Terms and Conditions of Sale
ZETR INC
These Terms And Conditions of Sales (“T&Cs”) apply to all of the following transactions between the counterparty (“Purchaser”) and Zetr Corp. (“ZETR”), a Delaware corporation, regardless of (and to the exclusion of) all other terms and conditions proposed or mandated (or form of order or form of purchase) by Purchaser, all of which shall in any event be subject to these T&Cs:
(i) placing an order for goods with ZETR;
(ii) taking delivery of goods from ZETR; or
(iii) accepting a quotation for goods provided by ZETR.
Upon the occurrence of any of the aforementioned transactions (including the undertaking of actions taken to perform any of the aforementioned transactions), the Purchaser is deemed to have agreed to these T&Cs.
CONTRACT
A quotation by ZETR constitutes an invitation to the Purchaser to submit an order for the goods in the quotation. ZETR may accept or reject an order and does not have any obligation to supply goods to the Purchaser until ZETR accepts in writing the order for such goods.
After an order has been validly accepted by ZETR, the Purchaser cannot cancel the order without the prior written consent of ZETR. If ZETR consents to the cancellation of an order, that consent is given on the condition that the Purchaser promptly reimburse ZETR for any costs, charges, expenses, loss of profit and consequential damage that ZETR incurredor may incur in relation to such cancellation.
ZETR’s acceptance of any order for goods shall be F.O.B. at: 4750 NY-145, Durham, New York, NY 12422.
All goods must be installed and operated only in accordance with the manual made available by ZETR for the ordered goods
PAYMENT
Purchaser must pay the purchase price of the goods in full before the goods are required to be delivered to Purchaser, unless ZETR has previously agreed in writing to deliver those goods on credit account payment terms.
If ZETR agrees to deliver goods on credit account payment terms, the Purchaser must pay the purchase price of the goods strictly in accordance with the credit account payment terms that are in effect from time to time.
If Purchaser fails to strictly comply with the credit account payment terms, such failure shall terminate ZETR’s obligation to deliver any subsequent order by or on behalf of Purchaser for any goods based on the credit account payment terms and ZETR may terminate, discontinue, or modify any credit account arrangements at any time and in its sole discretion. ZETR reserves the right to charge an account service fee of up to the higher of 2.0% or the maximum amount permitted by applicable law of the amount outstanding per month on overdue accounts.
PRICE
The price of goods in a quotation issued by ZETR is current as at the date of quotation and is valid for a period of 30 days, unless otherwise indicated on the quotation. All prices are exclusive of all applicable taxes, including sales and use tax, all delivery charges or freight costs, and all other applicable duties, taxes and levies in connection with ZETR’s sale and delivery of the goods (except for income taxes imposed on ZETR by applicable governmental authorities arising from ZETR’s sale of the goods). In addition, without limitation, the Purchaser is responsible for any increases in duties, taxes or levies after the date of quotation.
DELIVERY
If ZETR agrees to deliver any goods by a specific delivery date, ZETR will use commercially reasonable efforts to deliver such goods on or before such specified delivery date.
ZETR’s obligation to deliver to the Purchaser any goods purchased from ZETR is suspended to the extent that ZETR is unable to fulfil that obligation due to events beyond its reasonable control, including (without limitation) the failure of a third party to supply the goods, freight or other transportation problems, industrial disputes, any acts of God, and any acts of any governmental authority.
With respect to all orders for goods, no such order shall be binding unless and until Purchaser receives ZETR’s written confirmation of its acceptance of such order. After an order is accepted, another email with a tracking number will be sent to Purchaser. If Purchaser’s order is not shipped in accordance with the terms of ZETR’s acceptance of such order, Purchaser is required to promptly notify ZETR by delivering an email to the following email address: “support.us@zetr.co” Purchaser shall ensure that its representative is available during business hours to receive any goods delivered pursuant to a valid order.
With respect to any orders for which Purchaser requests expedited shipping, such orders shall not be subject to expedited shipping unless and until Purchaser receives ZETR’s written acknowledgment of its acceptance of Purchaser’s request for expedited shipping, which acceptance shall be memorialized by an email or other form of electronic or telephonic correspondence from ZETR to Purchaser. Thereafter, the procedure that applies to Purchase Orders that are subject to expedited shipping shall be the same as the procedure that applies to Purchase Orders that are not subject to expedited shipping.
ORDER LEAD TIME
For goods that are in stock and ready to ship, Purchaser shall allow a five to nine working days lead time on all orders from receipt of purchase order or payment in full. For made-to-order goods, Purchaser shall allow six to eight weeks for production. For orders consisting of 100 or more units of goods that are in stock and ready to ship, the lead time for such orders to be shipped will be made available by ZETR to Purchaser before Purchaser is required to submit an official purchase order for such units
PURCHASER ACCEPTANCE OR REJECTION
The Purchaser will be deemed to have accepted the goods shipped by ZETR pursuant to an order as being in accordance with such order, unless Purchaser notifies ZETR to the contrary in writing within[NE1] [AS2] seven calendar days after such goods are received. Except for goods that are defective, all sales of goods are final.
Non-defective goods
With respect to any goods delivered by ZETR to Purchaser and which are not defective, Purchaser’s sole remedy shall be the right to return the goods (at Purchaser’s expense) and the right to receive a credit to be applied to the amount otherwise payable for the next ensuring order for goods.
Without limiting ZETR's discretion:
For credits above the value of USD$500, a 25% re-stocking charge will be applied; to be used within 365 calendar days after the non-defective goods are shipped by Purchaser to ZETR. In addition:
No returns will be accepted or credited for products under the value of $500.
No returns will be accepted or credited with respect to made-to-order goods or custom-made goods.[NE3] [PP4]
If ZETR agrees to accept the return of goods (other than defective goods and subject to any Non-Excludable Guarantees), it is a condition of that return that the goods be in their original containers and not be delivered soiled or damaged in any way. Returned goods may be rejected or credited at a reduced rate by ZETR if this condition is not satisfied.
To the extent permitted by law and subject to any Non-Excludable Guarantees, the Purchaser is responsible for all freight and other charges associated with the return of goods to ZETR and ZETR’s subsequent shipment of replacement goods.
Defective goods
With respect to goods that Purchaser or its designee delivers to ZETR, within the time period of the explicit warranty below, a written notice claiming that certain goods are defective and promptly thereafter (or concurrently therewith) Purchaser or its designee delivers to ZETR commercially reasonable evidence of the defective goods (or the defective component(s) of such purportedly defective goods) for ZETR to evaluate. ZETR shall evaluate each warranty claim on a case-by-case basis to determine whether the warranty claim is valid. If ZETR concludes that such goods are defective and are subject to a valid warranty claim, Purchaser or its designee must comply with all of ZETR’s instructions and ZETR will thereafter deliver to Purchaser or its designee another good that is intended to replace the defective good.
To initiate a claim that goods are defective or are otherwise subject to the explicit warranty below, Purchaser or its designee must cease using the goods immediately and promptly thereafter notify ZETR in writing regarding the potentially defective goods. Such written notice must be delivered to the following address: support.us@zetr.co
WARRANTY
ZETR warrants that each good sold by ZETR to Purchaser in the USA are free from material defects for a period of 365 calendar days after the date on which such good is shipped by or on behalf of ZETR to Purchaser (or to Purchaser’s designee). Subject to the limitations in the preceding sentence and to the extent permitted by law, NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE GOODS, AND ZETR HEREBY EXPRESSLY DISCLAIMS ANY AND ALL SUCH OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Except for the explicit warranty set forth above, all goods are shipped or delivered “as is” and “with all faults.” In addition, (i) the explicit warranty above will automatically terminate before such warranty period expires if any such good is used in any manner that is not commercially reasonable or is used or installed in a manner that is inconsistent with ZETR’s instructions and (ii) ZETR is not liable for any damages to any of, or any costs or expenses paid or payable by any of, Purchaser or its designees (a) in connection with Purchaser’s or its designees removal (or subsequent shipment of) any goods that are returned to ZETR pursuant to the explicit warranty above or (b) in connection with Purchaser’s or its designees’ subsequent shipment and installation of any goods that are shipped by ZETR to replace the warranted goods that were defective or the subsequent shipment of any goods that are returned by ZETR, but which ZETR concludes are not defective, in response to a claim arising from the explicit warranty above.
Nothing in these T&Cs, including the scope and remedies of the explicit warranty above, limits, excludes, or modifies any rights of Purchaser that contravene any applicable law (“Non-Excludable Guarantees”).
As of the date of each order for goods, Purchaser represents and warrants to ZETR that Purchaser is not insolvent within any of the meanings of that term in Section 1-201(23) of the Uniform Commercial Code. Purchaser acknowledges that this representation is intended to satisfy the requirements of Section 2-702(2) of the Uniform Commercial Code, and is specifically for the benefit of ZETR and its successors-in-interest.
LIABILITY
Except for liability in relation to any Non-Excludable Guarantees, the liability of ZETR to the Purchaser in connection with the supply of goods, is limited to whichever of the following ZETR may elect, in its sole discretion:
(i) the replacement of the goods or the shipment to Purchase of equivalent goods,
(ii) the repair of the goods,
(iii) the payment of the cost of Purchaser replacing the goods or acquiring equivalent goods, or
(iv) the payment of the cost of having the goods repaired.
ZETR shall not incur and otherwise shall not have any liability arising from damages or other events that occur after ZETR delivers the goods to the common carrier who ZETR and Purchase previously agreed will ship the goods.
To the extent permitted by law, ZETR will not in any circumstances be liable for any consequential or special damages, losses or expenses and ZETR’s aggregate cumulative liability in any way arising from or pertaining to the goods or any order for goods shall not in any case exceed the aggregate purchase price for such goods.
INDEMNITY
The Purchaser shall indemnify ZETR and its affiliates and agents against any loss of or damage to any property or injury to or death of any persons caused by any negligent act or omission or willful misconduct of the Purchaser in connection with the installation or use of the goods.
RISK OF LOSS; TITLE
Risk of loss with respect to goods shipped by ZETR will pass to the Purchaser immediately upon the goods being shipped to the Purchaser or the Purchaser taking control or possession of the goods (whichever is sooner) and the Purchaser shall be solely responsible for insuring any such goods when the risk of loss passes to Purchaser.
Title to goods shipped by ZETR will not pass to the Purchaser until the Purchaser has paid for the goods in full, in accordance with these T&Cs and any terms and conditions of ZETR’s invoice for the payment of such goods, and until such time— Purchaser shall hold the goods as bailee only and must store the goods in such a manner as to show clearly that they are the property of ZETR and must ensure that such goods are not damaged while such goods are in Purchaser’s possession.
PMSI
The Purchaser acknowledges and agrees that until the amount of ZETR’s invoice for the purchased goods is indefeasibly paid in full to ZETR, these T&Cs grant to ZETR a security interest or purchase money security interest (PMSI) in the goods in favor of ZETR.
The Purchaser shall, promptly upon request from ZETR, do anything for the purposes of:
• ensuring that any security interest created under, or provided for by, these T&Cs attaches to the collateral that is intended to be covered by that security interest;
• is enforceable, perfected, maintained and otherwise effective, and has the priority contemplated by this agreement; or
• enabling ZETR, on and from the registration commencement time, to prepare and register a financing statement or amendment to a financing statement; or
• enabling ZETR to exercise any of its powers in connection with any security interest created under, or provided by, these T&Cs; and
• provide any information requested by ZETR in connection with these terms and conditions of sale to enable ZETR to exercise any of its powers or perform its obligations in connection with applicable.
To the extent permissible pursuant to applicable law, the Purchaser waives:
any rights to receive any advance notice that is required by applicable law, including any time period that must otherwise lapse under any law before ZETR exercises its rights.
If applicable law which requires a period of notice or a lapse of time cannot be excluded, but the law provides that the parties to a transaction for the sale of goods may agree on the period of notice or lapse of time, that period or lapse shall be one day or the minimum period that the applicable law allows to be agreed (whichever is the longer). However, nothing in this clause prohibits ZETR from giving a notice with respect to any of its rights in connection with these T&Cs.
DEFAULT
If the Purchaser does not pay when due the full amount of the ZETR invoice for the ordered goods, ZETR may withhold delivery of the goods and otherwise terminate its obligations in connection with any of Purchaser’s orders for any goods.
If Purchaser fails to pay when due the full amount of the ZETR invoice for the ordered goods delivered by Zetr on credit payment terms and any of the following occur, ZETR immediately upon the occurrence thereof (without any further action required by ZETR) terminates its obligations in connection with any of Purchaser’s orders for any goods that have not been shipped to Purchaser and all amounts payable by Purchaser in connection with any unpaid goods previously shipped to Purchaser shall become due and owing on the date immediately before the date on which any of the applicable following event occurs:
(i) if a receiver is appointed for Purchaser or its property;
(ii) Purchaser is declared insolvent or is unable to pay its debts or makes an assignment for the benefit of creditors;
(iii) Purchaser seeks or becomes involuntarily subject to proceedings under any bankruptcy, insolvency or debtors relief law, and such proceedings have not been vacated or set aside within 60 days after the date of commencement thereof;
(iv) if Purchaser is liquidated or dissolved.
ATTORNEY FEES
The Purchaser is liable to ZETR for all costs, fees, and expenses (including legal fees and related costs) incurred by ZETR in connection with the recovery or attempted recovery of any amounts due and owing to it by the Purchaser.
INTELLECTUAL PROPERTY
ZETR is the exclusive owner of all intellectual property rights in all inventions, names, designs, illustrations, drawings, plans, specifications, formulas and documents arising or otherwise in connection with the goods. Nothing in these T&Cs operates or is intended to deny ZETR, or confer on the Purchaser, any license or other intellectual property rights in the goods.
A reference to intellectual property rights includes all know-how, trade secrets, and any other intangible rights with respect to any value arising or otherwise in connection with the goods, as well as patents, trademarks, copyright, registered designs and licenses and applications in respect of any of the above.
PRIVACY
ZETR may collect personal information from the Purchaser for the purposes of supplying the goods and managing the Purchaser's account, assessing the credit worthiness of the Purchaser, registering ZETR's security interests over goods and otherwise implementing these T&Cs and for any other purpose described in ZETR's Privacy Policy, which describes how a Purchaser may access or correct (or both) Purchaser’s personal information stored by ZETR, how to report a potential breach of privacy, and how ZETR will respond to such report.
The Purchaser warrants to ZETR, that it will comply with all privacy laws in relation to these T&Cs at all times and will promptly notify ZETR of any issues or requirements under such privacy laws in relation to these T&Cs of which the Purchaser should be aware.
GENERAL
Each term of this document is severable from the other, and if for any reason a term is invalid or unenforceable it shall not prejudice or affect the validity or enforceability of any other term. These terms and conditions of sale must be read and construed so as to give them full effect subject only to any mandatory contrary provision of law to the intent that where these terms and conditions of sale would but for the provisions of this clause have been read and construed as being void or unenforceable they will nevertheless be valid and enforceable as the case may be to the full extent to which the law permits.
No failure or delay on ZETR's part in exercising any power or right under these terms and conditions of sale operates as a waiver, nor does any single or partial exercise of any power or right preclude any other or further exercise, or the exercise of any other power or right.
These T&Cs inure to the benefit of, and are binding on, ZETR’s and Purchaser’s respective successors-in-interest.
The validity, enforcement, construction and interpretation of this Contract are governed by the laws of the State of New York and the federal laws of the United States of America, excluding the laws of those jurisdictions pertaining to resolution of conflicts with laws of other jurisdictions. Purchaser, on behalf of itself and its current and future affiliates: (a) consents to the personal jurisdiction of the state and federal courts having jurisdiction in the State of New York, (b) stipulates that a proper and convenient venue for any-legal proceeding arising out of these T&Cs is the applicable court of the State of New York located in New York County, for a state trial court proceeding, and the United States District Court for the Southern District of New York, for a federal trial court proceeding, and (c) waives any defense, whether asserted by motion or pleading, that those venues are improper or inconvenient. EACH SIGNATORY TO THIS AGREEMENT KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES THE RIGHT TO A JURY TRIAL IN ANY LAWSUIT IN CONNECTION WITH THIS AGREEMENT, WHETHER AT LAW OR IN EQUITY, WHETHER BASED ON A CLAIM, CROSS-CLAIM, OR COUNTERCLAIM ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM OR COUNTERCLAIM, AND INCLUDING CLAIMS UNDER TORT, CONTRACT, CORPORATE, EMPLOYMENT, AND INTELLECTUAL PROPERTY LAWS.
INTERPRETATION
Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise:
the singular includes the plural and conversely; a gender includes all genders; if a word or phrase is defined, its other grammatical forms have a corresponding meaning; a reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them; a reference to a clause is a reference to a clause of these T&Cs; a reference to statutory law includes a modification or re-enactment of such law; a reference to conduct includes an omission, statement and undertaking, whether or not in writing; a reference to “dollars” and “$” is to currency of the United States of America; a reference to a right or obligation of any two or more persons confers that right, or imposes that obligation, as the case may be, jointly and severally; the meaning of general words is not limited by specific examples introduced by including, or for example, or similar expressions.
ZETR reserves all copyrights (and derivatives thereof) in connection with these T&Cs.