GSTAC (B2B)

1. Except to the extent otherwise agreed upon in writing by an authorized representative of SW-MOTECH USA, LP (“Seller”), the terms set forth herein shall govern, among other things, the sale, delivery, payment, limited return and warranty of the products and components described in the purchase order (“Products”) by Seller and purchased by a re-seller of the Products (“Purchaser”) under purchase order offered by Purchaser and accepted by Seller (“Purchase Order”). Seller has the right, in its sole and absolute discretion, to accept or reject any Purchase Order.
2. By placing a Purchase Order, the Purchaser accepts the Seller Terms. No other terms or conditions, different or in addition to or otherwise (“Other Conditions”) offered or proposed by Purchaser, apply to the Purchase Order, and Seller hereby rejects any such Other Conditions in its acceptance of the Purchase Order.
3. All dealings between the parties shall be in writing and no Purchaser Order shall be effective or binding on Seller until accepted in writing by Seller.
4. Unless specifically agreed upon to the contrary, prices of Products are subject to change without notice, and all references in sales brochures, technical data sheets and offers as to size, weight, and other details of the Products are approximate only. No such term shall be binding on Seller unless expressly incorporated in a purchase order which is approved and accepted by Seller in accordance with the terms hereof, provided that Seller may reasonably adjust prices for orders subject to delivery after three (3) months of placement of the order. If discounts are granted on list prices, such discounts shall apply to the respective delivery only and are not binding for all standard products or subsequent orders.
5. Unless otherwise expressly agreed upon in writing, the price quoted excludes the cost of packaging and the cost of special containers, packaging, crating, palletizing, applicable taxes and duties, shipping, insurance or other incidental expenditures of Seller.
6. Any current or future tax or any charge of any nature imposed by any governing authority that is or becomes payable by reason of the production, transportation, sale, storage, processing, use, consumption or delivery of any Products sold to Purchaser, other than taxes based on Seller’s net income or profit, will be for Purchaser’s account and will be paid by Purchaser (unless Purchaser provides Seller with an exemption certificate acceptable to the applicable taxing authorities).
7. Purchaser acknowledges that it has not relied on Seller’s skills, product descriptions or advertising materials in determining the suitability of the Products for any particular use or application.

1. The terms of delivery are FOB Seller’s loading dock, with title to Products passing to Purchaser upon shipment. Seller will use commercially reasonable efforts to make the Products available for pick-up and delivery by Purchaser or ship the Products pursuant to Purchaser’s instructions.
2. Purchaser shall pay all shipping charges, insurance and taxes indicated in the Purchase Order.
3. Delivery times are estimates only, even if this is not expressly stated. Seller will use commercially reasonable efforts to make deliveries and services during the calendar week confirmed in writing by Seller, but in no case, before an agreement on all performance details has been made. Every partial delivery is deemed an independent order.
4. Seller reserves the right to make deliveries in installments, unless otherwise expressly stipulated to the contrary in a written document signed by Seller. Delay in delivery of any installment shall not relieve Purchaser of its obligation to accept remaining deliveries except as otherwise provided in these Seller Terms.

Notwithstanding anything to the contrary, Seller shall not be liable for any delay or failure to perform hereunder when such failure or delay is, directly or indirectly, caused by, or in any manner arises from fire, floods, accidents, pandemics, civil unrest, acts of God, war, terrorism, governmental interference or embargoes, strikes, labor difficulties, shortage of labor, fuel, power, materials, or supplies, breakage of machinery or apparatus, transportation delays, or any other cause or causes (whether or not similar in nature to any of those hereinbefore specified) beyond its control.

Seller warrants that the Products will, when delivered, substantially conform to the respective SW MOTECH Special Limited Product Warranty (the “Product Warranty”) description that is hereby incorporated by reference and made part of the Purchase Order.

THE WARRANTIES SET FORTH IN THE SW MOTECH STANDARD PRODUCT WARRANTY ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED. IN NO EVENT SHALL SELLER BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES, AND DAMAGES ARISING OUT OF THE PURCHASE, UNLOADING, HANDLING, AND USE OF ANY PRODUCTS, OTHER THAN OR IN EXCESS OF THOSE SET FORTH UNDER THE SW MOTECH STANDARD LIMITED WARRANTY.

1. The Purchaser shall inspect and accept or reject acceptance of the Product(s) immediately upon the arrival and shall, within five (5) days after the arrival, give written notice to Seller of any claim that the Product(s) do not conform with the terms of the Purchase Order (“Non-Conforming Goods”).
2. If the Purchaser shall fail to give such notice, the Product(s) shall be deemed to have been accepted and the Purchaser shall pay for the Product(s) in accordance with the terms of the Purchase Order. With the exception of Product Warranty claims, Purchaser expressly waives any rights the Purchaser may have to revoke acceptance after such five (5) day period.
3. If proper notice is received by Seller from Purchaser, Purchaser shall ship, at Seller’s expense, such allegedly Non-Conforming Goods to Seller’s facility for inspection and testing by Seller. If Seller’s inspection and testing reveals, to Seller’s reasonable satisfaction, that such Products are Non-Conforming Goods and such defects have not been caused by the Purchaser or other third party, Seller, in its sole and absolute discretion and at its expense (i) repair or replace such Non-Conforming Goods, or (ii) credit or refund the price paid of such Non-Conforming Goods. If Seller’s inspection and testing reveals, in Seller’s reasonable opinion, that such Products conform to the terms of the Purchase Order, or that the Non-Conforming Goods and such defects have been caused by the Purchaser or other third party, Seller shall ship the Products back to Purchaser at Purchaser’s expense and, in addition, Purchaser shall reimburse Seller for the initial return shipping to Seller.
4. THIS SECTION AND THE PRODUCT WARRANTY SETS FORTH BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR NON-CONFORMING AND DEFECTIVE PRODUCTS, RESPECTIVELY.

1. Seller may, in its sole and absolute discretion, cancel any accepted Purchase Order if: (i) Seller determines that Purchaser is in violation of its payment obligations, may breach or has breached any provision of the Seller Terms, and/or (ii) Seller determines Purchaser’s financial condition or creditworthiness is unsatisfactory.
2. Purchaser may cancel an accepted Purchase Order only if Seller delays shipment (except for delays caused by Force Majeure) of all Products beyond ninety (90) days from the estimated delivery date, but only after giving Seller notice upon the expiration of such period and allowing Seller thirty (30) days to cure and ship all the Products.

1. Unless otherwise set forth in the order or Seller’s acceptance of the Purchase Order, or payment is made online, payment is due upon receipt of the invoice without set-off or discount.
2. Purchaser shall not set-off, withhold or reduce payments on account of complaints, claims, or counterclaims not acknowledged and accepted by Seller.
3. A payment shall be deemed made when the payment of invoice amount has been received by Seller and credited to Seller’s bank account.
4. Seller may delay, condition or cancel, any orders or deliveries, if it deems itself insecure, as determined by Seller in its sole and absolute discretion.
5. The Seller may send invoices electronically to an email address to be specified by the Purchaser. The email shall be deemed as served on the transmission date. The Purchaser shall be responsible for the proper processing of the invoice. The Purchaser shall be responsible for any delayed processing of invoices by the Purchaser.
6. Purchaser shall pay interest on all late payments, calculated and compounded daily at the greater of the rate of eighteen (18) percent per annum of the maximum rate permissible under applicable law.

1. Purchaser shall be in default (hereinafter “Default”) under this Agreement and Seller may terminate this Agreement and exercise all other remedies in law or in equity if Purchaser: (i) fails to make payment hereunder to Seller when due; or (ii) breaches any other term, provision or condition contained in this Agreement; or (iii) is declared to be in default under any other agreement between Purchaser and Seller, and if in any of the foregoing cases set out in (i), (ii) or (iii), Purchaser fails to cure any said breach or default within ten (10) days following written notice thereof from Seller.
2. Upon the occurrence of a Default, Seller may elect to exercise any one or more of the following options: 1*. Seller may hold the Products until such time as Purchaser has paid the respective purchase price and any expenses (including finance charges, returned check fees and interest determined at a rate equal to the lower of eighteen percent (18%) per annum or the maximum rate permitted by applicable law) incurred by Seller as a consequence of such default. 2*. Seller may sell the Products to a third party and require Purchaser to reimburse Seller for any losses, or expenses associated therewith. 3*. Seller may require payment in cash prior to future delivery of any Products hereunder. 4*. Seller may withhold any Products not delivered to Purchaser at the time of the default. 5*. Seller may terminate or suspend any pending order for Products. 6*. Seller may exercise all other rights hereunder and may seek all other remedies available to it in law or in equity.
3. Purchaser agrees that, in the event any legal action should be deemed necessary by Seller to recover any sums due hereunder or under any promissory note, trade acceptance, or invoice, or, if applicable, to recover possession of the Products, as defined hereinabove, or any proceeds from the sales thereof, there shall be added to the sums due from Purchaser to Seller the costs of collection, including reasonable attorney’s fees.
4. In addition to any other remedy, when reasonable grounds for insecurity arise with respect to Purchaser’s performance, Seller may in writing demand assurance of due performance and until it receives such assurance may suspend any performance for which it has not already received payment.

1. Except as provided for in subsection (b) of this Section, Purchaser shall not disclose any Trade Secrets or Confidential Information of the other party to any individual or entity not a party to this Agreement.
2. Purchaser may make available Trade Secrets or Confidential Information to its qualified employees, as defined hereinafter, to the extent that such information must be disclosed to such qualified employees to apply the Trade Secrets or Confidential Information to its intended use. A “qualified employee” shall mean any individual employed by or affiliated with Purchaser who is bound by a valid and fully enforceable confidentiality agreement which contains confidentiality obligations substantially similar to the confidentiality obligations stated herein, prior to disclosure of the Trade Secrets and Confidential Information to such employee. For purposes of this Agreement the following terms shall have the meanings set forth below: 1*. The term “Trade Secrets” shall mean and include any and all designs, plans, processes, tools, mechanisms, programs or compounds known to only Seller, or to those of its clients and employees to whom they must be confided in order to be applied to the uses intended, some or all of which may arise to the level of being patentable or subject to copyrights, all as further defined under the laws of the State of Oregon. 2*. The term “Confidential Information” shall mean and include information not rising to the level of Trade Secret and not generally known to or by a business in competition with the Seller or otherwise publicly disseminated by the protected party hereto, the disclosure of which may be beneficial to a competing business or detrimental to Seller.

To secure the payment of any amount due and owing by Purchaser to Seller under any of the provisions of this Agreement, Purchaser hereby grants to Seller a purchase money security interest in all current and future inventory of Products, including in any returned or repossessed Products, as well as in Purchaser’s rights as a seller of goods under the Uniform Commercial Code, and in all proceeds (including insurance proceeds) and accounts receivable arising from the sale of such products (all of the foregoing is hereinafter collectively referred to as the “Collateral”). Purchaser agrees to keep the insurable aspects of the Collateral fully insured against all risks and casualties customarily insured against and to protect the Collateral from adverse environmental conditions, fire, theft and vandalism. Purchaser shall not remove the inventory comprising part of the Collateral from its ordinary storage facilities other than in conjunction with the sale of the Products or in the ordinary course of business. Purchaser hereby irrevocably grants to Seller a power of attorney to sign on behalf of Purchaser, as its attorney in fact, all UCC 1 financing statements and all other documentation and instruments in order to perfect, continue and appropriately amend the security interest granted by this section.

Any controversy or claim arising out of or relating to this Agreement, or the breach hereof, shall be submitted to and be finally resolved by arbitration, to be conducted by the American Arbitration Association (“AAA”), with such arbitration to be held in Portland, Oregon in accordance with the AAA’s Commercial Arbitration Rules then in effect. Each party hereby irrevocably agrees that service of process, summons, notices, as other communications related to the arbitration procedures shall be deemed served and accepted by the other party five (5) working days after having been mailed by first class registered mail, return receipt requested, postage prepaid, to the other party, or if actually received by the other party. The arbitration shall be conducted by one arbitrator, as selected by mutual agreement of the parties, and if no agreement is reached, the two arbitrators selected by each party shall mutually agree on the arbitrator. Any award or decision rendered in such arbitration shall be final and binding on both parties, and judgment may be entered thereon in any court of competent jurisdiction if necessary. Except as may be provided to the contrary herein, each party hereto shall pay any and all expenses incurred by such party in connection with such arbitration proceeding, unless otherwise determined by the arbitrator.

1. Purchaser may not assign any order or contract for Products without the express prior written consent of Seller.
2. Except as otherwise expressly provided in Section1(e) hereof or in a written document, signed by Seller and Purchaser, this document, the offer and attachments and exhibits thereto constitute the entire agreement between Seller and Purchaser with respect to the subject matter herein contained and all prior agreements and communications between Seller and Purchaser, whether oral or written, are superseded by this Agreement.
3. No modification, limitation, waiver or discharge of this Agreement or of any of its terms shall bind Seller unless in writing and signed by a duly authorized employee of Seller. The failure of Seller to insist, in one or more instances, on performance by Purchaser in strict compliance with the terms and conditions hereof shall not be deemed a waiver or relinquishment of any right granted hereunder with respect to any succeeding breach of the same or other provision hereof.
4. All notices required hereunder shall be in writing and sent by first class mail or by telefax or Email with written confirmation to such addresses as stated on the reverse side hereof.
5. This Agreement shall be governed by, and construed, interpreted and enforced under the laws of the State of Oregon without giving effect to the conflict of laws principles.
6. In connection with any litigation, including appellate proceedings, arising out of or pertaining to any of the contractual relationships between Seller and Purchaser or the breach thereof, as contemplated herein, all costs and expenses, including reasonable attorneys fees, shall be recoverable by the substantially prevailing party.
7. In case any conditions of this Agreement should be or become unenforceable under applicable law, the remaining provisions, stipulations and conditions of this Agreement shall not be affected thereby.