The following terms and conditions are applicable to all agreements between Turn 2 Solutions LLC, a California limited liability corporation (Turn 2 Solutions) and its Customers.
1. DEFINITIONS
Products (i.e., goods) mean any configuration of hardware and software including documentation sold or licensed to Customer by Turn 2 Solutions. Professional Services means technical consulting services performed for Customer pursuant to a Statement of Work.
2. ACCEPTANCE OF ORDERS
All orders placed with Turn 2 Solutions by customer for Products and/or Professional Services shall be subject to acceptance by Turn 2 Solutions at its principal place of business. Acceptance of Products and/or Professional Services shipped by, or provided by Turn 2 Solutions, is acceptance of these Standard Terms and Conditions.
3. CHANGE ORDERS
Changes to Customers order for Products and/or Professional Services shall not be effective unless a writing has been executed by authorized representatives of both parties ("Change Order"). If funds are owed to Turn 2 Solutions as a result of a Change Order, said funds shall be added to the amount owed Turn 2 Solutions.
4. PRICES AND TAXES
Prices are exclusive of, and Customer is responsible for, all sales, use, and like taxes. The price quoted is firm only if an executed copy of the Sales Quote is received by Turn 2 Solutions within 30 days of the date of the Quote. Turn 2 Solutions will invoice Customer for all applicable taxes, unless Customer supplies an appropriate tax exemption certificate in a form satisfactory to Turn 2 Solutions within 30 days from the date Customer places an order with Turn 2 Solutions. Customer is not responsible for taxes based on the net income of Turn 2 Solutions.
5. TERMS OF PAYMENT
Unless otherwise set forth in the Sales Quote, payment terms are Net Thirty (30) days from the date set forth on the invoice, which date shall not precede the date of shipment of the Products, or substantial performance of Professional Services. The foregoing terms are subject to maintaining credit arrangements satisfactory to Turn 2 Solutions. Otherwise, terms are cash in advance of delivery. Interest will be added on delinquent balances. Interest shall be charged and computed to the maximum extent allowed by law. Any payment is to be credited first to the payment of interest then accrued, and then to the reduction of the principal balance of the purchase price.
6. CREDIT REPORT AUTHORIZATION
Customer authorizes Turn 2 Solutions from time to time to obtain Business and Consumer Credit Reports on Customer or any principals of Customer or to obtain credit and funding information from any other source. Turn 2 Solutions shall have no obligation to begin or continue performance until adequate credit and funding information is provided, at any time on request of Turn 2 Solutions. Turn 2 Solutions may stop the manufacture or supply of any labor or materials when it, in its sole discretion, determines that Customer is in breach of this Agreement or any other contract with Turn 2 Solutions or Turn 2 Solutions has insecurity with respect to funding or creditworthiness, until payment is made and any dispute or insecurity has been resolved.
7. NO CONSUMER GOODS OR SERVICES PROVIDED
Customer represents to Turn 2 Solutions that none of the Products or Professional Services are primarily for personal, family, or household purposes.
8. RISK OF LOSS
Risk of loss shall pass to Customer when Products are placed into the possession of the carrier at Turn 2 Solutions’s facilities or those of its third party supplier. Damage to any of the Products in transit, without regard to whether which party paid the shipping charges or whether any third party is designated as consignee thereof, is Customer's, and whose responsibility it will be to file claims with the carrier.
9. SECURITY INTEREST
Turn 2 Solutions reserves a purchase money security interest in the Products sold to the Customer, and in
the proceeds thereof, until payment is made in full by Customer. At Turn 2 Solutions's request, Customer
shall immediately execute all documents and financing statements necessary to permit Turn 2 Solutions to
perfect such security interest.
10. LICENSES AND TITLE
Turn 2 Solutions retains any transferable title and/or any applicable licenses to the Products until Customer
has performed all of the obligations due and owing to Turn 2 Solutions under the agreement between the
parties and until the purchase price of the Products has been fully paid. Notwithstanding the foregoing, the
sale of Products or provision of Professional Services by Turn 2 Solutions does not convey any license,
ownership, or title to Customer beyond that issued to Customer by third party owners. With respect to
materials and processes developed by Turn 2 Solutions for Customer, subject to any limitations imposed on
content licensed by third parties to Turn 2 Solutions, Customer is granted a non-transferable, exclusive,
worldwide, royalty-free license, to reproduce, distribute, display, and modify those materials solely for the
purposes of operating, servicing, and repairing the Products, or integrating the Products to a system, and for
no other purpose. Turn 2 Solutions expressly reserves all its rights, including but not limited to patent claims,
not otherwise granted to Customer.
11. CONFIDENTIAL AND PROPRIETARY INFORMATION
Turn 2 Solutions and its third party vendors, retains for themselves all proprietary rights in and to all designs,
engineering details, schematics, drawings, and other similar data pertaining to the Products and
Professional Services which are provided to Customer under the agreement between the parties. Neither
party will copy, duplicate, reverse engineer, reverse compile nor attempt to derive the composition or
underlying information of any of confidential or proprietary information. If either party desires that information
provided to the other party be held in confidence that party will, prior to or at the time of disclosure, identify
the information in writing as confidential or proprietary. Both parties will keep all confidential and proprietary
information confidential and will not, without the prior written consent of the disclosing party, publish,
disclose or otherwise make available, directly or indirectly, any item of proprietary or confidential information
to any person or entity other than its employees, agents, or contractors who have a need to know in the
performance of their duties and who are under a similar written obligation limiting the use and disclosure of
disclosing party's confidential or proprietary Information. Each party must treat confidential and proprietary
information must treat it with the same degree of care as it does its own similar information, but with no less
than reasonable care. These obligations do not apply to information which: (a) is or becomes known by
recipient without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public
through no act or omission of recipient, or (c) is independently developed by recipient without use of
confidential or proprietary information. This section will not affect any other confidential disclosure
agreement between the parties.
12. RELATIONSHIP BETWEEN THE PARTIES
Turn 2 Solutions is a vendor with respect to products and an independent contractor with respect to any
professional services; and nothing herein shall be construed to create a partnership, joint venture, agency,
franchise, nor employee relationship. Neither Customer nor any of its agents or employees will have any
right or authority to assume or create any obligation of any kind, whether express or implied, on behalf of
Turn 2 Solutions.
13. NON-SOLICITATION OF EMPLOYEES
Unless prior approval is obtained from Turn 2 Solutions in writing, Customer shall not solicit the services of
any Turn 2 Solutions employee, nor any employee or independent contractor of an Turn 2 Solutions
contracted partner, who may have performed Professional Services in connection with the agreement
between the parties for a term of one (1) year after the completion or termination of the agreement. Nothing
contained herein shall prohibit either party from posting job openings on its web site or otherwise advertising
job openings through industry or mass- media publications, recruitment web sites, or generally advertised
job fairs, or from responding to and hiring individuals who initiate contact with such party concerning job
opportunities.
14. INSPECTION AND ACCEPTANCE
Acceptance must be completed within five (5) days of delivery of Products to Customer. In case any item is
defective in material or workmanship, or otherwise not in conformity with the specified requirements of this
order, Customer shall notify Turn 2 Solutions in writing of non-acceptance of the products. If Turn 2
Solutions does not receive written notice of non-acceptance within five (5) days of delivery of Products to
Customer, the Products will be deemed accepted. Upon written notice of non-acceptance of Products, Turn
2 Solutions shall promptly repair, replace, or at its option, cancel the order.
15. CANCELLATION, RESTOCKING AND RESCHEDULE CHARGES
In the event Customer (a) cancels all or part of any order, (b) fails to meet any material obligation hereunder,
including failure or refusal to make timely payments, causing Turn 2 Solutions to cancel or reschedule any
order of portion thereof, (c) requests a rescheduling of scheduled Products and the request is accepted by
Turn 2 Solutions, or (d) requires a configuration change causing the rescheduling of scheduled Products,
Customer understands that Turn 2 Solutions may incur costs from its suppliers, including cancellation,
restocking and/or rescheduling charges. Additionally, some of Turn 2 Solutions’ suppliers may not accept
returns, or modifications have been made to products that make the product incapable of return to the
vendor. Customer agrees to honor Turn 2 Solutions' invoice for recovery of all costs associated with the
cancellation or rescheduling of the order charged Turn 2 Solutions by its suppliers.
16. LIMITED WARRANTY
Products: Turn 2 Solutions will transfer to Customer, upon payment in full, the manufacturer's warranty.
Customer can request that the specific details of the manufacturer's warranty be disclosed as part of the
Product specification. Turn 2 Solutions agrees to replace or, at Turn 2 Solutions’ option, repair any defective
goods within a reasonable time. Services: Turn 2 Solutions warrants to Customer that the Professional
Services shall be performed in a professional, competent manner.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES,
WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW,
STATUTORY OR OTHERWISE INCLUDING ANY WARRANTIES OF TITLE AGAINST LIENS,
INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THAT THE
PRODUCTS ARE COMPATIBLE WITH ANY COMBINATION OF PRODUCTS NOT FURNISHED BY TURN
2 SOLUTIONS WHICH CUSTOMER MAY CHOOSE TO CONNECT TO THE PRODUCT, ARISING FROM
A COURSE OF DEALING USAGE OR TRADE PRACTICES, ALL OF WHICH ARE HEREBY EXPRESSLY
DISCLAIMED. TURN 2 SOLUTIONS NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO
ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE PROVISION OF PROFESSIONAL
SERVICES.
17. LIMITATION OF LIABILITY
Turn 2 Solutions agrees to replace or, at Turn 2 Solutions’ option, repair any defective goods within a
reasonable time. Customer’s remedies for any delay or any defect in the materials are also subject to and
limited by any limitations contained in the manufacturers terms and conditions to Customer.
TURN 2 SOLUTIONS'S LIABILITY UNDER OR FOR BREACH OF THIS AGREEMENT WILL BE LIMITED
TO REFUND OF THE PURCHASE PRICE OR LICENSE FEE. IN NO EVENT WILL TURN 2 SOLUTIONS
BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS BY CUSTOMER. IN NO
EVENT WILL TURN 2 SOLUTIONS BE LIABLE FOR DELAY OF ANY TYPE, NOR ANY SPECIAL,
CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF
WARRANTY, NEGLIGENCE, OR OTHERWISE. CUSTOMER HAS ACCEPTED THE DISCLAIMER OF
LIABILITY FOR DAMAGES AS PART OF A BARGAIN TO LOWER THE PRICE OF THE PRODUCTS AND
PROFESSIONAL SERVICES, AND UNDERSTANDS FURTHER THAT THE PRICE OF THE PRODUCTS
AND PROFESSIONAL SERVICES WOULD BE HIGHER IF TURN 2 SOLUTIONS WERE REQUIRED TO
BEAR ADDITIONAL LIABILITY FOR DAMAGES.
18. DEFAULT AND REMEDIES
Customer shall be in default on the occurrence of any of the following events or conditions: (a) Default in the
payment, obligation, covenant, or liability; (b) Any warranty, representation, or statement made or furnished
to Turn 2 Solutions by or on behalf of Customer was false in a material respect when made or furnished; (c)
Loss, theft, substantial damage, destruction, sale, or encumbrance to or of any of the collateral, or the
making of any levy, seizure, or attachment of or on the collateral; (d) Any time Turn 2 Solutions reasonably
believes that the prospect of payment or any indebtedness secured by this Agreement or the performance of
Agreement is impaired; or (e) Death, dissolution, termination of existence, insolvency, business failure,
appointment of a receiver for any part of the Products, assignment for the benefit of creditors, or the
commencement of any proceeding under any bankruptcy or insolvency law by or against Customer or any
guarantor or surety for the Customer. On the occurrence of any event of default, and at any later time, Turn
2 Solutions may declare all obligations under its agreement with Customer due and payable immediately
and may proceed to enforce payment and exercise any and all of the rights and remedies provided by the
California Commercial Code as well as other rights and remedies either at law or in equity possessed by
Turn 2 Solutions. Customer may be required by Turn 2 Solutions to assemble the Products and make it
available to the Turn 2 Solutions at any place to be designated by Turn 2 Solutions that is reasonably
convenient to both parties. Unless the Products are perishable, threaten to decline speedily in value, or are
of a type customarily sold on a recognized market, the Turn 2 Solutions will give the Customer reasonable
notice of the time and place of any public sale made. The requirements of reasonable notice shall be met if
the notice is mailed, postage prepaid, to the address of Customer, as hereinafter set forth, at least five (5)
days before the time of the sale or disposition. Expenses of retaking, holding, preparing for sale, selling, or
the like shall include Turn 2 Solutions' reasonable attorney's fees and legal expenses. The Customer will
keep the Products separate and identifiable and at the address on the face of this document, or subsequent
purchase order, and will not remove the Products from that address without the Turn 2 Solutions' written
consent until payment is made in full by Customer.
19. EXPORT AND IMPORT LAWS
All Products, Professional Services, and technical data created or delivered under the agreement with
Customer may include encryption, are subject to U.S. export control laws, and may be subject to export or
import regulations in other countries. Regardless of any disclosure by Customer to Turn 2 Solutions of the
ultimate destination, Customer agrees to comply strictly with all such laws and regulations and
acknowledges that it has the responsibility to obtain such licenses to export, re-export or import as may be
required after delivery to Customer.
20. FORCE MAJEURE
A party is not liable under the Agreement for non- performance caused by events or conditions beyond that
party's control, if the party makes reasonable efforts to perform. This provision does not relieve either party
of its obligation to make payments then owing.
21. DATA AND RECOVERY
Customer shall be solely responsible for management and adequacy of its data back-up, data recovery, and
disaster recovery measures. Except as otherwise agreed upon, Turn 2 Solutions shall not be responsible or
held liable for any Customer internal processes, procedures, or requirements, or otherwise to insure the
protection against loss or corruption, availability, confidentiality, or security of data or information of lack
thereof.
22. INDEMNIFICATION
Customer shall indemnify, defend, and hold harmless Turn 2 Solutions and its affiliates, agents, employees,
officers, directors, shareholders and contractors from any claims, losses, liabilities, expenses, costs, suits or
damages, including reasonable attorney's fees, and court costs arising out of the Customers breach of any
agreement between the parties. Except as may otherwise be limited by agreement between the parties,
Turn 2 Solutions shall indemnify, defend, and hold Customer harmless from all liability for loss, fees,
damage, or injury to persons or property resulting from the negligence or misconduct of Turn 2 Solutions its
employees and contractors provided that any such claim is attributable to bodily injury, sickness, disease or
death or injury to or destruction of tangible property, including the loss of use resulting therefrom, caused in
whole or in part by any negligent act or omission by Turn 2 Solutions, its subcontractors, employees, agents,
or anyone else directly or indirectly employed by any of them.
23. ENTIRE AGREEMENT
The most recent documents agreed upon by the parties constitute the entire agreement between the parties
with respect to the subject matter, and supersede all prior proposals, negotiations and communications, oral
or written, between the parties with respect to the subject matter and no deviation from the provisions shall
be binding unless in writing and signed by the party to be charged.
24. GOVERNING LAW
These Terms and Conditions will be governed by the laws of the State of California, except its conflicts of
laws rules. Any suit hereunder shall be brought in federal or state courts in Santa Clara County, California.
25. WAIVER
Any express waiver or failure to exercise promptly any right under the Agreement will not create a continuing
waiver or any expectation of non-enforcement.
26. PARTIAL INVALIDITY
If any provision in the agreement between the parties is held by a court of competent jurisdiction to be
invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without
being impaired or invalidated in any way.
27. SURVIVING OBLIGATIONS AND LIMITATIONS
Neither the termination nor expiration of any of the agreements between the parties shall release either party
from the obligation to pay any monies that may be owing to the other party or operate to discharge any
liability that had been incurred by either party prior to any such termination or expiration.
28. NOTICES
All notices required or permitted under the agreement between the parties shall be in writing and shall be
deemed to have been given upon personal delivery or upon deposit in the mail, first-class, with postage
prepaid. The addresses of the parties (until written notice of change shall have been given) shall be as
follows:
Turn 2 Solutions:
Turn 2 Solutions LLC
289 S. San Antonio Rd. Ste 203 Los Altos, CA 94022
Customer:
The address provided by Customer or stated by Turn 2 Solutions
Attention:
Approval signature on quotation, purchase order, or other writing.
29. ATTORNEYS FEES
If any action is necessary to enforce or interpret the terms of the agreement between the parties, whether at
law or in equity, the prevailing party shall be entitled to reasonable attorneys' fees, costs, and necessary
disbursements in addition to any other relief to which that party may be entitled. This provision shall be
construed as applicable to the entire agreement between the parties.
30. ASSIGNMENT
Neither these Terms and Conditions nor any rights or benefits hereunder are assignable by Customer
without the prior consent of Turn 2 Solutions. Any such prohibited assignment shall be null and void.
Turn 2 Solutions Standard Terms and Conditions January 1, 2016
