and other communications that are required to be or may be given under this Agreement shall be in writing and shall be deemed to have been duly given if sent by facsimile, courier, registered or certified mail (postage prepaid), overnight delivery or in person to a party’s address stated at the end of this Agreement. Such notice shall be effective, (a) if sent by facsimile, when confirmation of transmission is received, or (b) otherwise, upon actual receipt or rejection by the intended recipient. Either party may change its address by giving notice to the other party in accordance with this Section.
Confidentiality and Non-Disclosure Agreement
LINK-TEL recognizes that its Customers and/or Purchasers, (the “Disclosing Party”) have developed certain confidential and proprietary information in both written form and oral form (“Confidential Information”), which has been and is being disclosed to LINK-TEL for the sole purpose of entering into the sales or transactions with LINK-TEL (the “Transactions”).
In consideration of the Disclosing Party’s disclosure of the Confidential Information to LINK-TELthe parties to the Transactions, its officers and directors and all affiliates (hereinafter “Recipient”) agree as follows:
- Disclosure of Confidential Information.
(a) The Recipient hereby acknowledges that all documents and information owned or developed by the Disclosing Party or pertaining to the Disclosing Party which has or will come into Recipient’s possession or knowledge, unless Recipient provides the Disclosing Party with independent verification to the contrary within fifteen (15) days of the original receipt of such information, is Confidential Information and therefore:
(i) is proprietary to the Disclosing Party having been designed, developed and accumulated at great expense over lengthy periods of time; and
(ii) is secret, proprietary, confidential and unique, and constitutes the exclusive property of the Disclosing Party.
(b) Excluded from the Confidential Information is any submission or disclosure:
(i) that can be demonstrated by documentation to have been public information or generally available to the public prior to Recipient’s receipt of such Confidential Information from the Disclosing Party;
(ii) that can be demonstrated by documentation to have been in Recipient’s possession prior to receipt thereof from the Disclosing Party; and
(iii) that becomes part of the public information or generally available to the public such as by publication or otherwise, other then as a result of a disclosure by Recipient in breach of this Agreement.
- Use of Confidential Information.
(a) Recipient shall not use any of the Confidential Information or Disclose its identity for any purpose other than for the exclusive purpose set forth above. Recipient agrees that the Confidential Information will not be used in any way detrimental to the Disclosing Party and that such information will be kept confidential by Recipient and its agents; provided, however, that (i) any of such information may be disclosed to such representatives of Recipient who need to know such information for the specific purposes set forth above (it being understood that Recipient’s directors, officers, employees, affiliated entities, accountants, legal counsel and representatives shall be informed by Recipient of the confidential nature of such information and shall agree to treat such information confidentially in accordance with the terms set forth herein) and (ii) except as otherwise provided in this Agreement (including Paragraph “3” below), no disclosure of such information may be made by Recipient or its representatives to any other person or entity without the prior written consent of the Disclosing Party.
(b) Any of Recipient’s employees, officers, directors, agents and/or representatives granted access to any Confidential Information provided by the Disclosing Party will each be required to agree to the provisions of and shall sign a copy of this Agreement.
- Required Disclosure. In the event Recipient should be requested or required (by oral questions, interrogations, requests for information or documents, subpoena, civil investigative demand or similar process or as otherwise required by law (“demands”)) to disclose Confidential Information supplied to it in the course of Recipient’s dealing with the Disclosing Party, the Recipient will provide the Disclosing Party with prompt notice of such requests so that the Disclosing Party may, at its own cost and expense, seek an appropriate protective order; in the event no such protective order is timely obtained, Recipient is permitted to comply with such demands.
- Indemnification and Injunctive Relief. Recipient agrees to indemnify the Disclosing Party against all losses, damages, claims or expenses incurred or suffered by the Disclosing Party as a result of Recipient’s breach of this Agreement. Recipient acknowledges that the Confidential Information it will obtain is unique and of a confidential and proprietary nature and that a breach of the terms of this Agreement will be wrongful and may cause irreparable injury to the Disclosing Party. Therefore, in addition to all remedies of law or equity, the Disclosing Party shall be entitled, as a matter of right, to injunctive relief enjoining and restraining Recipient and each and every other person or entity concerned thereby from continuing to act (or failing to act) in violation of the terms hereof. Recipient shall be liable for any and all damages (whether direct, indirect, consequential or otherwise) resulting from any breach of this Agreement.
- Return of Information. Immediately upon the request of the Disclosing Party, all documentation and records of any nature and kind delivered to Recipient, its directors, officers, employees, accountants, legal counsel, representatives and affiliates shall be promptly returned and all copies of all such documentation, records, etc., made by any person or entity shall be promptly destroyed.
- Publicity. Without the prior written consent of the Disclosing Party, the Recipient will not disclose to any person (a) that the Recipient has entered into discussions regarding possible future business and professional relationships with the Disclosing Party, (b) that the Recipient has received Confidential Information from the Disclosing Party, or (c) any of the terms, conditions or other facts with respect to any such possible transaction, including the status thereof.
- Acknowledgments of Recipient. Recipient acknowledges that the Disclosing Party is not making any representation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information or any other information concerning the Disclosing Party provided or prepared by or for the Disclosing Party and neither the Disclosing Party nor any of its officers, directors, employees, stockholders, owners, affiliates or agents, will have any liability to the Recipient resulting from the Recipient’s use of the Confidential Information.
- Termination. This Agreement shall expire twenty four (24) months from the date hereof (“Term”). Upon expiration of the Term of this Agreement:
(a) all Confidential Information previously received by Recipient, and not previously returned, shall be promptly returned to the Disclosing Party in accordance with Paragraph “5” above; and
(b) all the terms and conditions of this Agreement pertaining to the disclosure of Confidential Information shall remain in full force and effect in accordance with this Agreement.
- Waiver. It is further understood and agreed that no failure or delay by the Disclosing Party in exercising any right, power or privilege hereunder will operate as a waiver thereof, not will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
- Governing Law. This Agreement shall be interpreted and governed under the laws of the State of North Carolina and each party hereby irrevocably and unconditionally consents to the exclusive jurisdiction of the courts of the State of North Carolina for any action, suit or proceeding arising out of or relating to this Agreement and the transactions contemplated hereby. Further, the parties agree that the exclusive venue for any action or proceeding arising out of this agreement shall be Wake County, North Carolina.
- Notices. All notices or documents required pursuant to this Agreement shall be effective if forwarded by certified or registered mail, return receipt requested addressed to the principal office of the party to such parties last know mailing address.
- Entire Agreement/Modification. This Agreement represents the entire agreement between the parties hereto with respect to its subject matter and specifically supersedes any oral or written agreements heretofore entered into by the parties respecting the same. This Agreement may not be altered or modified without the express written consent of the parties.