These general sales terms (“Terms”) are applicable to all sale of promotional products (“Products”) by PopSockets INC., 5757 Boulder, Colorado 80301 (“PopSockets”) to any business customer (“Customer”) unless explicitly otherwise set forth in the offer or order confirmation given by PopSockets or agreed in writing by the parties.
- Conclusion of a Contract
Any offer made by PopSockets, is valid for thirty (30) days from the date of the offer. The sales Contract for Products is concluded and binding upon the parties when PopSockets has accepted the Customer's order in writing (“Contract”).
Products are meant for promotional purposes and are not intended for retail sale.
Customer shall timely provide PopSockets all Customer specific material required to make the Products for the Customer as agreed. PopSockets will send an electronic mock-up sample of the Product for Customer approval before production of the ordered Products. Customer will approve the sample or inform of any errors in the sample within 5 working days from the receipt of the sample. No modifications can be made after acceptance of the sample.
All prices for Products are net prices and exclusive of shipping costs, VAT and other applicable taxes, duties, custom fees, fiscal and banking charges. PopSockets will add the applicable shipping costs, taxes and charges to invoices submitted to the Customer as required by law.
All costs caused by preparation of customer specific material like plates, films etc. shall be charged separately, even if no following order is made by the Customer.
After PopSockets´ order confirmation, all costs due to any addition to or alteration of the Products ordered by the Customer shall be charged separately.
Unless otherwise mutually agreed in writing, Customer will prepay all Products on or before a date specified by PopSockets.
Any balance that is not paid within the time frame specified, will bear interest at the rate of one percent (1%) per month (or a pro rata portion of such month) or the highest rate allowed by the applicable law, whichever is less, until fully paid. Customer will pay all costs and expenses of collection incurred by PopSockets, including reasonable attorneys’ fees and expenses. If Customer is granted credit PopSockets reserves the right to revoke or change credit terms at any time, in its sole discretion, with or without providing notice to Customer. Not limiting the foregoing, PopSockets is not obligated to deliver any Product(s) and is entitled to reject any order received from the Customer and withhold delivery of any Product(s) if the Customer is in delay with any payment due under the Contract or if the amount of available credit has been exceeded as well as charge storage and handling costs to Customer for all deliveries ordered that are delayed pursuant to this Clause for each day any such shipment is delayed past the originally scheduled shipment date. Customer will provide all financial information (including audited financial reports) requested by PopSockets from time to time in order to make a proper assessment of the creditworthiness of Customer and/or the ultimate customer.
PopSockets will deliver the Products DAP to a delivery point designated in the order confirmation or advanced Shipping Notice (ASN) (“Delivery Point”) (Incoterms 2020).
Date of delivery is indicated in the offer or order confirmation as accurately as possible. However, delivery times specified are estimates only and PopSockets assumes no liability for delayed delivery. PopSockets may make partial or advance shipments. PopSockets will promptly inform the Customer of any expected delay of the delivery, the reasons and effects thereof as well as the estimated new delivery time if possible.
- Acceptance of Delivery and Returns
The Products will be deemed to be accepted when the Customer (or its carrier) takes possession of the Products at the Delivery Point. Customer will inspect Products at the Delivery Point. The scope of the inspection shall be at least the following: i) the Product type and model, ii) the quantity, and iii) the packaging for physical damage. Customer will promptly notify PopSockets, in writing, of all complaints concerning the Products latest within five (5) days of receipt by Customer of such Products.
The Customer will not return any Products to PopSockets for any reason without first obtaining a return merchandise authorization (“RMA”) from PopSockets. Any such Products so returned shall be (a) returned in original packaging and in resalable condition; (b) prominently marked with the RMA number supplied by PopSockets; and (c) sent to the location specified by PopSockets, freight prepaid. Other than pursuant to the warranties and remedies expressly set forth in Clause 8 below, or as otherwise approved by PopSockets in its sole discretion, Products are not returnable
- Title to the Products and Intellectual Property Rights
Title to the Products belong to PopSockets until all outstanding invoices, late payment interest and collection costs have been settled by the Customer.
Title to and any intellectual property rights related to the pictures, drawings, calculations and other documents included in the offers or other material prepared by PopSockets, belong to PopSockets. The Customer shall not use them to any other purposes than for ordering Products from PopSockets or disclose them to any third party without PopSockets´ prior written consent.
Except for the Customer specific customizations made to the Products the intellectual property rights relating to Products belong to PopSockets. Printing files and other prepress material provided by the Customer or prepared by PopSockets at the Customer´s cost belong to the Customer. Any such material in PopSockets´ possession may be destroyed by PopSockets if not used for production for 24 months.
The Customer represents and warrants that it has all necessary rights and licenses to the logos, trade names, images other printing specifications and Customer specific materials for PopSockets to manufacture and supply the ordered Products to the Customer. The Customer agrees to indemnify, defend and hold harmless PopSockets against any claims, suits or demands and resulting damages, costs, loss or other liabilities alleging infringement of a third party intellectual property or other property right resulting from PopSockets´s use of the Customer´s logos, trade names, images or other printing specifications and Customer specific materials in accordance with the Contract.
PopSockets warrants that the Products will be free from material defects in materials and workmanship for a period of two (2) years from the date of delivery at the Delivery Point. Except as explicitly required by applicable law, Customer will make no warranties with respect to any of the Products that exceed the express warranties made by PopSockets.
PopSockets’ sole obligation, and Customer’s sole remedy, with respect to any Products that do not conform to the express warranties made by PopSockets will be to repair or replace the Products (at PopSockets’s choice), in which case, PopSockets will be responsible for any reasonable costs of shipment incurred.
The express warranties set forth in these Terms are in lieu of and PopSockets hereby expressly disclaims and excludes all other representations, conditions, warranties or guarantees, express, implied, statutory or otherwise, including, without limitation, the implied warranties of merchantability, title, non-infringement, fitness for a particular purpose or use, and warranties implied from a course of dealing, performance or usage.
The warranty shall not extend to any defects which are attributable to Customer specifications or materials provided by the Customer, misuse, repair or installation contrary to instructed procedures, or are due to normal wear and tear, accidental incidents or negligence in use, or unauthorized modifications to the Product.
- Product Liability
Subject to Clause 10 of these Terms, PopSockets shall defend and hold Customer harmless against damages finally awarded against Customer and instituted by third parties under the applicable mandatory product liability legislation to the extent such awarded damages concern liability for defective Products or negligence of PopSockets in respect of damage to private property other than the Products or death or personal injury and which awarded damages have arisen from a defect subsisting in the Product at the time of its delivery at the Delivery Point.
The indemnity provided in this Clause will apply provided that Customer: (i) notifies PopSockets promptly about the claim or demand and gives sole and complete control of any defense or settlement to PopSockets; (ii) at the reasonable expense of PopSockets, co-operates and assists with the defense or settlement of the claim; (iii) commits no act or omission that would be prejudicial to the defense; and (iv) complies with any direction from PopSockets to cease any further supply of the Product.
In the event that PopSockets is required to recall or, on its own initiative, recalls any of the Products sold, Customer will assist PopSockets with such recall.
- Limitations and Exclusions of Liability
To the greatest extent permitted by applicable law, even if such damages or loss could have been foreseen or if PopSockets has been apprised by Customer or its clients of the possibility of such damages, and regardless of whether such damages or loss are arising in Contract, warranty, tort, strict liability, negligence or otherwise, in no event will PopSockets be liable for any:
- i) loss of profits, loss of sales, loss of turnover, loss of or damage to business or reputation, loss of Contracts or customers, wasted management or other staff time, losses or liabilities under or in relation to any other Contract; or any indirect, punitive, special, incidental or consequential loss or damage suffered by Customer or its clients; and
ii)costs of procurement of substitute goods; and
iii) amount of damages or loss in excess of the total amount actually paid by Customer to PopSockets for the specific Product(s) that directly caused the damages; and
- iv) damage or loss resulting from: a) modifications made to the Products by Customer, its clients or any third party other than PopSockets or its subcontractors authorized to do so; or b) any specifications, or material provided by the Customer; c) the usage of the Products for any purpose other than for which they were designed or against PopSockets’s instructions or d) PopSockets complying with an industrial standard.
Notwithstanding what is stated here above in this Clause nothing in these Terms excludes liability for death or personal injury resulting from negligence or for fraud, damages caused by willful misconduct or gross negligence or for any liability which cannot be excluded or limited under any mandatory applicable law.
- Force Majeure
Except for the payment of monies due neither party will be liable for any breach of the Contract occasioned by force majeure events such as fires, floods, extreme weather, epidemics, quarantine restrictions, riots, labor dispute, unavailability of transportation, goods, energy or services, governmental restrictions or actions, war (declared or undeclared), terrorism or other hostilities, or by any other event, condition or cause beyond the reasonable control of such party. In the event of nonperformance or delay attributable to any such causes, the period of performance of the applicable obligation will be extended for a period equal to the period of delay; provided, however, that the party so delayed uses reasonable efforts, without obligation to expend substantial amounts not otherwise required under the Contract, to circumvent or overcome the cause of delay. In the event that the delay should exceed 90 days, either party has the right to terminate the Contract effective immediately by giving notice to the other party. A force majeure suffered by a subcontractor of a party shall also discharge a party from liability if subcontracting from other source cannot be made without unreasonable costs or a significant loss of time.
- Termination of Contract
Either party may, without affecting its other rights or remedies, terminate the Contract immediately by written notice to the other identifying the cause for the termination if:
- i) the other party becomes subject to bankruptcy, composition, insolvency administration, administrative receivership or other similar proceedings; or
- ii) the other Party is in material breach of the Contract and fails to cure such breach or present an acceptable plan to cure the breach within thirty (30) days following the written notice from the non-defaulting Party.
Cancellation or termination by PopSockets of any Contract in whole or in part in case of breach of these Terms, or other default of any kind by the Customer shall entitle PopSockets to charge the Customer for all materials and work performed in connection with the orders or deliveries to the Customer.
- Governing Law and Disputes
These Terms and the Contract shall be governed by and construed in accordance with the laws of Finland excluding its choice of law provisions and application of the U.N. Convention on Contracts for the International Sale of Goods.
Any dispute, controversy or claim arising out of or relating to these Terms and the Contract, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The arbitration shall be held in Helsinki, Finland. The number of arbitrators shall be one (1). The language used in arbitration, including the language of the proceedings, the language of the decision, and the reasons supporting it, shall be English. All awards shall be final and binding on the Parties and enforceable in any court of competent jurisdiction. The parties shall treat the award as Confidential Information.
Nothing in this Clause shall, however, prevent either party from applying to the courts of any country (i) for injunctive or other equitable relief to prevent or curtail any breach of these Terms or the Contract; (ii) in relation to an infringement of intellectual property rights; (iii) in respect of misuse of confidential information or breach of confidence; (iv) for PopSockets to reclaim sums owing by the Customer; or (v) for enforcement of an arbitral award.