icon-account icon-glass

Tokalon General Terms & Conditions

 

  1. Applicability. (a) These termsand conditionsof sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) and services ("Services”) by Charmstone, L.L.C., an Iowa limited liability company, d/b/a Tokalon (“Tokalon”) to the buyer named on the accompanying invoice (“Buyer,” and collectively with Tokalon, the “Parties” and each a “Party”). Notwithstanding anything herein to the contrary, if a written contract signed by the Parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. (b) The accompanying invoice (the “Sales Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the Parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.

 

  1. Delivery of Goods and Performance of Services. (a) The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished Goods. Tokalon shall not be liable for any delays, loss, or damage in transit. (b) Unless otherwise agreed in writing by the parties, Tokalon shall deliver the Goods to the Buyer’s delivery location set forth in the Sales Confirmation, (the “Delivery Point”). Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point and the cost of additional shipment from the Delivery Point. (c) Tokalon may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer.  Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. (d) Tokalon shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates shall be estimates only. (e) With respect to the Services, Buyer shall (i) cooperate with Tokalon in all matters relating to the Services for the purposes of performing the Services; (ii) respond promptly to any Tokalon request for direction, information, approvals, authorizations, or decisions that are reasonably necessary for Tokalon to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Tokalon may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.

 

  1. Non-Delivery. (a) The quantity of any installment of Goods as recorded by Tokalon’s manufacturer(s) (each, a “Manufacturer”) on dispatch from such Manufacturer’s place of business in Colombia is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. (b) Tokalon shall not be liable for any non-delivery of Goods unless Buyer gives notice to Tokalon of the non-delivery fourteen (14) days after the date when the Goods would in the ordinary course of events have been received. (c)Any liability of Tokalon for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered. (d)Buyer acknowledges and agrees that the remedies set forth in this Section 3 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods (as defined herein).  Except as provided in Section 3(c), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Tokalon.

 

  1. Quantity. If Tokalon delivers to Buyer a quantity of Goods of up to five percent (5%) more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Sales Confirmation adjusted pro rata.

 

  1. Shipping Terms. Delivery of the Goods shall be made LDP Delivery Point.

 

  1. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Tokalon a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including but not limited to insurance proceeds) of the foregoing.  The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code.

 

  1. Buyer’s Acts or Omissions. If Tokalon’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Tokalon shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.

 

  1. Inspection and Rejection of Nonconforming Goods. (a) Buyer shall inspect the Goods within five (5) business days after receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Tokalon in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Tokalon. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in the Sales Confirmation; or (ii) product’s label or packaging incorrectly identifies its contents. (b) If Buyer timely notified Tokalon of any Nonconforming Goods, Tokalon shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods. Buyer shall ship, at Tokalon’s expense and risk of loss, the Nonconforming Goods to Tokalon’s facility or such other location designated by Tokalon.  If Tokalon exercises its option to replace the Nonconforming Goods, Tokalon shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Tokalon’s expense and risk of loss, the replaced Goods to the Delivery Point. (c) Buyer acknowledges and agrees that the remedies set forth in Section 8(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods.  Except as provided in Section 8(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchase under this Agreement to Tokalon.

 

  1. Price. (a) Buyer shall purchase the Goods and Services from Tokalon at the price(s) (the “Price(s)”) set forth in the Sales Confirmation. (b)Buyer agrees to reimburse Tokalon for all actual and documented out-of-pocket expenses incurred by Tokalon in connection with the performance of the Services. (c) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Tokalon’s income, revenues, gross receipts, personal or real property, or other assets.

 

  1. Payment Terms. (a) For Buyer’s first purchase order with Tokalon, Buyer shall pay all invoiced amounts due to Tokalon as follows: (i) fifty percent (50%) of the invoiced amount due immediately upon receipt of Sales Confirmation as a down payment, and (ii) the remaining invoiced amounts due prior to shipping. For all subsequent purchase orders, Buyer shall pay all invoiced amounts due to Tokalon within thirty (30) days after the date of Tokalon’s invoice.  Buyer shall make all payments hereunder in U.S. dollars by (x) credit card, (y) check, or (z) ACH or wire transfer to the account designated by Tokalon. (b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Tokalon for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law, Tokalon shall be entitled to suspend the delivery of any Goods or performance of any Services if Buyer fails to pay any amounts when due hereunder and such failure continues for ten (10) business days following written notice thereof. (c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Tokalon, whether relating to Tokalon’s breach, bankruptcy, or otherwise.

 

  1. Disclaimer of Warranty. (a) TOKALON MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (I) WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (III) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. (b) Products manufactured by a third party (“Third Party Product”) may constitute, contain, but contained in, incorporated into, attached to, or packaged together with, the Goods. TOKALON MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (I) WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (III) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

 

  1. Limitation of Liability. (a) in no event shall tokalon be liable to Buyer or any third party for any loss of use, revenue, or profit, or for any consequential, indirect, incidental, special, exemplary, or punative damages, whether arising out of breach of conract, tort, or Otherwise, regardless of whether such damages were foreseeable and whether or not TOKALON has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose. (b) IN NO EVENT SHALL TOKALON’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO TOKALON FOR THE GOODS AND SERVICES SOLD HEREUNDER. (c) The limitation of liability set forth in Section 12(b) shall not apply to (i) liability resulting from Tokalon’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Tokalon’s acts or omissions.

 

  1. Intellectual Property. (a) All designs or artwork created specifically for and provided by Tokalon to Buyer under this Agreement, including without limitation all writings, works of art, and other work product, in any form whatsoever, and all intellectual property rights in the same (collectively, “Custom Designs”) shall be Buyer’s exclusive property and considered “Works Made for Hire,” as such term is defined under the copyright laws of the United States. If any Custom Design does not qualify as a Work Made for Hire, Tokalon hereby assigns to Buyer all the rights in and to the Custom Design. If any rights contemplated herein reside in an individual or entity other than Tokalon, Tokalon shall obtain assignment of the rights from such other individual or entity so as to vest clear title to such rights in Buyer.  Tokalon shall sign related documents and give Buyer all other reasonable assistance necessary to perfect and maintain its ownership rights, without charge to Buyer.  Notwithstanding the foregoing, Tokalon disclaims any and all interest, right, or title to any designs or artwork provided by Buyer to Tokalon (“Buyer’s Designs”). (b)  Buyer represents and warrants to Tokalon that (i) Buyer owns or has adequate, valid, and enforceable rights to use Buyer’s Designs and (ii) use of Buyer’s Designs by Buyer, Tokalon, and Manufacturer(s) does not infringe, violate, dilute, or misappropriate the intellectual property of any person or entity. Buyer shall indemnify, defend, and hold harmless Tokalon, Manufacturer(s), and their respective owners, managers, directors, officers, and employees from and against all claims, losses, judgments, damages, liabilities, settlements, costs, and expenses, including attorneys’ fees and costs, arising from or relating to the infringement, dilution, misappropriation, or other violation of any intellectual property or other rights of any person or entity resulting from the use of Buyer’s Designs.

 

  1. Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.

 

  1. Termination. In addition to any remedies that may be provided under these Terms, Tokalon may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement and such failure continues for ten (10) business days after Buyer's receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.

 

  1. Waiver. No waiver by Tokalon of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Tokalon. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

 

  1. Confidential Information. All non-public, confidential or proprietary information of a Party, including but not limited to specifications, samples, patterns, mock-ups, drawings, pricing, discounts, or rebates, disclosed by either Party to the other Party, whether disclosed orally or in written, electronic or other form or media, and whether or not marked or otherwise identified as “confidential,” is confidential, solely for the use of performing this Agreement, and may not be disclosed unless authorized in advance by the disclosing Party in writing. Upon the disclosing Party’s request, the receiving Party shall promptly return all documents and other materials received from the disclosing Party. The disclosing Party shall be entitled to injunctive relief for any violation of this Section 17. This Section 17 does not apply to information that is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; or (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party.

 

  1. Non-Circumvention. During the term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement, Buyer shall not, except in collaboration with or with the express written consent of Tokalon: (a) enter into any transaction with Manufacturer similar to, in competition with, or which otherwise could take business away from Tokalon; (b) solicit the Manufacturer to enter into any such transaction; or (c) induce, solicit, procure, or otherwise encourage Buyer’s affiliates, employees, officers, directors, and shareholder or any third party, or respond to any solicitation from any of the same, to enter into any such transaction.

 

  1. Force Majeure. Tokalon shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any termof this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Tokalon including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, hostilities, terrorist threats or acts, riot, other civil unrest, national emergency, revolution, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either Party’s workforce), restraints or delays affecting carriers, inability or delay in obtaining supplies of adequate or suitable materials, or power outage.

 

  1. Governing Law/Choice of Forum. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Iowa without giving effect to any choice or conflict of law provision or rule (whether of the State of Iowa or any other jurisdiction). Any proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Iowa in each case located in the City of Des Moines and County of Polk, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such proceeding.

 

  1. Miscellaneous. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Tokalon. No assignment or delegation relieves Buyer of any of its obligations under this Agreement. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns.  All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on the Sales Confirmation or to such other address that may be designated by the receiving Party in writing. All Notices shall be delivered by nationally recognized overnight courier (with all fees pre-paid), email, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving Party, and (b) if the party giving the Notice has complied with the requirements of this Section.  If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Non-Circumvention, and Governing Law/Choice of Forum.  These Terms may only be amended or modified in a writing signed by an authorized representative of each Party.

 

Rev. 08/2018