Terms and Conditions
The Terms and Conditions of Sale contained herein apply to all domestic and international sales entered into with Trajectory Technologies Inc.,TRAJETECH ™. Any additional, different or conflicting terms or conditions on Buyer’s purchase order, specifications or other documents issued by Buyer shall be wholly inapplicable and is hereby rejected and shall not bind Trajectory Technologies’ silence or failure to respond to any such subsequent, additional, different or conflicting term, condition or proposal shall not be deemed to be Trajectory Technologies’ acceptance or approval thereof. No waiver or amendment of any of the provisions contained in these Terms and Conditions shall be binding on Trajectory Technologies’ unless Buyer and Trajectory Technologies’ execute a written agreement signed by an officer of Trajectory Technologies’ which specifically modifies, supersedes and/or replaces these standard terms and conditions. Acceptance of all purchase orders is expressly made conditional upon Buyer’s assent, expressed or implied, to the terms and conditions set forth herein without modification or addition.
1. Product. “Product(s)” is defined as goods manufactured and/or procured by Trajectory Technologies’ and subsequently sold and delivered to Buyer.
2. Orders. Buyer’s order must be submitted to Trajectory Technologies’ in writing via U.S. Mail, courier, facsimile or electronic transmission and are subject to acceptance by Trajectory Technologies’ . Orders must specify Product, Quantity, Price, and “Ship To” Address and requested Delivery Date. Any product not specifically listed on Trajectory Technologies’ Price List constitutes a Special Order. Special orders accepted by Trajectory Technologies’ not subject to cancellation by Buyer. Trajectory Technologies’ will access a 15% cancellation fee for general orders unless duly cancelled by Buyer in writing sixty (60) days prior to delivery.
3. Acceptance of Purchase Orders. Buyer’s acceptance of these Terms and Conditions of Sale shall be indicated by any of the following, whichever first occurs:
a) Buyer’s making of an offer to purchase Product from Trajectory Technologies
b) Buyer’s written acknowledgment there of
c) Buyer’s acceptance of any part of shipment specified for delivery
d) Any other act or expression of acceptance by Buyer.
Trajectory Technologies shall confirm its acceptance of orders with delivery information with an order acknowledgment via electronic mail or facsimile. No order shall bind Trajectory Technologies until duly accepted by Trajectory Technologies in writing. Trajectory Technologies reserves the right to cancel any accepted order wherein Trajectory Technologies notifies Buyer of a processing defect, including but not limited to, credit holds, which Buyer does not cure within sixty (60) days.
4. Prices. Price(s) is specified in the current Trajectory Technologies Price Lists, which are subject to change at any time, in Trajectory Technologies sole discretion. Prices for Product(s) shall be those in effect at the time of order acceptance regardless of Buyer’s quoted price on Purchase Order. Trajectory Technologies Price Lists exclude all taxes, duties and fees. Buyer shall assume responsibility for any and all applicable federal, state, municipal and other government taxes, tariffs, duties, value-added, withholding and all other taxes on shipments of Products and its manufacture, use and distribution of goods (except taxes based on the gross or net income of Trajectory Technologies ). In addition, on orders for shipment outside the United States, all required import/export duties, licenses and fees shall be payable by Buyer.
5. Payment. Trajectory Technologies shall submit an invoice to Buyer detailing an itemized cost for the order. Buyer shall pay for the quantity of Products to be delivered. Payments for Product(s) shall be remitted to Trajectory Technologies by Buyer in U.S. dollars to: Trajectory Technologies 3765 Round Bottom Road Newtown, Ohio 45244. Payments can also be made via company check, credit card or a prepaid wire transfer with a confirmation of wire to Trajectory Technologies on the date payment is made via the following facsimile: (513)407-6045. Any payment made via credit card will be assessed a three percent (3%) processing Fee Trajectory Technologies. accepts Visa & MasterCard only. Notwithstanding any net payment provisions specified on the invoice, Trajectory Technologies shall not have a continuing obligation to deliver Products on credit terms, and any credit approval may be withdrawn by Trajectory Technologies, in its sole discretion, at any time without prior notice. A finance charge of 1.5% per month, or the maximum rate permitted by law, shall be applied to all past due balances. Trajectory Technologies shall have the unilateral right to offset any credits due toward outstanding balances. Trajectory Technologies retains (and Buyer grants to by submitting a purchase order) a security interest in the Products to secure payment in full and compliance with these Terms and Conditions of Sale. Buyer agrees to execute any additional documents necessary to perfect such security interest.
Domestic - Payment for sales are to be made pursuant to the terms and amount stated on the order acknowledgment, without offset. Payment for sales from a Buyer located within the U.S. can make payment via bank transfer (wire) to One Shot Inc. JPMorgan Chase Bank N.A., 270 Park Ave., New York, NY 10017; ABA# 021000021; Account # 799202288.
International - Unless otherwise specified, payment is due prior to delivery of Product(s). A Buyer located outside the U.S. may apply to establish credit terms with Trajectory Technologies. Trajectory Technologies requires the disclosure and evaluation of Buyer’s financial statements in order to extend credit terms to Buyer hereunder. Payment for sales from a Buyer located outside the U.S. can make payment via bank transfer (wire or irrevocable letter of credit) to One Shot Inc. JPMorgan Chase Bank N.A., 270 Park Ave., New York, NY 10017; Swift Code CHASUS33XX; Account # 799202288 Letters of credit must be furnished by Buyer in a form acceptable to Trajectory Technologies. Letter of credit requirements shall be furnished as required. All costs related to opening, confirming, extending, and modifying such letters of credit shall be the responsibility of the Buyer.
6. Delivery. Trajectory Technologies will deliver products by arranging shipping to the receiving area at the “ship to” address specified in Buyer’s order. Delivery dates indicated on purchase orders are requests only. Buyer acknowledges and agrees that the delivery dates provided by Trajectory Technologies upon its written acceptance of purchase orders are estimates only and may be changed. Trajectory Technologies will use commercially reasonable efforts to deliver in accordance with the delivery dates in the acknowledgment, however, Trajectory Technologies will not be liable for failure to deliver as estimated. Buyer agrees to accept partial deliveries when Product becomes available, unless Buyer’s written order specifically stipulates the order must be shipped complete with all products. Delivery is subject to the payment terms set forth herein. Transportation and handling charges are payable by Buyer as specified in Trajectory Technologies invoice. In no event shall Trajectory Technologies delivery of Product be construed or interpreted as a transfer of intellectual property rights. Any product provided by Trajectory Technologies shall be deemed accepted by Buyer upon delivery.
7. Packaging and Shipping. Packing shall be in accordance with Trajectory Technologies standard commercial practices. Trajectory Technologies shall utilize its carrier of choice for all shipments and shipping costs will be invoiced to Buyer accordingly. Shipping charges resulting from refused shipments will be immediately due and payable, including a 15% restocking fee of Product’s invoice amount.
8. Title. Title and risk of loss or damage to products pass to Buyer upon Trajectory Technologies delivery to common carrier at Seller’s facility in Newtown, Ohio. Shipping shall be EXW Seller’s Plant per the ICC 2000 INCO Terms.
9. Service. All of Trajectory Technologies ammunition is crafted with pride in the USA and manufactured with our customer’s satisfaction in mind.
A. Warranty. Trajectory Technologies guarantees every product to be free from manufacturing defects in material and workmanship. In the event of a defect, Trajectory Technologies at its sole option will promptly replace the product without charge to the customer, and such action on the part of Trajectory Technologies shall be the full extent of Trajectory Technologies liability. All costs associated with product shipment to Trajectory Technologies will be incurred by the purchaser/end-user. Trajectory Technologies will incur costs associated with product return to purchaser/end-user.
This warranty does not cover a product:
(a) Used in other than its normal and customary manner
(b) Subjected to misuse
(c) Subjected to alterations or modifications by the Customer or by any other party other than Trajectory Technologies without the prior written consent of trajectory Technologies
(d) Special order or merchandise sold “as is” by Trajectory Technologies
(e) Merchandise that has been discontinued by the manufacturer.
Trajectory Technologies shall not be responsible for any defects or damage that in manufacturer’s opinion is a result of mishandling, abuse, misuse, improper storage or improper operation, including use in conjunction with equipment which is mechanically incompatible with or of inferior quality to the product, as well as failure to maintain the environmental conditions specified by the manufacturer. Any breach of this warranty shall be waived unless the customer notifies Trajectory Technologies. The customer understands and agrees that except for the foregoing warranty, no other warranties written or oral, statutory, expressed or implied, including any implied warranty of merchantability or fitness for a particular purpose, shall apply to the product. All such implied warranties are hereby and expressly disclaimed.
Returns. Trajectory Technologies will accept the return of merchandise provided the product(s) has been purchased within the last sixty (60) days and has not been used. Trajectory Technologies will assess a fifteen percent (15%) restocking fee on any returned product(s).
Products sent to Trajectory Technologies for warranty or return, must have a valid Return Authorization Number. Buyers obtain a Return Authorization Number by calling Trajectory Technologies Warranty/Return Department at 513-272-6764 during normal business hours. If a product arrives at Trajectory Technologies without a valid Return Authorization Number the product will be immediately returned to Buyer and billed the shipping fee. To obtain warranty or return on a product, send product with a valid return authorization number to the manufacturer at the address below, postage paid. All product(s) must be fully insured with the correct postage; Trajectory Technologies will not be responsible for improper postage or missing or damaged merchandise during shipment.
Trajectory Technologies Inc. TRAJETECH ™
Warranty and Return Department
3765 Round Bottom Road
Newtown, Ohio 45244
Reference: RA#
Trajectory Technologies shall not, in any event be liable for any damages, including any lost profits, lost savings, or other incidental or consequential damages arising out of the use or inability to use such products. This warranty gives the purchaser/end-user certain legal rights, and possibly other rights, which vary from state to state.
10. Limitation of Liability. Trajectory Technologies will not be liable for any claims, actions, suits, proceedings, costs, expenses, damages of liabilities arising out of the use of Trajectory Technologies products. Operation and use of the product are the sole responsibility of the Customer. Trajectory Technologies sole undertaking is limited to providing the products and services outlined herein. Trajectory Technologies liability hereunder for damages, regardless of the form or action, shall not exceed the fees or other charges paid to Trajectory Technologies by the customer or customer’s distributor. Trajectory Technologies SHALL NOT, IN ANY EVENT OR UNDER CIRCUMSTANCES, BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE AGREEMENT TO SELL PRODUCT TO BUYER OR THE PRODUCT, INCLUDING, BUT NOT LIMITED TO, INJURY AND OR DEATH, LOST INCOME, LOST REVENUE, LOSS OF GOODWILL, LOSS OF USE OR LOST PROFIT, WHETHER SUCH DAMAGES WERE FORESEEABLE OR NOT AT THE TIME OF PURCHASE, AND WHETHER OR NOT SUCH DAMAGES ARISE OUT OF A BREACH OF WARRANT, A BREACH OF AGREEMENT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY.
11. Product Identification. Trajectory Technologies identifies each of its products with a unique lot number. This number will be utilized by Trajectory Technologies for internal and external tracking purposes.
12. Changed or Discontinued Product. Trajectory Technologies policy is one of ongoing update and improvement. Trajectory Technologies may revise and discontinue Product at any time in its sole discretion. Trajectory Technologies will ship Product that has the functionality and performance of the Product ordered, but changes between what is shipped and what is described in the specifications, manual or catalog are possible. Trajectory Technologies shall endeavor to provide notification of changes in Product’s form, function, specifications or discontinuance; however Trajectory Technologies has no obligation and/or liability for failure to notify Buyer.
13. Intellectual Property Rights. Trajectory Technologies shall retain all copyright, patents, trademarks, trade secrets and other intellectual property rights it possesses with regard to any and all design, process, or manufacturing technologies. Trajectory Technologies shall also retain any and all other proprietary rights in and to the Products, Software, documentation and other related materials, and all copies and derivative works thereof (by whomever produced). Nothing herein shall be construed to grant to Buyer any right or license in any copyright, patent, trademark, trade secret or any other intellectual property right.
Infringement
Trajectory Technologies shall indemnify Buyer against any alleged infringement claim, limited to the value of the applicable order, that product(s) directly infringes a U.S. patent or copyright, if customer:
(i) Promptly notifies Trajectory Technologies of the claim in writing;
(ii) Cooperates with Trajectory Technologies in the defense of the claim; and
(iii) grants Trajectory Technologies sole control of the defense or settlement in the claim.
Trajectory Technologies has no obligation for any claim of infringement arising from:
(i)Trajectory Technologies compliance with Buyer or third party specifications and/or designs;
(ii) Modifications made by Buyer or a third party,
(iii) Buyer’s non-compliance with recommended usage.
In satisfaction of an infringement claim, Trajectory Technologies will replace or modify product(s) with non-infringing products that are functionally equivalent. This subsection states Trajectory Technologies total responsibility and liability and Buyer’s sole remedy, for any actual or alleged intellectual property infringement.
14. Software. “Software” is defined as machine-readable code or firmware, which is owned by or licensed to Trajectory Technologies, and resides in Product. The Buyer and or end-user is not authorized to reproduce, copy, modify, repair, decompile, reverse engineer, disassemble, reverse translate, or in any matter decode the Software.
15. Indemnification. Buyer shall defend, indemnify, and hold harmless Inc., its parents, subsidiaries, divisions and affiliates, and their respective directors, officers and employees and representatives, from and against any and all claims, suits, losses, liabilities, obligations, causes of action, damages, and expenses (including attorney’s fees) relating to or arising out of any use of the Product by Buyer to its Customers.
16. General
A. Force Majeure. Trajectory Technologies shall not be liable hereunder due to any cause beyond its control, including but not limited to acts of God, acts of civil or military authority, fires, epidemics, floods, riots, wars, sabotage, labor disputes, yield problems, government actions, or inability to obtain materials, components, energy or transportation. In the event of any such delay, Trajectory Technologies failure to perform any obligation under these standard terms and conditions shall be extended by a reasonable period of time.
B. Electronic Orders and EDI. Trajectory Technologies and Buyer may do business electronically, including order placement and acceptance. Once accepted, such orders will create fully enforceable obligations subject to these terms and conditions. Such orders and acceptances will be deemed for all purposes to be an original signed writing. Buyer and Trajectory Technologies will adopt commercially reasonable security measures for password and access protection. Buyer will be responsible for any and all set up fees and costs associated with electronic orders and EDI.
C. Export. Orders are subject to any and all applicable laws and regulations of the United States relating to the export, re-export, delivery or transfer of the Product from the United States of America, including without limitation, the Export Administration Regulations (EAR) (15 C.F.R. Ch. VII, Subchapter C) and the International Traffic in Arms Regulations (ITAR) (22 C.F.R. Ch. I, Subchapter M). Buyer shall not ship, transfer, export or use the Product in violation of applicable export laws, regulations or restrictions.
D. Assignment. Buyer may not assign its rights, delegate or otherwise transfer its obligations hereunder without the prior written consent of Trajectory Technologies and any purported assignment or delegation without such consent shall be of no force or effect.
E. Waiver. Any waiver by Trajectory Technologies of any default by Buyer shall not be deemed to be a continuing waiver of such default or a waiver of any other default or of any of the terms and conditions hereunder.
F. Entire Agreement. These terms and conditions of sale represent an entire agreement between Trajectory Technologies and Buyer and are incorporated by reference into all domestic and international consultant, representative and distributor agreements. In the event any provision of these terms and conditions are held invalid, illegal or unenforceable that provision shall be severed and the remainder of the provisions will remain enforceable and unaffected thereby.
G. Survival. Any provision in these terms and conditions which by their nature extend beyond the termination or expiration of any sale of Product or Support will remain in effect until fulfilled and will apply to both parties’ respective successors and permitted assigns.
H. Governing Law; Waiver of Jury Trial. The validity, performance and construction of these terms and conditions, and any disputes arising from or relating thereto, shall be governed by the laws of the State of Ohio, U.S.A. The parties specifically exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to the Agreement, to the contractual relationship created under the Agreement, and to the construction, validity, enforcement, and interpretation of the Agreement. The parties agree that the exclusive venue for any action arising out of or related to the Agreement shall be in the courts with the appropriate jurisdiction serving Newtown, Ohio and each party irrevocably submits to the jurisdiction of each such court in any such action and waives any objection it may now or hereafter have to venue or personal jurisdiction in each such court. The prevailing party in any action related to the dispute or interpretation of the Agreement shall be entitled to recover its reasonable attorneys fees incurred in pursuing the action, including those fees incurred throughout all bankruptcy and appellate proceedings. The Parties FURTHER AGREE, TO THE EXTENT PERMITTED BY LAW, TO WAIVE ALL RIGHTS TO A TRIAL BY JURY OF ANY ACTION RELATING TO THE DISPUTE OR INTERPRETATION OF THE AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. THE PARTIES SPECIFICALLY ACKNOWLEDGE THAT THIS WAIVER IS MADE KNOWINGLY AND VOLUNTARILY AFTER AN ADEQUATE OPPORTUNITY TO NEGOTIATE ITS TERMS AND THAT SUCH WAIVER IS MATERIAL CONSIDERATION FOR THE SALE AND PURCHASE CONTEMPLATED HEREBY.
I. Non-Disclosure. Trajectory Technologies will use Buyer related data, including but not limited to Buyer address and contact information. Unless otherwise agreed, Buyer accepts that such data will be used and distributed within Trajectory Technologies and to certain third parties. Each party’s confidential or proprietary information may, if required by the parties, be further defined and protected by separate Non-Disclosure Agreement and each party’s sole and exclusive obligations with regard to such confidential and proprietary information shall be as set forth in such agreement.
J. Independent Contractor. Trajectory Technologies is an independent contractor in the performance under these terms and conditions and neither Trajectory Technologies nor any of its personnel are employees or agents of Buyer. Nothing in these terms and conditions will be construed as creating a joint venture, partnership or employment relationship between the parties, nor will either party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other.
K. Headings. The section headings used herein are for convenience of reference only and do not form part of these terms and conditions, and no construction or inference shall be derived therefrom.
L. Language. Trajectory Technologies and Buyer confirm that it is their desire that these terms and conditions, as well as other documents relating hereto, including all notices, have been and will be drawn up in the English language only.
17. MINIMUM ADVERTISED PRICE (MAP) POLICY
The following is Trajectory Technologies policy regarding the advertising and pricing of the Products.
A. Purpose: Trajectory Technologies MAP Policy is designed to avoid depreciation of, or damage to, the trademarks, brands or trade names under which its products, including the Products, are sold. Trajectory Technologies’ intention and policy is not to engage any dealer, distributor or retailer that advertises products below Trajectory Technologies then current and published Minimum Advertised Price (MAP).
B. Minimum Advertised Pricing: A dealer, distributor or retailer may advertise at any price it chooses, as long as it is not less than Trajectory Technologies then current and published MAP. Trajectory Technologies hereby provides notice that advertising Trajectory Technologies products, including the Products, using Trajectory Technologies copyrighted materials (including photographs from the website, photo library or Trajectory Technologies -created product descriptions) at a price below Trajectory Technologies MAP constitutes a violation of this policy and will lead to remedial action by Trajectory Technologies which may result in ultimate discontinuance of business with such dealer, distributor or retailer. No part of this policy is intended to influence the actual prices at which a dealer, distributor or retailer resells Trajectory Technologies products.
C. Advertising Defined: For the purposes of this policy, the term “advertising” shall include ANY listing, description or graphic display of Trajectory Technologies products accessible to consumers/customers directly, including but not limited to, print media, television, radio and the World Wide Web. Advertising shall not include a price quotation sent via email to a consumer/customer at the consumer’s/customer’s request.
D. Wholesalers: This policy does not apply to distributors whose business consists exclusively of the resale of Trajectory Technologies product (also known as “wholesalers”) to resellers, dealers or retailers. Trajectory Technologies requires that all wholesalers use good faith efforts in enforcing this policy and comply with any published “Do Not Sell” list which Trajectory Technologies may publish.
E Violations of Policy: All failures to comply with this policy constitute a material breach of these Terms and Conditions. It is Trajectory Technologies intention to administer the policy fairly, reasonably and in a progressive fashion.
F. Changes in MAP and Products: All Trajectory Technologies products, including the Products, are subject to this policy, including any new products. Trajectory Technologies at any time, in its sole discretion may revise its MAP policy for any product. Each addition and each revision shall be effective at such time specified by Trajectory Technologies in its pricing schedule, which will be provided to each dealer or distributor. Trajectory Technologies last price lists are available to all dealers, distributors and retailers at its office. All changes of such prices, as and when made, will also be available.
G. Discounts, Premiums, Combinations: Should any dealer, distributor or retailer advertise the giving of any article of value in connection with the sale of any Trajectory Technologies products, or the making of any concession in connection with sale of any products, or combination of Trajectory Technologies products, which together would be below MAP if sold separately, shall represent a violation of this policy.
H. Price Reductions, Inventory Reduction & Clearance: Trajectory Technologies may exempt certain designated items from this policy for the purpose of inventory reduction and model closeouts.
Trajectory Technologies has the exclusive authority to resolve all disputes, conflicts, controversies or questions in relation to this Policy.
18. COMPLIANCE WITH APPLICABLE LAWS
Customer warrants that Customer shall comply with any and all applicable US federal and state laws, and shall operate in good faith to comply with other laws and regulations and industry best practices, applicable to such party’s performance hereunder, and shall promptly act to correct any noncompliance once identified.
The Terms and Conditions of Sale contained herein apply to all domestic and international sales entered into with Trajectory Technologies Inc.,TRAJETECH ™. Any additional, different or conflicting terms or conditions on Buyer’s purchase order, specifications or other documents issued by Buyer shall be wholly inapplicable and is hereby rejected and shall not bind Trajectory Technologies’ silence or failure to respond to any such subsequent, additional, different or conflicting term, condition or proposal shall not be deemed to be Trajectory Technologies’ acceptance or approval thereof. No waiver or amendment of any of the provisions contained in these Terms and Conditions shall be binding on Trajectory Technologies’ unless Buyer and Trajectory Technologies’ execute a written agreement signed by an officer of Trajectory Technologies’ which specifically modifies, supersedes and/or replaces these standard terms and conditions. Acceptance of all purchase orders is expressly made conditional upon Buyer’s assent, expressed or implied, to the terms and conditions set forth herein without modification or addition.
1. Product. “Product(s)” is defined as goods manufactured and/or procured by Trajectory Technologies’ and subsequently sold and delivered to Buyer.
2. Orders. Buyer’s order must be submitted to Trajectory Technologies’ in writing via U.S. Mail, courier, facsimile or electronic transmission and are subject to acceptance by Trajectory Technologies’ . Orders must specify Product, Quantity, Price, and “Ship To” Address and requested Delivery Date. Any product not specifically listed on Trajectory Technologies’ Price List constitutes a Special Order. Special orders accepted by Trajectory Technologies’ not subject to cancellation by Buyer. Trajectory Technologies’ will access a 15% cancellation fee for general orders unless duly cancelled by Buyer in writing sixty (60) days prior to delivery.
3. Acceptance of Purchase Orders. Buyer’s acceptance of these Terms and Conditions of Sale shall be indicated by any of the following, whichever first occurs:
a) Buyer’s making of an offer to purchase Product from Trajectory Technologies
b) Buyer’s written acknowledgment there of
c) Buyer’s acceptance of any part of shipment specified for delivery
d) Any other act or expression of acceptance by Buyer.
Trajectory Technologies shall confirm its acceptance of orders with delivery information with an order acknowledgment via electronic mail or facsimile. No order shall bind Trajectory Technologies until duly accepted by Trajectory Technologies in writing. Trajectory Technologies reserves the right to cancel any accepted order wherein Trajectory Technologies notifies Buyer of a processing defect, including but not limited to, credit holds, which Buyer does not cure within sixty (60) days.
4. Prices. Price(s) is specified in the current Trajectory Technologies Price Lists, which are subject to change at any time, in Trajectory Technologies sole discretion. Prices for Product(s) shall be those in effect at the time of order acceptance regardless of Buyer’s quoted price on Purchase Order. Trajectory Technologies Price Lists exclude all taxes, duties and fees. Buyer shall assume responsibility for any and all applicable federal, state, municipal and other government taxes, tariffs, duties, value-added, withholding and all other taxes on shipments of Products and its manufacture, use and distribution of goods (except taxes based on the gross or net income of Trajectory Technologies ). In addition, on orders for shipment outside the United States, all required import/export duties, licenses and fees shall be payable by Buyer.
5. Payment. Trajectory Technologies shall submit an invoice to Buyer detailing an itemized cost for the order. Buyer shall pay for the quantity of Products to be delivered. Payments for Product(s) shall be remitted to Trajectory Technologies by Buyer in U.S. dollars to: Trajectory Technologies 3765 Round Bottom Road Newtown, Ohio 45244. Payments can also be made via company check, credit card or a prepaid wire transfer with a confirmation of wire to Trajectory Technologies on the date payment is made via the following facsimile: (513)407-6045. Any payment made via credit card will be assessed a three percent (3%) processing Fee Trajectory Technologies. accepts Visa & MasterCard only. Notwithstanding any net payment provisions specified on the invoice, Trajectory Technologies shall not have a continuing obligation to deliver Products on credit terms, and any credit approval may be withdrawn by Trajectory Technologies, in its sole discretion, at any time without prior notice. A finance charge of 1.5% per month, or the maximum rate permitted by law, shall be applied to all past due balances. Trajectory Technologies shall have the unilateral right to offset any credits due toward outstanding balances. Trajectory Technologies retains (and Buyer grants to by submitting a purchase order) a security interest in the Products to secure payment in full and compliance with these Terms and Conditions of Sale. Buyer agrees to execute any additional documents necessary to perfect such security interest.
Domestic - Payment for sales are to be made pursuant to the terms and amount stated on the order acknowledgment, without offset. Payment for sales from a Buyer located within the U.S. can make payment via bank transfer (wire) to One Shot Inc. JPMorgan Chase Bank N.A., 270 Park Ave., New York, NY 10017; ABA# 021000021; Account # 799202288.
International - Unless otherwise specified, payment is due prior to delivery of Product(s). A Buyer located outside the U.S. may apply to establish credit terms with Trajectory Technologies. Trajectory Technologies requires the disclosure and evaluation of Buyer’s financial statements in order to extend credit terms to Buyer hereunder. Payment for sales from a Buyer located outside the U.S. can make payment via bank transfer (wire or irrevocable letter of credit) to One Shot Inc. JPMorgan Chase Bank N.A., 270 Park Ave., New York, NY 10017; Swift Code CHASUS33XX; Account # 799202288 Letters of credit must be furnished by Buyer in a form acceptable to Trajectory Technologies. Letter of credit requirements shall be furnished as required. All costs related to opening, confirming, extending, and modifying such letters of credit shall be the responsibility of the Buyer.
6. Delivery. Trajectory Technologies will deliver products by arranging shipping to the receiving area at the “ship to” address specified in Buyer’s order. Delivery dates indicated on purchase orders are requests only. Buyer acknowledges and agrees that the delivery dates provided by Trajectory Technologies upon its written acceptance of purchase orders are estimates only and may be changed. Trajectory Technologies will use commercially reasonable efforts to deliver in accordance with the delivery dates in the acknowledgment, however, Trajectory Technologies will not be liable for failure to deliver as estimated. Buyer agrees to accept partial deliveries when Product becomes available, unless Buyer’s written order specifically stipulates the order must be shipped complete with all products. Delivery is subject to the payment terms set forth herein. Transportation and handling charges are payable by Buyer as specified in Trajectory Technologies invoice. In no event shall Trajectory Technologies delivery of Product be construed or interpreted as a transfer of intellectual property rights. Any product provided by Trajectory Technologies shall be deemed accepted by Buyer upon delivery.
7. Packaging and Shipping. Packing shall be in accordance with Trajectory Technologies standard commercial practices. Trajectory Technologies shall utilize its carrier of choice for all shipments and shipping costs will be invoiced to Buyer accordingly. Shipping charges resulting from refused shipments will be immediately due and payable, including a 15% restocking fee of Product’s invoice amount.
8. Title. Title and risk of loss or damage to products pass to Buyer upon Trajectory Technologies delivery to common carrier at Seller’s facility in Newtown, Ohio. Shipping shall be EXW Seller’s Plant per the ICC 2000 INCO Terms.
9. Service. All of Trajectory Technologies ammunition is crafted with pride in the USA and manufactured with our customer’s satisfaction in mind.
A. Warranty. Trajectory Technologies guarantees every product to be free from manufacturing defects in material and workmanship. In the event of a defect, Trajectory Technologies at its sole option will promptly replace the product without charge to the customer, and such action on the part of Trajectory Technologies shall be the full extent of Trajectory Technologies liability. All costs associated with product shipment to Trajectory Technologies will be incurred by the purchaser/end-user. Trajectory Technologies will incur costs associated with product return to purchaser/end-user.
This warranty does not cover a product:
(a) Used in other than its normal and customary manner
(b) Subjected to misuse
(c) Subjected to alterations or modifications by the Customer or by any other party other than Trajectory Technologies without the prior written consent of trajectory Technologies
(d) Special order or merchandise sold “as is” by Trajectory Technologies
(e) Merchandise that has been discontinued by the manufacturer.
Trajectory Technologies shall not be responsible for any defects or damage that in manufacturer’s opinion is a result of mishandling, abuse, misuse, improper storage or improper operation, including use in conjunction with equipment which is mechanically incompatible with or of inferior quality to the product, as well as failure to maintain the environmental conditions specified by the manufacturer. Any breach of this warranty shall be waived unless the customer notifies Trajectory Technologies. The customer understands and agrees that except for the foregoing warranty, no other warranties written or oral, statutory, expressed or implied, including any implied warranty of merchantability or fitness for a particular purpose, shall apply to the product. All such implied warranties are hereby and expressly disclaimed.
Returns. Trajectory Technologies will accept the return of merchandise provided the product(s) has been purchased within the last sixty (60) days and has not been used. Trajectory Technologies will assess a fifteen percent (15%) restocking fee on any returned product(s).
Products sent to Trajectory Technologies for warranty or return, must have a valid Return Authorization Number. Buyers obtain a Return Authorization Number by calling Trajectory Technologies Warranty/Return Department at 513-272-6764 during normal business hours. If a product arrives at Trajectory Technologies without a valid Return Authorization Number the product will be immediately returned to Buyer and billed the shipping fee. To obtain warranty or return on a product, send product with a valid return authorization number to the manufacturer at the address below, postage paid. All product(s) must be fully insured with the correct postage; Trajectory Technologies will not be responsible for improper postage or missing or damaged merchandise during shipment.
Trajectory Technologies Inc. TRAJETECH ™
Warranty and Return Department
3765 Round Bottom Road
Newtown, Ohio 45244
Reference: RA#
Trajectory Technologies shall not, in any event be liable for any damages, including any lost profits, lost savings, or other incidental or consequential damages arising out of the use or inability to use such products. This warranty gives the purchaser/end-user certain legal rights, and possibly other rights, which vary from state to state.
10. Limitation of Liability. Trajectory Technologies will not be liable for any claims, actions, suits, proceedings, costs, expenses, damages of liabilities arising out of the use of Trajectory Technologies products. Operation and use of the product are the sole responsibility of the Customer. Trajectory Technologies sole undertaking is limited to providing the products and services outlined herein. Trajectory Technologies liability hereunder for damages, regardless of the form or action, shall not exceed the fees or other charges paid to Trajectory Technologies by the customer or customer’s distributor. Trajectory Technologies SHALL NOT, IN ANY EVENT OR UNDER CIRCUMSTANCES, BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE AGREEMENT TO SELL PRODUCT TO BUYER OR THE PRODUCT, INCLUDING, BUT NOT LIMITED TO, INJURY AND OR DEATH, LOST INCOME, LOST REVENUE, LOSS OF GOODWILL, LOSS OF USE OR LOST PROFIT, WHETHER SUCH DAMAGES WERE FORESEEABLE OR NOT AT THE TIME OF PURCHASE, AND WHETHER OR NOT SUCH DAMAGES ARISE OUT OF A BREACH OF WARRANT, A BREACH OF AGREEMENT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY.
11. Product Identification. Trajectory Technologies identifies each of its products with a unique lot number. This number will be utilized by Trajectory Technologies for internal and external tracking purposes.
12. Changed or Discontinued Product. Trajectory Technologies policy is one of ongoing update and improvement. Trajectory Technologies may revise and discontinue Product at any time in its sole discretion. Trajectory Technologies will ship Product that has the functionality and performance of the Product ordered, but changes between what is shipped and what is described in the specifications, manual or catalog are possible. Trajectory Technologies shall endeavor to provide notification of changes in Product’s form, function, specifications or discontinuance; however Trajectory Technologies has no obligation and/or liability for failure to notify Buyer.
13. Intellectual Property Rights. Trajectory Technologies shall retain all copyright, patents, trademarks, trade secrets and other intellectual property rights it possesses with regard to any and all design, process, or manufacturing technologies. Trajectory Technologies shall also retain any and all other proprietary rights in and to the Products, Software, documentation and other related materials, and all copies and derivative works thereof (by whomever produced). Nothing herein shall be construed to grant to Buyer any right or license in any copyright, patent, trademark, trade secret or any other intellectual property right.
Infringement
Trajectory Technologies shall indemnify Buyer against any alleged infringement claim, limited to the value of the applicable order, that product(s) directly infringes a U.S. patent or copyright, if customer:
(i) Promptly notifies Trajectory Technologies of the claim in writing;
(ii) Cooperates with Trajectory Technologies in the defense of the claim; and
(iii) grants Trajectory Technologies sole control of the defense or settlement in the claim.
Trajectory Technologies has no obligation for any claim of infringement arising from:
(i)Trajectory Technologies compliance with Buyer or third party specifications and/or designs;
(ii) Modifications made by Buyer or a third party,
(iii) Buyer’s non-compliance with recommended usage.
In satisfaction of an infringement claim, Trajectory Technologies will replace or modify product(s) with non-infringing products that are functionally equivalent. This subsection states Trajectory Technologies total responsibility and liability and Buyer’s sole remedy, for any actual or alleged intellectual property infringement.
14. Software. “Software” is defined as machine-readable code or firmware, which is owned by or licensed to Trajectory Technologies, and resides in Product. The Buyer and or end-user is not authorized to reproduce, copy, modify, repair, decompile, reverse engineer, disassemble, reverse translate, or in any matter decode the Software.
15. Indemnification. Buyer shall defend, indemnify, and hold harmless Inc., its parents, subsidiaries, divisions and affiliates, and their respective directors, officers and employees and representatives, from and against any and all claims, suits, losses, liabilities, obligations, causes of action, damages, and expenses (including attorney’s fees) relating to or arising out of any use of the Product by Buyer to its Customers.
16. General
A. Force Majeure. Trajectory Technologies shall not be liable hereunder due to any cause beyond its control, including but not limited to acts of God, acts of civil or military authority, fires, epidemics, floods, riots, wars, sabotage, labor disputes, yield problems, government actions, or inability to obtain materials, components, energy or transportation. In the event of any such delay, Trajectory Technologies failure to perform any obligation under these standard terms and conditions shall be extended by a reasonable period of time.
B. Electronic Orders and EDI. Trajectory Technologies and Buyer may do business electronically, including order placement and acceptance. Once accepted, such orders will create fully enforceable obligations subject to these terms and conditions. Such orders and acceptances will be deemed for all purposes to be an original signed writing. Buyer and Trajectory Technologies will adopt commercially reasonable security measures for password and access protection. Buyer will be responsible for any and all set up fees and costs associated with electronic orders and EDI.
C. Export. Orders are subject to any and all applicable laws and regulations of the United States relating to the export, re-export, delivery or transfer of the Product from the United States of America, including without limitation, the Export Administration Regulations (EAR) (15 C.F.R. Ch. VII, Subchapter C) and the International Traffic in Arms Regulations (ITAR) (22 C.F.R. Ch. I, Subchapter M). Buyer shall not ship, transfer, export or use the Product in violation of applicable export laws, regulations or restrictions.
D. Assignment. Buyer may not assign its rights, delegate or otherwise transfer its obligations hereunder without the prior written consent of Trajectory Technologies and any purported assignment or delegation without such consent shall be of no force or effect.
E. Waiver. Any waiver by Trajectory Technologies of any default by Buyer shall not be deemed to be a continuing waiver of such default or a waiver of any other default or of any of the terms and conditions hereunder.
F. Entire Agreement. These terms and conditions of sale represent an entire agreement between Trajectory Technologies and Buyer and are incorporated by reference into all domestic and international consultant, representative and distributor agreements. In the event any provision of these terms and conditions are held invalid, illegal or unenforceable that provision shall be severed and the remainder of the provisions will remain enforceable and unaffected thereby.
G. Survival. Any provision in these terms and conditions which by their nature extend beyond the termination or expiration of any sale of Product or Support will remain in effect until fulfilled and will apply to both parties’ respective successors and permitted assigns.
H. Governing Law; Waiver of Jury Trial. The validity, performance and construction of these terms and conditions, and any disputes arising from or relating thereto, shall be governed by the laws of the State of Ohio, U.S.A. The parties specifically exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to the Agreement, to the contractual relationship created under the Agreement, and to the construction, validity, enforcement, and interpretation of the Agreement. The parties agree that the exclusive venue for any action arising out of or related to the Agreement shall be in the courts with the appropriate jurisdiction serving Newtown, Ohio and each party irrevocably submits to the jurisdiction of each such court in any such action and waives any objection it may now or hereafter have to venue or personal jurisdiction in each such court. The prevailing party in any action related to the dispute or interpretation of the Agreement shall be entitled to recover its reasonable attorneys fees incurred in pursuing the action, including those fees incurred throughout all bankruptcy and appellate proceedings. The Parties FURTHER AGREE, TO THE EXTENT PERMITTED BY LAW, TO WAIVE ALL RIGHTS TO A TRIAL BY JURY OF ANY ACTION RELATING TO THE DISPUTE OR INTERPRETATION OF THE AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. THE PARTIES SPECIFICALLY ACKNOWLEDGE THAT THIS WAIVER IS MADE KNOWINGLY AND VOLUNTARILY AFTER AN ADEQUATE OPPORTUNITY TO NEGOTIATE ITS TERMS AND THAT SUCH WAIVER IS MATERIAL CONSIDERATION FOR THE SALE AND PURCHASE CONTEMPLATED HEREBY.
I. Non-Disclosure. Trajectory Technologies will use Buyer related data, including but not limited to Buyer address and contact information. Unless otherwise agreed, Buyer accepts that such data will be used and distributed within Trajectory Technologies and to certain third parties. Each party’s confidential or proprietary information may, if required by the parties, be further defined and protected by separate Non-Disclosure Agreement and each party’s sole and exclusive obligations with regard to such confidential and proprietary information shall be as set forth in such agreement.
J. Independent Contractor. Trajectory Technologies is an independent contractor in the performance under these terms and conditions and neither Trajectory Technologies nor any of its personnel are employees or agents of Buyer. Nothing in these terms and conditions will be construed as creating a joint venture, partnership or employment relationship between the parties, nor will either party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other.
K. Headings. The section headings used herein are for convenience of reference only and do not form part of these terms and conditions, and no construction or inference shall be derived therefrom.
L. Language. Trajectory Technologies and Buyer confirm that it is their desire that these terms and conditions, as well as other documents relating hereto, including all notices, have been and will be drawn up in the English language only.
17. MINIMUM ADVERTISED PRICE (MAP) POLICY
The following is Trajectory Technologies policy regarding the advertising and pricing of the Products.
A. Purpose: Trajectory Technologies MAP Policy is designed to avoid depreciation of, or damage to, the trademarks, brands or trade names under which its products, including the Products, are sold. Trajectory Technologies’ intention and policy is not to engage any dealer, distributor or retailer that advertises products below Trajectory Technologies then current and published Minimum Advertised Price (MAP).
B. Minimum Advertised Pricing: A dealer, distributor or retailer may advertise at any price it chooses, as long as it is not less than Trajectory Technologies then current and published MAP. Trajectory Technologies hereby provides notice that advertising Trajectory Technologies products, including the Products, using Trajectory Technologies copyrighted materials (including photographs from the website, photo library or Trajectory Technologies -created product descriptions) at a price below Trajectory Technologies MAP constitutes a violation of this policy and will lead to remedial action by Trajectory Technologies which may result in ultimate discontinuance of business with such dealer, distributor or retailer. No part of this policy is intended to influence the actual prices at which a dealer, distributor or retailer resells Trajectory Technologies products.
C. Advertising Defined: For the purposes of this policy, the term “advertising” shall include ANY listing, description or graphic display of Trajectory Technologies products accessible to consumers/customers directly, including but not limited to, print media, television, radio and the World Wide Web. Advertising shall not include a price quotation sent via email to a consumer/customer at the consumer’s/customer’s request.
D. Wholesalers: This policy does not apply to distributors whose business consists exclusively of the resale of Trajectory Technologies product (also known as “wholesalers”) to resellers, dealers or retailers. Trajectory Technologies requires that all wholesalers use good faith efforts in enforcing this policy and comply with any published “Do Not Sell” list which Trajectory Technologies may publish.
E Violations of Policy: All failures to comply with this policy constitute a material breach of these Terms and Conditions. It is Trajectory Technologies intention to administer the policy fairly, reasonably and in a progressive fashion.
F. Changes in MAP and Products: All Trajectory Technologies products, including the Products, are subject to this policy, including any new products. Trajectory Technologies at any time, in its sole discretion may revise its MAP policy for any product. Each addition and each revision shall be effective at such time specified by Trajectory Technologies in its pricing schedule, which will be provided to each dealer or distributor. Trajectory Technologies last price lists are available to all dealers, distributors and retailers at its office. All changes of such prices, as and when made, will also be available.
G. Discounts, Premiums, Combinations: Should any dealer, distributor or retailer advertise the giving of any article of value in connection with the sale of any Trajectory Technologies products, or the making of any concession in connection with sale of any products, or combination of Trajectory Technologies products, which together would be below MAP if sold separately, shall represent a violation of this policy.
H. Price Reductions, Inventory Reduction & Clearance: Trajectory Technologies may exempt certain designated items from this policy for the purpose of inventory reduction and model closeouts.
Trajectory Technologies has the exclusive authority to resolve all disputes, conflicts, controversies or questions in relation to this Policy.
18. COMPLIANCE WITH APPLICABLE LAWS
Customer warrants that Customer shall comply with any and all applicable US federal and state laws, and shall operate in good faith to comply with other laws and regulations and industry best practices, applicable to such party’s performance hereunder, and shall promptly act to correct any noncompliance once identified.