TEC Solutions Concepts Inc.
Terms and Conditions of Sale
NOTICE: Sale of any products or services is expressly conditioned on Buyer’s assent to these Terms and Conditions of Sale (the “Terms”). Acceptance of TEC Solutions’ offer is expressly limited to acceptance of these Terms and Conditions of Sale. TEC Solutions expressly objects to any additional or different terms proposed by Buyer.
1. Terms of Acceptance.
The terms and conditions set forth herein, together with any quotation, confirmation, or invoice attached hereto, contain the entire and exclusive agreement between TEC Solutions Concepts Inc. (“TEC Solutions”) and Buyer (the individual or entity receiving products or services hereunder) regarding Buyer’s purchase of TEC SOLUTIONS products, services, or support (collectively, the “Products”), and supersede all prior discussions, representations, communications, negotiations, proposals, and agreements relating to this subject matter. By submitting a purchase order, or by accepting products, services, or support, Buyer agrees to be bound by all terms and conditions herein. TEC SOLUTIONS shall not be bound by any additional or conflicting terms, whether or not material, in any acceptance, confirmation, purchase order, acknowledgement, or other document or communication from Buyer. These Terms and Conditions of Sale may not be altered or supplemented by any other document unless otherwise agreed in a written instrument signed by a duly authorized representative of TEC SOLUTIONS. Unless otherwise specified in the quotation, all TEC SOLUTIONS quotations shall expire 30 days from the date of the quote and may be modified or withdrawn at any time prior to receipt of Buyer’s conforming acceptance.
2. Payment.
Terms of payment are within TEC Solutions’ sole discretion. Unless otherwise agreed to by TEC Solutions, all orders must be paid in full prior to TEC Solutions’ shipment of products or commencement of work for services. TEC Solutions reserves the right to require payment of a nonrefundable deposit at any time prior to shipment of products or commencement of work. Payment will be made by company check or money order in U.S. dollars, ACH electronic transfer, or bank wire (credit cards are accepted with a 3% convenience fee), unless TEC Solutions has agreed to credit terms with Buyer. Make checks payable to TEC Solutions Concepts Inc. Invoices must be paid in full within thirty (30) days from the date of invoice. All payments received will be applied to Buyer’s oldest outstanding invoice(s). TEC Solutions shall have no liability for billing errors unless Buyer notifies TEC Solutions, in writing, of any such error within sixty (60) days from the date of the invoice containing the error. If TEC Solutions, in its sole judgment, determines that Buyer’s financial condition or payment history does not justify continuation of TEC Solutions’ performance, TEC Solutions may, at any time and without advance notice to Buyer, delay or postpone delivery to Buyer, and/or change the terms of payment including, but not limited to, revocation of previously agreed upon credit terms. All balances outstanding beyond thirty (30) days from the date of invoice will be subject to a service charge of 1.5% per month or, if less, the highest rate allowable by applicable law. In the event of a payment default, Buyer agrees to pay all of TEC Solutions’ costs of collection, including, but not limited to, court costs, filing fees, and reasonable attorneys’ fees.
3. Taxes.
TEC SOLUTIONS shall not be responsible for the payment of any taxes, fees, or other charges of any nature imposed on Buyer by any governmental authority on or relating to products or services provided hereunder, including, but not limited to, use tax, sales tax, inspection or testing fees, duty, custom, or excise tax.
4. Delivery.
Delivery of all products shall be FCA, Hoboken, New Jersey. Delivery of products to the carrier at Hoboken, New Jersey shall constitute delivery to Buyer and Buyer shall bear all risk of loss or damage in transit. Buyer is responsible for notifying the carrier of any damage or loss incurred during transit. Any production, shipping, and delivery dates described herein, on a TEC SOLUTIONS quotation, or in other communications, are tentative only and do not constitute any guarantee of shipment or delivery on any particular date.
5. Cancellation.
For products, Buyer may terminate all or any part of an order prior to shipment only upon written notice to TEC SOLUTIONS. Where Buyer has terminated an order, Buyer shall pay to TEC SOLUTIONS a reasonable termination charge reflecting costs actually incurred by TEC SOLUTIONS prior to the effective date of termination. In the event TEC SOLUTIONS has prepared product for shipment prior to termination, Buyer will be assessed a restocking fee not to exceed 25% of the invoice price of such product.
Cancellation of scheduled work must be in writing and confirmed in writing by TEC SOLUTIONS. The clock for cancelled work starts when TEC SOLUTIONS personnel confirm the cancellation. The following fee schedule will be applied for any cancellations done without sufficient warning:
Cancellation of remote work, such as a FAT or SIT/SAT, must be done at least 24 hours in advance or $500 will be charged. Other scheduled remote work that is cancelled less than 24 hours in advance will be charged at 25% of the service price. If remote work is cancelled on/after the scheduled start time, 50% of the service price will be charged.
Cancellation of scheduled onsite work must be done at least 48 hours in advance or $500 will be charged. If onsite work is cancelled within less than 48 hours, the greater of $1,500 or 25% of the service price will be charged. If onsite work is cancelled on/after the scheduled start time, the greater of $2,500 or 50% of the service price will be charged.
6. Intellectual Property.
TEC SOLUTIONS reserves all right, title and interest in and to the intellectual property contained in its Products, including all Software and Use Documents (defined herein), and Buyer’s purchase of Products does not grant or convey to Buyer any right, license, warranty, or indemnity protection (except as explicitly provided herein), by implication, estoppel, or otherwise. Any software including design tools, design files, reference designs and third-party software provided by TEC SOLUTIONS is not subject to these Terms of Sale and is distributed under and subject to separate licenses. “Firmware” means computer programs and/or data structures embedded in or running on a Product and delivered by TEC SOLUTIONS as part of the Products that are necessary to enable its basic operation, including any updates, upgrades and documentation related thereto provided by TEC SOLUTIONS. Unless otherwise provided for in an applicable software license, upon purchasing a Product that includes Firmware, Buyer is hereby granted a limited, nonexclusive, royalty-free, revocable, non-transferable copyright license to use the Firmware solely in conjunction with the applicable Product. No other rights or licenses to the Products are granted under these Terms.
7. License for Use of Products.
TEC SOLUTIONS hereby gives Buyer a non-exclusive and limited license for use of the Products only for the end-user and/or project identified in the proposal from TEC SOLUTIONS to Buyer. Buyer shall further (i) comply with all instructions, limitations, specifications, use statements or conditions of use made available by TEC SOLUTIONS, including but not limited to product data, product information, safety data sheets, limited use information and labeling (“Use Documents”), and (ii) properly test, use, and market Products and/or materials produced with Products. Buyer shall not market, distribute, resell, or export Products for any other purpose, unless otherwise agreed by Seller in writing.
8. Software and Use Documents License Terms.
a. If any software or Use Documents are provided or licensed by TEC SOLUTIONS to Buyer, including software provided together or in connection with any Products or services (“Software”), the terms provided with such Software or Use Documents shall apply. If there are no terms provided therewith, these Terms, including this Section, shall apply.
b. TEC SOLUTIONS grants Buyer the right and license to use the copy of the Software and the Use documents as provided by TEC SOLUTIONS. The license rights granted herein may not be transferred to another party unless such party agrees in writing to comply with these Terms. In any case, Software provided together or in connection with any Products or services shall not be transferred separately from such Products.
c. The Software, Use Documents and related intellectual property rights including, without limitation, copyrights are owned by TEC SOLUTIONS, an affiliate, and/or certain suppliers of TEC SOLUTIONS or its affiliates, and title to the Software, Use Documents or respective intellectual property rights shall not pass to Buyer or any other third party. Buyer understands that its use of any third-party software is subject to, and it will comply with, the terms of any applicable third-party license agreements or notices and to the rights of any other third-party owners or providers of software or firmware included in the Software.
d. Buyer shall (i) only use the Software and Use Documents with Products or services with or for which it is provided or for a purpose within the scope of the application for which it is provided, (ii) not cause or permit any reverse engineering, disassembly, de-compilation, modification or adaptation of the Software or the combination of the Software with any other software, or (iii) not move the Software to any country in violation of United States Foreign Asset Control Regulations or other applicable import or export control regulations.
e. Any replacements, fixes or upgrades of the Software shall be provided subject to the same restrictions and other provisions contained herein, unless such replacement, fix or upgrade is provided with a separate license agreement. Any such replacements, fixes or upgrades shall be provided at prices and payment terms as specified by TEC SOLUTIONS.
9. Export of Purchased Items.
Where this transaction involves the export of any item subject to the Export Administration Regulations, TEC SOLUTIONS will export such items in accordance with all applicable laws and regulations. Buyer agrees that it shall not use, export, re-export, or divert any items provided hereunder in a manner contrary to United States export laws and regulations. Buyer expressly acknowledges that the United States Government imposes economic sanctions and/or embargoes on certain countries. The list of sanctioned or embargoed countries may change periodically, but currently includes Cuba, Iran, North Korea, Sudan, and Syria. Buyer agrees that it will not furnish any item provided hereunder to any person or entity in a country that is subject to economic sanctions or embargoes, or to nationals of such countries, without obtaining prior authorization from the United States Government. Buyer further agrees that it will not furnish any item provided hereunder to any person or entity subject to export restrictions including, but not limited to, persons or entities identified on the Denied Persons List, Entity List, or Unverified List as maintained by the United States Department of Commerce, or identified on the Specially Designated Nationals list as maintained by the United States Department of the Treasury. Buyer shall not use, or provide for use, any item provided hereunder in any application or for any purpose related to nuclear technologies or chemical/biological weapons.
10. Limited Warranty.
THIS WARRANTY IS EXCLUSIVE, AND TEC SOLUTIONS MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY PATENT OR INTELLECTUAL PROPERTY RIGHTS. SOME STATES DO NOT ALLOW LIMITATION OF IMPLIED WARRANTIES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU. TEC SOLUTIONS IS NOT OBLIGATED TO HONOR ANY WARRANTY UNTIL PAYMENT HAS BEEN RECEIVED IN FULL. ANY DESCRIPTION OF PRODUCTS OR SERVICES CONTAINED HEREIN IS FOR IDENTIFICATION PURPOSES ONLY AND DOES NOT CONSTITUTE A WARRANTY THAT PRODUCTS OR SERVICES WILL CONFORM TO SUCH DESCRIPTION. NO REPRESENTATIVE OF TEC SOLUTIONS IS AUTHORIZED TO MAKE ANY WARRANTY, REPRESENTATION, OR GUARANTEE NOT STRICTLY IN ACCORDANCE WITH THESE TERMS AND CONDITIONS. ALL TEC SOLUTIONS SOFTWARE IS SUBJECT TO A SEPARATE SOFTWARE LICENSE MADE AVAILABLE TO BUYER IN CONNECTION WITH PURCHASE OR INSTALLATION OF THE SOFTWARE.
12. Indemnification.
Products provided hereunder are not appropriate for applications where the highest level of safety and reliability are required and failure or malfunction would result in harm or loss of life, as well as enormous damage or loss. Such fields of applications include, without limitation, controlling emergency exits, circuitry on aircraft or heavy equipment, atomic energy, life-critical medical equipment, or in any application where the property losses may exceed $10,000. TEC SOLUTIONS disclaims any and all liability resulting in any way to the use of products provided hereunder in such applications. Buyer shall indemnify TEC SOLUTIONS from and against all claims, legal or administrative proceedings, damages, liabilities, loss, cost or expenses (including, but not limited to, reasonable attorneys’ fees), resulting from or arising out of the Buyer’s use, or sale for use, in such applications.
13. Patent Disclaimer.
TEC SOLUTIONS does not warrant that the use or sale of products provided hereunder will not infringe the claims of any patents or intellectual property rights in the United States and other countries. Unless otherwise agreed in a written instrument signed by a duly authorized representative of TEC SOLUTIONS, TEC SOLUTIONS will not defend or indemnify Buyer in any suit alleging infringement by Buyer of any intellectual property rights based on the use or sale of products provided hereunder.
14. No Reverse Engineering.
Buyer shall not (a) use, sell, install, or otherwise distribute the Products other than as set forth in Sections 6-7, (b) independently recreate the Products or any materials that are incorporated therein, or (c) file any patent application containing a claim to any subject matter derived from the Products, without TEC SOLUTIONS’ prior written consent. Buyer agrees that Buyer will not decompile, disassemble, or reverse engineer all or any part of TEC SOLUTIONS’ technology used in the Products. In the event that such activity is expressly permitted by applicable law notwithstanding this limitation, Buyer shall provide TEC SOLUTIONS with written notice prior to such reverse engineering activity, information regarding the intended method of reverse engineering, its purpose and the legal authority for such activity and shall afford TEC SOLUTIONS a reasonable period of time before initiating such activity in order for TEC SOLUTIONS to evaluate the activity and/or challenge the reverse engineering activity with the appropriate legal authorities. Buyer shall refrain from such reverse engineering activity until such time as any legal challenge is resolved in Buyer’s favor. Reverse engineering includes, without limitation, attempting to (a) derive the Products’ source code (b) modify, translate, reverse engineer, decompile, disassemble or otherwise attempt (i) to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any of the Products’ protection mechanisms, including without limitation any such mechanism used to restrict or control the functionality of the data; (c) alter, adapt, modify or translate data in any way for any purpose, including without limitation error correction; or (d) thereafter, reverse engineer or otherwise attempt to discern the trade secret information of the Products. In addition to any other rights and remedies that TEC SOLUTIONS may have under the circumstances, Buyer shall be required in all cases to pay royalties to TEC, in an amount consistent with industry standards.
15. Confidential Information.
All non-public, confidential or proprietary information, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, Software, Use Documents, Products, or rebates, disclosed by TEC SOLUTIONS to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” is confidential and may not be disclosed or used by Buyer for its own use, including but not limited to filing any patent applications disclosing or based on such confidential information, unless authorized in advance in writing by TEC SOLUTIONS. TEC SOLUTIONS shall be entitled to injunctive relief for any violation of this section. This section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
16. Non-Disparagement.
Unless otherwise required by law, the Parties, their agents, representatives, assigns, heirs, and attorneys agree to not make any statement or representation by any means (including but not limited to social media posts/comments and/or internet reviews) to any third parties, oral or written, express or implied that materially impugns or otherwise disparages the other’s professional and business character, competence, integrity, services, products, or reputation.
17. Governing Law.
Buyer and TEC SOLUTIONS agree that these Terms and Conditions of Sale, the services hereunder, and any sale of products hereunder shall be governed in all aspects by the laws of the state of New Jersey, excluding its choice-of-law provisions, regardless of Buyer’s actual country or state of residence. The United Nations CISG is hereby excluded. All disputes, claims, or legal proceedings directly or indirectly arising out of or relating to these Terms and Conditions of Sale, Buyer’s order, products or services provided hereunder, or any related transaction shall be decided by the state courts of New Jersey or the United States District Court for the District of New Jersey. Buyer agrees that any such dispute, claim, or legal proceeding shall be filed exclusively in the state or federal courts located in Camden, Newark, and Trenton, and Buyer hereby irrevocably and unconditionally consents to the exclusive jurisdiction and venue of such courts. Notwithstanding the foregoing terms of this Governing Law section, TEC SOLUTIONS reserves the right to bring a claim in any court having jurisdiction over Buyer to enjoin infringement of TEC SOLUTIONS’ trademarks, patents, or other intellectual property rights.
18. Testing.
TEC SOLUTIONS must be notified no fewer than two weeks before their involvement is needed on any FAT/SAT tests. After the FAT/SAT tests have been completed, TEC SOLUTIONS will no longer be responsible for their products. Any work performed by others that does not meet New York City Transit specifications, and requires further work by TEC SOLUTIONS, will result in additional charges. Unless specifically noted, products are shipped or picked up programmed as per approved form. Any changes and or edits to their provisioning will require additional charges. Any units broken due to improper installation will require an RMA to be issued for repair and will result in additional cost. Any issues with equipment must be reported within 5 days of receipt.
19. Relationship of the Parties.
The relationship of the Parties hereto is that of vendor and purchaser. Nothing in these Terms, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party’s employees or agents. Accordingly, Buyer shall not be empowered to bind TEC SOLUTIONS in any way, to incur any liability, make any statements, representations, warranties, or commitments, or otherwise act on behalf of TEC SOLUTIONS. Each Party shall be solely responsible for payment of its employees’ salaries (including withholding of income taxes and social security), workers compensation, and all other employment benefits.
20. Governing Law and Venue.
These Terms will be governed by and interpreted in accordance with the laws of the State of New Jersey, without giving effect to the principles of conflicts of law of such state. The UN Convention on Contracts for the International Sale of Goods shall not apply to these Terms. The Parties hereby agree that any action arising out of these Terms will be brought solely in any state or federal court located in Hudson County, New Jersey. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THESE TERMS.
21. Attorney’s Fees.
If TEC SOLUTIONS incurs any legal fees associated with the enforcement of these Terms or any rights under these Terms, TEC SOLUTIONS shall be entitled to recover its reasonable attorney’s fees and any court, arbitration, mediation, or other litigation expenses from Buyer. If TEC SOLUTIONS incurs any costs, expenses, or fees, including reasonable attorneys’ fees and professional collection services fees, in connection with the collection of any amounts due from Buyer under these Terms, Buyer agrees to reimburse TEC SOLUTIONS for all such costs, expenses and fees.
22. Assignment.
Buyer may not assign these Terms, either in whole or in part, nor delegate any performance hereunder, without the express, written consent of TEC SOLUTIONS, which consent shall be at TEC SOLUTIONS’ sole and absolute discretion. Any assignment without such consent shall be null and void. TEC SOLUTIONS may assign these terms upon written notice to Buyer.
23. Severability.
If any provision or portion of these Terms shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
24. Entire Agreement.
These Terms, including any Proposals from TEC SOLUTIONS to Buyer incorporated herein, is the entire agreement between the Parties with respect to the subject matter and supersedes any prior agreement or communications between the Parties hereto, whether written or oral. No course of prior dealings between the Parties and no usage of the trade shall be relevant to supplement or explain any term used in these Terms. Acceptance or acquiescence in a course of performance rendered under these Terms shall not be relevant to determine the meaning of these Terms even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection.
These items are controlled by the U.S. Government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end‐user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end‐user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. Government or as otherwise authorized by U.S. law and regulations.
TEC Solutions Concepts Inc.
Last Revised: September 14, 2023