Terms and Conditions
1. Definitions (EU, Poland and other Countries)
Customer: a legal entity buying Products from Somteq.
Somteq: Somteq, Trakt Świętego Wojciecha 243 E, 80-017 Gdańsk
Somteq Product: a Somteq Product, excluded any of the following items: software, parts not installed or added by Somteq in its factory.
Order Confirmation: formal written acknowledgement sent by Somteq for Product ordered by Customer.
Price: Cost stated in Order Confirmation.
Product: P/N as described in Order Confirmation, may comprise Somteq Products and 3rd Party Products.
3rd Party Products: non Somteq Products.
Software: computer operating systems, applications or middleware.
2. Application
Somteq Sale Terms and Conditions shall govern any quote, sale, purchase order and agreement between Somteq and Customer. Somteq must confirm each modification to this Agreement in writing. Any other Terms and Conditions are excluded.
If Customer does not accept Somteq Sale Terms and Conditions, Customer
may cancel its order within two (1) business day of the date of Somteq’s Order Confirmation; otherwise Customer will be deemed to have accepted Somteq Sale Terms and Conditions.
3. Quotations
Quotations are only legally binding during the period that they state and only if they are in writing. The period is 10 days if unstated. Quotations are not valid after that time duration. Within the validity period, the Customer has the option of placing an order within the agreed conditions with reference to the quotation.
4. Orders
Customer may place orders in writing, through the Internet, email or fax. The orders issued by the Customer to Somteq are legally binding only upon Somteq’s written Order Confirmation. No agreement between the Parties, including Somteq Sale Terms and Conditions, shall be modified except by a writing signed by both Parties.
5. Volume orders
Customer may place a volume order comprising several partial deliveries and specified call-off time frames. Volume orders are valid only during the period specified.
6. Products
Somteq reserves the right to change Products, incl. 3rd Party Products, at any time. Somteq guarantees Customer at least equal functionality and performance if Products are changed.
7. Software & Services
Software not owned by Somteq is supplied as subject to license and warranty of the Software licensor. Somteq encloses the Software license that Customer requires with the Product, where necessary; Customer must comply with that license.
Response times of the Services provided by Toradex are estimates and may vary according to the accessibility of the Product location. If appropriate, Service may be provided via telephone or the Internet. The Customer must allow Toradex to examine Product at the Customer’s or Toradex’ premises.
8. Prices and shipping cost
Prices for Customers are in USD and are exclusive of VAT. The Prices for Products exclude any additional costs like insurance, shipping cost, tax, etc. Prices and any additional costs are as indicated on the Quotation or as stated on the Order Confirmation.
Where Somteq agrees to trade in EUR, it will specify an exchange rate for each Order.
All sums payable by the Customer in accordance with Somteq Terms and Conditions are exclusive of VAT.
Somteq reserves the right to adjust prices of Products and Services as a result of changes to exchange rates, insurance, duties, freight and purchase costs.
Somteq especially reserves the right to adapt prices for Products and Services if exchange rates exceed 2.5 % of change related to the national currency of Somteq’s domicile since the sales order was placed.
9. Terms of Delivery
The Order Confirmation indicates the delivery period and the place of delivery. The delivery period is approximate and partial delivery can be made.
Estimated delivery dates, as originally printed in Quotations, Sales Contracts or Purchase Order Confirmations, are subject to change due to delays in Somteq’s receipt of components from suppliers, production errors, strikes, Acts of God, as well as other circumstances that are beyond Somteq’s control. Somteq shall promptly inform the Customer in writing of any such delays, together with a new estimated delivery date.
Somteq will not be liable for any direct or indirect damages caused by any delay in the order delivery.
If Customer refuses delivery without Somteq’ prior written approval, Customer must pay all expenses or loss resulting from delivery refusal until Customer accepts delivery.
Customer assumes all risk and responsibility for the import clearance, duties, and delivery to final destination. Somteq bears the costs and risks involved in bringing the goods thereto but NOT the costs and risks of clearing customs. Customer assumes all risk and responsibility for the import clearance, duties, and delivery to final destination.
The risk of the loss of the goods passes to Customer on delivery. Any packaging that is apparently missing or damaged should be noted on the waybill prior to signing it.
10. Inspection
Customer must inspect the Products immediately after delivery and shall inform Somteq of any defects in writing. If any visible defects or non-conformity appear during this inspection, Customer must notify Somteq in writing within 3 days. If Customer fails to notify Somteq as stated herein, then Customer shall be deemed to have accepted the Product. If Somteq agrees to the return of Product, Product must be in its original condition with packaging, including a return note and proof of purchase. Return costs will be paid by the Customer.
11. Terms of Payment
All payments are denoted and shall be made in USD. Where Somteq agrees to trade in EUR, it will specify an exchange rate for each Order.
Payment in advance via Bank Wire Transfer unless listed otherwise, Payment terms are 50% on Order and 50% before shipment.
All taxes, bank, discount, or withdrawal charges are at the expense of the Customer.
Somteq reserves the right to charge interest at the rate of 3% per month for all outstanding debts not paid according to the agreed terms.
If the Customer defaults in payment or otherwise fails to comply with any term herein, Somteq has the right to demand return, and take possession of all unpaid Products, cease delivery of any further product, and to be reimbursed for all the costs occurred in connection with the repossession of said Products. This includes, without limitation, transportation costs and devaluation of Products. Products shall be valued at the invoiced purchase price at the time of return.
12. Cancellation of Delivery
Customer shall pay the full purchase price for orders of Products designated by Somteq as NCNR, NR (non-cancelable, non-returnable and non-reschedule), and orders of Products for which Somteq has already completed production at the time of Customer’s written notice of cancellation, unless the Parties otherwise agree.
13. Warranty
Somteq warrants to Customer that Somteq’s Products are free from defects in material and workmanship, under normal use and service.
Customer shall promptly notify Somteq in writing of any malfunctionin any Products under Warranty, which notification and return to Somteq of Product under Warranty shall be pursuant to Somteq’s prevailing Return Merchandise Authorization (RMA) procedures. Somteq’s obligation under this warranty shall be limited to replacement or repair of Products, free of charge, for which a defect has been substantiated by Somteq, for a period of twelve (12) months from date of Product shipment from Somteq to Customer. Any further warranty is excluded.
Somteq warrants no Product defect that results from improper use, negligence, modification, improper installation, improper product testing methods, repairs made by the Customer, or other factors outside of Somteq’s control.
Removal of the unique serial number adhesive label on hardware Products shall void any warranty.
Somteq makes no warranty for Products furnished, but not manufactured by Somteq, which Products shall be covered by the warranty of the original manufacturer.
Somteq does not provide any warranty for defects that have not been caused by Somteq, in particular not for:
Handling errors, intervention or modification of the Products by the Customer or an unauthorized third party;
Defects which have been caused by incorrect installation by the Customer or a third party acting on the Customer’s behalf;
Compatibility and functioning with other products, unless expressly warranted;
Defects which have been caused by outside influences;
Fitness of the Products for any particular purpose;
Third party products for which the respective manufacturer is responsible;
Services which have been performed in accordance with the instructions.
Somteq and its manufacturers use components or spare parts which are new or equivalent to new and meet the industry standards and practice. Somteq reserves the right to use new or refurbished spare parts and/or components. Spare parts may be new or reconditioned.
14. Return Merchandise Authorization (RMA)
If Somteq is in error regarding fulfillment of Customer’s order, Somteq will issue an RMA and ship correct Product in exchange for any Product that Somteq has shipped in error. Somteq will not charge Customer for supplemental shipping charges in such instances.
Somteq reserves the right to refuse any RMA returns without an RMA number, with incomplete Product contents or documentation, or if the Products has been altered by the Customer.
In case of unjustified round of inspection – if fully functional products were returned for repair, the 100 USD per product testing rate is applied regardless if products were under warranty or not.
15. Acknowledgement regarding high risk activities
Customer acknowledges that the Products provided by Somteq are not specifically designed, manufactured or tested with the level of reliability necessary for use or resale in an environment requiring fail-safe performance, such as in the operation of aircraft navigation, nuclear facilities, life support or other medical systems or devices, or other critical applications in which failure of the services or Products could lead or reasonably be expected to lead to death, injury or severe environmental damage (high risk activities). Somteq specifically disclaims any express or implied warranty of fitness for high risk activities. Customer further hereby releases, waives, discharges and covenants not to sue Somteq, its members, directors, officers, employees, and agents from all liability to customer, customer’s agents and assigns for any loss, damage, and claims of whatsoever nature, on account of personal injury, accident, illness, death or property loss whether caused by the negligence of Somteq or otherwise, occurring as a result of the use or incorporation of the product in any high risk activity.
16. Limitation of Liability
Somteq’ liability for direct and indirect damage shall be limited to gross negligence and willful misconduct. Any other liability of Somteq is excluded.
The provisions of Force Majeure shall remain unaffected. Claims under the terms of the Polish product liability law will not be affected by the above limitation of liability. In case of a product liability claim against Somteq, Customer will assist Somteq to defend against such a claim.
19. Ownership of Technical Information and Intellectual Property
Somteq retains all right, title and interest in and to all Product technical information, intellectual property and proprietary rights (including without limitation trademarks, copyrights, patent rights, trade secrets, service marks, and goodwill) designed, developed, created or derived by Somteq from the Product or dealings with Customer. Customer does not acquire any Product rights in regards to any tooling, set-up, drawings, design information, computer programming, or invention(s) resulting therefrom. Customer rights to software Product object and source code shall be defined in any applicable Somteq Software End User Licensing Agreements (“EULA”) between Customer and Somteq.
19. Disputes Resolution with the customer
All Contracts and non-contractual disputes shall be governed by and interpreted in accordance with Polish law and the Customer submits to the jurisdiction of the Polish Courts.
20. Alterations
Somteq reserves the right to alter or update these Terms and Conditions at any time and from time-to-time, effective upon posting of an updated version to Somteq’ website www.Somteq.com. Customer is responsible for regularly reviewing the Terms and Conditions.
